United States District Court, S.D. Mississippi, Northern Division
NICHOLAS D. BROWN PETITIONER
TIMOTHY OUTLAW RESPONDENT
REPORT AND RECOMMENDATION
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE.
THE COURT is the Petition under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody, filed by
Petitioner Nicholas D. Brown. Respondent, Warden Timothy
Outlaw, has filed a Motion to Dismiss (ECF No. 8), and twice
supplemented (ECF Nos. 15, 19) the Motion to Dismiss to
provide updates regarding Brown's postconviction
proceedings in state court. Brown ultimately received
postconviction relief in May 2018. Based upon information
provided by the Mississippi Department of Corrections (MDOC),
Brown was released from incarceration around July 30, 2018,
and is on GPS monitoring in Simpson County,
Mississippi. Brown has not updated his address, and he
has not responded to Respondent's most recent supplement
to the Motion to Dismiss, which was filed on December 14,
2018. Brown has not filed anything with the
Court in this case since July 5, 2018, prior to his release.
Having considered the submissions of the parties, the record,
and relevant legal authority, the undersigned United States
Magistrate Judge concludes that all claims in the Petition
should be dismissed with prejudice. The portion of
Brown's Petition challenging his conviction and sentence
for possession of codeine is moot. All claims are
procedurally defaulted and barred from federal review.
April 2013, Brown was indicted by a Simpson County grand jury
on two counts of possession of a controlled substance.
Brown v. State of Mississippi, No.
2016-CP-00600-COA, 2018 WL 5603694 (Miss. Ct. App. Feb. 13,
2018), reh'g denied (Oct. 30, 2018). In Count 1,
he was charged with possession of approximately 12.1
milliliters of codeine. In Count II, he was charged with
possession of approximately 1.2 grams of cocaine. In March
2014, Brown pleaded guilty to only Count II, possession of
1.2 grams of cocaine. At his plea hearing, Brown requested to
enter a drug-court program. The trial court withheld
acceptance of Brown's guilty plea and placed Brown on
nonadjudicated probation. The trial court also accepted
Brown's request to enter a drug-court program.
2015, Brown was found to have violated the terms and
conditions of the drug-court program. The trial court found
that Brown's nonadjudicated status should be revoked and
accepted his guilty plea. Brown was mistakenly sentenced on
both Counts 1 and 2, when he did not plead guilty to Count 1.
Brown was sentenced to sixteen years on Count 1 and eight
years on Count II, with the sentences to run consecutively.
October 2015, Brown filed at least four motions for
postconviction relief (PCR motion) in the circuit court,
alleging that his plea was involuntary, his counsel was
ineffective, and the search warrant was invalid. Brown also
filed petitions under 28 U.S.C. § 2254 in this Court. In
February 2016, Brown filed a § 2254 petition in
Brown v. Stanciel, Cause Number 3:16-cv-217-HTW-LRA
(S.D.Miss.), which was dismissed for failure to exhaust state
court remedies. In September 2016, Brown filed a 2254
petition in Brown v. Mississippi, Cause Number
3:16-cv-697-CWR-LRA (S.D.Miss.), which was dismissed for
failure to exhaust state court remedies.
November 2016, the circuit court denied Brown's PCR
motions. Brown timely appealed. In January 2017, Brown filed
a third § 2254 petition in this Court, Brown v.
Lee, Cause Number 3:17-cv-49-TSL-JCG (S.D.Miss.), which
was dismissed as duplicative of Cause Number
3:16-cv-697-CWR-RHW (S.D.Miss.). In June 2017, Brown filed a
fourth § 2254 petition in Brown v. State of
Mississippi, Cause Number 3:17-cv-460-HSO-FKB
(S.D.Miss.), which was dismissed for failure to prosecute.
Brown's fifth § 2254 petition, filed January 12,
2018, is the instant Petition. In it, Brown urges that his
plea was involuntary, his trial counsel was ineffective, the
search warrant was invalid, and there was no factual basis
for his plea.
February 13, 2018, the Court of Appeals of the State of
Mississippi handed down its original decision affirming the
denial of Brown's PCR motions in Cause Number 2015-291-1.
See Brown v. Mississippi, No. 2016-CP-00600-COA,
2018 WL 833097 (Miss. Ct. App. Feb. 13, 2017). Brown timely
filed for rehearing. While Brown's rehearing motion was
pending, the circuit court entered an order on March 14,
2018, in Brown's criminal cause, 2013-90-K-1, to correct
the mistake in Brown's March 2014 order of conviction.
The May 2018 circuit court order was also filed in
Brown's civil PCR cause, 2015-291-1. The May 2018 order
states that the portion of the order of conviction stating
that Brown pleaded guilty to possession of codeine was a
mistake. The May 2018 order corrects the order of conviction
to reflect that Brown only pleaded guilty to possession of
cocaine. The May 2018 order corrects the order revoking
Brown's nonadjudicated status to strike the sixteen-year
sentence for possession of codeine. The May 2018 order
provides that all other portions of the order of conviction
and revocation order remain in effect.
October 30, 2018, based upon the circuit court's May 14,
2018, order, the Court of Appeals withdrew its initial
opinion and entered a superseding opinion, which denied in
part and dismissed as moot in part Brown's motion for
rehearing. See Brown v. State of Mississippi, No.
2016-CP-00600-COA, 2018 WL 5603694 (Miss. Ct. App. Feb. 13,
2018), reh'g denied (Oct. 30, 2018). Brown did
not seek certiorari review from the Mississippi Supreme Court
of the Court of Appeals' decision.
appealed the circuit court's order in his criminal case
that corrected the order of conviction and struck the
sixteen-year sentence for possession of codeine. Brown filed
that appeal on July 20, 2018, about ten days before his
release. The appeal remains pending in Court of Appeals Cause
Number 2018-TS-1046-COA, although Brown's motion for
leave to appeal in forma pauperis was denied in December
2018, and he has not paid the filing fee. It appears that
Brown has abandoned both this action and the state court
appeal he filed on July 20, 2018.
Standard of Review
of state remedies is a mandatory prerequisite to federal
habeas relief under 28 U.S.C. § 2254:
(b)(1) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
Court shall not ...