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Laneri v. Hall

United States District Court, S.D. Mississippi, Southern Division

July 1, 2019

HENRY J. LANERI, III PETITIONER
v.
PELICIA HALL, Commissioner of MDOC, and JODY BRADLEY, Warden RESPONDENTS

          REPORT AND RECOMMENDATION

          Michael T. Parker United States Magistrate Judge

         THIS MATTER is before the Court on the Petition [1] of Henry J. Laneri, III for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and Respondent's Motion to Dismiss [8] pursuant to Sones v. Hargett, 61 F.3d 410 (5th Cir. 1995) and O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Having considered the parties' submissions and the applicable law, the undersigned recommends that Respondent's Motion to Dismiss [8] be granted and the Petition [1] be dismissed with prejudice.

         BACKGROUND

         On January 13, 2012, Petitioner pled guilty to possession of contraband in a correctional facility in the Circuit Court of Pearl River County, Mississippi. Order [8-1]. Petitioner was sentenced to serve eight years, with two years in the custody of the Mississippi Department of Corrections (MDOC), and the remaining six years to be served under post-release supervision with a five-year supervision period. Id.

         On February 28, 2016, Petitioner was released on post-release supervision, but was subsequently arrested for possession of a controlled substance and possession of paraphernalia on July 19, 2016. SCR Vol. 2 ([9-2] at 9, 11). On September 1, 2016, the circuit court revoked Petitioner's post-release supervision and sentenced him to serve the remainder of his suspended sentence in the custody of the MDOC. Order [8-4].

         On January 25, 2017, Petitioner filed his state petition for habeas corpus[1] alleging that the sentencing order was erroneous because it did not reflect the sentence orally pronounced by the trial court, was not part of the State's sentencing recommendation, and was not included in his petition to enter a guilty plea. SCR Vol. 1 ([9-1] at 10-18). Petitioner also alleged that his protection against double jeopardy was violated. Id. The circuit court dismissed his petition, finding that it was barred as a subsequent petition.[2] Order Dismissing Petition for Post-Conviction Relief [8-5].

         Petitioner appealed to the Mississippi Court of Appeals. Laneri v. State, 248 So.3d 898, 901 (Miss. Ct. App. 2018). On May 22, 2018, the court of appeals found that the petition was procedurally barred, and that the circuit court properly denied Petitioner's PCR. Id. Petitioner had until June 5, 2018 to file a motion for rehearing or to request additional time to do so. MSCOA Order [8-7]. See Miss. R. App. P. 40(a).

         On June 10, 2018, Petitioner submitted a notice of appeal, which was filed on June 18, 2018. Id. The Mississippi Court of Appeals interpreted the notice of appeal to be “in the most lenient sense … a late request for time to file a motion for rehearing.” Id. The court of appeals held the motion in abeyance until further order and gave Petitioner thirty days to show good cause for missing the rehearing deadline. Id. Petitioner failed to respond. Consequently, the court of appeals denied his motion. MSCOA Order [8-8].

         On August 8, 2018, Petitioner filed his Petition for Writ of Habeas Corpus [1] challenging his 2016 revocation. Thereafter, Respondents filed their Motion to Dismiss [8], arguing that Petitioner's claims are procedurally barred from federal habeas review, or alternatively, unexhausted. Petitioner did not respond - and does not intend to respond - to the Motion. See Letter [10].

         ANALYSIS

         The authority of federal courts to issue habeas corpus relief to state prisoners is governed by 28 U.S.C. § 2254 which provides in part:

(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 be granted unless it appears that -
(A) The applicant has exhausted the remedies available in the courts ...

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