United States District Court, S.D. Mississippi, Southern Division
HENRY J. LANERI, III PETITIONER
PELICIA HALL, Commissioner of MDOC, and JODY BRADLEY, Warden RESPONDENTS
REPORT AND RECOMMENDATION
Michael T. Parker United States Magistrate Judge
MATTER is before the Court on the Petition  of Henry J.
Laneri, III for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 and Respondent's Motion to Dismiss 
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  be granted and the
Petition  be dismissed with prejudice.
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.
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].
January 25, 2017, Petitioner filed his state petition for
habeas corpus 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. Order Dismissing Petition for
Post-Conviction Relief [8-5].
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).
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].
August 8, 2018, Petitioner filed his Petition for Writ of
Habeas Corpus  challenging his 2016 revocation.
Thereafter, Respondents filed their Motion to Dismiss ,
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 .
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