United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
R. Anderson United States Magistrate Judge.
Walker filed the instant petition for writ of habeas corpus
relief pursuant to 28 U.S.C. § 2254. Respondent moves to
dismiss the petition for failure to exhaust state court
remedies as required under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Having reviewed the record
and all applicable law, the undersigned recommends that the
petition be dismissed for the reasons that follow.
August 1, 2016, Walker entered a guilty plea to felony false
pretense in the Circuit Court of Rankin, County Mississippi.
He was sentenced as a non-habitual offender to serve a
ten-year term in the custody of the Mississippi Department of
Corrections (“MDOC”), with two years suspended of
post-release supervision. On September 20, 2016, Walker filed
a motion for post-conviction collateral relief which the
Rankin County Circuit Court subsequently denied. The
Mississippi Court of Appeals affirmed the denial on January
8, 2019, in Walker v. State, No. 2017-CP-01191-COA,
2019 WL 125934 (Miss. Ct. App. Jan. 8, 2019). Aggrieved,
Walker filed a motion for rehearing on January 25, 2019,
which was denied on May 21, 2019. Walker then filed a
petition for writ of certiorari in this Mississippi Supreme
Court on June 12, 2019, which both parties acknowledge is
still pending as of this date. On May 7, 2018, he filed the
instant petition as a “protective” filing
requesting that this Court stay and abate federal proceedings
until his state court remedies are exhausted. Palacios v.
Stephens, 723 F.3d 600, 604 (5th Cir. 2013).
is well settled. Applicants seeking federal habeas relief
under 28 U.S.C. § 2254 are required to exhaust all
claims in state court prior to requesting federal collateral
relief. Parr v. Quarterman, 472 F.3d 245
(5th Cir. 2006). To satisfy the exhaustion requirement
of' 2254(b)(1), a “habeas petitioner must have
fairly presented the substance of his claim to the state
courts.” Smith v. Dretke, 422 F.3d 269, 276
(5th Cir. 2005). This requires submitting the factual and
legal basis of every claim to the highest available state
court for review. Carter v. Estelle, 677 F.2d 427,
443 (5th Cir. 1982), cert. denied, 450
U.S. 1056 (1983). A habeas petitioner who has failed to
exhaust all of his post-conviction remedies has asserted no
cognizable right to federal habeas relief under section 2254.
See Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.
does not deny his failure to exhaust state court remedies in
the instant case. He concedes that this matter is still
pending in state court, but he requests this petition be held
in abeyance until his state court remedies are exhausted.
the United States Supreme Court has instructed that stay and
abeyance is an extraordinary remedy not to be made readily
available when claims are unexhausted. The Court cautions
that “stay and abeyance should be available only in
limited circumstances” because “granting a stay
effectively excuses a petitioner's failure to present his
claims first to the state courts.” Rhines v.
Weber, 544 U.S. 269, 277 (2005) (holding that district
courts have discretion to stay-and abate petitions containing
both exhausted and unexhausted claims); see also Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005) (suggesting, in
dicta, that the stay-and-abeyance procedure may apply to
petitions containing only unexhausted claims). Stay and
abeyance is only appropriate when there is good cause for the
petitioner's failure to fully exhaust his claims in state
court first. Rhines, 547 U.S. at 277-78. “A
petitioner's reasonable confusion about whether a state
filing would be timely will ordinarily constitute ‘good
cause' for him to file in federal court.”
Pace, 544 U.S. 408, 416 (citing Rhines, 547
U.S. at 270). But that is not the case here.
initiated state court post-conviction proceedings on
September 20, 2016, approximately seven weeks after entering
his guilty plea. He therefore has approximately ten and a
half months after resolution of his state court
post-conviction proceedings to file a petition for writ of
habeas corpus relief pursuant to 28 U.S.C. § 2254.
Habeas petitioners must exhaust state remedies by pursuing
their claims through one complete cycle of either state
direct appeal or post-conviction collateral proceedings.
See Orman v. Cain, 228 F.3d 616, 620 & n. 6 (5th
Cir. 2000); Bledsue v. Johnson, 188 F.3d 250, 254 n.
8 (5th Cir. 1999). Until such time, his claims are
unexhausted. Walker is hereby cautioned, however, that he
must act diligently in exhausting his state court remedies
and filing a subsequent federal habeas petition, if he
chooses to do so.
these reasons, the Court finds that his petition should be
dismissed without prejudice for failure to exhaust available
state court remedies.
OF RIGHT TO APPEAL/OBJECT
to Rule 72(a)(3) of the Local Uniform Civil Rules of the
United States District Courts for the Northern District of
Mississippi and the Southern District of Mississippi,
any party within 14 days after being served with a copy of
this Report and Recommendation, may serve and file written
objections to the Report and Recommendation. The objections
must be filed with the Clerk of Court, and the objecting
party must specifically identify the findings, conclusions,
and recommendations to which he objects.
parties are hereby notified that failure to file written
objections to the proposed findings, conclusions, and
recommendation contained within this report and
recommendation, within 14 days after being served with a copy
shall bar that party, except upon grounds of plain error,
from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court. 28 U.S.C. § 636, Fed.R.Civ.P. 72(b) (as amended,
effective December 1, 2009); Douglas v. United Services
Automobile Association, 79 F.3d 1415, 1428-29 (5th Cir.
 The exhaustion requirement is
contained in Section 2254(b)(1) and provides in part the