United States District Court, S.D. Mississippi, Southern Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION , GRANTING RESPONDENTS' MOTION TO
DISMISS , AND DISMISSING WITH PREJUDICE PETITION  FOR
HABEAS CORPUS RELIEF
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Report and
Recommendation  of United States Magistrate Judge Michael
T. Parker entered in this case on July 1, 2019, on
Respondents' Commissioner Pelicia Hall and Warden Jody
Bradley's Motion to Dismiss , and on Petitioner Henry
Joseph Laneri, III's Petition Under 28 U.S.C. §2254
for Writ of Habeas Corpus  filed September 24, 2019.
Having considered the Report and Recommendation, the record
as a whole, and relevant legal authority, the Court finds
that the Report and Recommendation  should be adopted as
the finding of the Court, Respondents Commissioner Pelicia
Hall and Warden Jody Bradley's
(“Respondents”) Motion to Dismiss  should be
granted, and Petitioner Henry Joseph Laneri, III's
(“Petitioner”) Petition Under 28 U.S.C.
§2254 for Writ of Habeas Corpus should be dismissed.
January 13, 2012, Petitioner pled guilty in the Circuit Court
of Pearl River County, Mississippi, to possession of
contraband in a correctional facility. Order [8-1] at 1-3. He
was sentenced to serve eight years imprisonment, 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.
Petitioner was released on post-release supervision, he was
arrested on July 19, 2016, for possession of a controlled
substance and possession of paraphernalia. State Court Record
(“SCR”) Vol. 2 [9-2] at 9, 11. The state 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] at 1.
January 25, 2017, Petitioner filed his state petition for
postconviction relief (“PCR”) alleging that the
sentencing order was erroneous because it did not reflect the
sentence orally pronounced by the trial court, it was not
part of the state court's sentencing transcript, and it
was not included in his petition to enter a guilty plea. SCR
Vol. 1 [9-1] at 10-18. Petitioner also asserted that his
protection against double jeopardy had been violated.
Id. The state court dismissed the petition, finding
that it was barred as a subsequent petition. Order [8-5] at
appealed to the Mississippi Court of Appeals, Laneri v.
State, 248 So.3d 898 (Miss. Ct. App. 2018), which found
on May 22, 2018, that the petition was procedurally barred,
and that the circuit court had properly denied it.
Id. at 898-902. Petitioner had until June 5, 2018,
to file a motion for rehearing or to request additional time
to do so. Order [8-7] at 1-2; see Miss. R. App. P.
10, 2018, Petitioner submitted a notice of appeal, which was
filed on June 18, 2018. Order [8-7] at 1-2. 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. Order [8-8] at 1. Petitioner did not seek
certiorari from the Mississippi Supreme Court.
September 24, 2018, Petitioner filed in this Court a Petition
Under 28 U.S.C. §2254 for Writ of Habeas Corpus 
challenging his 2016 revocation. Pet.  at 1-15.
Respondents Commissioner Pelicia Hall and Warden Jody Bradley
(“Respondents”) have filed a Motion to Dismiss
 asserting that Petitioner's claims are procedurally
barred from federal habeas review, or alternatively, are
unexhausted. Mot.  at 1-9. Petitioner has notified the
Court that he does not intend to respond to the Motion.
See Letter .
Magistrate Judge entered a Report and Recommendation  on
July 1, 2019, finding that Petitioner's claims are
procedurally barred from federal habeas review because he
failed to exhaust his state court remedies, and because he
failed to demonstrate that an exception applies to the
procedural bar. R. & R.  at 3-7. The Magistrate Judge
recommended that the Petition be dismissed with prejudice,
since dismissal without prejudice would be futile.
Id. Plaintiff has not objected to the Report and
Recommendation, and the time for doing so has passed.
no party has objected to a magistrate judge's report and
recommendation, the Court need not conduct a de novo review
of it. 28 U.S.C. § 636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made.”). In such cases, the Court
applies the “clearly erroneous, abuse of discretion and
contrary to law” standard of review. United States
v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
conducted the required review, the Court concludes that the
Magistrate Judge's findings are not clearly erroneous,
nor are they an ...