Smith v. State

Full title: CAROLYN SMITH, Petitioner, v. STATE OF MISSISSIPPI, ET AL. Respondents

Court: United States District Court, N.D. Mississippi, Delta Division

Date published: Mar 17, 2006

No. 2:05CV219-P-A (N.D. Miss. Mar. 17, 2006)

Opinion

No. 2:05CV219-P-A.

March 17, 2006

MEMORANDUM OPINION

W. PEPPER JR., District Judge

This matter comes before the court on the November 2, 2005, pro se petition of Carolyn Smith for a writ of habeas corpus under 28 U.S.C. § 2254. The state moved February 9, 2006, to dismiss the instant petition for failure to exhaust. The petitioner has not responded, and the deadline for response has expired; the matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus shall be dismissed for failure to exhaust.

Facts and Procedural Posture

On August 17, 2005, Carolyn Smith was convicted of one count of sale of a controlled substance in the Circuit Court of Tate County, Mississippi, and sentenced to a term of thirteen years in the custody of the Mississippi Department of Corrections and five years of post-release supervision. The petitioner did not seek further review in state court by filing an appeal or a petition for post-conviction relief.

Discussion

The petitioner's claims have not been exhausted in the state courts. "Applicants seeking federal habeas relief under § 2254 are required to exhaust all claims in state court prior to requesting federal collateral relief." Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). See also Whitehead v. Johnson, 157 F.3d 384, 387 (5^th Cir. 1998). To satisfy the exhaustion requirement, one petitioning for a federal writ of habeas corpus must present his claims to the state's highest court to provide the state with a fair opportunity to pass upon the claims. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also Carter v. Estelle, 677 F.2d 427, 442-44 (5th Cir. 1982); Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). The petitioner has not done so in this case, as she may still seek state post-conviction collateral relief under MISS. CODE ANN. §§ 99-39-1, et seq., and, if she is denied relief, she may go through the state appellate process. For these reasons, the instant petition for a writ of habeas corpus shall be dismissed for failure to exhaust state remedies. A final judgment consistent with this memorandum opinion shall issue today.

SO ORDERED.