MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

This matter comes before the court on the pro se petition of Sanford Mason for a writ of habeas corpus under 28 U.S.C. § 2254. The State has moved [13] to dismiss the petition for failure to state a claim upon which relief could be granted. The petitioner has not responded, and the deadline to do so has expired. The mater is ripe for resolution. For the reasons set forth below, the instant petition for a writ of habeas corpus must be dismissed for failure to state a claim upon which relief could be granted and as procedurally defaulted.

Habeas Corpus Relief Under 28 U.S.C. § 2254

The writ of habeas corpus, a challenge to the legal authority under which a person may be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St. John's L.Rev. 55 (1934). It is "perhaps the most important writ known to the constitutional law of England," Secretary of State for Home Affairs v. O'Brien, A.C. 603, 609 (1923), and it is equally significant in the United States. Article I, § 9, of the Constitution ensures that the right of the writ of habeas corpus shall not be suspended, except when, in the case of rebellion or invasion, public safety may require it. Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56. Its use by the federal courts was authorized in Section14 of the Judiciary Act of 1789. Habeas corpus principles developed over time in both English and American common law have since been codified:

Id. Under 28 U.S.C. § 2254, a federal court may issue the writ when a person is held in violation of the federal Constitution or laws, permitting a federal court to order the discharge of any person held by a state in violation of the supreme law of the land. Frank v. Mangum, 237 U.S. 309, 311, 35 S.Ct. 582, 588, 59 S.Ct. 969 (1915).

Facts and Procedural Posture

In 1982, petitioner Sanford Mason was convicted of rape in the Oktibbeha County Circuit Court and sentenced to serve a term of life in the custody of the Mississippi Department of Corrections ("MDOC"), without parole as a habitual offender. See Exhibit A (Sentencing Order in Oktibbeha County Circuit Court Cause Number 10-373). On direct appeal, the Mississippi Supreme Court affirmed Mason's conviction and life sentence. Mason v. State, 440 So.2d 318 (Miss. 1983) (Cause No. 2003-KA-01203).

On February 8, 2013, Mason filed an Application for Leave to Proceed in the Trial Court with a motion for DNA testing, which was docketed in Mississippi Supreme Court Cause Number 2013-M-00253. See Exhibit C.1 In his motion, brought pursuant to the Mississippi Uniform Post-Conviction Relief Act, MISS. CODE ANN. § 99-39-5(1)(f), Mason sought DNA testing of certain biological evidence, which he believed was available. See Exhibit C. Specifically, he requested that DNA testing be performed on a rape kit collected during the investigation of his case. See id.

On June 7, 2013, the Mississippi Supreme Court granted Mason's Application for Leave to Proceed in the Trial Court with his petition for post-conviction relief seeking DNA testing. See Exhibit D. Mason filed a copy of his petition in the Oktibbeha County Circuit Court, and the Circuit Court appointed counsel to represent him in his post-conviction proceeding. See State Court Record ("SCR"), Cause No. 2017-CP-00415-COA, Vol. 1, p. 25. Mason's appointed counsel advised the circuit court that she had searched diligently for a rape kit and other physical evidence related to Mason's case to allow for DNA testing, but was unsuccessful. See id. at 64-105. On February 6, 2015, the circuit court held a hearing with Mason present, at which the Oktibbeha County Circuit Clerk, an investigator for District Attorney's Office, a witness from the City of Starkville Police Department, and a former Oktibbeha County Circuit Clerk all testified that they, along with Mason's attorney, conducted a full and complete investigation for physical evidence related to Mason's case; however, despite their efforts, they were unable to locate any such evidence. See id. Specifically, the former Oktibbeha County Circuit Clerk testified that, sometime after 1989, probably closer to 2000, significant flooding occurred in the county courthouse — raw sewage spilled from a bathroom in the tax assessor's office, over into an exhibit storage room located below. See id. at 81-87. This significant flooding of raw sewage destroyed or ruined approximately twenty-five percent of the items stored in the exhibit room, to the point that such was unsalvageable. See id. The former clerk testified that, based on her contemporaneous handwritten notes, she believed that the physical evidence from Mason's case was destroyed as a result of the flooding of raw sewage. See id. During the hearing, both Mason and his counsel acknowledged that there was no proof that any of the evidence had been intentionally destroyed. See id. at 92, 95-96. Mason's counsel further acknowledged that there was no evidence of negligence of the parties, the Circuit Clerk, or anyone else. See id. at 92. Mason agreed that his appointed counsel had exhausted her efforts in searching for the evidence. See id. at 99. Mason's counsel advised the court that she could not file a petition for post-conviction relief under Mississippi Code Annotation section 99-39-5(1)(f) "because the evidence does not exist." Id. at 92. The court determined that, based on the information provided at the hearing, there was no evidence to be examined, no showing that the State purposefully destroyed evidence, nor a showing that the Circuit Clerk's Office was negligent in its handling of the destroyed evidence. Id. at 93.

On February 10, 2017, the circuit court entered an Order closing the case. See Exhibit E. In its Order, the circuit court found that: (1) no physical evidence remained in this case to be tested because of its apparent physical destruction; (2) the destruction was not an intentional act of any party, but due to the flooding of raw sewage into the storage area where such evidence would be normally be secured, making any attempt at preservation impossible; and (3) there was no physical evidence to be subjected to testing, so Mason's post-conviction petition was moot, as there was no relief to be sought or which could be granted. See Exhibit E.

Mason appealed the circuit court's Order, contending that the destruction of the rape kit and other evidence collected during the investigation of his case violated his right to due process.2 See SCR, Cause No. 2017-CP-00415-COA, Briefs of the Parties, Appellant's Brief. On May 22, 2018, the Mississippi Court of Appeals affirmed the trial court's ruling that Mason was not entitled to postconviction relief in a published opinion. See Exhibit F. Mason v. State, 247 So.3d 362 (Miss. Ct. App. 2018) (Cause No. 2017-CP-00415-COA). The Mississippi Court of Appeals held that there was no evidence to establish that the State's destruction of the physical evidence in Mason's rape case was in bad faith, as required.3 Id. at 364 (citing Chapman v. State, 47 So.3d 203, 209 ¶ 22 (Miss. Ct. App. 2010), cert. denied, 63 So.3d 1229 (Miss. 2011), and Ariz. v. Youngblood, 488 U.S. 51, 58 (1988) ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.")).4 The record reflects that Mason failed to seek rehearing and, in turn, certiorari review in the State's highest court.

On July 3, 2018, Mason filed the instant petition for writ of habeas corpus and memorandum in support, raising the sole claim of "spoliation," alleging the "destruction of biological evidence." ECF Doc. 1 at 5. Mason alleges that, "if the evidence from the rape kit had not been destroyed it could have been tested through D.N.A. procedure[,] and [the] results of testing could have exonerated Petitioner." Id. In support of his spoliation claim, Mason asserts "[t]he negligent act of the security personnell [sic]" charged with "keeping rape kit samples secured cause[d] Petitioner Mason to still be incarcerated in the State Penitentiary." Id. In his prayer for relief, Mason requests "[t]hat evidence be produced for D.N.A. testing or," alternatively, that he be retried, and for any other relief that this Court deems proper. Id. at 14.

Failure to State a Constitutional Claim

To the extent that Mr. Mason ultimately seeks DNA testing in his request for relief, the instant petition should be dismissed for failure to state a constitutional claim. See ECF Doc. 1 at 14. Mr. Mason filed the instant petition under 28 U.S.C. § 2254, which provides, in relevant part:

28 U.S.C. § 2254(a) (emphasis added). Thus, to maintain a petition for a writ of habeas corpus, a petitioner must be deprived of some right secured to him by the Constitution or the laws of the United States. Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir. 1984); Baker v. McCollan, 443 U.S. 137 (1979); Trussell v. Estelle, 699 F.2d 256, 259 (5th Cir. 1983). In the event that the petitioner has not alleged a deprivation of any such right, he has failed to state a claim for habeas relief, and his claim must be dismissed. Irving, supra at 1216.

Moreover, the question as to whether or not Mason is entitled to DNA testing is solely a question of state law and not of constitutional magnitude. Any right Mr. Mason may have regarding postconviction DNA testing arises solely under Mississippi law and does not implicate a federal constitutional issue. See Johnson v. Thaler, 2010 WL 2671575 (S.D. Tex. June 30, 2010) (citing Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999)). Mississippi's post-conviction statutes have created a right to post-conviction DNA testing available to a criminal defendant, if the movant claims:

MISS. CODE ANN. § 99-39-5(1)(f). Though Mississippi has created a statutory right to DNA testing in certain circumstances, there is no freestanding right to post-conviction DNA testing under the United States Constitution. Dist. Atty's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 72-74 (2009). Further, a federal habeas corpus petitioner possesses no right to collaterally challenge a state-court's application of its statute governing DNA testing. Skinner v. Switzer, 526 U.S. 521, 533-34 (2011) (noting that habeas corpus is not an available remedy where relief sought is not earlier release from custody and concluding that a convicted state prisoner may press a procedural due process claim concerning access to DNA testing under 42 U.S.C. § 1983).5

Mason has failed to raise a cognizable issue in this federal habeas corpus proceeding, in which he ultimately seeks DNA testing, as any right he possesses to DNA testing arises solely under Mississippi law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions," as "[i]n conducting a federal habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.").6 Thus, to the extent that Mason seeks DNA testing of evidence in his request for relief in the instant petition, he has not stated a constitutional claim for habeas corpus review.

Mr. Mason's Claims Are Moot

As the State courts found, the evidence Mr. Mason seeks to have tested no longer exists, as it was destroyed in a raw sewage flooding event at the Oktibbeha County Circuit Court. As it is now impossible to conduct the testing Mr. Mason as requested, the instant petition for a writ of habeas corpus is now moot.

The Doctrines of Procedural Default and Procedural Bar

If an inmate seeking habeas corpus relief fails to exhaust an issue in state court — and no more avenues exist to do so — under the doctrine of procedural default that issue cannot be raised in a federal habeas corpus proceeding. Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995). Similarly, federal courts have no jurisdiction to review a habeas corpus claim "if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision." Roberts v. Thaler, 681 F.3d 597, 604 (5th Cir. 2012). Thus, a federal court may not consider a habeas corpus claim when, "(1) a state court [has] declined to address [those] claims because the prisoner [has] failed to meet a state procedural requirement, and (2) the state judgment rests on independent and adequate state procedural grounds." Maples v. Thomas, ___ U.S. ____, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012) (alterations in original) (internal quotation marks omitted). This doctrine is known as procedural bar.

A state procedural rule is "independent" when the state law ground for decision is not "interwoven with the federal law." Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 77 L. Ed. 2d 1201 (1983). A state law ground is interwoven with federal law if "the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed." Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L. Ed. 2d 53 (1985); see also State court decision must not be interwoven with federal law, Federal Habeas Manual § 9B:24.

To determine the adequacy of the state procedural bar, this court must examine whether the state's highest court "has strictly or regularly applied it." Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997) (citing Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996)). The petitioner, however, "bears the burden of showing that the state did not strictly or regularly follow a procedural bar around the time of his appeal" — and "must demonstrate that the state has failed to apply the procedural bar rule to claims identical or similar to those raised by the petitioner himself." Id.

Cause and Prejudice — and Fundamental Miscarriage of Justice — As Ways to Overcome Procedural Bar

Whether a petitioner's claims are procedurally defaulted or procedurally barred, the way he may overcome these barriers is the same. First he can overcome the procedural default or bar by showing cause for it — and actual prejudice from its application. To show cause, a petitioner must prove that an external impediment (one that could not be attributed to him) existed to prevent him from raising and discussing the claims as grounds for relief in state court. See United States v. Flores, 981 F.2d 231 (5th Cir. 1993). To establish prejudice, a petitioner must show that, but for the alleged error, the outcome of the proceeding would have been different. Pickney v. Cain, 337 F.3d 542 (5th Cir. 2003). Even if a petitioner fails to establish cause for his default and prejudice from its application, he may still overcome a procedural default or bar by showing that application of the bar would result in a fundamental miscarriage of justice. To show that such a miscarriage of justice would occur, a petitioner must prove that, "as a factual matter, that he did not commit the crime of conviction." Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). Further, he must support his allegations with new, reliable evidence — that was not presented at trial — and must show that it was "more likely than not that no reasonable juror would have convicted him in light of the new evidence." Fairman, 188 F.3d at 644 (citations omitted).

Mr. Mason's petition raising the sole claim of "spoliation of evidence" should be dismissed with prejudice for Mason's procedural default in failing to fully exhaust state court remedies. The claim Mr. Mason presented in the instant petition has never been presented to the State's highest court in a procedurally proper manner. As set forth above, the Mississippi Supreme Court granted Mason's request to seek post-conviction relief in the circuit court. See Exhibit D. After holding a hearing at which Mason was present, the Oktibbeha County Circuit Court found that Mason's petition was moot because there was no physical evidence to be subjected to testing, and, as such, there was no relief to be sought or which could be granted. See Exhibit E. The Mississippi Court of Appeals affirmed the Oktibbeha County Circuit Court's ruling; however, as explained above, Mr. Mason did not seek rehearing and, in turn, certiorari review in the State's highest court. Thus, Mr. Mason's ability to exhaust Ground One of the instant petition is no longer available, as the time for filing such a petition for discretionary review has long passed. See Miss. R. App. P. 40 and Miss. R. App. P. 17(b).

Therefore, because Mason failed to exhaust the sole issue raised in his federal habeas petition in the State's highest court — and no other avenues exist to do so — under the doctrine of procedural default, Mason cannot raise this issue in a federal habeas proceeding, and his petition should be dismissed with prejudice. Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995); see also O'Sullivan v. Boerckel, 526 U.S. 838 (1999) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).

Mr. Mason has not shown "cause" for failing to advance his claims to the Mississippi Supreme Court. Hence, he has not satisfied the "cause and prejudice" test necessary to allow the court to reach the merits of his claims despite the procedural bar — because he has not demonstrated that an external impediment existed to prevent him from properly and timely advancing his claim to the Mississippi Supreme Court. See United States v. Flores, 981 F.2d 231 (5th Cir. 1993). In the absence of a showing of "cause," the court need not consider whether actual prejudice exists in Mason's case. Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996).

In addition, there will be no "fundamental miscarriage of justice" if the court does not hear Mason's claim on the merits. See Martin, 98 F.3d at 849 (citing Sawyer v. Whitley, 505 U.S. 333 (1992)). The "fundamental miscarriage of justice" exception is confined to cases of actual innocence, "where the petitioner shows, as a factual matter, that he did not commit the crime of conviction." Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). To establish his actual innocence, Mr. Mason must support his allegations with new, reliable evidence that was not presented at trial and must show that it was "more likely than not that no reasonable juror would have convicted him in light of the new evidence." Fairman, 188 F.3d at 644 (citations omitted). Mr. Mason has not provided any new, reliable evidence; therefore, he has not established that a fundamental miscarriage of justice will result if his claim is not considered on the merits. As such, Mr. Mason is not entitled to relief as to his claim raised in the instant federal petition for a writ of habeas corpus, and the instant petition should also be dismissed with prejudice as procedurally defaulted.

Conclusion

For the reasons set forth above, the State's motion to dismiss instant petition for a writ of habeas corpus will be granted, and the instant petition will be dismissed with prejudice for failure to state a claim upon which relief could be granted and as procedurally defaulted. A final judgment consistent with this memorandum opinion will issue today.

SO ORDERED.