F. KEITH BALL, Magistrate Judge.
In this action filed pursuant to 28 U.S.C. § 2254, before the Court is Respondents' Motion to Dismiss (Docket No. 11), to which Petitioner has failed to respond. In the Motion, Respondents argue that the petition should be dismissed because it is untimely, fails to state a claim upon which relief can be granted, and was filed prior to exhaustion of state remedies.
In this matter, Schwindling makes clear that he does not challenge the constitutionality of his convictions on state and federal charges.
A review of the recent
Docket No. 11-1 at 2-3 (emphasis in original). In addition, the state court judge "further ordered that all time served in pretrial detainment in this cause is credited against this sentence."
As stated above, the state court judge specifically provided that Schwindling's state sentence was to run concurrently with any sentences previously imposed in a federal criminal proceeding before this Court, Criminal No. 3:99-cr-20-WHB. In that criminal action, the United States District Court for the Southern District of Mississippi had sentenced Petitioner on January 7, 2011, to a twenty-four month term of imprisonment, with no supervised release to follow. The sentence was imposed by the Southern District of Mississippi upon a finding by the Court that Schwindling had violated the terms of his supervised release when, on two separate occasions in March 2010, Schwindling had failed to refrain from a violation of the law.
In the present § 2254 action, Schwindling's original Petition for habeas corpus relief was received and file-stamped in this Court on September 14, 2012. Docket No. 1. In that Petition, Schwindling broadly alleges that he is serving an illegal sentence and should be sent to federal custody to serve his federal sentence. Docket No. 1 at 7. He also alleges that he filed a petition for habeas corpus before the Rankin County Circuit Court, which he later agreed to dismiss because he was "released on [his] own recognizance on 11-4-2010 when the U.S. Marshal's [sic] took custody of me." Docket No. 1 at 5.
In response to a Court Order (Docket No. 5), Petitioner filed an Amended Petition (Docket No. 7), in which he expanded upon his claims and set forth two grounds for relief. In his first ground, he argues that he is serving an illegal sentence in violation of the U.S. Constitution because both the federal and state courts sentenced him to concurrent sentences, when in actuality he is serving consecutive sentences and is months over his original discharge date. Docket No. 7 at 5. His second ground for relief essentially restates the argument in his first ground; that is, he alleges that his sentence is illegal because he was given concurrent sentences, but is being required to serve consecutive sentences. Docket No. 7 at 7. Thus, he asserts that his sentence is unconstitutional and illegal because he is serving a longer sentence than was originally intended by the courts.
In his Amended Petition, he details his attempts to seek state remedies regarding his sentences. He alleges that he filed a Motion to Correct Sentence in the Rankin County Circuit Court, but that it was denied, and he did not appeal the decision. Docket No. 7 at 6. He also alleges that he filed a grievance on this issue with the Mississippi Department of Correction's ("MDOC's") Administrative Remedy Program ("ARP"), but that the final decision erred when it concluded that he was not being held illegally.
The Amended Petition and the docket of Criminal No. 3:99-cr-20-WHB also shed some light on his recent history of incarceration. Petitioner apparently began a period of federal supervised release on January 6, 2010, and was arrested in Rankin County on state charges on March 22, 2010, and March 29, 2010. Docket No. 7 at 19. It is unclear whether he was continuously detained from that point onward by the authorities in Rankin County, however, Schwindling states he was "released on his own recognizance" from unspecified authorities to the U.S. Marshal Service on November 4, 2010. Docket No. 1 at 5; Docket No. 7 at 25. According to the docket of Criminal No. 3:99-cr-20-WHB, this Court held the initial appearance on the Petition for Revocation of Supervised Release on November 4, 2010. Minute Entry, 11/4/2010. The Court held a preliminary hearing on November 9, 2010, and ordered him detained by the U.S. Marshal until his final revocation hearing. Minute Entry, 11/9/2010. The district court subsequently held the revocation hearing on January 5, 2011, and sentenced him to a total term of twenty-four months of imprisonment with the Bureau of Prisons, with no supervised release to follow. Docket No. 30, Criminal No. 3:99-cr-20-WHB. After the hearing, the Court remanded him to the custody of the U.S. Marshal.
After receiving the Amended Petition, the district court on October 24, 2012, dismissed without prejudice Petitioner's challenge to his federal conviction.
In the Motion to Dismiss, the State asserts, among other arguments, that if Schwindling's petition is construed as an attack on the constitutionality of his Rankin County guilty plea, it is time-barred pursuant to 28 U.S.C. § 2244(d). Alternatively, the State argues that Petitioner has failed to exhaust his state remedies as required by 28 U.S.C. § 2254.
The primary basis on which the State seeks dismissal is timeliness of the petition. The State argues that when the Court considers 28 U.S.C. § 2244(d), the petition was not timely filed. According to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996, 28 U.S.C. § 2244(d) provides a one-year statute of limitations on petitions brought pursuant to 28 U.S.C. § 2254, as follows:
28 U.S.C. § 2244(d)(1996).
The AEDPA imposed a one-year statute of limitations for the filing of a federal habeas petition. Asserting that Schwindling's petition does not fall into any of the exceptions listed in § 2244(d)(1)(B)-(D), the State argues that Schwindling's petition is untimely.
The Court has considered the State's arguments regarding timeliness. However, the Court declines to muddle through the weeds of those positions regarding what is or is not a § 2244(d)(2) "properly filed application for State post-conviction or other collateral review" by Schwindling in an effort to ferret out whether he is eligible for statutory tolling. Furthermore, the Court declines to delve into whether Schwindling meets the "discovery" and "due diligence" requirements of § 2244(d)(1)(D) in an effort to determine whether his petition is timely.
Instead, in this action that does not challenge the constitutionality of his state guilty plea or his state sentence, but instead challenges the execution of his sentence and whether its execution is in accord with the state court sentencing order, the Court finds that Petitioner, admittedly, failed to exhaust his state remedies as required by 28 U.S.C. § 2254. As recounted above, the State also urges failure to exhaust state remedies as a basis for dismissal.
The relevant portions of § 2254 provide as follows:
28 U.S.C. § 2254 (1996).
Applicants seeking federal habeas relief under section 2254 are required to exhaust all claims in state court prior to requesting federal collateral relief.
Since Petitioner does not challenge the constitutionality of his state court conviction or sentence, but instead challenges the execution of his sentence, his petition could be considered as being filed under 28 U.S.C. § 2241.
Petitioner's admissions of his failure to exhaust state remedies on these claims are clearly set forth in his original and amended petitions. Docket No. 1 at 3-5; Docket No. 7 at 6. Schwindling failed to pursue a motion for post-conviction relief regarding the execution of his sentence before the Mississippi courts. Although he alludes to a "habeas corpus" that he allegedly filed in the Rankin County Circuit Court, he provides no proof of the proceedings. Moreover, he admits that he never exhausted any appeal because he "agreed" to dismiss it. Docket No. 1 at 3. Furthermore, although he pursued a complaint with the MDOC's Administrative Remedy Program ("ARP") regarding the execution of his sentence, Docket No. 11-5, he failed to appeal the denial of his ARP through the state court system. Thus, Schwindling failed to exhaust state remedies as required by 28 U.S.C. § 2254. Because Petitioner has failed to exhaust his state court remedies, this Court may not grant habeas relief.
As a final note, the Court observes that Schwindling is now in federal custody. If Schwindling seeks credit on his federal sentence for his time served in state custody pursuant to the June 20, 2011, Judgment of the Rankin County Circuit Court, he may pursue the administrative remedies offered by the Bureau of Prisons ("BOP"), such as through a request to the BOP for a nunc pro tunc designation.
Accordingly, for the reasons stated above, the Respondents' Motion to Dismiss should be granted, and this case should be dismissed without prejudice.
The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendation contained within this report and recommendation within fourteen (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,
