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Case: 3:13-cv-00117-SA-DAS Doc #: 12 Filed: 07/30/13 1 of 3 PageID #: 55

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

OXFORD DIVISION

CARDALE NEILUS SMITH

PETITIONER

vs.

CIVIL ACTION NO.: 3:13cv117-SA-DAS

CHRISTOPHER EPPS, et al.

RESPONDENTS

MEMORANDUM OPINION AND ORDER

Petitioner, Cardale Neilus Smith, an inmate currently confined at the Wilkerson County

Correctional Facility, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254, in which he seeks to challenge his State court conviction and sentence for the crime of

burglary of a building other than a dwelling. Pending before the Court are Respondents’ motion

to dismiss the federal habeas petition pending in this action, and Petitioner’s motion for

judgment as a matter of law. Having considered the parties’ filings and the applicable law, the

Court grants Respondents’ motion and dismisses the petition for the following reasons.

Background

Smith maintains that he pleaded guilty to the crime of burglary of a building other than a

dwelling in the Circuit Court of Panola County, Mississippi, and was sentenced on December 10,

2010, to a term of seven years in the custody of the Mississippi Department of Corrections

(“MDOC”). Smith’s seven-year sentence was ordered to run concurrently with a six-year

sentence he was already serving in another case. (See ECF no. 1, pp. 1 and 19). In the instant

petition, Smith maintains that MDOC has failed to run his burglary sentence concurrently with

his sentence in his other case; that he has not been given the appropriate amount of jail time

credit; and that he has suffered physical injury because of prison officials’ failure to protect him.

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Case: 3:13-cv-00117-SA-DAS Doc #: 12 Filed: 07/30/13 2 of 3 PageID #: 56

He contends that he should have already been released from prison, but that MDOC officials

failed to credit him with 255 days of time he spent incarcerated as a pretrial detainee. Smith

concedes that he filed his federal habeas petition on or about April 30, 2013, without first

seeking post-conviction relief in State court.

Exhaustion

A prisoner seeking federal habeas relief must first exhaust his available state court

remedies. See 28 U.S.C. § 2254(b) and (c); O’Sullivan v. Boerckel, 526 U.S. 838, 840 (1999).

The exhaustion requirement is satisfied when the habeas claim has been presented to the highest

state court in a procedurally proper manner. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.

1997). If a prisoner fails to exhaust his claims prior to seeking federal habeas relief, his federal

habeas petition must ordinarily be dismissed. See Coleman v. Thompson, 501 U.S. 722, 731

(1991); see also Duncan v. Walker, 533 U.S. 157, 178-79 (2001) (“The exhaustion requirement

of § 2254(b) ensures that the state courts have the opportunity fully to consider federal-law

challenges to a state custodial judgment before the lower federal courts may entertain a collateral

attack upon that judgment.”).

Smith concedes that he has not sought any State court review of his conviction and

sentence, arguing in his motion for judgment as a matter of law that “this is a high profile federal

issue [that] makes the [filing for post-conviction relief] automatically irrelevant,” and that the

actions of the Mississippi Department of Corrections have left the State courts without

jurisdiction. (See ECF no. 7, p.2). The Court finds that Smith has failed to exhaust his available

State remedies through the Mississippi Post-Conviction Collateral Relief Act. See Miss. Code

Ann. § 99-39-5(1) (providing avenue for inmate to bring a challenge “[t]hat the conviction or the

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Case: 3:13-cv-00117-SA-DAS Doc #: 12 Filed: 07/30/13 3 of 3 PageID #: 57

sentence was imposed in violation of the Constitution of the United States or the Constitution or

laws of Mississippi”); see also § 99-39-5(2) (“A motion for relief under this chapter shall be

made . . . [I]n case of a guilty plea, within three (3) years after the entry of the judgment of

conviction.”). Since Smith clearly concedes that he has not pursued his claims in State court,

this petition will be dismissed without prejudice for Smith’s failure to exhaust his available State

remedies.

The Court also notes that, to the extent Smith argues that he is entitled to money damages

as a result of prison officials’ failure to protect him from harm, such relief is not available in a

federal habeas action. Smith will need to file a complaint pursuant to 42 U.S.C. § 1983 to pursue

such a claim.



Accordingly, Respondents’ motion to dismiss the instant petition [ ECF no. 6] is

GRANTED, Smith’s motion for judgment as a matter of law [ ECF no. 7] is DENIED, and the

instant petition is DISMISSED WITHOUT PREJUDICE. A final judgment consistent with

this memorandum opinion will issue today.

SO ORDERED this the 30th July, 2013.

/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE

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