Brown v. Mills

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

BRIAN RAY BROWN, #214302 PETITIONER

v. CIVIL ACTION NO. 1:21-cv-61-TBM-RPM

ANDREW MILLS, Superintendent RESPONDENT

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S MOTION

[9] TO HOLD THIS HABEAS PETITION IN ABEYANCE AND/OR

DISMISS THIS CIVIL ACTION WITHOUT PREJUDICE

This matter is before the Court on pro se Petitioner Brian Ray Brown’s Motion [9] entitled

“Motion to Hold in Abeyance or in the Alternative to Dismiss Without Prejudice.” [9] at 1-5.

Having reviewed Brown’s Petition [1] and Motion [9], the Court finds that Brown’s Motion [9]

will be granted in part and denied in part.

I. BACKGROUND

Brown filed his petition for habeas relief under 28 U.S.C. § 2254. He is challenging the

revocation of his probation that resulted in him being sentenced to twenty years in the custody of

the Mississippi Department of Corrections, with ten years to serve and the remainder of his

sentence to be served on post-release supervision. [1] at 1, 5-7. Brown’s ground for habeas relief is

that he has received an illegal sentence because it “exceeds the maximum allowed by law.” Id. at

5. Specifically, Brown argues that “[t]he law only allows a person to serve five (5) years on post

release supervision (P.R.S).” Id. at 6-7. Brown claims that he should be sentenced to only five years

on post release supervision not ten years. See id. at 7.

The Court subsequently entered an Order [6] directing Brown to provide information

establishing that he had exhausted his available state court remedies as required by 28 U.S.C.

§ 2254(b)(1)(A) and (c). See [6] at 3. Brown failed to respond, and the Court entered an Order to

Show Cause [7]. Again, Brown failed to respond, and the Court entered a Second and Final Order

to Show Cause p8]. In response to the Second Order to Show Cause [8], Brown filed his Motion

[9] entitled “Motion to Hold In Abeyance or in the Alternative to Dismiss Without Prejudice.”

[9] at 1-5.

II. DISCUSSION

A. Brown’s Motion to Hold in Abeyance

The Court has the authority to stay a habeas petition that contains both exhausted and

unexhausted claims, which is referred to as a “mixed” petition, and hold it in abeyance while a

petitioner presents his unexhausted claims to the state courts. See Rhines v. Weber, 544 U.S. 269,

271, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005) (holding that the district court has discretion to stay

rather than dismiss a mixed habeas petition). Brown asserts only one ground for habeas relief and

admits that he has not exhausted his state court remedies. [1] at 5; [9] at 1-2. With only unexhausted

claims asserted, Brown’s habeas petition is not a “mixed” petition. Accordingly, Brown’s request

to hold this action in abeyance is denied.

B. Brown’s Motion to Dismiss

A petitioner “must exhaust all claims in state court prior to requesting federal collateral

relief” under 28 U.S.C. § 2254. Smith v. Quarterman, 515 F.3d 392, 400 (5th Cir. 2008) (citing

Beazley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001)). “Brown admits that he has not exhausted

his State remedies as required by a myriad of legal precedent.” [9] at 1-2. Brown further states that

his “immediate intention is to notice the trial court and sentencing Judge Krebs in hopes of a simple

2

and quick resolution.” Id. at 3. Brown’s request to dismiss the instant habeas petition without

prejudice so that he may exhaust his available state court remedies is granted.

III. CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED, that Petitioner Brian Ray

Brown’s Motion [9] is granted in part and denied in part. Petitioner Brown’s Motion [9] to hold

this civil habeas action in abeyance is DENIED. Petitioner Brown’s Motion [9] to voluntarily

dismiss this civil habeas action is GRANTED. This civil habeas action is DISMISSED

WITHOUT PREJUDICE.

SO ORDERED AND ADJUDGED, this the 25th day of February, 2022.

TAYLOR B. McNEEL

UNITED STATES DISTRICT JUDGE

3