Taylor v. Turner

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2002
• Docket: 01-60474
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 01-60474 _______________________

CHARLIE LEE TAYLOR,

Petitioner-Appellant,

versus

C. DAVID TURNER,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Mississippi Civil Docket No. 1:01-CV-17-S-D _________________________________________________________________ April 9, 2002

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

After Charlie Lee Taylor petitioned for a writ of habeas

corpus in the district court, the district court dismissed the

petition without prejudice for the reason that Taylor, who had

omitted to file a petition for discretionary review with the

Mississippi Supreme Court, had not exhausted his state court

remedies. 28 U.S.C. § 2254(b). Taylor filed a notice of appeal,

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. which the district court construed as a request for a certificate

of appealability (COA). 28 U.S.C. § 2253(c). The district court

granted a COA as to the question whether Taylor had exhausted his

available state remedies. 28 U.S.C. § 2253(c)(3).

Taylor’s discussion of the exhaustion requirement takes

up only about two pages of his brief, and it does not directly

address the question on which the COA was granted: whether Taylor

had exhausted his available state court remedies. Instead, Taylor

contends that he was not required to exhaust those remedies.1

Taylor’s discussion gives no reason to believe that the district

court erred in deciding the issue before us.2

28 U.S.C. § 2254(c) provides that an applicant for a

writ of habeas corpus “shall not be deemed to have exhausted the

remedies available in the courts of the State, within the meaning

of this section, if he has the right under the law of the State to

raise, by any available procedure, the question presented.” In

O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999), the

Supreme Court held that state prisoners must present their claims

to a state supreme court in a petition for discretionary review in

1 Taylor discusses various other issues in his brief, but he does not request this court to grant a COA as to these issues. Regardless of whether these issues were raised before the district court in Taylor’s COA application, this court need not address them. Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997). 2 Cf. Dardar v. Lafourche Realty Co., 985 F.2d 824, 831 (5th Cir. 1993) ("Questions posed for appellate review but inadequately briefed are considered abandoned.").

2 order to satisfy the exhaustion requirement of § 2254. Id. at 839-

40, 119 S.Ct. at 1730. “[S]tate prisoners must give the state

courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State's established appellate

review process.” Id. at 845, 119 S.Ct. at 1732. Because Taylor

has the right under Mississippi law to raise on certiorari petition

in the state supreme court the questions presented in his petition

for a writ of habeas corpus, he has not exhausted the remedies

available in the Mississippi courts. The district court correctly

held that he did not meet the exhaustion requirement of § 2254

simply by obtaining judgment from the Mississippi Court of Appeals.

Judgment AFFIRMED.