King v. State of Mississippi et al

Filing 13

MEMORANDUM OPINION. Signed by District Judge Sharion Aycock on 4/9/18. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
GEORGE KING, JR.

PETITIONER

v.

No. 1:17CV112-SA-JMV

EARNEST LEE, ET AL.

RESPONDENTS
MEMORANDUM OPINION

This matter comes before the court on the pro se petition of George King, Jr. for a writ of
habeas corpus under 28 U.S.C. § 2254. The State has moved to dismiss the petition for failure to
state a claim upon which relief could be granted. Mr. King has not responded, and the matter is ripe
for resolution. For the reasons set forth below, the State’s motion will be granted, and the instant
petition for a writ of habeas corpus will be dismissed.
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:

The statutory provisions on habeas corpus appear as sections 2241 to 2255 of the
1948 Judicial Code. The recodification of that year set out important procedural
limitations and additional procedural changes were added in 1966. The scope of the
writ, insofar as the statutory language is concerned, remained essentially the same,
however, until 1996, when Congress enacted the Antiterrorism and Effective Death
Penalty Act, placing severe restrictions on the issuance of the writ for state prisoners
and setting out special, new habeas corpus procedures for capital cases. The changes
made by the 1996 legislation are the end product of decades of debate about habeas
corpus.
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 L. Ed. 969 (1915).
Facts and Procedural Posture
George King, Jr. is in the custody of the Mississippi Department of Corrections and
currently housed at the Mississippi State Penitentiary in Parchman, Mississippi. He was
convicted on May 25, 1989, for sale of cocaine in Lowndes County Circuit Court, Cause No.
10,884. See Exhibit A (Indictment and Sentencing Order in Lowndes County Circuit Court
Cause No. 10,884).1 The trial court sentenced King as a habitual offender under Miss. Code
Ann. § 99-19-81,2 to serve a term of thirty years in the custody of the Mississippi Department of
1

The exhibits referenced in this memorandum opinion are those attached to ECF Doc. 12, the State’s
motion to dismiss.
2

Miss. Code. Ann. § 99-19-81 provides:

Every person convicted in this state of a felony who shall have been convicted twice
previously of any felony or federal crime upon charges separately brought and arising
out of separate incidents at different times and who shall have been sentenced to
separate terms of one (1) year or more in any state and/or federal penal institution,
whether in this state or elsewhere, shall be sentenced to the maximum term of
imprisonment prescribed for such felony, and such sentence shall not be reduced or
suspended nor shall such person be eligible for parole or probation.
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Corrections (“MDOC”), without eligibility for a reduced or suspended sentence, parole, or
probation.3 Id.
King appealed, and on March 20, 1991, the Mississippi Supreme Court affirmed the
conviction and sentence. King v. State, 576 So.2d 154 (Miss. 1991) (89-KA-0974)).
On June 18, 2015, he filed in the Mississippi Supreme Court (Cause No. 2015-M-00955)
an Application for Leave to Proceed in the Trial Court to file a petition for a parole
recommendation. See Exhibit C. On July 1, 2015, the Mississippi Supreme Court held that Mr.
King, under Miss. Code Ann. § 47-7- 3(1)(g)(iii), need not seek leave to proceed in the trial
court to petition for a parole recommendation from the senior circuit judge. See Exhibit D. As
such, the Mississippi Supreme Court dismissed King’s pleading without prejudice to his right to
file a request for parole in the trial court. Id.
On June 25, 2015, King filed his petition for parole eligibility in the trial court (Cause
No. 10,884). See Exhibit E (“Petition for Parole” and Docket in Lowndes County Circuit Court
Cause No. 10,884). On August 24, 2015, the senior circuit judge entered an order denying
King’s parole request under Miss. Code Ann. § 47-7-3(1)(g)(iii), based upon his prior
convictions and the nature of the charges for which King was convicted in the present case. See
Exhibit F. King then filed a “Petition for Writ of Prohibition” (in effect, a motion for recusal) in
both Mississippi Supreme Court Cause No. 2015-M-00955 and Lowndes County Circuit Court

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King’s indictment for sale of cocaine shows that he has at least two prior felony convictions: (1) assault
with the intent to murder in the Circuit Court of Pickens County, Alabama, for which King was sentenced
to serve a term of five years in the Alabama State Penitentiary, suspended with five years of probation,
and (2) aggravated assault in the Circuit Court of Lowndes County, Mississippi, for which King was
sentenced to serve a term of five years in the Mississippi Department of Corrections, suspended with five
years of probation. See Exhibit A (Indictment and Sentencing Order in Lowndes County Circuit

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Cause No. 10,884. See Exhibit G (“Petition for Writ of Prohibition,” Mississippi Supreme Court
Cause No. 2015-M-00955 and Lowndes County Circuit Court Cause No. 10,884). In his
motions, King sought recusal of Senior Circuit Court Judge Lee S. Howard because he was the
district attorney who had previously prosecuted King at trial. See Exhibit G. On September 23,
2015, the Mississippi Supreme Court dismissed King’s “Petition for Writ of Prohibition,”
finding that he had offered no evidence that he had first sought recusal in the trial court. See
Exhibit H. This Order was also filed in Lowndes County Circuit Court Cause No. 10,884. See
Exhibit H.
On October 8, 2015, King filed a “Motion for Recusal” and a second petition for parole
eligibility under Mississippi Code Section 47-7-3(1)(g)(iii), in Lowndes County Circuit Court
Cause No. 10,884. See Exhibit I (“Petition for Authorization for Eligibility for Parole”). On
October 12, 2015, the trial court reassigned King’s case, holding:
Miss. Code Ann. § 47-7-3 finds that if a parole petition is submitted in a cause in
which the sentencing judge has since retired, the petition is to be handled by the
Senior Circuit Judge of the district. However, in this cause, the Senior Circuit Judge
of the 16th District, the Honorable Lee J. Howard, was the district attorney who
prosecuted this Defendant. Therefore, the Honorable Lee J. Howard, to avoid any
appearance of impropriety, hereby withdraws from ruling on the parole petition filed
in this cause and does transfer the matter to the Honorable Lee S. Coleman for ruling.
See Exhibit J.
On October 23, 2015, Judge Coleman denied King’s petition for parole. See Exhibit K.
Following the denial, King appealed. See Exhibit L, Mississippi Supreme Court Cause No.
2015-TS-01739.

Court Cause No. 10,884).

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On November 17, 2015, the circuit court dismissed King’s pending request for parole
recommendation, finding that the circuit court lacked jurisdiction to hear the motion, since the
circuit court’s denial of the King’s previous request for parole recommendation was pending on
appeal. See Exhibit M.
On November 23, 2015, the Clerk of the Mississippi Supreme Court issued a show cause
notice to King requesting him to explain “why th[e] appeal should not be dismissed for lack of
an appealable judgment.” See Exhibit N. On December 22, 2015, King filed a pro se response
to the show cause notice in Cause No. 10,884. See Exhibit O. On January 7, 2016 the
Mississippi Supreme Court held that the Circuit Court’s order denying King’s second parole
request was not an appealable judgment – and dismissed King’s appeal (citing Gamage v. State,
2015-CP-00593 (En Banc Order - Oct. 8, 2015)). See Exhibit P.
On February 1, 2016, King filed a “Petition for Writ of Mandamus” in Mississippi
Supreme Court Cause No. 2015-M-00955. See Exhibit Q. In his petition, King noted that the
Lowndes County Circuit Court had entered an order denying his petition for parole eligibility on
October 23, 2015, but argued that there had been “no appealable ruling and/or action[,]” and
requested the Mississippi Supreme Court to “order that an appealable ruling be made.” See
Exhibit Q. The Mississippi Supreme Court denied King’s pleading on February 8, 2016, finding
that the request was not the proper subject of a petition for writ of mandamus – and that the
circuit court’s order was not appealable judgment (citing McDowell v. State, 2015-CP-00687
(Panel Order - Jan. 7, 2016); Gamage v. State, 2015-CP-00593 (En Banc Order - Oct. 8, 2015)).
See Exhibit R.

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On November 9, 2016, and again on January 12, 2017, King filed a “Petition for
Reconsideration [of] Petition for Parole Recommendation” and a “Petition for
Recommendation,” respectively, in Lowndes County Circuit Court Cause No. 10,884. See
Exhibit S (“Petition for Reconsideration [of] Petition for Parole Recommendation” and “Petition
for Recommendation, or, Authorization for Eligibility for Parole Consideration”). On November
28, 2016, and again on February 22, 2017, the circuit court entered Orders denying King’s
pleadings as “Motions for Consideration,” finding that King failed to present new information
sufficient to warrant reconsideration of the circuit court’s previous ruling.4 See Exhibit T.
On March 13, 2017, King filed a “Petition for Writ of Prohibition,” in Mississippi
Supreme Court Cause No. 2015-M-00955, based upon his “Petition for Recommendation or
Authorization for Eligibility for Parole Consideration” that he previously filed in the trial court,
on January 12, 2017. See Exhibit U. King asserted that Judge Howard did not have proper
jurisdiction to deny King’s petition, since Judge Howard had previously recused himself. Id.
The Mississippi Supreme Court dismissed King’s “Petition for Writ of Prohibition,”
finding that King failed to provide stamp-filed documentation to support his assertion that his
petition had been taken under advisement by the circuit court or otherwise brought to that court’s
attention. See Exhibit V.
On April 10, 2017, King filed a “Motion to Refile Petition for Writ of Prohibition,” in
which he provided stamp-filed documentation to support his previous allegations. See Exhibit
W. On April 20, 2017, the Mississippi Supreme Court granted King’s motion, as to his request
to file a proper Petition for Writ of Prohibition. See Exhibit X. On May 8, 2017, King refiled

4

The Orders denying King’s pleadings, each as a “Motion for Reconsideration,” were signed by Senior
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his “Petition for Writ of Prohibition.” See Exhibit Y. The Mississippi Supreme Court denied
King’s “Petition for Writ of Prohibition” on May 23, 2017. See Exhibit Z.
In the instant petition for a writ of habeas corpus, Mr. King raises the following claims
for relief, pro se:
Ground One: The trial judge lacked jurisdiction to make his ruling; Petitioner avers
that Judge Lee Howard had recused himself from hearing his petition on a previous
order; That Judge Lee Coleman was the presiding judge after said recusal on the first
petition; Thereafter Judge Howard with full knowledge of his recusal, took upon
himself to rule on said petition for eligibility of parole
Ground Two: The trial judge denied Petitioner due process for failure to authorize
parole consideration. Petitioner avers that notwithstanding Judge Howard’s recusal,
House Bill 1267 was based on due process requirement as opposed to House Bill 585
which was discretionary on the judge part; that said ruling should have authorized
the parole board to consider Petitioner for parole as opposed to actually release
him on parole.
See ECF Doc. 1. Mr. King seeks an evidentiary hearing and remand of these parole issues to the
circuit court for a hearing on the merits. Id. at p. 14.
Discussion
The instant federal habeas corpus petition regarding Mr. King’s requests for parole
should be dismissed for failure to state a valid claim for federal habeas corpus relief. To sustain
a petition for habeas corpus, a petitioner must be deprived of some right arising from the
Constitution or the laws of the United States. Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir.
1984); Trussell v. Estelle, 699 F.2d 256, 259 (5th Cir. 1983); Baker v. McCollan, 443 U.S. 137
(1979). When a petitioner has not alleged the deprivation of such a right, he has failed to state a
claim for habeas corpus relief, and his claims must be dismissed for that reason. Irving, supra at
1216. Thus, “[a] petition for federal habeas corpus relief based on any argument that state
Circuit Court Judge Howard.

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courts are incorrectly applying their own law … is not a basis for relief.” Wansley v. Mississippi
Dept. of Corrections, et al., 769 F.3d 309, 312 (5th Cir. 2014) (citations omitted). In this case,
Mr. King has not alleged a deprivation of a right protected by federal law; therefore, his federal
petition for a writ of habeas corpus challenging the State’s denial of his requests for parole does
not state a valid claim for relief.
Mr. King’s eligibility for parole is a matter of Mississippi law. The parole statute in
Miss. Code Ann. § 47-7-3(1) provides, in relevant part:
(1) Every prisoner who has been convicted of any offense against the State of
Mississippi, and is confined in the execution of a judgment of such conviction in the
Mississippi Department of Corrections for a definite term or terms of one (1) year or
over, or for the term of his or her natural life, whose record of conduct shows that such
prisoner has observed the rules of the department, and who has served not less than
one-fourth ( ¼ ) of the total of such term or terms for which such prisoner was
sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if
sentenced for the term of the natural life of such prisoner, has served not less than ten
(10) years of such life sentence, may be released on parole as hereinafter provided,
except that:
(a) No prisoner convicted as a confirmed and habitual criminal under the
provisions of Sections 99-19-81 through 99-19-87 shall be eligible for parole;
Miss. Code. Ann. § 47-7-3(g) further provides that:
(ii) [n]otwithstanding the provisions in paragraph (i) of this subsection, a person
serving a sentence who has reached the age of sixty (60) or older and who has served
no less than ten (10) years of the sentence or sentences imposed by the trial court shall
be eligible for parole. Any person eligible for parole under this subsection shall be
required to have a parole hearing before the board prior to parole release. No
inmate shall be eligible for parole under this paragraph of this subsection if:
1. The inmate is sentenced as a habitual offender under Sections 99-19-81
through 99-19-87;
(Emphasis added). Thus, no inmate convicted as a habitual offender under Miss. Code Ann. §
99-19-81 is eligible for parole under §§ 47-7-3(1) and 47-7-3(g)(ii).

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However, Miss. Code Ann. § 47-7-3(g)(iii) provides that:
(iii) [n]otwithstanding the provisions of paragraph (1)(a) of this section, any offender
who has not committed a crime of violence under Section 97-3-2 and has served
twenty-five percent (25%) or more of his sentence may be paroled by the parole board
if, after the sentencing judge or if the sentencing judge is retired, ... the senior circuit
judge authorizes the offender to be eligible for parole consideration.
(emphasis added). This section thus opens the door for certain inmates convicted under § 99-19-81 to
be eligible for parole, despite the language in §§ 47-7-3(1) and 47-7-3(g)(ii).
Although King is ineligible for parole under these sections as a habitual offender, Miss.
Code Ann. § 47-7-3(g)(iii), provides, in certain circumstances, a path to parole for those
convicted as a habitual offender under § 99-19-81. Section 47-7-3(g)(iii) provides a framework
for parole, despite the prohibition in subsection (1)(a): An inmate who has not committed a
crime of violence under Miss. Code Ann. § 97-3-2 and has served at least twenty-five percent of
his sentence may be paroled by the parole board, if the senior circuit judge authorizes the
offender to be eligible for parole consideration. Though this code section provides an
opportunity for parole to habitual offenders convicted under § 99-19-81, nothing in its language
alters the discretionary nature of consideration for parole or the granting of it.
Mr. King requested a recommendation for parole under Miss. Code Ann. § 47-7-3(g)(iii),
and the Lowndes County Circuit Court denied King’s petition for parole eligibility and requests
for reconsideration. The circuit court denied King’s petition seeking parole because of his prior
convictions and the fact that his most recent conviction was for the sale of cocaine. See Exhibit
K. The Mississippi Supreme Court denied King’s appeal of the circuit court’s October 23, 2015,
order denying his petition for parole eligibility. See Exhibit P. The Lowndes County Circuit

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Court denied Mr. King’s “motions for reconsideration” because he did not present new
information sufficient to merit reconsideration of the issue. See Exhibit T.
Mississippi’s parole statute gives the Parole Board absolute discretion regarding parole;
as such, a prisoner has no constitutionally protected liberty interest in parole. Miss. Code Ann. §
47-7-1, et seq., (1972); see Scales v. Mississippi State Parole Board, 831 F.2d 565 (5th Cir. 1987)
(“In Mississippi, the absolute discretion conferred on the Parole Board affords a prisoner no
constitutionally recognized liberty interest” in parole.); Irving v. Thigpen, supra, (“... the
Mississippi [parole] statute does not create any constitutionally protected liberty interest in
parole to which procedural due process considerations attach.”); see also Smith v. Mississippi
Parole Board, 478 F. App’x 97, 2017 WL 1645457 (5th Cir. May 10, 2012) (unpub.) (“The
Mississippi statutes do not create a liberty interest and federal due process rights are not
implicated by the denial of parole and the procedures by which parole is denied.”)
Parole in Mississippi is not a right, but a privilege, which may be granted to a prisoner by
the Parole Board. As a result, “[i]n Mississippi, prisoners have ‘no constitutionally recognized
liberty interest in parole.” Johnson v. Miller, 919 So.2d 273, 277 (Miss. Ct. App. 2005) (citations
omitted). In Davis v. State, 429 So.2d 262 (Miss. 1983) the Mississippi Supreme Court
explained:
A prisoner has no automatic entitlement to parole. It may be granted or withheld by
the state--to be sure, not arbitrarily – as a matter of grace. That the state holds out the
possibility of parole provides no more than a mere hope that the benefit will be
obtained. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex,
442 U.S. 1, 11, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668, 677 (1979).
See also Davis v. Johnson, 205 F. Supp. 2d 616, 619 (N.D. Miss. June 20, 2002) (holding that a
Mississippi prisoner is not entitled to a hearing on parole, and noting that even a prisoner who

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may be eligible for parole “holds the smallest liberty interest, ‘no more substantial than the
inmate’s hope ... a hope which is not protected by due process.’”) (citing Greenholtz v. Inmates
of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 9 (1979)). Thus, the Mississippi
parole statutes do not give state inmates a liberty interest in parole.
The court must also deny Mr. King’s argument that the rejection of his requests for
parole violates his right to due process, as “an expectation of receiving process is not, without
more, a liberty interest protected by the Due Process Clause.” Wansley, 769 F.3d at 312. Parole
is discretionary under Mississippi law; thus, “when a prisoner has no liberty interest in obtaining
parole ... he cannot complain of the constitutionality of procedural devices attendant to parole
decisions.” Id. at 312-13. For these reasons, the denial of a parole hearing is not a federal
habeas corpus issue. As such, Mr. King’s challenge to his parole eligibility and the denial of his
requests for parole do not give rise to the deprivation of a constitutionally protected liberty
interest, and the instant federal petition for a writ of habeas corpus must be dismissed with
prejudice for failure to state a claim upon which relief could be granted.
Conclusion
For the reasons set forth above, the instant petition for a writ of habeas corpus will be
dismissed for failure to state a claim upon which relief could be granted. A final judgment consistent
with this memorandum opinion will issue today.
SO ORDERED, this, the 9th day of April, 2018.
/s/ Sharion Aycock______
U.S. DISTRICT JUDGE

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