Walker v. Holman et al
Filing
47
MEMORANDUM OPINION AND ORDER granting 26 Motion to Dismiss. Petitioner's habeas petition is dismised without prejudice. Signed by District Judge Keith Starrett on 8/5/13 (scp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
DEMARIO WALKER, #L1625
V.
PETITIONER
CIVIL ACTION NO. 2:12-CV-92-KS-MTP
JAMES HOLMAN, et al.
RESPONDENTS
MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants Respondents’ Motion to Dismiss
[26]. Petitioner’s habeas petition is dismissed without prejudice.
A.
Background
Petitioner has been in and out of Mississippi’s correction system since 2002. The
record does not contain a precise chronology of Petitioner’s various entries and exits
from the system, or of the various charges and indictments leveled against him across
the state. All that matters for the present motion, however, is that he was released on
parole on March 5, 2012 [30-6], and that his parole was revoked on June 13, 2012 [262]. During the time between the release and revocation, he was indicted in Hinds
County for three felony counts of passing bad checks [26-3], and charged with false
pretense in the Justice Court of Jefferson Davis County [35-1]. The parole revocation
stems from the Jefferson Davis County false pretense charges. He was later indicted
on those same charges [45-1] in the Circuit Court of Jefferson Davis County.
Petitioner is currently housed in Central Mississippi Correctional Facility. He
challenges the revocation of his parole, asserting multiple grounds for relief.
Respondent filed a Motion to Dismiss [26] arguing that Petitioner failed to exhaust his
remedies in state court. The motion is ripe.
B.
§ 2254's Requirements
“Applicants seeking federal habeas relief under § 2254 are required to exhaust
all claims in state court prior to requesting federal collateral relief.” Fisher v. Texas,
169 F.3d 295, 302 (5th Cir. 1999). Section 2254 provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it
appears that–
(A)
the applicant has exhausted the remedies available in the
courts of the State; or
(B)
(i)
there is an absence of available State corrective
process; or
(ii)
circumstances exist that render such process
ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). The statute also provides: “An applicant 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.” 28 U.S.C. § 2254(c).
To satisfy the exhaustion requirement, Petitioner must fairly present his claims
to the state’s highest court. Morris v. Dretke, 379 F.3d 199, 204 (5th Cir. 2004). A
habeas petition will generally be dismissed if the petitioner has not exhausted his
claims in state court. Smith v. Quarterman, 515 F.3d 392, 400 (5th Cir. 2008). The
Mississippi Uniform Post-Conviction Collateral Relief Act provides a method for an
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inmate to challenge his incarceration on a claim that his parole was “unlawfully
revoked,” or that “he is otherwise unlawfully held in custody.” MISS. CODE ANN. § 9939-5(1)(h); see, e.g., Walker v. State, 35 So. 3d 555 (Miss. Ct. App. 2010) (addressing
PCR motion challenging revocation of parole).
C.
§ 2254's Exceptions
It is undisputed that Petitioner has not exhausted his state remedies. Therefore,
his federal habeas petition is barred unless he can meet one of Section 2254(b)(1)(B)’s
two exceptions. The first exception provides that exhaustion is not required where
“there is an absence of available State corrective process.” 28 U.S.C. § 2254(b)(1)(B)(i).
The Mississippi Uniform Post-Conviction Collateral Relief Act provides a method for
an inmate to challenge the revocation of his parole. MISS. CODE ANN. § 99-39-5(1)(h).
The first exception, therefore, does not apply.
The second exception applies when the state corrective process is ineffective to
protect a petitioner’s rights. 28 U.S.C. § 2254(b)(1)(B)(ii).
It only applies “in those rare
cases where exceptional circumstances of peculiar urgency mandate federal court
interference.” Deters v. Collins, 985 F.2d 789, 795 (5th Cir. 1993). “[A] federal habeas
petitioner will be excused from the exhaustion requirement if the state unreasonably
delays acting on his efforts to invoke state remedies.” Breazeale v. Bradley, 582 F.2d
5, 6 (5th Cir. 1978). Petitioners seeking relief from the exhaustion requirements must
“demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Murray v. Quarterman, 243 F. App’x 51, 55
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(5th Cir. 2007). To prove cause, a petitioner “must establish that some external force
impeded the defense’s efforts to comply with the procedural rule.” Id. To show a
miscarriage of justice, he must “supplement his constitutional claim with a colorable
showing of factual innocence, i.e., a fair probability that, in light of all the evidence,
. . . the trier of the facts would have entertained a reasonable doubt of his guilt.” Id.
Petitioner claims that the Circuit Courts of Marion and Wilkinson Counties have
impeded his ability to comply with the exhaustion requirement by refusing to file his
PCR motions. He offered his MDOC outgoing mail log as evidence. It contains the
names of correspondents, the address to which documents were sent, the date sent, and
the “document type” – a category containing descriptions such as “complaint,” “ch of
add,” or “mot/quash/f&s.” But these descriptions are insufficient to show the
substantive content of Plaintiff’s correspondence. There is nothing in the log which
shows Petitioner fairly presented the substance of his claims to the Circuit Courts of
Marion and Wilkinson Counties. In any case, the Mississippi Supreme Court has
indicated that an inmate who wishes to attack the revocation of his parole should file
a motion in the Circuit Court of the county in which he is housed, rather than in the
county where he was convicted. Ragland v. State, 586 So. 2d 170, 173 (Miss. 1991). It
is undisputed that Petitioner has not sought, received, or been denied relief by the
Circuit Court of Rankin County – the county in which he is currently housed.
Petitioner also claims that he is innocent of the parole violation which prompted
the revocation. He provided a letter from the Circuit Clerk of Jefferson Davis County
which states that he had no pending charges there on September 11, 2012. However,
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it is undisputed that he was charged [35-1] in the Justice Court of Jefferson Davis
County prior to the revocation, in March 2012. In December 2012 he was indicted [461] in the Circuit Court of Jefferson Davis County on the same charges. It would not be
uncommon for the Circuit Clerk to be unaware of charges pending in the Justice Court.
Indeed, the file would not become public or proceed to the Circuit Court until an
indictment was issued, after the grand jury’s review.1 In summary, the Circuit Clerk’s
disavowal of any pending Circuit Court charges in September 2012 is not evidence of
Petitioner’s innocence. Indeed, Petitioner does not deny that he was arraigned on false
pretense charges in Jefferson Davis County prior to the revocation. Accordingly, the
Court finds that he failed to satisfy the “factual innocence” element cited above.
For all the reasons cited above, the Court finds that Petitioner is not entitled to
an exception from Section 2254(b)’s exhaustion requirement. It is undisputed that he
failed to exhaust his state court avenues of relief. Accordingly, this case should be
dismissed. See Walker v. Miss. Parole Bd., 333 F. App’x 843, 844 (5th Cir. 2009)
(affirming district court’s dismissal of habeas petition arising from parole revocation
for failure to exhaust state remedies).
D.
Stay/Abeyance
The Court may hold Petitioner’s petition in abeyance while he pursues the state
court remedies, but a “stay and abeyance should be available only in limited
1
The undersigned judge – having been a Circuit Court Judge in Pike County
for many years prior to becoming a United States District Judge – is familiar with
the procedures surrounding criminal proceedings in Mississippi’s trial courts.
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circumstances.” Rhines v. Weber, 544 U.S. 269, 274-77, 125 S. Ct. 1528, 161 L. Ed. 2d
440 (2005). “[S]tay and abeyance is only appropriate when the district court determines
there was good cause for the petitioner’s failure to exhaust his claims first in state
court and where his unexhausted claims are not plainly meritless.” Ruiz v.
Quarterman, 504 F.3d 523, 529 n. 17 (5th Cir. 2007). Petitioner has not shown good
cause for his failure to exhaust state court remedies, and his claims are plainly
meritless insofar as he admits that he was charged with false pretense in Jefferson
Davis County prior to revocation. A stay, therefore, would be inappropriate.
E.
Conclusion
For all the reasons stated above, the Court grants Respondents’ Motion to
Dismiss [26]. Petitioner’s habeas petition is dismissed without prejudice.
SO ORDERED AND ADJUDGED this 5th day of August, 2013.
s/ Keith Starrett
UNITED STATES DISTRICT JUDGE
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