Mixon v. Banks

Filing 13

ORDER: For the reasons set out in the Order, the Report and Recommendation 9 of United States Magistrate Judge Parker is hereby adopted as the finding of this Court. Respondent's Motion to Dismiss 7 is granted in part and denied in part. Signed by District Judge Daniel P. Jordan III on October 19, 2017. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DAVID MIXON

PETITIONER

V.

CIVIL ACTION NO. 3:17-CV-61-DPJ-MTP

SUPERINTENDENT JACQUELINE BANKS

RESPONDENT

ORDER
Petitioner David Mixon filed this habeas action claiming the Mississippi Parole Board
unjustly denied his parole on account of his race. Respondent Superintendent Jacqueline Banks
construed the petition as asserting due-process and equal-protection claims and sought dismissal
of both. In a well-reasoned and thorough Report and Recommendation, United States Magistrate
Judge Michael T. Parker held that the due-process claim should be dismissed and the equalprotection claim should go forward, for the time being. R&R [9].
First, Judge Parker reasoned that because Mixon has no protected liberty interest in
parole, his due-process claim should be dismissed. Id. at 4. The undersigned agrees. Second,
Judge Parker found that Mixon had stated a plausible equal-protection claim. Id. at 5 (noting that
at this stage of the case, the Court must take Petitioner’s allegations as true). After considering
Respondent’s argument in favor of dismissal for failure to exhaust, Judge Parker concluded that
due to the absence of copies of Petitioner’s state-court pleadings, he could not determine whether
the relief sought was properly presented to the state courts. Id. at 8. So, Judge Parker
recommended denying the motion to dismiss the equal-protection claim without prejudice to
Respondent’s right to raise the issue after filing a full and complete record from all proceedings
in the state courts. Id. at 9.

In her Partial Objection, Respondent again urged dismissal and separately filed additional
documents that she contends represent the entire state-court record. Obj. [10] at 2; see also State
Court Rec. [11]. Nevertheless, the undersigned finds that the judicious approach is to adopt
Judge Parker’s Report and Recommendation in its entirety and permit Respondent to present
these arguments and records to Judge Parker for full consideration. See R&R [9] at 9 (directing
Respondent to file an answer and “a complete record” and noting that she could raise her
exhaustion argument “in her answer or by subsequent motion”).
IT IS, THEREFORE, ORDERED that the Report and Recommendation [9] of United
States Magistrate Judge Parker be, and the same is hereby, adopted as the finding of this Court.
Respondent’ Motion to Dismiss [7] is granted in part and denied in part.
SO ORDERED AND ADJUDGED this the 19th day of October, 2017.

s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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