DANIEL P. JORDAN, III, District Judge.
This habeas petition is before the Court on the Report and Recommendation  of the United States Magistrate Judge after referral. Petitioner Bobby Wayne Walley generally contends that his sentence following a guilty plea was disproportionate when compared to the sentence received by his wife and co-defendant Kala Walley. He also claims that the sentence violated the Equal Protection Clause of the United Stated Constitution. United States Magistrate Judge F. Keith Ball recommended denying the petition, Walley filed Objections , but the Court finds that the Report and Recommendation should be adopted consistent with this Order.
Walley and his wife Kala were indicted in the Circuit Court of Wayne County, Mississippi, for statutory rape and lustful touching of a child. Before trial, the Walleys entered separate plea agreements with the prosecution in which they agreed to plead guilty to the charge of sexual battery of a child. Bobby's agreement included a cap on his term of incarceration at 15 years. His wife's included a 5-year cap. These agreements were announced in open court and in Walley's presence before he pleaded guilty.
On October 23, 2006, the trial court sentenced the Walleys, giving Bobby 15 years to serve and Kala three. More than seven months later, on May 31, 2007, Walley filed a "Motion to Re-Sentence Pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act." State Ct. R. [12-1] at 5. In that motion, Walley raised the same arguments he now raises in his habeas petition: (1) his sentence was disproportional, and (2) it violated the Equal Protection Clause of the United States Constitution when compared to his wife's sentence.
The Mississippi Court of Appeals rejected the first argument as procedurally barred and lacking in merit and rejected the second argument on the merits. The matter is now before this Court under 28 U.S.C. § 2254. As Judge Ball concluded in his Report and Recommendation, Walley's proportionality argument is procedurally barred in this Court. His equal-protection argument fails under the deferential standards of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d). This Order addresses the more specific arguments raised in Walley's Objections.
A. The Proportionality Argument is Procedurally Barred
A federal court "may not review a habeas claim if the last state court to consider that claim expressly relied on a state ground for denial of relief that is both independent of the merits of the federal claim and an adequate basis for the court's decision.'" Roberts v. Thaler, 681 F.3d 597, 604 (5th Cir. 2012) (citing Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001)). The Mississippi Court of Appeals did just that when it applied Mississippi Code section 99-39-21(1) to bar Walley's proportionality argument. Walley v. State, 25 So.3d 386, 390 (Miss. Ct. App. 2009).
Section 99-39-21(1) states that failure to raise objections "at trial and/or [on] direct appeal" constitutes waiver, and it has been interpreted as providing "an independent state procedural bar." Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997). "The question, then, is whether this bar is adequate, ' and this hinges on whether Mississippi has strictly or regularly applied it." Id. (citing Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996)). Thus, Walley bears the "burden of showing that the state did not strictly or regularly follow a procedural bar around the time of his direct appeal." Id. (citing Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1996)).
Walley attempts to overcome section 99-39-21(1) in three ways. First, he contends that the statute applies only when the defendant proceeds to trial. Second, he argues that he raised his proportionality issue on direct appeal when he brought his motion for re-sentencing. Third, he argues that allowing the bar to stand would produce a fundamental miscarriage of justice. None of these arguments prevails.
First, Mississippi does not limit section 99-39-21(1) to actual trials and has instead interpreted the section as applying to proceedings at the trial court level. See, e.g., Henley v. State, 749 So.2d 246, 248 (Miss. Ct. App. 1999) (holding that prisoner waived sentencing disparity argument between himself and co-defendant by failing to raise it during plea or sentencing hearings); see also Pepper v. State, 96 So.3d 780, 783 (Miss. Ct. App. 2012); Shavers v. State, 94 So.3d 362, 364 (Miss. Ct. App. 2012). Walley neither suggests nor demonstrates that Mississippi fails to regularly apply section 99-39-21(1) to plea and sentencing hearings, so his first argument fails.
The same is true of Walley's second argument-that he raised his proportionality argument on direct appeal. The record indicates that Walley never filed a direct appeal after his sentencing. Instead, he waited seven months before filing a "Motion to Re-Sentence Pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act." State Ct. R. [12-1] at 5. The Mississippi Court of Appeals understandably found that Walley first raised this argument "pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, " thereby triggering section 99-39-21(1). Walley, 25 So.3d at 388. There is nothing before the Court to suggest that Walley raised his proportionality argument on direct appeal, and Walley offers no argument that Mississippi fails to regularly apply section 99-39-21(1) in this context.
Walley's only other argument regarding the procedural bar is the bald statement that a "fundamental miscarriage of justice" has occurred. Objections  ¶ 4. It is true that a petitioner can overcome a procedural bar by showing "a fundamental miscarriage of justice." Roberts, 681 F.3d at 605 (citations omitted). But to do so outside the capital context, Walley must show that he is "actually innocent of the offense underlying his conviction...." Id. (citation and quotations omitted). Walley never claims actual ...