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Walker v. Caskey

United States District Court, Fifth Circuit

August 1, 2013

DEMARIO WALKER, Petitioner,
v.
DALE CASKEY, Respondent.

REPORT AND RECOMMENDATIONS

MICHAEL T. PARKER, Magistrate Judge.

This matter is before the Court on Demario Walker's Petition for Writ of Habeas Corpus [1] pursuant to 28 U.S.C. § 2254. Dale Caskey, the respondent in this matter, filed an answer to the petition wherein he asserts that Walker is not entitled to federal habeas relief because he did not exhaust his claims prior to filing this action. Upon due consideration of the parties' briefs, case record, and applicable law, the undersigned is of the opinion that the Petition [1] should be denied and that this case should be dismissed with prejudice.

FACTS AND PROCEDURAL HISTORY

On May 21, 2002, Demario Walker pled guilty to one count of attempted uttering of a forgery, in violation of Miss. Code Ann. § 97-21-59 and § 97-21-7. Doc. [10-1] at 6, 16-19. On June 7, 2002, the Circuit Court of Marion County, Mississippi, sentenced Walker to serve 10 years in the custody of the Mississippi Department of Corrections ("MDOC"), and to participate in the MDOC Regimented Inmate Discipline ("RID") Program. Doc. [10-1] at 23-25, 82-83. As part of his sentence, Walker had to complete the RID Program at a restitution center and upon completion, he would be released to a local probation officer to complete his period of probation.[1] Doc. [10] at 24.

On February 3, 2003, after receiving notification that Walker could not complete the RID Program due to medical problems, the Marion County Circuit Court amended his sentence and ordered that he be released on probation for 5 years. Doc. [10-1] at 85-88. The amended sentence provided that Walker was given credit for the 180 days he served on his 10-year sentence and that the remaining 8 years, 6 months, and 3 weeks would be suspended. Id.

On February 28, 2003, the Marion County Circuit Court revoked Walker's probation because he violated certain terms and conditions of release.[2] Doc. [10-1] at 91. Walker was then placed in MDOC custody to serve 5 years imprisonment.[3] He later became eligible for parole and was released on or about January 27, 2006. See Inmate Time Sheet [10-3] at 1; Walker v. State, 35 So.3d 555, 557 (Miss. Ct. App. 2010). However, his parole was revoked again in mid-2007 and he returned to prison. Inmate Time Sheet [10-3] at 1.

On September 17, 2007, Walker was released on parole. Inmate Time Sheet [10-3] at 2. Shortly thereafter, he pled guilty to two felony counts of uttering bad checks in violation of Miss. Code Ann. § 97-19-55 (Rev. 2006). As a result, Walker's parole was revoked and he returned to prison in January 2008. Walker, 35 So.3d at 557.

On August 1, 2008, Walker filed a motion for post-conviction relief to the Marion County Circuit Court. Doc. [10-1] at 142. By order dated August 7, 2008, the motion was denied. Doc. [10-2] at 51-57. Walker filed a notice of appeal on August 26, 2008. Doc. [10-2] at 58. He argued that the trial court unlawfully revoked his parole without affording him due process of law, that his "street time" was unlawfully revoked, and that Miss. Code Ann. § 47-7-27 was unconstitutional. Doc. [10-5] at 2-12. On March 30, 2010, the Mississippi Court of Appeals affirmed the denial of post-conviction relief. Walker requested and was granted three extensions of time within which to file a petition for rehearing. Doc. [9-9]. The court of appeals, however, denied his fourth request. Doc. [9-10]. The deadline by which Walker was required to move for rehearing was July 1, 2010. He did not file a motion by that date. The court of appeals issued a mandate on July 13, 2010. Since he did not move for rehearing, Walker was unable to petition the Mississippi Supreme Court for certiorari.

On July 19, 2010, Walker filed the instant Petition in this Court, asserting the following grounds for habeas relief: (1) probation unlawfully revoked; and (2) parole unlawfully revoked. Although he lists two grounds for relief, Walker does not provide any additional information or proof showing that he was revoked from probation and parole. In light of the evidence in the record, it appears that only Walker's parole was revoked. Accordingly, the undersigned interprets the Petition as stating one ground for relief: unlawful revocation of parole.[4] It appears that the Petitioner only challenges the 2008 revocation of his parole.

In his Answer [9], the Respondent argues that Walker never gave the Mississippi Supreme Court an opportunity to review his claim and, therefore, the Petition must be denied. Walker requested and was granted additional time to respond to the Answer, but he failed to file a response. Accordingly, this matter is ripe for a decision.

ANALYSIS

The Antiterrorism and Effective Death Penalty Act ("AEDPA") and case law interpreting it provide the standards under which Walker's petition must be evaluated.[5] See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002), cert. denied, 537 U.S. 1104 (2003); Lindh v. Murphy, 521 U.S. 320, 324-26 (1997) (stating that the AEDPA applies to federal habeas corpus petitions filed on or after April 24, 1996). As a preliminary matter, applicants must exhaust all state remedies before seeking federal habeas relief. Title 28 U.S.C. § 2254 provides, in relevant part, that:

(b)(1) 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 ...

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