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Overbey v. Mississippi Department of Corrections

United States District Court, N.D. Mississippi, Greenville Division

September 26, 2017

JOHN OVERBEY PLAINTIFF
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS DEFENDANT

          ORDER OF DISMISSAL

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE.

         This case is before the Court for consideration of the Mississippi Department of Corrections' motion to dismiss for failure to state a claim upon which relief can be granted or, in the alternative, for failure to exhaust state court remedies. Doc. #8.

         I

         Relevant Facts and Procedural History

         A. Overbey's Mississippi and Louisiana Parole

         On April 6, 1979, John Overbey was convicted in Mississippi state court for a homicide and then sentenced to prison with the Mississippi Department of Corrections (“MDOC”). Doc. #8-3. Ten years later, he was released on parole. Id.; Doc. #1. About seven years later, in August of 1996, Overbey was arrested in Louisiana and convicted, once again in state court, of second degree kidnapping, for which he was sentenced to imprisonment for forty years. Doc. #1; Doc. #8-1. In November of 1997, MDOC lodged a detainer with the Department of Public Safety and Corrections in Baton Rouge, Louisiana, for Overbey violating his parole conditions. Doc. #8-2 at 3.

         On December 19, 1997, the Louisiana State Penitentiary wrote MDOC stating, “we filed your detainer against [Overbey] and have marked our records to show that he is wanted by your office. For your information subject's earliest release date is 8/9/2036 via full term. You will be notified approximately thirty (30) days prior to his release.” Doc. #8-2 at 1.

         Eighteen years later, on December 30, 2015, the Louisiana State Penitentiary wrote MDOC, inquiring about the removal of the detainer and providing MDOC a form to fill in. Id. at 2. MDOC responded on January 6, 2016, by checking the option “Offender is WANTED by [MDOC]. Do not remove detainer.” Id.

         After receiving the letter, the Louisiana Board of Pardons, Committee on Parole, issued a decision on April 14, 2016, that Overbey was

GRANTED parole …
To Detainer - STATE OF MISSISSIPPI.

         Doc. # 1 at 5. Overbey alleges, however, that Mississippi failed to execute the detainer and pick him up. Id. at 2. On December 22, 2016, Louisiana wrote Overbey to inform him that his parole was rescinded for failure to “provide an approved Louisiana residence plan.” Doc. #7 at 4. The Louisiana Board of Pardons scheduled another parole hearing for Overbey for February 9, 2017. Id..[1] Overbey states that he was unaware until November 16, 2016, that he was eligible for “in state” parole but by then had too little time to identify a suitable Louisiana address for release. Id. at 1-2.

         B. This Action

         Sometime before November 14, 2016, Overbey filed a pro se “Motion to Show Cause” in this Court.[2] Doc. #1. As of August 10, 2016, Overbey alleges that even though he was paroled from his Louisiana custody he has not yet been released because of a detainer lodged against him by the State of Mississippi related to his Mississippi parole. Id. at 2. Finally, Overbey alleges he has not been transferred to Mississippi custody and remains in the custody of the Louisiana Department of Corrections. Id. Overbey seeks an order requiring the State of Mississippi to either execute its detainer against him or remove the detainer so that he can be released by the State of Louisiana to his family. Id.

         On December 28, 2016, MDOC, construing the motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2254, moved to dismiss Overbey's motion for failure to state a claim upon which relief may be granted or, alternatively, as unexhausted. Doc. #8. Overbey responded on January 17, 2017, opposing the construction of his motion as a petition for habeas corpus. He did not address the issue of exhaustion. Doc. #10 at 1-2. On February 3, 2017, United States Magistrate Judge Roy Percy ordered Overbey to “notify the court, within twenty-one (21) days … whether he intends to proceed with his pleading or whether he wishes to withdraw it, ” advising Overbey of the Court's intention to construe his pleading as a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Doc. #12. In the order, Judge Percy noted that “Overbey seeks to challenge his continued Louisiana detention on the basis of a detainer ...


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