United States District Court, S.D. Mississippi, Eastern Division
REPORT AND RECOMMENDATION
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE.
THE COURT is the Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (ECF No. 1), filed by Petitioner
Michael Ducksworth. Respondent Jacqueline Banks has filed a
Motion to Dismiss (ECF No. 9) and Petitioner a Response (ECF
No. 10). Having considered the submissions of the parties,
the record, and relevant law, the undersigned United States
Magistrate Judge recommends that Respondent's Motion to
Dismiss (ECF No. 9) be granted and Ducksworth's Petition
dismissed. Petitioner has failed to assert a violation of a
1989, Petitioner Michael Ducksworth pleaded guilty to two
counts of murder and one count of burglary. Ducksworth v.
State, 103 So.3d 762, 763 (Miss. Ct. App. 2012).
Petitioner was sentenced to two consecutive life sentences to
run concurrently and an additional five years for burglary.
(ECF No. 3, at 9). Petitioner's judgment of conviction
was entered in March 1989. Id. According to
Mississippi's parole-eligibility statute, Petitioner had
to serve at least one fourth of his burglary sentence and ten
years of each murder sentence before becoming eligible for
parole. Id. (citing Miss. Code Ann. § 47-7-3(1)
(Rev. 2011)). “Because the burglary sentence was
concurrent with the life sentences, he became parole eligible
in August 2008, the twentieth anniversary of his
incarceration, when factoring in earned time.”
2009, Petitioner's co-defendant Ozia Booth was paroled.
Petitioner was not. (ECF No. 1, at 5). Petitioner was denied
parole in 2009, 2012, and 2016. (ECF No. 3, at 8; ECF No. 9,
at 2 n.2). Petitioner does not challenge the merits of his
pleas or sentences. Rather, he challenges the Mississippi
Parole Board's denial of his request for release on
parole. Petitioner argues that such denial violates his
constitutional rights to due process and equal protection.
Petitioner asks the Court to order “a just and
meaningful parole hearing, and upon satisfaction of criteria,
be released on parole.” (ECF No. 1, at 15).
asserts that Petitioner has not stated a claim upon which
relief may be granted. (ECF No. 9, at 1). Alternatively,
Respondent argues that the Petitioner has failed to exhaust
state court remedies with respect to the denial of parole in
2016. Id. Respondent does not address
Ducksworth's denial of parole in 2009 or 2012, urging
that any claims based upon those denials are time-barred
under 28 U.S.C. § 2244(d)(1). (ECF No. 9, at 2 n.2).
Standard of Review
considering whether a party has stated a claim upon which
relief may be granted, the Court “accepts ‘all
well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.'” Martin K. Eby
Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004). However, “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
petitioner must plead “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “Factual allegations
must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).”
In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2007).
Failure to State a Constitutional Claim
habeas petitioner must allege that he or she has been
“deprived of some right secured to him by the United
States Constitution or the laws of the United States.”
Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir.
1984); see 28 U.S.C. § 2254(a). Petitioner has
not. Ducksworth's claims do not implicate due process or
equal protection concerns.
invoke the protections of the due process clause, Petitioner
must have a protected liberty interest at stake. “When
a state has a system of mandatory parole, a liberty interest
exists that implicates the procedural guarantees of the Due
Process Clause.” Wansley v. Miss. Dep't of
Corr.,769 F.3d 309, 312 (5th Cir. 2014). Parole in
Mississippi, however, is discretionary. By statute, parole
decisions are solely within the discretion of the Mississippi
Parole Board. See Miss. Code Ann. §§
47-7-3, 47-7-17. It is well settled that the Mississippi
parole statute, Mississippi Code Section § 47-7-3, does
not create a constitutionally protected liberty interest.
See Smith v. Miss. Parole Bd., 478 F. App'x 97,
99 (5th Cir. 2012); Scales v. Miss. State Parole
Bd.,831 F.2d 565, 566 (5th Cir. 1987); Irving v.
Thigpen,732 F.2d 1215, 1216 (5th Cir. 1984); Wilde
v. Miss. Parole Bd. Members, No. 3:16-cv-408-TSL-MTP,