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Ducksworth v. Banks

United States District Court, S.D. Mississippi, Eastern Division

January 10, 2018




         BEFORE 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 constitutional right.


         In 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.” Id.

         In 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).

         Respondent 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).


         A. Standard of Review

         In 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 (2007)).

         A 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).

         B. Failure to State a Constitutional Claim

         A 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.

         1. Due Process

         To 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, ...

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