United States District Court, N.D. Mississippi, Oxford Division
RESPONDENTS OF DISMISSAL
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
Johnny Frank Gordon, an inmate housed at the Mississippi
State Penitentiary, has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging the
denial of his release on parole. This matter is before the
Court, sua sponte, for consideration of dismissal.
Frank Gordon entered the custody of the Mississippi
Department of Corrections (“MDOC”) in 1992 after
being convicted in Washington County, Mississippi, of murder,
grand larceny, and armed robbery. See Doc. #1 at 11.
He was sentenced to imprisonment for life for murder, 5 years
for grand larceny, and 3 years for armed robbery.
Id. Gordon was released on parole in November of
2004. Id. On or about August 24, 2009, he was
sentenced to a 15-year term incarceration for a robbery he
committed in Harrison County, Mississippi, while out on
parole. Id. at 8, 11.
claims that on or about October 19, 2017, he was granted
parole to Pontotoc County for the Washington County offenses,
but that a “hold” was placed on his parole
because of his 15-year robbery conviction. See Id.
at 6-7. Gordon argues that he has already served the 50
percent of his robbery sentence mandated pursuant to Miss.
Code Ann. § 97-3-2, however, and that he should be
released on parole. See Miss. Code Ann. §
97-3-2(2) (mandating that “[n]o person convicted of a
crime of violence listed in this section is eligible for
parole or for early release from the custody of the
Department of Corrections until the person has served at
least fifty percent (50%) of the sentence imposed by the
court). In this habeas action, Gordon claims that his 15-year
sentence should have started upon his arrest for the new
robbery charge, as it would be impossible to serve all of a
life sentence before commencing a subsequent, consecutive
habeas relief for an inmate in custody pursuant to the
judgment of a state court is available “only on the
ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Therefore, an individual cannot maintain a
federal habeas action unless he alleges the deprivation of
some right secured to him by federal law. Id.;
see also Irving v. Thigpen, 732 F.2d 1215, 1216 (5th
case, Gordon does not challenge the constitutionality of his
convictions and sentences. Rather, he claims that he is
entitled to be released on parole under Mississippi law.
However, there is no constitutionally recognized right to
parole. See Greenholtz v. Inmates of Nebraska Penal and
Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence.”). Moreover, both the Mississippi Supreme
Court and the Fifth Circuit have held that Mississippi's
parole statutes are permissive rather than mandatory, and
therefore, they fail to create a liberty interest that will
support a habeas action for failure to parole. See Davis
v. State, 429 So.2d 262, 263 (Miss. 1983) (holding that
the Mississippi parole law provides only “a mere hope
that the benefit will be obtained”); Scales v.
Mississippi State Parole Board, 831 F.2d 565, 566 (5th
Cir. 1987) (citing Irving, 732 F.2d at 1217-1218
(holding “the Mississippi [parole] statute does not
create any constitutionally protected liberty interest in
parole to which procedural due process considerations
attach”)); see also Miss. Code Ann. §
47-7-1, et seq. Because Mississippi statutes provide
no “legitimate claim of entitlement” to parole,
but rather, merely the hope of it, Gordon cannot sustain a
federal habeas action based on the denial of parole. See
Greenholtz, 442 U.S. at 7.
even if Gordon could sustain a federal habeas action, it does
not appear that he has fully and fairly presented these
claims to the Mississippi Supreme Court. A prisoner seeking
federal habeas relief must exhaust all available state-court
remedies prior to seeking relief in federal court.
See 28 U.S.C. § 2254(b)(1) and (c); Beazley
v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001). The
exhaustion requirement is satisfied when the habeas claim has
been presented to the highest state court in a procedurally
proper manner. See Mercadel v. Cain, 179 F.3d 271,
275 (5th Cir. 1999); Nobles v. Johnson, 127 F.3d
409, 420 (5th Cir. 1997). If a petitioner presents claims in
federal court that have not yet been exhausted, a federal
court generally must dismiss the petition. Rose v.
Lundy, 455 U.S. 509, 510 (1982); see also Duncan v.
Walker, 533 U.S. 167, 178-79 (2001) (“The
exhaustion requirement of § 2254(b) ensures that the
state courts have the opportunity fully to consider
federal-law challenges to a state custodial judgment before
the lower federal courts may entertain a collateral attack
upon that judgment.”). The information before the Court
suggests that Gordon has failed to comply with the exhaustion
for the reasons as set forth herein, it is
ORDERED that this petition for a writ of
habeas corpus is DENIED, and this case is
DISMISSED. A certificate of appealability is
DENIED, as the Court concludes that jurists
of reason would not debate whether the petitioner has stated
a valid constitutional claim. 28 U.S.C. § 2253(c);
Slack v. McDaniel, 529 U.S. 473, 484 (2000). A
separate final judgment will enter today.