United States District Court, N.D. Mississippi, Aberdeen Division
GEORGE KING, JR. PETITIONER
EARNEST LEE, ET AL. RESPONDENTS
SHARION AYCOCK U.S. DISTRICT JUDGE
matter comes before the court on the pro se petition
of George King, Jr. for a writ of habeas corpus
under 28 U.S.C. § 2254. The State has moved to dismiss
the petition for failure to state a claim upon which relief
could be granted. Mr. King has not responded, and the matter
is ripe for resolution. For the reasons set forth below, the
State's motion will be granted, and the instant petition
for a writ of habeas corpus will be dismissed.
Corpus Relief Under 28 U.S.C. § 2254
writ of habeas corpus, a challenge to the legal
authority under which a person may be detained, is ancient.
Duker, The English Origins of the Writ of Habeas Corpus: A
Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass,
Historical Aspects of Habeas Corpus, 9 St. John's L.Rev.
55 (1934). It is “perhaps the most important writ known
to the constitutional law of England, ” Secretary
of State for Home Affairs v. O'Brien, A.C. 603, 609
(1923), and it is equally significant in the United States.
Article I, § 9, of the Constitution ensures that the
right of the writ of habeas corpus shall not be
suspended, except when, in the case of rebellion or invasion,
public safety may require it. Habeas Corpus, 20 Fed.
Prac. & Proc. Deskbook § 56. Its use by the federal
courts was authorized in Section14 of the Judiciary Act of
1789. Habeas corpus principles developed over time
in both English and American common law have since been
The statutory provisions on habeas corpus appear as
sections 2241 to 2255 of the 1948 Judicial Code. The
recodification of that year set out important procedural
limitations and additional procedural changes were added in
1966. The scope of the writ, insofar as the statutory
language is concerned, remained essentially the same,
however, until 1996, when Congress enacted the Antiterrorism
and Effective Death Penalty Act, placing severe restrictions
on the issuance of the writ for state prisoners and setting
out special, new habeas corpus procedures for
capital cases. The changes made by the 1996 legislation are
the end product of decades of debate about habeas
Id. Under 28 U.S.C. § 2254, a federal court may
issue the writ when a person is held in violation of the
federal Constitution or laws, permitting a federal
court to order the discharge of any person held by a
state in violation of the supreme law of the land.
Frank v. Mangum, 237 U.S. 309, 311, 35 S.Ct. 582,
588, 59 L.Ed. 969 (1915).
and Procedural Posture
George King, Jr. is in the custody of the Mississippi
Department of Corrections and currently housed at the
Mississippi State Penitentiary in Parchman, Mississippi. He
was convicted on May 25, 1989, for sale of cocaine in Lowndes
County Circuit Court, Cause No. 10, 884. See Exhibit
A (Indictment and Sentencing Order in Lowndes County Circuit
Court Cause No. 10, 884). The trial court sentenced King as a
habitual offender under Miss. Code Ann. § 99-19-81,
serve a term of thirty years in the custody of the
Mississippi Department of Corrections (“MDOC”),
without eligibility for a reduced or suspended sentence,
parole, or probation. Id.
appealed, and on March 20, 1991, the Mississippi Supreme
Court affirmed the conviction and sentence. King v.
State, 576 So.2d 154 (Miss. 1991) (89-KA-0974)).
18, 2015, he filed in the Mississippi Supreme Court (Cause
No. 2015-M-00955) an Application for Leave to Proceed in the
Trial Court to file a petition for a parole recommendation.
See Exhibit C. On July 1, 2015, the Mississippi
Supreme Court held that Mr. King, under Miss. Code Ann.
§ 47-7- 3(1)(g)(iii), need not seek leave to proceed in
the trial court to petition for a parole recommendation from
the senior circuit judge. See Exhibit D. As such,
the Mississippi Supreme Court dismissed King's pleading
without prejudice to his right to file a request for parole
in the trial court. Id.
25, 2015, King filed his petition for parole eligibility in
the trial court (Cause No. 10, 884). See Exhibit E
(“Petition for Parole” and Docket in Lowndes
County Circuit Court Cause No. 10, 884). On August 24, 2015,
the senior circuit judge entered an order denying King's
parole request under Miss. Code Ann. §
47-7-3(1)(g)(iii), based upon his prior convictions and the
nature of the charges for which King was convicted in the
present case. See Exhibit F. King then filed a
“Petition for Writ of Prohibition” (in effect, a
motion for recusal) in both Mississippi Supreme Court Cause
No. 2015-M-00955 and Lowndes County Circuit Court Cause No.
10, 884. See Exhibit G (“Petition for Writ of
Prohibition, ” Mississippi Supreme Court Cause No.
2015-M-00955 and Lowndes County Circuit Court Cause No. 10,
884). In his motions, King sought recusal of Senior Circuit
Court Judge Lee S. Howard because he was the district
attorney who had previously prosecuted King at trial.
See Exhibit G. On September 23, 2015, the
Mississippi Supreme Court dismissed King's
“Petition for Writ of Prohibition, ” finding that
he had offered no evidence that he had first sought recusal
in the trial court. See Exhibit H. This Order was
also filed in Lowndes County Circuit Court Cause No. 10, 884.
See Exhibit H.
October 8, 2015, King filed a “Motion for
Recusal” and a second petition for parole eligibility
under Mississippi Code Section 47-7-3(1)(g)(iii), in Lowndes
County Circuit Court Cause No. 10, 884. See Exhibit
I (“Petition for Authorization for Eligibility for
Parole”). On October 12, 2015, the trial court
reassigned King's case, holding:
Miss. Code Ann. § 47-7-3 finds that if a parole petition
is submitted in a cause in which the sentencing judge has
since retired, the petition is to be handled by the Senior
Circuit Judge of the district. However, in this cause, the
Senior Circuit Judge of the 16th District, the
Honorable Lee J. Howard, was the district attorney who
prosecuted this Defendant. Therefore, the Honorable Lee J.
Howard, to avoid any appearance of impropriety, hereby
withdraws from ruling on the parole petition filed in this
cause and does transfer the matter to the Honorable Lee S.
Coleman for ruling.
See Exhibit J.
October 23, 2015, Judge Coleman denied King's petition
for parole. See Exhibit K. Following the denial,
King appealed. See Exhibit L, Mississippi Supreme
Court Cause No. 2015-TS-01739.
November 17, 2015, the circuit court dismissed King's
pending request for parole recommendation, finding that the
circuit court lacked jurisdiction to hear the motion, since
the circuit court's denial of the King's previous