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King v. Lee

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

April 9, 2018

GEORGE KING, JR. PETITIONER
v.
EARNEST LEE, ET AL. RESPONDENTS

          MEMORANDUM OPINION

          SHARION AYCOCK U.S. DISTRICT JUDGE

         This 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.

         Habeas Corpus Relief Under 28 U.S.C. § 2254

         The 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 codified:

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 corpus.

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).

         Facts 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).[1] The trial court sentenced King as a habitual offender under Miss. Code Ann. § 99-19-81, [2] to 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.[3] Id.

         King 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)).

         On June 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.

         On June 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.

         On 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.

         On 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.

         On 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 ...


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