United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
petition for writ of habeas corpus is before the Court on the
Report and Recommendation (“R&R”) of
Magistrate Judge Linda R. Anderson . Judge Anderson
recommended dismissal of the petition on two grounds: (1)
failure to state a claim upon which relief can be granted
(due-process claim) and (2) failure to exhaust state-court
remedies (equal-protection claim). Petitioner Samuel
Montgomery filed an Objection , and Respondents notified
the Court of their intention not to respond . For the
reasons stated, the Court finds the R&R  should be
adopted as the opinion of the Court.
action stems from the Mississippi Parole Board's denial
of Montgomery's request for parole in 2015. Montgomery
contends he was denied due process and equal protection in
the parole proceedings, maintaining he is entitled to parole
because he meets the statutory age requirement and has served
over ten years of his sentence. Obj. .
first to Montgomery's due-process claim, Judge Anderson
correctly observed that because parole is discretionary in
Mississippi, state prisoners have no liberty interests in
parole that would implicate due process. R&R  at 4;
see Wansley v. Miss. Dep't of Corr., 769 F.3d
309, 312 (5th Cir. 2014) (“Parole, however, is
discretionary in Mississippi, so prisoners in the state have
no liberty interest in parole.”); Smith v. Miss.
Parole Bd., 478 Fed.Appx. 97, 98- 99 (5th Cir. 2012)
(same). In his Objection, Montgomery argues that the 2014
legislative amendments employ the mandatory term
“shall” thereby creating a liberty interest. Obj.
 at 3. Petitioner relies on Mississippi Code section
47-7-3(1)(g)(ii), which provides, in part:
Notwithstanding the provisions in paragraph (i) of this
subsection, a person serving a sentence who has reached the
age of sixty (60) or older and who has served no less than
ten (10) years of the sentence or sentences imposed by the
trial court shall be eligible for parole. Any person eligible
for parole under this subsection shall be required to have a
parole hearing before the board prior to parole release.
portion of the statute he cites merely provides that a person
eligible for parole “shall be required to have a
parole hearing before the board prior to parole
release.” Id. (emphasis added). It does not
provide an absolute right to be released on parole.
Consistent with this provision, Montgomery received a hearing
in 2015, and is scheduled for a second hearing on September
9, 2018. Resp. Mot. , Ex. C [19-3] at 1 (“Action of
the Parole Board”). Moreover, the Fifth Circuit has
rejected any argument that section 47-7-3 creates a liberty
interest in a parole hearing. Wansley, 769 F.3d at
312-13 (collecting cases, reversing district court decision
to order a parole hearing, and dismissing petition). The
Court agrees that Montgomery's due-process claim should
be dismissed with prejudice.
Montgomery's equal-protection claim, Judge Anderson
appropriately recommends dismissal without prejudice for
failure to exhaust state-court remedies. R&R  at 4-5
(citing the exhaustion requirements of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”)). The
record does not reflect that Montgomery has presented the
substance of his equal-protection claim “to the highest
state court.” Morris v. Dretke, 379 F.3d 199,
204 (5th Cir. 2004) (quoting Mercadel v. Cain, 179
F.3d 271, 275 (5th Cir. 1999)); see R&R  at
5 (noting Montgomery did not raise an equal-protection claim
in his filing to the Mississippi Supreme court).
Objection, Montgomery seems to argue that a prior lawsuit in
this Court should satisfy the exhaustion requirement. Obj.
 at 9. That lawsuit, Montgomery v. Mississippi Parole
Board, No. 3:16-CV-707-TSL-RHW, was merely the precursor
to this action; Judge Lee severed the instant habeas claims
into a separate lawsuit and dismissed Montgomery's claims
under 42 U.S.C. § 1983, id., Order .
Because Montgomery has not presented his equal-protection
claim to the state's highest court, that claim
is due to be dismissed without prejudice.
R&R  is adopted as the finding of this Court;
Respondents' motion to dismiss  is
granted. Montgomery's due-process claim is
dismissed with prejudice, and his equal-protection claim is
dismissed without prejudice.
separate judgment will be entered in accordance with Federal
Rule of Civil Procedure 58.
ORDERED AND ADJUDGED.
 Due to dismissal, Montgomery's
motion to substitute  Marshal Turner for Defendant E. Lee