United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
matter comes before the court on the pro se petition
of Victor Bowen for a writ of habeas corpus under 28
U.S.C. § 2241. The State has moved to dismiss the
petition as moot; Mr. Bowen has not responded to the motion,
and the matter is ripe for resolution. For the reasons set
forth below, the instant petition will be dismissed as moot.
Corpus Relief Under 28 U.S.C. § 2241
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. § 2241, a federal court may
issue the writ when the petitioner is in state custody
pursuant to something other than a state judgment (such as
pretrial detention, pretrial bond order, etc.), 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
Bowen is currently on parole from a sentence served with the
Mississippi Department of Corrections. On December 17,
2012, Bowen was indicted on the charge of sale of cocaine in
Panola County Circuit Court, First Judicial District, Cause
Number CR2012-78JMP. See Exhibit B (Docket and
Indictment in Cause Number CR2012-78JMP1). On February 12,
2015, Bowen pleaded guilty to the charge of sale of cocaine,
less than two (2) grams. See Exhibit C (Petition to
Enter Plea of Guilty and Transcript). Under his plea, the
Panola County Circuit Court sentenced Bowen to serve a term
of one day of incarceration in the MDOC, followed by a term
of five years of post-release supervision. See
18, 2017, the State filed a Petition to Revoke Post-Release
Supervision, citing: (1) Bowen's failure to pay
court-ordered assessments and (2) the commission of the crime
of sale of cocaine on or about February 28, 2017, which
resulted in a an indictment in Tate County. See
Exhibit E. On the same day, the Panola County Circuit Court,
First Judicial District issued a bench warrant and entered an
order setting a hearing for May 24, 2017, on the State's
Petition to Revoke Post-Release Supervision. See
Exhibit F (Bench Warrant and Order). Mr. Bowen was served
with notice of the hearing on May 19, 2017. See
initial revocation hearing took place on May 24, 2017.
See Exhibit H (Transcript of Revocation Hearing on
May 24, 2017). The circuit court ultimately continued the
hearing to allow Bowen and his attorney the opportunity to
provide evidence in support of Bowen's allegation that he
had been coerced to take his plea in 2015. Id. The
circuit court further ordered that Bowen was to remain in the
custody of the Tate County Sheriff's Department without
bond until the continued hearing on July 6, 2017.
Id. See Exhibit I.
30, 2017, the circuit court entered an Order appointing Tommy
Defer to represent Bowen at his revocation hearing.
See Exhibit J. On July 6, 2017, the Panola County
Circuit Court held a status hearing on Bowen's continued
revocation proceedings and Tommy Defer's request to be
relieved as Bowen's counsel because Mr. Bowen had filed a
bar complaint against him for allegedly coercing Bowen into
pleading guilty. See Exhibit K (Transcript of Status
Conference). On July 7, 2017, the circuit court entered an
Order continuing Bowen's revocation proceedings to July
27, 2017, to allow Tommy Defer to withdraw as counsel, citing
the bar complaint and the need to appoint new counsel.
See Exhibit L. The circuit court then appointed
David Walker to represent Bowen at his revocation hearing.
See Exhibit M.
24, 2017, Bowen again appeared in circuit court on his
revocation proceedings. See Exhibit N (Transcript of
Revocation Hearing on July 24, 2017). The circuit court
entered an Order revoking Bowen's five years of
post-release supervision, finding that the State met its
burden of proof by the preponderance of the evidence that
Bowen had failed to pay court-ordered assessments and
committed the new crime of the sale of cocaine on or about
February 28, 2017. See Exhibit O. The circuit court
further credited Bowen for the eighty-nine (89) days served
while awaiting disposition of the revocation proceedings and
ordered Bowen to complete the GED program while in custody.
of Proceedings: § 2241 v. § 2254
state prisoner challenges unconstitutional parole procedures
or rules which affect his release, and resolution would
entitle him to accelerated release, the challenge is properly
brought as a habeas corpus proceeding. Davis v.
Fechtel,150 F.3d 486, 490 (5th Cir.1998). A
challenge to the execution of a sentence, as opposed to its
duration, is appropriately brought under Title 28 U.S.C.
§ 2241, as opposed to § 2254. Id., at 490;
see also, Batiste v. State Bd. of Pardon and Parole,
1999 WL 102027 at *1 (E.D.La.1999) (quoting King v.
Lynaugh,729 F.Supp. 57, 58 (W.D.Tx.1990)); McIntosh
v. U.S. Parole Comm'n,115 F.3d 809, 811
(10th Cir.1997) (petitions under § 2241 are
used to attack execution of a sentence); Hall v.
Saffle,10 Fed.Appx. 768, 2001 WL 589514 at *2
(10th Cir. May 31, 2001) (unpub.) (due process
challenge to the execution of a sentence is properly