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Walker v. King

United States District Court, S.D. Mississippi, Eastern Division

January 14, 2019

DEMARIO WALKER #L1625 PETITIONER
v.
RONALD W. KING RESPONDENT

          REPORT AND RECOMMENDATION

          MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Demario Walker's Petition for Writ of Habeas Corpus [1] and amended Petition for Writ of Habeas Corpus [18] along with Respondent's Response [31]. After careful consideration of the parties' submissions and the law, the undersigned recommends that the Petition be dismissed with prejudice.

         JURISDICTION

         This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. Venue is proper in this Court because Petitioner was convicted in Jefferson Davis County, Mississippi, located in the Eastern Division of the Southern District of Mississippi. 28 U.S.C. § 2241(d); Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000).

         BACKGROUND

         Walker pleaded guilty to a charge of false pretense in the Circuit Court of Jefferson Davis County, Mississippi on July 23, 2013. R. [32-2] at 66-68. The trial judge sentenced Walker to five years' incarceration, which was suspended and contingent upon five years of successful probation. Id. On March 27, 2015 Walker's probation was revoked after the trial court found that he had absconded from his probation, failed to pay his fines, and failed to pay restitution. Id. at 95.

         On May 18, 2015, Walker filed a Motion for Post-Conviction Collateral Relief in the Circuit Court of Jefferson Davis County seeking relief from his probation revocation two months earlier. Id. at 115- 120. The trial court considered Walker's motion and found that (1) Walker's probation was lawfully revoked; (2) Walker was not entitled to counsel; (3) revocation to the full term was not excessive; and (4) the court had authority to revoke Walker's probation. Id. at 123-127.

         Walker appealed the circuit court's denial of his Motion for Post-Conviction Collateral Relief on June 12, 2015. Id. at 128. The Mississippi Court of Appeals heard Walker's appeal and issued a decision on October 18, 2016 and denied rehearing on April 11, 2017. Walker v. State, 230 So.3d 709 (Miss. Ct. App. 2016). The Court of Appeals affirmed in part and reversed in part the decision of the trial court. Id.

         Both Walker and the State filed petitions for certiorari, and the Mississippi Supreme Court granted certiorari and heard the case. Walker v. State, 230 So.3d 703 (Miss. 2017). The supreme court rejected Walker's arguments that no evidence was presented of his parole violations and that he was not on parole in Jefferson Davis County when his revocation hearing occurred. Id. at 704-704. The supreme court, however, reversed the court of appeals and held that it was proper for the trial court to sentence him to serve the remaining five years of his sentence as he had committed three technical probation violations. Id. at 706. The supreme court held that a proper interpretation of the controlling statute would find each separate violation to be distinct technical violations, and Walker's three separate violations warranted the imposition of the entirety of his suspended sentence. Id. The judgment of the trial court that Walker should serve the five remaining years of his sentence was affirmed. Id.

         At the Mississippi Court of Appeals, Walker raised the following issues:

1. Probation was unlawfully revoked.
2. Walker was denied counsel.
3. Probation for the full term was excessive.
4. Trial court did not have authority to revoke Walker's probation.
5. Trial court erred in denying Walker's post-conviction motion.

         At the Mississippi Supreme Court, Walker raised the following issues:[1]

1. Walker's due process rights were violated, and no evidence was presented against him.
2. Walker was not on probation at the time of his alleged violations.

         In his habeas Petition [1] and amended Petition [18], Walker raises the following issues for review:

1. The trial court lacked jurisdiction to revoke Walker's probation.
2. Walker was not afforded due process at the revocation.
3. The probation officer failed to classify Walker as a high, medium, or low risk offender.[2]
4. Walker was entitled to counsel at the revocation.
5. Walker's sentence was improper, excessive, or illegal.

         Walker filed his Petition on May 10, 2017 raising several issues regarding his revocation of probation and return to the custody of the Mississippi Department of Corrections. See Pet. [1]. On October 13, 2017, Walker amended his Petition. See Amend. Pet. [18].

         Respondent submitted the state court record and filed a Response on January 29, 2018. See Resp. [31], R. [32]. Walker then replied to Respondent on February 20, 2018 and requested further time to file a supplemental reply. See Reply [36]. Walker filed supplemental replies on March 6, 2018 and April 3, 2018. See Supp. Reply [38], Supp. Reply ...


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