United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER OF DISMISSAL
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
case is before the Court sua sponte. Pro se
Plaintiff Frederick Earl Buckhalter is incarcerated with the
Mississippi Department of Corrections (“MDOC”),
and he brings this action for release and damages,
challenging the length of his incarceration. The Court has
considered and liberally construed the pleadings. As set
forth below, this case is dismissed.
AND PROCEDURAL HISTORY
August 2, 2010, Buckhalter pled guilty to being a felon in
possession of a firearm, and he alleges that the Harrison
County Circuit Court sentenced him to five years, suspended,
with two years to serve on post release supervision, pursuant
to a plea agreement. He was later arrested on June 29, 2015,
on a charge of possession of a controlled substance. On June
21, 2016, he pled guilty as an habitual offender and claims
he was sentenced to serve three years in the custody of MDOC.
With credit for pretrial time spent in jail, Buckhalter
asserts that he should have been released on June 29, 2018.
Nevertheless, he is still being held on both convictions. He
claims that Defendants Pelicia Hall, Jeworski Mallett, Alicia
Box, and Joseph Cooley, all employed by MDOC, are holding him
both in excess of the statutory maximums for each sentence,
as well as the sentences as they were actually handed down.
brings this action under 42 U.S.C. § 1983, seeking both
release and damages.
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this Court. The
statute provides in pertinent part that, “the court
shall dismiss the case at any time if the court determines
that . . . the action . . . (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). The statute “accords judges not only the
authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce
the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless.” Denton v. Hernandez, 504 U.S. 25,
32 (1992). “[I]n an action proceeding under [28 U.S.C.
§ 1915, a federal court] may consider, sua sponte,
affirmative defenses that are apparent from the record even
where they have not been addressed or raised.” Ali
v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
“Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer.”
Id. The Court has permitted Buckhalter to proceed
in forma pauperis in this action. His Complaint is
subject to sua sponte dismissal under § 1915.
that challenges the fact or duration of a state conviction or
sentence “is barred (absent prior invalidation) . . .
if success in that action would necessarily demonstrate the
invalidity of confinement or its duration.”
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). In
such a case, a “plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such a determination, or called
into question by a federal court's issuance of a writ of
habeas corpus.” Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). Where success on the claim “will
not necessarily imply the invalidity of confinement or
shorten its duration, ” then the action may proceed.
Wilkinson, 544 U.S. at 82.
claims that Defendants have miscalculated his sentences and
are holding him in excess of the time ordered by the trial
courts and statutory maximums. Success on these claims will
necessarily invalidate the length of his present
incarceration. Therefore, the case may only proceed if he
proves the sentence calculations have already been
invalidated. He admits that they have not.
the sentence calculations have not yet been invalidated,
Buckhalter is precluded by Heck from challenging
them in this civil action at this time. The § 1983
claims are therefore dismissed with prejudice for failure to
state a claim, until such time as he successfully has the
sentence calculations invalidated, via appeal,
post-conviction relief, habeas corpus, or otherwise.
Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.
Buckhalter's pro se Complaint liberally, the
Court finds that he is also making habeas claims. This is
because he seeks immediate release. Orellana v.
Kyle, 65 F.3d 29, 31 (5th Cir. 1995).
Buckhalter can pursue the habeas claims in this Court, he
must exhaust his available state remedies. 28 U.S.C. §
2254(b)(1)(A). This gives “the States the
‘opportunity to pass upon and correct' alleged
violations of its prisoners' federal rights.”
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995)). In order
to exhaust his claims for habeas relief, he is required to
seek relief from the highest court of the State.
O'Sullivan v. Boerckel, 526 U.S. 838, 840
(1999). Although Buckhalter claims to have previously brought
his claim in “the courts, ” sometime in the past
two years, he is no more specific than that. He does not
allege that he has brought his case ...