United States District Court, S.D. Mississippi, Northern Division
REPORT AND RECOMMENDATION
KEITH BALL UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the Motion for Summary Judgment
 filed by Defendants Jim Hood, Pelicia Hall, and Frank
Shaw, to which Plaintiff Michael Warren Willie has failed to
respond. Defendants, sued in their official capacities, argue
that this 42 U.S.C. Â§ 1983 action should be dismissed because
Plaintiff has failed to exhaust his administrative remedies.
Alternatively, they assert that Â§ 1983 is not the proper
vehicle for the relief Plaintiff seeks. For the reasons
explained below, the undersigned recommends that the Motion
for Summary Judgment be granted, and this case be dismissed.
action, Willie alleges that Defendants have violated his
liberty interests and due process rights under the Fifth and
Fourteenth Amendments by denying him the opportunity for
parole. Willie was originally convicted in 1989 on a charge
of capital murder and sentenced to death. Willie,
2008 WL 1990775 at 1; Miss. Code Ann. § 99-19-101
(1983). After various appeals and remands, in 2002 he was
ultimately adjudged a habitual offender under Mississippi
Code Annotated § 99-19-18 and sentenced to life without
clear that the Due Process Clause of the Constitution does
not create a liberty interest in parole.
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7
(1979)(emphasis added). Furthermore, the United States Court
of Appeals for the Fifth Circuit has held that the
Mississippi parole statute, Miss. Code Ann.' 47-7-3
(1972), does not create a constitutionally protected liberty
interest in an offender receiving parole. Scales v.
Mississippi State Parole Board, 831 F.2d 565, 566 (5th
Cir. 1987)(“In Mississippi, the absolute discretion
conferred on the Parole Board affords a prisoner no
constitutionally recognized liberty interest.”);
Irving v. Thigpen, 732 F.2d 1215 (5th Cir. 1984);
see also Johnson v. Miller, 919 So.2d 273, 277(Miss.
Ct. App. 2005) ("In Mississippi, prisoners have 'no
constitutionally recognized liberty interest in
parole.'")(citations omitted). Consequently,
Plaintiff cannot bring an action for the denial of the
opportunity for parole pursuant to § 1983.
alternative basis for dismissal, the State asserts that
Plaintiff has failed to exhaust his administrative remedies
on these claims. See 42 U.S.C. § 1997e(a);
Gonzales v. Seal, 702 F.3d 785 (5th Cir.
2012)(finding that exhaustion of administrative remedies
prior to suit is mandatory, and that district courts have no
discretion to stay' 1983 prisoner cases when they are
filed before prisoners have exhausted administrative
remedies). The State presents Plaintiff's administrative
remedy record dating back to 2004 (the year his conviction
was upheld on direct and collateral state appeals), and it
contains no requests for administrative remedies on his
claims that he was wrongfully sentenced as a habitual
offender or that he has sought a parole date through the
administrative remedy process. See [18-1].
Willie pursued relief through a petition for habeas corpus
relief, dismissal would be warranted. Not only could the
claim be dismissed as “second or successive”
under 28 U.S.C. § 2244(b)(2), but because his
eligibility for parole is a matter of state law, “the
Mississippi Supreme Court, not this federal court, is the
final authority on the law of the State of Mississippi. It
needs no approval from the federal courts on the subject of
its own law.” Willie, 2008 WL 1990775 at *17.
In other words, “the proper interpretation of state law
is not cognizable in federal habeas
proceedings.” Beazley v. Johnson, 242 F.3d
248, 261 (5th Cir. 2001)(emphasis in original).
parties are hereby notified that failure to file written
objections to the proposed findings, conclusions, and
recommendation contained within this report and
recommendation within fourteen (14) days after being served
with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to
proposed factual findings and legal conclusions accepted by
the district court. 28 U.S.C. § 636, Douglass v.
United Services Automobile Association, 79 F.3d 1415,
1428-29 (5th Cir. 1996).
 The procedural history of
Plaintiff's criminal conviction is recounted in the
Report and Recommendation entered in his petition for habeas
corpus relief. See Willie v. Bradley, 2008 WL
1990775 (N.D. Miss. Feb. 12, 2008). A brief review of
Willie's conviction and sentence is instructive in
considering the case.
As stated supra, Willie was originally
convicted in 1989 on a charge of capital murder and sentenced
to death. Id. at *1; Miss. Code Ann. §
99-19-101 (1983). Following a series of appeals and remands,
in 2002 his indictment was amended to charge him as a
habitual offender under Mississippi Code Annotated §
99-19-18, known as the “little habitual” statute.
Willie, 2008 WL 1990775 at *1. The amendment was
based on two felonies, one of which had matured into a
conviction after his initial conviction of capital murder.
Id. at *3. The court ultimately adjudged him a
habitual offender and sentenced him to life without parole
under § 99-19-18. Id. This sentence was upheld
in 2004 on direct and collateral state appeals.
In February 2005, Willie timely challenged his
conviction and sentence in a petition for habeas corpus
relief filed in the United States District Court for the
Northern District of Mississippi. Id. The Court
appointed counsel and held an evidentiary hearing.
Id. at *5. After a thorough examination of the
petition and the case's long procedural history, the
Magistrate Judge found that Willie failed to establish
entitlement to relief. Id. at *17. In addition, the
Magistrate Judge concluded that Willie did not raise
“any issue of federal constitutional law relating to
the granting of the amendment to the indictment or the
application of ...