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Walker v. King

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

April 24, 2019

DEMARIO WALKER #l1625 PETITIONER
v.
RONALD W. KING RESPONDENT

          ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION AND DISMISSING CASE WITH PREJUDICE, ETC.

          KEITH STARRETT UNITED STATES DISTRICT JUDGE.

         This cause 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 Response [31]. The Court herein considers the record, the Report and Recommendation [42] of Magistrate Judge Micharl T. Parker, and the Objections thereto filed by Walker [43] [49].

         I. 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 On March 27, 2015 Walker's probation was revoked after the trial court found that he had absconded from his probation, failed to pay his fines, and failed to pay restitution.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 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 ...

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