United States District Court, S.D. Mississippi, Western Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
R. ANDERSON UNITED STATES MAGISTRATE JUDGE
Hodges filed the instant petition for writ of habeas corpus
relief pursuant to 28 U.S.C. § 2254 on September 6,
2018. Respondent moves to dismiss the petition for failure to
exhaust state court remedies as required under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
and for other reasons. Having reviewed the record and all
applicable law, the undersigned recommends that the petition
is currently confined to the Hinds County Restitution Center,
pursuant to an Order Revoking Probation issued by the Circuit
Court of Pike County, Mississippi, on October 25, 2017, in
Cause Nos. 13-137-PKT (failure to pay child support);
08-193-PKT (auto burglary and conspiracy to commit a crime);
and, 07-519-PKT (grand larceny). The record reflects that the
Pike County Circuit Court has sentenced Hodges several times
over the years, and previously entered revocation orders in
these cases on November 17, 2008, April 13, 2009, and January
10, 2013. The terms and conditions that gave rise to
the circuit court's most recent revocation order provided
that Hodges pay full restitution and be placed in the
Intensive Supervision/ House Arrest Program for one year.
Under the terms of the order, if Hodges successfully
completed the program, he would be placed on post-release
supervision for the remaining balance of his sentence.
However, if he failed to successfully complete the program,
he would be placed in a Mississippi Department of Corrections
facility without further order of the court.
October 25, 2017, upon finding that Hodges had again,
materially violated the terms and conditions of his
probation, the circuit court ordered as follows in Cause Nos.
13-137-PKT; 08-193-PKT; and 07-519-PKT:
[T]wo (2) years on the suspended portion of defendant's
sentences in the above styled and numbered cases should be
revoked concurrently with each other and he should be placed
in the custody of the Mississippi Department of Corrections
with the balance suspended for 2 years served on Post Release
was also ordered to complete a term in a restitution center
until all court-ordered fines, fees and restitution were paid
in full. In 2018, Hodges was released on earned release
supervision and probation. He is now confined to the Hinds
County Restitution Center in Jackson, Mississippi.
Hodges brings the instant petition alleging that he is being
held in “debtors prison” in violation of his
Sixth, Eighth, Thirteenth and Fourteenth Amendment rights. He
claims that he has been confined “without any prior
hearing to determine [his] health and the ability to pay the
debt owed to the Circuit Court of Pike County,
Mississippi.” He states that he is also being forced to
work “by the use of threat(s) of physical restraint or
injury or through law. . . .” He maintains that his
grievances have been ignored, and requests this Court grant
injunctive relief to stop “this type of action to
[himself] and future person(s). . . .” To this end, he
requests that the restitution centers in Hinds, Pascagoula,
and Greenwood, Mississippi, all be closed.
threshold matter, Petitioner's request to close
Mississippi's restitution centers should be denied
because it does not present a cognizable claim for federal
habeas relief under 28 U.S.C. § 2254. In addition, to
the extent Hodges seeks to challenge the conditions of his
confinement, and not the fact thereof, such claims should
also be dismissed as they are properly brought pursuant to 42
U.S.C. § 1983. See Carson v. Johnson, 112 F.3d
818, 820 (5th Cir. 1997); Spencer v. Bragg, 310
Fed.Appx. 678, 679 (5th Cir. 2009); see also, Madison v.
Parker, 104 F.3d 765, 767 (5th Cir. 1997).
petition for writ of habeas corpus challenges the fact of
confinement and permits a petitioner to seek immediate or
earlier release from custody. Preiser v. Rodriguez,
411 U.S. 475, 484 (1973). In this regard, the law is well
settled. Applicants seeking federal habeas relief under 28
U.S.C. § 2254 are required to exhaust all claims in
state court prior to requesting federal collateral
relief. Parr v. Quarterman, 472 F.3d 245
(5th Cir. 2006). To satisfy the exhaustion requirement
of' 2254(b)(1), a “habeas petitioner must have
fairly presented the substance of his claim to the state
courts.” Smith v. Dretke, 422 F.3d 269, 276
(5th Cir. 2005). This requires submitting the factual and
legal basis of every claim to the highest available state
court for review. Carter v. Estelle, 677 F.2d 427,
443 (5th Cir. 1982).
Mississippi law, “an order revoking a suspension of
sentence or revoking probation is not appealable.”
Beasley v. State, 795 So.2d 539, 540 (Miss. Ct. App.
2001) (quoting Griffin v. State, 382 So.2d 298, 290
(Miss. 1980)). To challenge a revocation, a petitioner must
file a motion for post-conviction relief under Miss. Code
Ann. § 99-39- 5(1)(h). See Gray v. State, 29
So.3d 791 (Miss. Ct. App. 2009) (citing Martin v.
State, 556 So.2d 357, 358-59 (Miss.1990)). This statute
provides in relevant part that “[a]ny person sentenced
by a court of record of the State of Mississippi, including a
person . . . on parole or probation . . . may file a motion
to vacate, set aside or correct the judgment or sentence . .
. if the person claims: . . [t]hat his sentence has expired;
his probation, parole or conditional release [sic] unlawfully
revoked; or he is otherwise unlawfully held in
argues that the instant petition should be dismissed because
Hodges failed to exhaust his claims before filing his federal
habeas petition. Hodges does not deny his failure to exhaust
nor has he responded to the motion to dismiss. Although he
claims his grievances have gone ignored, nothing of record
indicates that before filing the instant petition, he filed a
motion for post-conviction collateral relief in the Pike
County Circuit Court, or administrative grievances with the
Mississippi Department of Corrections' Administrative
Remedies Program, or the Hinds County Restitution Center.
habeas petitioner who has failed to exhaust all
post-conviction remedies has asserted no cognizable right to
federal habeas relief under section 2254. See Murphy v.
Johnson, 110 F.3d 10, 11 (5th Cir. 1997). Any petition
for post-conviction collateral relief relating to either his
underlying charges or subsequent revocation must be exhausted
in state court. Miss. Code Ann § 99-39-7. Exhaustion
requires him to present his claims to the state's highest
court to provide the state courts with a fair opportunity to
consider and pass upon the claims. O'Sullivan v.
Boerckel, 526 U.S. 838 (1999). Only after the
Mississippi Supreme Court has been provided with a fair
opportunity to review Hodges's claims in a procedurally
proper manner can he be said to have satisfied the exhaustion
requirement. Until such time, his § 2254 claims are not
fully exhausted and may not be considered by this
these reasons, the undersigned recommends that the instant
petition be dismissed with prejudice in part for failure to
state a claim upon which relief may be granted, and dismissed
without prejudice in part for failure to exhaust state court
remedies and for presenting civil rights claims not
cognizable on habeas review.
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