Walker v. State Of Miss., 2008-CP-01987-COA
| Decision Date | 30 March 2010 |
| Docket Number | No. 2008-CP-01987-COA,2008-CP-01988-COA.,2008-CP-01987-COA |
| Citation | 35 So.3d 555 |
| Parties | Demario WALKER, Appellantv.STATE of Mississippi, Appellee.Demario Walker, Appellantv.State of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
[35 So.3d 555 556]
Demario Walker, appellant, pro se.
Office of the Attorney General by Laura Hogan Tedder, attorney for Appellee.
Before KING, C.J., ISHEE and MAXWELL, JJ.
MAXWELL, J., for the Court:
¶ 1. Demario Walker submitted three pro se filings in the Circuit Court of Marion County, which were labeled “Motion for Post-Conviction Collateral Relief,”
[35 So.3d 555 557]
“Petition for an Order to Show Cause,” and “Petition to Clarify Sentence.” The circuit court treated the latter two filings as requests for post-conviction relief (PCR), and dismissed them under Mississippi Code Annotated section 99-39-23(6) (Supp.2009) as procedurally-barred successive writs. On appeal, Walker argues the circuit court erred in treating these filings as PCR motions.
¶ 2. The circuit court also dismissed the filing Walker labeled a PCR motion. Walker argues the circuit court should have granted this motion because his parole was unlawfully revoked and because Mississippi Code Annotated section 47-7-27 (Rev.2004) () is unconstitutional.1
¶ 3. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 4. A Marion County grand jury charged Walker with four counts of attempting to utter a forgery. He pled guilty to one count, and the State agreed not to pursue the remaining three. On June 7, 2002, the circuit court entered an order of conviction on Walker's guilty plea, and sentenced Walker to ten years in the custody of the Mississippi Department of Corrections (MDOC).
¶ 5. Soon thereafter, Walker was granted an early release on probation, and his remaining sentence was suspended. However, less than one month later, the circuit court found Walker had violated the terms of his probation and revoked Walker's probationary release.
¶ 6. Walker then filed two PCR motions, which were both appealed to this Court. In the first motion, Walker raised multiple issues, most of which were procedurally barred, and we affirmed the circuit court's denial of his PCR motion. See Walker v. State, 861 So.2d 354, 355-56 (¶¶ 2, 8) (Miss.Ct.App.2003). In his second motion, Walker argued: “(1) the trial court denied him due process of law by revoking his probation and not providing him with counsel, and (2) [his sentence] to a restitution center was cruel and unusual punishment.” Walker v. State, 910 So.2d 584, 585 (¶ 2) (Miss.Ct.App.2005). We affirmed the dismissal of this PCR motion as well. Id. at 586 (¶ 11).
¶ 7. Walker later became eligible for parole and was released in early 2006. Less than six months later, his parole was revoked. But he was again released on parole in September 2007. Less than a month later, Walker pled guilty to two felony counts of uttering bad checks in violation of Mississippi Code Annotated section 97-19-55 (Rev.2006). The Mississippi Parole Board subsequently revoked Walker's parole on the attempting-to-utter-forgery crime based upon his recent guilty pleas to the two felony-bad-check counts.
¶ 8. On August 1, 2008, Walker made the three filings giving rise to this appeal, all of which the circuit court dismissed.
STANDARD OF REVIEW
¶ 9. “This Court reviews the dismissal of a post-conviction relief motion for an abuse of discretion.” Felton v. State, 18 So.3d 328, 329 (¶ 4) (Miss.Ct.App.2009) (citation omitted). The trial court may summarily dismiss a PCR motion where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]”
[35 So.3d 555 558]
Miss.Code Ann. § 99-39-11(2) (Supp.2009); See also State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000). “On appeal, this Court will affirm the summary dismissal of a PCR petition if the petitioner has failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009). We review questions of law de novo. Felton, 18 So.3d at 329 (¶ 4).
DISCUSSION
¶ 10. Walker argues the circuit court erred in addressing his petitions to show cause and clarify his sentence under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA). He also claims the circuit court erred in dismissing a third filing, which he admits was a PCR motion. The State responds that the circuit court appropriately dismissed all three filings. The State also requests this Court decide whether Walker's “repetitive, frivolous filings” warrant imposing sanctions.
¶ 11. The UPCCRA contains various grounds for relief that are properly sought in a PCR motion. These grounds include claims that the inmate's “sentence has expired; his probation, parole or conditional release [was] unlawfully revoked; or he is otherwise unlawfully held in custody [.]” Miss.Code Ann. § 99-39-5(1)(h) (Supp.2009). However, as our statutes and case law make clear, a PCR motion is not a proper vehicle for all inmate grievances. Mississippi Code Annotated section 47-5-803(2) (Rev.2004) provides that “[n]o state court shall entertain an offender's grievance or complaint which falls under the purview of the administrative[-]review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure.”
¶ 12. In Burns, we had occasion to consider an MDOC prisoner's complaints that were similar to those presently before us. In that case, David Burns filed a pro se motion to clarify and show cause. Burns v. State, 933 So.2d 329, 330 (¶ 4) (Miss.Ct.App.2006). The circuit court considered the motion as a filing under the UPCCRA and denied relief. Id. Burns argued that he simply wanted clarity about the meaning of his sentence. Id. at 331 (¶ 7). He therefore argued his filing was not a PCR motion. Id. This Court concluded that Burns did not pursue the correct avenue for the relief he sought. The Burns Court reasoned:
Id. at 331 (¶¶ 8-9). Here, Walker's complaints are nearly identical to those in
[35 So.3d 555 559]
Burns. We find his petitions to clarify and show cause should be handled initially under administrative-review procedures rather than in the courts. See Miss.Code Ann. § 47-5-803. Since there is no indication in the record that Walker exhausted his administrative remedies on these claims, we are without jurisdiction to consider them. Miss.Code Ann. § 47-5-803(2); Adams v. Epps, 900 So.2d 1210, 1213 (¶ 12) (Miss.Ct.App.2005). Notwithstanding our lack of jurisdiction, we point out that the record reflects Walker has been advised on multiple occasions that he must serve the remaining balance of his sentence for attempting to utter a forgery.
¶ 13. To the extent Walker is claiming any illegality regarding his sentence within the meaning of section 99-39-5-which he does not appear to do and in fact argues adamantly that he is not-his petitions would have been properly dismissed as procedurally barred.2 This issue is without merit.
¶ 14. We turn now to the third filing made by Walker-the one he labeled a PCR motion. The circuit court dismissed the filing pursuant to Mississippi Code Annotated section 99-39-11(2). On appeal, Walker argues his parole was unlawfully revoked because he was not given notice and a fair opportunity to present evidence at his parole-revocation hearing. He also argues section 47-7-27 is unconstitutional.
¶ 15. Before reaching the merits of this issue, we note that this issue is not procedurally barred. Because Walker presents an argument that his parole was unlawfully revoked, his PCR motion fits within an exception to both the general prohibition against successive writs and the three-year statute of limitations. See Miss.Code Ann. § 99-39-23(6) (successive-writ exception); Miss.Code Ann. § 99-39-5(2)(b) (time-bar exception).
¶ 16. The United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), addressed the minimum due-process rights states must afford parolees. The Supreme Court explained:
Revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.
(Internal citation omitted). Mississippi Code Annotated section 47-7-27 has been specifically held to include the...
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