Nelson v. State of MS ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60516
Summary Calendar
_____________________
LEE V. NELSON,
Plaintiff-Appellant,
v.
THE STATE OF MISSISSIPPI;
EDWARD HARGETT, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,
Defendants- Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:95-CV-538)
_________________________________________________________________
January 8, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mississippi Department of Corrections inmate Lee V. Nelson
filed this § 1983 action and petition for habeas corpus, alleging
due process defects in hearings in which his parole from an
earlier conviction and the suspension of part of his sentence
from a second conviction were revoked. The district court
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
dismissed the § 1983 action as frivolous and the habeas petition
for failure to exhaust state remedies. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lee V. Nelson ("Nelson") was convicted of burglary of a
dwelling in New Orleans, Louisiana, in 1982.1 He was sentenced
to a ten-year term of imprisonment, but was subsequently released
on parole and transferred to the supervision of a parole officer
in Forrest County, Mississippi. In September 1989, he was
arrested and charged with aggravated assault. At a preliminary
hearing on this charge, held on September 10, the hearing officer
determined that there were reasonable grounds to believe that
Nelson had violated his parole. At a subsequent hearing, the
Mississippi Department of Corrections ("MDOC") revoked Nelson's
parole.2 Presumably, Nelson was then required to serve the
remainder of his sentence for the 1982 burglary conviction.3
On or about April 1, 1990, Nelson entered a guilty plea on
the aggravated assault charge in the Circuit Court of Forrest
County, and was sentenced to a twelve-year term of imprisonment
1
The record on appeal consists only of pleadings filed by
Nelson and orders from the district court; the state did not
participate. Accordingly, the facts herein are those reported by
Nelson.
2
Nelson does not specify the date of this hearing.
3
Under Mississippi law, "[i]n the event the [state parole]
board shall revoke parole, the offender shall serve the remainder
of the sentence originally imposed unless at a later date the
board shall think it expedient to grant the offender a second
parole." Miss. Code Ann. § 47-7-27.
2
with five years suspended. On April 19, 1990, the district
attorney filed a petition to impose the suspended sentence.
After a hearing, the circuit court revoked the suspension of
sentence and imposed the additional five-year term, so that
Nelson is now serving the full twelve-year sentence.
Nelson apparently has never directly appealed the
revocations of parole or suspension of sentence. On December 9,
1991, however, Nelson filed a motion in the Mississippi circuit
court to vacate the portion of his sentence that had been
suspended and reimposed. In this motion, he alleged that his due
process rights had been violated because of defects in the
hearing at which the circuit court revoked the suspension of
sentence. Specifically, Nelson alleged that: (1) the court
denied his request for assistance of counsel; (2) he was not
allowed to present evidence or witnesses; (3) he had not been
indicted on the charged crime of sexual battery;4 (4) the court's
fact-finding procedures were inadequate; (5) the material facts
were not adequately developed at the hearing; and (6) he was
generally denied due process of law and subjected to cruel and
unusual punishment and double jeopardy. Nelson also asserted in
this motion that the court had denied his request for parts of
the record of the revocation hearing. In this regard, Nelson
noted that he would be able to supplement his motion with
4
Nelson appears to imply that the court revoked five years
of his twelve year sentence because of Nelson's participation in
a sexual battery; however, Nelson does not elaborate on the
sexual battery charge elsewhere in his pleadings or brief.
3
specific facts once he received the pertinent records of the
hearing. According to Nelson, he has never received the records
and the court has yet to rule on this motion. On October 5,
1992, Nelson filed a petition with the Mississippi Supreme Court
for a writ of mandamus to compel the circuit court to rule on his
motion. Nelson does not report the precise disposition of this
petition, but states only that it was "ineffective."
Proceeding pro se and in forma pauperis, Nelson filed a
complaint for damages pursuant to 42 U.S.C. § 1983 in the United
States District Court for the Southern District of Mississippi on
August 1, 1995. Nelson sued the Superintendent of the
Mississippi State Penitentiary at Parchman, Mississippi, and the
State of Mississippi, alleging that the hearings in which his
parole and suspension of sentence were revoked violated his due
process rights. With respect to the parole revocation, Nelson
alleged that: (1) the hearing was not held within two months of
his arrest; (2) he was not given notice of the hearing; (3) the
parole officer who reincarcerated Nelson after finding that he
had violated his parole was also on the parole board that
presided over the final revocation hearing; (4) he was denied
effective assistance of counsel at the hearing; and (5) he was
denied the opportunity to present and cross-examine witnesses at
the hearing. With respect to the revocation of the partial
suspension of his sentence, Nelson reiterated the claims made in
his state court motion to vacate the suspended sentence. Along
with his § 1983 complaint, Nelson attached a petition for habeas
4
corpus based on the same alleged deficiencies in the hearings
revoking his parole and suspension of sentence.
After receiving Nelson's complaint, the district court
ordered that the defendants not be served with any process or
discovery requests. Accordingly, the state did not participate
in the district court's proceedings. The court dismissed with
prejudice Nelson's § 1983 claims as frivolous under Heck v.
Humphrey, 114 S. Ct. 2364 (1994) and Jackson v. Vannoy, 49 F.3d
175 (5th Cir.), cert. denied, 116 S. Ct. 148 (1995), inasmuch as
his claims called into the question the validity of a parole
revocation proceeding, which Nelson failed to show was
invalidated by a state court. The court dismissed without
prejudice Nelson's habeas petition for failure to exhaust state
remedies.5
5
The district court's opinion discusses only the parole
revocation hearing and does not mention the hearing in which the
state court revoked the suspension of sentence. It is possible
that the district court read Nelson's pleadings to mean that he
was challenging only the parole revocation hearing or that the
revocation of parole and suspension of sentence took place in the
same hearing. Such a reading would be understandable, because
Nelson's discursive pleadings often fail to distinguish the two
proceedings. Nelson clarifies this point somewhat in his
appellate brief. Also, Mississippi law appears to dictate that
the proceedings be separate--revocation of parole is an action to
be taken by the state parole board, Miss. Code Ann. § 47-7-27,
whereas revocation of the suspension of a sentence must be done
by a court, Miss. Code Ann. § 47-7-37.
5
II. DISCUSSION
A. § 1983 Claim
Nelson argues that the district court improperly treated his
§ 1983 complaint as a challenge to his conviction, when in fact
he was challenging his parole revocation. Also, Nelson contends
that the district court should have provided him the opportunity
to show cause why his claims should not be dismissed. Finally,
Nelson asserts that he brought the § 1983 action because the
federal habeas remedy does not provide for recovering damages.
Under 28 U.S.C. § 1915(d), a district court can dismiss a
complaint filed in forma pauperis if the complaint is frivolous.
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). A complaint is
"``frivolous where it lacks an arguable basis either in law or in
fact.'" Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 325 (1989)). We review a
§ 1915(d) dismissal for an abuse of discretion. Booker v.
Koonce, 2 F.3d 114, 115 (5th Cir. 1993).
Claims alleging "harm caused by actions whose unlawfulness
would render a conviction or sentence invalid" cannot be brought
under § 1983 unless that "conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck,
114 S. Ct. at 2372. Otherwise, such a claim for damages is not
cognizable under § 1983 and must be dismissed. Id. This rule
6
clearly applies to the imposition of a suspended sentence, and we
have held that it also applies to the revocation of parole.
Jackson, 49 F.3d at 177. Nelson makes no showing that either the
revocation of his parole from his burglary sentence or the
imposition of the suspended five-year sentence for aggravated
assault has been declared invalid by any court. Accordingly, his
§ 1983 claim lacks an arguable basis in law, and the district
court did not abuse its discretion when it dismissed the claim
under § 1915(d).
B. Petition for Writ of Habeas Corpus
Nelson also argues that he sought to exhaust his state
remedies as evidenced by his district court pleadings. Before a
state prisoner may seek federal habeas relief, he must exhaust
available state remedies. See 28 U.S.C. § 2254(b). Exhaustion
generally requires only that the petitioner have fairly presented
his federal claim to the highest court of the state, either on
direct review or in a postconviction attack. Carter v. Estelle,
677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056
(1983). "[A] habeas petition must be dismissed if any issue has
not been exhausted in the state courts." Thomas v. Collins, 919
F.2d 333, 334 (5th Cir. 1990), cert. denied, 501 U.S. 1235
(1991). Stated differently, if the petition contains both
exhausted and unexhausted claims, the petition must be dismissed
in toto. Rose v. Lundy, 455 U.S. 509, 522 (1982).
7
Nelson asserts the unlawfulness of the revocation of his
parole as one ground in support of his habeas petition. Nelson
does not indicate that he has appealed the revocation of his
parole. Further, Nelson has not filed a motion for
postconviction relief from the revocation of his parole, even
though Mississippi law expressly provides him with a vehicle for
doing so.6 Therefore, because Nelson has failed to exhaust his
state remedies at least with respect to this claim, we hold that
the district court correctly dismissed Nelson's petition for a
writ of habeas corpus.7
6
Any prisoner in custody under sentence of a
court of record of the state of Mississippi
who claims . . . [t]hat his sentence has
expired; his probation, parole or conditional
release unlawfully revoked; or he is
otherwise unlawfully held in custody . . .
may file a motion to vacate, set aside or
correct the judgment or sentence, or for an
out-of-time appeal.
Miss. Code Ann. § 99-39-5(1)(g) (emphasis added). Nelson
apparently may still bring such a motion, because the three-year
limitations period that ordinarily applies to motions for
postconviction relief does not apply to claims that a prisoner's
parole was unlawfully revoked. Miss. Code Ann. § 99-39-5(2).
7
Because we hold that Nelson has failed to exhaust his state
remedies with respect to the revocation of his parole from the
burglary conviction, we need not reach the issue of whether he
has exhausted his state remedies with respect to the revocation
of the partial suspension of his sentence for aggravated assault.
We note, however, that it is unclear whether Nelson has
exhausted his remedies as to this latter claim. Nelson
apparently has filed the requisite motion for postconviction
relief from this revocation, and has received no response from
the state circuit court. Also, he apparently has received no
response from his request for a writ of mandamus to compel the
circuit court to act on this motion. Generally, a habeas
petitioner will be excused from the exhaustion requirement if the
state unjustifiably delays action on his claims. Deters v.
Collins, 985 F.2d 789, 795 (5th Cir. 1993). Failure to exhaust
8
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
on such grounds will only be excused, however, if the delay is
"wholly and completely the fault of the state." Id.
Where a habeas petitioner alleges delay as an excuse to the
exhaustion requirement, as Nelson has done here, the petitioner
bears the burden of demonstrating the excessive delay and of
showing that he has not contributed to the delay. See id.; see
also Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). The
district court may well have determined that Nelson failed to
meet his burden in this regard. On one hand, Nelson stated in
his postconviction relief motion that he would supplement the
motion with more specific facts; failure to do so may have
contributed to the circuit court's delay in acting on the motion.
On the other hand, Nelson also indicated that he had been denied
access to the court records that would have assisted him in
pleading more specific facts. If Nelson refiles a habeas
petition after exhausting his state remedies with respect to the
parole revocation, the district court should consider the state's
delay in acting on Nelson's motion in deciding whether Nelson has
exhausted his state remedies with respect to his claim regarding
the revocation of the partial suspension of his sentence.
9