* 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that this opinion should not be published and is not precedent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.

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
 

1The 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.

 

2Nelson does not specify the date of this hearing.

 

3Under 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

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
 

4Nelson 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

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

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
 

5The 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

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
6

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
7

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).
 

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). 

 

7Because 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

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
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

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.