Before Prather, P.j., Banks And McRAE, JJ.
The opinion of the court was delivered by: Banks, Justice, For The Court:
DATE OF JUDGMENT: 05/22/96
TRIAL JUDGE: HON. GRAY EVANS
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: FRANK CARLTON
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
¶1. In this case we are called upon to address the appellant's claim that he should be allowed to serve his state time in a federal facility. The basic question is whether the issues should be tried now or later. The trial court said later is better and dismissed the appellant's complaint. Because we believe this delay serves little purpose, we reverse and remand with directions to appoint counsel and proceed with the consideration of the appellant's claim.
¶2. At the time this matter arose David Lynn Unruh was serving time at Parchman for crimes in Lowndes County as a habitual offender. The record indicates that during his incarceration from 1987 until April, 1988, Unruh served as an informant and witness for a federal investigation of a money order scam at the Mississippi State Penitentiary. The investigation resulted in the indictment and conviction of several individuals for conspiracy and mail fraud.
¶3. As a result of Unruh's participation in this case, the United States Attorney requested that he be allowed to serve the remainder of his sentence in federal custody. Thomas F. O'Neil of the United States Attorney's Office for the District of Maryland acknowledged that because Unruh's testimony was the primary factor leading to the indictment and conviction of several inmates and prison officials, his safety would be severely jeopardized if he remained in the Mississippi prison system. On August 15, 1988, Unruh's transfer from the MDOC to federal custody was approved by the Interim Commissioner of Corrections and the Governor, pursuant to Miss. Code Ann. § 47-5-175 (1993). *fn1 On August 24, 1988, O'Neil requested that Unruh be transferred to the Talladega federal facility in Alabama.
¶4. In an affidavit Unruh claims that he testified in support of the federal government's case in exchange for complete immunity, assistance in obtaining parole from the Mississippi Parole Board, admission to the Federal Witness Protection Program, and a promise that he would serve the remainder of his Mississippi sentence under federal custody in Talladega. However, shortly after arriving in Alabama, Unruh was transferred to the Lowndes County Jail in Columbus, Mississippi, where he claims he was harassed and threatened by other inmates. On or about September 1, 1990, allegedly fearing for his life, Unruh escaped from the county jail.
¶5. After his escape from the Lowndes County Jail, Unruh found his way to South Dakota where he is currently serving time in the South Dakota State Penitentiary on an unrelated conviction. While incarcerated there, Unruh submitted to the Mississippi Department of Corrections (MDOC) an Offender's Relief Request form on September 28, 1995, and a Third Step Response form October 17, 1995, requesting an administrative remedy. The MDOC Administrative Remedy staff denied Unruh's request, finding that the agreement between the U.S. Government and the State of Mississippi was never consummated.
¶6. On November 13, 1995, Unruh filed a complaint in the Circuit Court of Hinds County, Mississippi, against the MDOC. This case was later transferred to the Sunflower County Circuit Court. In his complaint, Unruh requests that the MDOC be restrained from placing the appellant in any Mississippi penal facility. Also, the complaint requests that Unruh be appointed counsel. The MDOC submitted an answer to the complaint March 27, 1996, arguing that the complaint should be dismissed without prejudice because Unruh is currently listed as an escapee. Additionally, the MDOC claims that it was unaware of any agreement to allow Unruh to serve his sixteen (16) year Mississippi sentences in another state.
¶7. On May 22, 1996, the circuit court acknowledged Unruh's cooperation with the federal investigation in several money order scam cases; however, it ordered that the complaint be dismissed because Unruh was not scheduled for release from the South Dakota prison until the year 2008. The circuit court concluded that consideration of Unruh's complaint at this time would be ...