OF JUDGMENT: 01/11/2017
COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH JUDGE
COURT ATTORNEYS: ANTHONY LOUIS SCHMIDT, JR., DARRELL CLAYTON
ATTORNEY FOR APPELLANT: FORREST THOMAS, III (PRO SE)
ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY:
DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT, JR.
RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
After exhausting the administrative remedies program within
the Mississippi Department of Corrections, Forrest Thomas III
appealed to the Marshall County Circuit Court for review of
the Department's decision denying him trusty time credit
and meritorious earned time credit, the denial of which was
based upon his conviction of kidnapping a child under the age
of sixteen pursuant to Mississippi Code Section 97-3-53 and
classification as a sex offender pursuant to Mississippi Code
Section 45-33-23(h)(i). The circuit court denied Thomas
relief as well, so Thomas filed the present appeal. While we
affirm the circuit court's affirmance of the
Department's decision that Thomas is not entitled to
credit on his kidnapping conviction, we remand on an issue
related to the order in which the Department is running
AND PROCEDURAL HISTORY
In 2007, Thomas pleaded guilty to manslaughter for the death
of Kimberly Norton. He also pleaded guilty to kidnapping
their two children, who were both under the age of sixteen,
pursuant to Section 97-3-53. The circuit court sentenced
Thomas to serve twenty years in the custody of the Department
for his manslaughter conviction. In a separate sentencing
order, the circuit court sentenced Thomas to serve fifteen
years in the custody of the Department, with his sentence for
kidnapping to be served consecutively to his manslaughter
Thomas filed a motion for post-conviction relief, in which he
claimed he was not guilty of kidnapping and that his attorney
was ineffective. Thomas v. State, 107 So. 3d 1046,
1048 (¶ 2) (Miss. 2012). The Court of Appeals affirmed
the circuit court's denial of Thomas's motion for
post-conviction relief. Id. at 1049 (¶ 7).
Then, Thomas filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. Section 2254 in the federal court.
Thomas v. Outlaw, 2014 WL 3699922, *1 (N.D. Miss.
July 24, 2014). The federal court granted the State's
motion to dismiss due to the untimeliness of Thomas's
motion. Id. at *2. The federal court dismissed
Thomas's argument that he was factually
innocent of the kidnapping charge by explaining
that he had pleaded guilty to the kidnapping charge,
"acknowledged that he had taken the children against the
will of their mother, who had custody [of the children, who
had an active restraining order against Thomas,] and who was
killed by Thomas." Id. at *3. Further,
"Thomas pleaded guilty to kidnapping, and he admits that
he did not have custody and had no legal right to the
children at the time they were taken." Id.
Lastly, the federal court addressed Thomas's claim that
he has received an illegal sentence based on the fact that
kidnapping is considered a sex crime, and as such, his
sentence is mandatory. Id. The federal court noted
that Thomas's guilty-plea petition included the following
(2) a sentence of fifteen (15) years for kidnapping to serve
within the custody and control of the [Department] to run
consecutive to the sentence for manslaughter . . . . The
defendant understands and agrees that the sentence imposed
for kidnapping pursuant to . . . Section
45-33-23(g)(i)[] is a mandatory day-for-day sentence. The
defendant will be given credit for any and all time served in
Id. In determining that his sentence was not
illegal, the federal court said:
Under Mississippi law, the kidnapping of a victim below the
age of eighteen is a "sex offense" or a
"registrable offense." Miss. Code Ann. §
45–33–23(g)(i). Thomas acknowledged the facts of
the kidnapping charge at his plea colloquy, including the
fact that the children were under the age of sixteen.
Therefore, the crime is considered a sex offense under Miss.
Code Ann. § 45–33–23(g)(i). Moreover, Thomas
agreed to a plea offer that explicitly informed him that he
would be sentenced pursuant to this statute, and that his
sentence would be mandatory. Accordingly, his sentence is not
illegal and does not warrant equitable tolling of the federal
limitations period. The instant petition will be dismissed as
Id. at *4.
In February 2015, Thomas filed his first request for
administrative remedy relief. Thomas received his response in
March 2015, stating that his meritorious earned time and
trusty status was removed from his time sheet due to his
serving a day-for-day sentence on his kidnapping conviction.
Thomas indicated he was unsatisfied with the response and
proceeded to step two of the administrative remedy process.
He received a response to his second request in June 2015.
The response informed him that "[k]idnapping under
[Section] 97-3-53 is coded as kidnapping of a minor under the
age of [sixteen] is a mandatory crime. You will have to serve
the entire [fifteen] ...