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Thomas v. Mississippi Department of Corrections

Supreme Court of Mississippi

March 15, 2018

FORREST THOMAS, III
v.
MISSISSIPPI DEPARTMENT OF CORRECTIONS AND GLORIA GIBBS, DIRECTOR OF RECORDS

          DATE OF JUDGMENT: 01/11/2017

         MARSHALL COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH JUDGE

          TRIAL COURT ATTORNEYS: ANTHONY LOUIS SCHMIDT, JR., DARRELL CLAYTON BAUGHN

          ATTORNEY FOR APPELLANT: FORREST THOMAS, III (PRO SE)

          ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN ANTHONY LOUIS SCHMIDT, JR.

          BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

          COLEMAN, JUSTICE

         ¶1. 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 Thomas's convictions.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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 sentence.

         ¶3. 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).

         ¶4. 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[1] 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 language:

(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)[[2]] is a mandatory day-for-day sentence. The defendant will be given credit for any and all time served in pretrial detention.

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 untimely.

Id. at *4.

         ¶5. 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] ...


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