United States District Court, N.D. Mississippi, Greenville Division
M. BROWN, UNITED STATES DISTRICT JUDGE
pro se prisoner case is before the Court on the motion to
dismiss filed by the State of Mississippi, Marshall Fisher,
and Christy Gutherz. Doc. #12.
about November 8, 2016, James Lester Forside filed in the
United States District Court for the Northern District of
Mississippi a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 challenging the amount of
“trusty” time he was credited while at the
Mississippi State Penitentiary (“MSP”). Doc. #1.
On August 9, 2017, the State of Mississippi, Marshall Fisher,
and Christy Gutherz (collectively, “Respondents”)
moved to dismiss the petition for failure to state a claim
or, alternatively, failure to exhaust administrative
remedies. Doc. #12. On or about August 14, 2017, Forside
responded. Doc. #13. Respondents did not reply.
has filed numerous motions in several different courts, all
of which relate to his April 28, 2015, guilty plea in the
Circuit Court of Oktibbeha County, Mississippi, for burglary
of a building in violation of Miss. Code Ann. §
97-17-33. Doc. #12-4 at 6-8; see, e.g., Docs. #12-9,
#12-10, #12-12, #12-16. Following his guilty plea, Forside
was sentenced as a habitual offender and ordered to serve a
term of seven years in the Mississippi Department of
Corrections (“MDOC”). Id. at 7.
relevance here, on or about November 7, 2016, Forside filed a
petition for a writ of habeas corpus in the Northern District
of Mississippi challenging his April 28, 2015, conviction and
sentence as a habitual offender. See Forside v.
Mississippi, No. 1:16-cv-202 (N.D. Miss.)
(“Forside I”), at Doc. #1. On June 7,
2017, United States District Judge Sharion Aycock dismissed
the petition without prejudice for failure to exhaust state
remedies. Id. at Doc. #20. As part of the failure to
exhaust analysis, Judge Aycock considered that (1) Forside
first filed a motion for post-conviction collateral relief
(“PCR”) in the Oktibbeha County Circuit Court,
which was dismissed on August 7, 2015; (2) rather than
appealing the dismissal to the Mississippi Supreme Court,
Forside filed a successive PCR motion in the Oktibbeha County
Circuit Court, which was dismissed on the merits on November
9, 2015; and (3) rather than appealing the
dismissal of his second PCR motion to the Mississippi Supreme
Court, Forside filed two more PCR motions in the Oktibbeha
County Circuit Court. Id. at Doc. #21.
addition to seeking relief in this Court, Forside has pursued
three actions in the Mississippi Supreme Court. First, in No.
2015-M-01664, he filed a petition for writ of mandamus
seeking an order requiring the trial court to rule on his
motion to withdraw his guilty plea. The Mississippi Supreme
Court denied the petition as premature.
in No. 2017-M-974, Forside filed an application for
post-conviction collateral relief, which the Mississippi
Supreme Court dismissed without prejudice because it should
have been filed with the trial court.
in No. 2017-TS-01155, Forside filed a notice of appeal using
the standard state court form, listing his April 28, 2015,
conviction and sentence as that from which he was appealing.
Forside attached to the notice of appeal (1) a July 25, 2017,
trial court order denying his motion for parole eligibility,
and (2) an August 7, 2015, trial court order denying his
motion for state post-conviction collateral relief, in which
he argued ineffective assistance of counsel and that there
was insufficient evidence to sustain his
conviction. Because Forside listed the date of his
original conviction on the notice of appeal form, the
Mississippi Supreme Court treated it as a direct appeal of
that conviction and dismissed the appeal for want of an
appealable judgment because, under Mississippi law, there is
no direct appeal from a guilty plea. Based on this ruling, the
Mississippi Supreme Court did not address the issues of
parole eligibility, ineffective assistance of counsel, or
sufficiency of the evidence. None of the issues discussed in
the two trial court orders attached to the notice of appeal
involved the issue of “trusty” earned time raised
in the instant petition.