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Al-Khidhr v. King

Court of Appeals of Mississippi

October 23, 2018

ONLY AL-KHIDHR A/K/A MANUEL SULLIVAN APPELLANT
v.
RON KING AND JEWORSKI MALLETT APPELLEES

          DATE OF JUDGMENT: 05/05/2017

          HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. LAWRENCE PAUL BOURGEOIS JR. JUDGE

          ATTORNEY FOR APPELLANT: ONLY AL-KHIDHR (PRO SE)

          ATTORNEY FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN

          BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

          BARNES, J.

         ¶1. Only Al-Khidhr, appearing pro se, appeals the judgment of the Circuit Court of Harrison County, which dismissed his motion to clarify his sentence. We affirm the dismissal.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In December 2013, Al-Khidhr pleaded guilty to unlawful possession of a firearm by a convicted felon and possession of a controlled substance in the Second Judicial District of the Harrison County Circuit Court. Al-Khidhr was sentenced to five years for the firearm charge and four years for the drug-possession charge, to run consecutively in the custody of the Mississippi Department of Corrections (MDOC). The drug-possession sentence was enhanced because he qualified as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), requiring him to serve the four-year sentence day-for-day, although he would be eligible for parole on the five-year sentence. Additionally, the sentencing order stated that Al-Khidhr would "be given credit for any and all time served as to these charges." It is undisputed that Al-Khidhr had 613 days of jail-time served before he pleaded guilty.

         ¶3. In February 2016, Al-Khidhr filed an appeal through the MDOC Administrative Remedy Program (ARP), disputing the calculation of his parole date and credit for pre-conviction jail time. In May 2016, prison officials, through the ARP, determined that his parole date was correct. Al-Khidhr disputed this administrative decision, filing a petition for judicial review in the Rankin County Circuit Court[1] the following month. On June 30, 2016, the circuit court affirmed the decision and dismissed Al-Khidhr's petition. In July 2016, Al-Khidhr filed a motion for reconsideration.

         ¶4. While this motion[2] was pending before the circuit court, on July 28, 2016, Al-Khidhr filed the instant case's "Emergency Writ of Habeas Corpus Motion to Clarify Sentence" in the Harrison County Circuit Court against MDOC officials Ron King, Superintendent of the Central Mississippi Correctional Facility, and Jeworski Mallett, Director of Records. He made the same argument as he did before the Rankin County Circuit Court-that his credit for time served prior to his conviction should be applied to both charges, which would double his 613 days of time served. On May 1, 2017, the Harrison County Circuit Court dismissed Al-Khidhr's motion, finding it was a successive writ and that venue was improper. Al-Khidhr timely appealed. On July 14, 2017, approximately one and one-half months after filing his appeal, Al-Khidhr was released from prison, having completed serving his sentences.

         ¶5. On April 24, 2018, while his appeal on this case was pending, our Court affirmed the Rankin County Circuit Court's dismissal of his first motion in Al-Khidhr v. King, 245 So.3d 552 (Miss. Ct. App. 2018). In that appeal, MDOC responded that Al-Khidhr's arguments were moot because he had already been released from MDOC's custody; nevertheless, this Court briefly addressed the merits of his claim. Id. at 554 (¶9). MDOC contended that Al-Khidhr was given proper credit under section 99-19-23 for time served before he pleaded guilty. Id. at (¶10). MDOC cited to Foster v. Durr, 123 So.3d 940, 941 (¶8) (Miss. Ct. App. 2013), which we found directly on point for the proposition that a defendant "cannot receive credit twice for the same presentence jail-time served for multiple offenses." Al-Khidhr, 245 So.3d at 554-55 (¶10). In Foster, similar to here, the defendant was found

entitled to 233 days of credit for jail time served while awaiting trial. He was convicted . . . of two charges which had individual and joint presentence jail-time attributable to them. Foster-just like Al-Khidhr-argued that his jail-time credit should have been applied to each of his sentences individually because his sentences were consecutive.

Al-Khidhr, 245 So.3d at 555 (¶10) (citing Foster, 123 So.3d at 941 (¶¶3, 6)). We found Foster's pronouncement that the defendant "cannot receive credit twice for the same presentence jail-time served for multiple offenses" dispositive of Al-Khidhr's first appeal. Id. at 554 (¶10) (citing Foster, 123 So.3d at 941 (ΒΆ8)). This Court affirmed the circuit court's denial of Al-Khidhr's request for double-credit of pre-trial imprisonment and held that credit for time served could ...


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