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Cook v. State

Court of Appeals of Mississippi

August 20, 2019

BENJAMIN MOSES COOK A/K/A BEN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/18/2018

          PIKE COUNTY CIRCUIT COURT HON. DAVID H. STRONG JR.TRIAL JUDGE:

          BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

          BARNES, C.J.

         ¶1. In 1994, Benjamin Cook was convicted of murder and armed robbery by a Pike County Circuit Court jury. The circuit court sentenced him to life in the custody of the Mississippi Department of Corrections for murder; for armed robbery, he received a twenty-year sentence.

         ¶2. Cook became eligible for parole in 2013. He was denied parole on three occasions between 2013 and 2017. On July 19, 2017, the Mississippi Parole Board granted Cook parole but subsequently rescinded it on September 19, 2017, due to the serious nature of the offense and community response in opposition to parole.

         ¶3. On January 19, 2018, Cook filed a "Motion to Correct the Judgment of Parole" as a petition for post-conviction relief (PCR) under the Uniform Post-Conviction Collateral Relief Act (UPCCRA) in Pike County.[1] He argued that the Parole Board unlawfully revoked his parole, and he requested that his parole be reinstated. The circuit court dismissed the motion, finding that it had "no jurisdiction over the action or inaction of the Mississippi Parole Board." Cook appeals, and finding no error, we affirm.

         DISCUSSION

         I. Whether the circuit court erred in dismissing Cook's motion.

         ¶4. Cook challenges the circuit court's dismissal of his motion, arguing that (1) the Parole Board "overstepped its statutory authority by deciding to grant parole and two months later[, ] denying that parole"; and (2) the circuit court had jurisdiction over the unlawful revocation of his parole.

         ¶5. We find no merit to Cook's claims. "By statute, the Parole Board is given 'absolute discretion' to determine who is entitled to parole within the boundaries of factors set forth in Miss[issippi] Code Ann[otated section] 47-7-3." Cotton v. Miss. Parole Bd., 863 So.2d 917, 921 (¶11) (Miss. 2003). Thus, "the grant or denial of parole is entirely within the Parole Board's discretion, and the denial of parole is not subject to a statutory right of appeal." Willard v. Miss. State Parole Bd., 212 So.3d 80, 86 (¶19) (Miss. Ct. App. 2016).

         ¶6. Regarding the circuit court's jurisdiction, we find it important to emphasize that Cook's parole was not revoked.[2] As the circuit court aptly notes, the Parole Board "revoked [its] decision and den[ied] his parole." (Emphasis added). In Cotton, the Mississippi Supreme Court upheld a circuit court's dismissal of a prisoner's petition for lack of jurisdiction because there was no statute "granting circuit courts jurisdiction over appeals concerning the denial of parole." Cotton, 863 So.2d at 921 (¶10). Even though a "constitutional challenge can justify the assertion of jurisdiction, . . . that duty only arises when certain criteria are met." Id. at 921 (¶11). Because a defendant has "no liberty interest in obtaining parole in Mississippi, he cannot complain of the denial of parole based on an allegation of a denial of due process, abuse of discretion, or consideration of false or improper factors." Mangum v. Miss. Parole Bd., 76 So.3d 762 768-69 (¶17) (Miss. Ct. App. 2011). Here, Cook was never released on parole; the Parole Board changed its decision and denied Cook parole. Accordingly, this case is not one of unlawful revocation of parole. Therefore, Cook failed to state a claim upon which the circuit court could assert jurisdiction, and we affirm the dismissal of the motion.[3]

         II. Whether the circuit court should have denied Cook's motion to proceed in forma pauperis on appeal.

         ¶7. Cook filed his motion as a PCR petition under the UPCCRA, challenging the "unlawful revocation" of his parole. The State asserts that Cook's motion was not a PCR motion but a purely civil action; therefore, the circuit court ...


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