source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    James Franklin PUTNAM v. Christopher B. EPPS.
    No. 2010-CP-00708-SCT.
    Supreme Court of Mississippi.
    April 14, 2011.
    Rehearing Denied June 30, 2011.

      James Franklin Putnam, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith, Jr., attorney for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. In 1997, the Circuit Court of Harrison County accepted James Franklin Putnam’s guilty plea to one count of armed robbery. The circuit court sentenced Putnam to twenty years in the custody of the Mississippi Department of Corrections (MDOC), to run concurrently with a federal sentence. Putnam currently is incarcerated in Yazoo County. He filed a motion for post-conviction relief (PCR) arguing he is entitled to earned time. The Court of Appeals affirmed the Yazoo County Circuit Court’s dismissal of the PCR because its subject matter was cognizable under the administrative-review procedure. Putnam v. Epps, 963 So.2d 1232, 1233 (Miss.Ct.App.2007); see Miss.Code Ann. §§ 47-5-801 to 47-5-807 (Rev.2004). After exhausting his administrative remedies, Putnam filed a complaint in the circuit court pursuant to Mississippi Code Section 47-5-807, challenging the MDOC’s computation of his earned-time allowance on grounds including equal protection. He argued that the MDOC’s decision to deny him earned time was erroneous because he is entitled to earned time under the governing statutes and because the MDOC has granted earned time to similarly situated prisoners.

¶2. The circuit court dismissed Putnam’s complaint upon a finding that venue was improper in Yazoo County. Putnam appeals to this Court, raising the following issues: 1) whether the circuit court erred in dismissing his complaint for improper venue; and 2) whether Putnam has been denied his constitutional right to equal protection by not receiving earned time on his sentence. Because we find that venue was proper in the First Judicial District of Hinds County, we reverse and remand this case for transfer to that circuit-court district. Because Putnam’s first issue is dis-positive of this appeal, we do not discuss his second issue.

DISCUSSION

¶3. The State argues that Putnam’s complaint was a motion for post-conviction relief and, because it was not filed in the county of conviction as required by the Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA), the circuit court properly dismissed it. See Miss.Code Ann. § 99-39-7 (Supp.2010). We find that the State’s argument is without merit because Putnam’s filing is not a motion for post-conviction relief. Rather, it is a complaint brought pursuant to the statutes governing the administrative-review procedure in Mississippi Code Sections 47-5-801 through 47-5-807.

¶ 4. The administrative-review procedure “constitutefs] the administrative remedies available to offenders for the purpose of preserving any cause of action such offenders may claim to have against the State of Mississippi, the Department of Corrections or its officials or employees.” Miss.Code Ann. § 47-5-803(1) (Rev.2004). Judicial review is available after an offender has exhausted all administrative remedies. Miss.Code Ann. § 47-5-807 (Rev. 2004). Section 47-5-807 provides that “[a]ny offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Sections 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” Miss.Code Ann. § 47-5-807 (Rev.2004).

¶ 5. In contrast with the administrative-review procedure, post-conviction relief provides a mechanism for collateral attack on a conviction or sentence that is initiated by filing a motion in the trial court. See Miss.Code Ann. §§ 99-39-5, 99-39-7 (Supp.2010). The Mississippi Uniform Post-Conviction Collateral Relief Act (UP-CCRA) provides:

(1) Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period, may file a motion to vacate, set aside or correct the judgment or sentence, a motion to request forensic DNA testing of biological evidence, or a motion for an out-of-time appeal if the person claims:
(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That there exists biological evidence secured in relation to the investigation or prosecution attendant to the petitioner’s conviction not tested, or, if previously tested, that can be subjected to additional DNA testing, that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(g) That his plea was made involuntarily;
(h) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(i) That he is entitled to an out-of-time appeal; or
(j) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy.

Miss.Code Ann. § 99-39-5(1) (Supp.2010).

¶ 6. Both the UPCCRA and Section 47-5-807 are routes for a prisoner to obtain civil relief; the prisoner elects which route to pursue. In Guy v. State, 915 So.2d 508, 510 (Miss.Ct.App.2005), the Court of Appeals held that a claim that the MDOC had miscalculated a prisoner’s earned time was not in the nature of post-conviction relief, but was cognizable under the administrative-review procedure. The prisoner’s argument about his entitlement to earned time was almost identical to Putnam’s. There, the court stated:

This matter is not in the nature of post-conviction relief. Post-conviction relief matters address issues related to the prisoner’s conviction that were not addressed at the time of the judgment. Williams v. State, 669 So.2d 44, 52 (Miss.1996). Guy is not contesting the validity of his conviction or the resulting sentence. He is contesting the MDOC’s computation of time that will allow for his early release from prison.

Id.

¶ 7. We agree with the Court of Appeals’ holding that a challenge to the MDOC’s earned-time calculation is cognizable under the administrative-review procedure, with judicial review available as provided in Section 47-5-807. None of the categories listed in Section 99-39-5 embraces a challenge to the MDOC’s earned-time calculation. Earned time is not a reduction of sentence because “[a]ny inmate, who is released before the expiration of his term of sentence under this section, shall be placed under earned-release supervision until the expiration of the term of sentence. The inmate shall retain inmate status and remain under the jurisdiction of the department.” Miss.Code Ann. § 47-5-138(6) (Rev.2004). In his complaint, Putnam argues that the MDOC erroneously has denied him the right to serve part of his twenty-year sentence on earned-release supervision. He does not argue that the trial court erred, in 1997, by imposing the twenty-year sentence or that the sentence was obtained in violation of his constitutional or statutory rights. Therefore, Putnam properly sought relief for the alleged miscalculation of his earned time by first exhausting his administrative remedies with the MDOC and then filing a complaint within thirty days of the final decision of that agency. Miss.Code Ann. §§ 47-5-803, 47-5-807 (Rev.2004).

¶ 8. The circuit court dismissed Putnam’s complaint upon a finding that venue was improper in Yazoo County. The statutes governing the administrative-review procedure do not contain a venue provision. Miss.Code Ann. §§ 47-5-801, 47-5-807 (Rev.2004). Venue in civil cases is governed by Mississippi Code Section 11-11-3, which provides, in pertinent part:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.

Miss.Code Ann. § 11 — 11—3(l)(a)(i) (Rev. 2004). The Court of Appeals has applied Section ll-ll-3(l)(a)(i) to complaints brought under the administrative-review procedure. In Guy, the Court of Appeals explained:

All defendants were sued in their capacity as employees of the South Mississippi Correctional Institute (SMCI) which is located in Greene County. Venue is appropriate in the county in which a defendant resides. Miss.Code Ann. § 11 — 11— 3 (Rev.2004). Therefore, the Circuit Court of Greene County was the appropriate venue for Guy’s petition.

Guy, 915 So.2d at 510. And, in Horton v. Epps, 966 So.2d 839, 841 (Miss.Ct.App.2007), the Court of Appeals stated:

Section ll-ll-3(a) provides that venue is proper in the county where a defendant resides or in the county where the act or omission occurred. Horton was incarcerated at the Central Mississippi Correctional Facility located in Rankin County. Two of the defendants worked at the facility and the actions that denied Horton trusty time occurred in Rankin County.

Horton, 966 So.2d at 841. Because two of the defendants worked in Rankin County and the act or omission occurred in Rankin County, the court found that venue was proper in Rankin County under Section ll-ll-3(l)(a). Id.

¶ 9. This Court finds that Section 11 — 11— 3 applies to claims brought pursuant to Section 47-5-807 of the administrative-review-procedure statutes. Putnam’s complaint names a single defendant, Christopher Epps, based on actions taken in his capacity as the commissioner of the MDOC. The offices of the commissioner of the MDOC are located in the City of Jackson, which is situated in the First Judicial District of Hinds County. See Mississippi Department of Corrections, http://www. mdoc.state.ms.us/office_oL.the_ commissioner.htm (last visited 04/13/2011). We note that Putnam makes no argument that a “substantial alleged act or omission” or a “substantial event that caused the injury occurred” in Yazoo County. Miss. Code Ann. § ll-ll-3(l)(a)(i) (Rev.2004) Therefore, venue is proper in the First Judicial District of Hinds County, not in Yazoo County. “When an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed and the case shall proceed as though originally filed therein.” Miss. R. Civ. P. 82(d). Accordingly, we reverse and remand for the Circuit Court of Yazoo County to transfer this case to the First Judicial District of Hinds County.

CONCLUSION

¶ 10. Because venue is proper in the First Judicial District of Hinds County, this case is reversed and remanded for transfer to the First Judicial District of Hinds County.

¶11. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, PIERCE AND KING, JJ., CONCUR.


author: MICHAEL K. RANDOLPH, Justice.

text:
    Re: Petition of the Mississippi Bar to Accept Irrevocable Resignation of Thomas D. KEENUM.
    No. 2011-BD-00287-SCT.
    Supreme Court of Mississippi.
    May 20, 2011.
   ORDER OF DISBARMENT

MICHAEL K. RANDOLPH, Justice.

¶ 1. This matter is before the Court en banc on the “Petition of the Mississippi Bar to Accept Irrevocable Resignation Pursuant to Rule 10, MRD.” In its Petition, the Mississippi Bar requests that this Court accept the irrevocable resignation of Thomas D. Keenum, who previously executed a Notice of Irrevocable Resignation pursuant to Mississippi Rule of Discipline 10.5, and to enter an order of disbarment. Because we conclude that all procedural prerequisites have been met, we order that Thomas D. Keenum be disbarred.

¶ 2. Thomas D. Keenum executed a Notice of Irrevocable Resignation on February 15, 2011, and delivered it to the Mississippi Bar on February 23, 2011. In the Notice, Keenum attested that an outstanding disciplinary matter (Docket No. 09-257-1) was currently pending before the Committee on Professional Responsibility, that no other disciplinary proceedings were pending against him, and that he did not desire to defend the matter. Keenum requested that he be allowed to resign irrevocably, with prejudice, from the Mississippi Bar. The Bar filed the current petition, requesting that this Court accept Keenum’s irrevocable resignation.

¶ 3. “ ‘[Tjhis Court has exclusive and inherent jurisdiction regarding the discipline of attorneys as promulgated in the Rules of Discipline for the Mississippi State Bar.’ ” In re Peters, 22 So.3d 266, 267 (Miss.2009) (quoting Miss. Bar v. Langston, 987 So.2d 936, 937 (Miss.2008)) (citing M.R.D. 1(a)). “ We conduct a de novo review in cases involving the discipline of attorneys.’ ” Peters, 22 So.3d at 267 (quoting Langston, 987 So.2d at 937).

¶ 4. Mississippi Rule of Discipline 10.5 states:

An attorney may tender an irrevocable resignation to either the Court or the Tribunal. Such a resignation shall acknowledge each and all disciplinary matters then pending, provide the docket number or numbers, state that the attorney does not desire to defend, and request permission to resign with prejudice from the Bar. Upon receipt of such a resignation, and any response that the Bar may elect to file, the disciplinary proceedings shall terminate and either the Court or the Tribunal shall enter its order accepting the resignation, revoking the attorney’s license, and barring forever thereafter the attorney’s right to seek reinstatement to the privilege of practicing law in this state. Such a resignation and order shall be considered disciplinary action, and the resignation shall be considered tantamount to the proof of guilt on the matter charged.

M.R.D. 10.5.

¶ 5. After due consideration, we find that Thomas D. Keenum has properly filed his Notice of Irrevocable Resignation in accordance with Mississippi Rule of Discipline 10.5, and the Bar is entitled to the relief it seeks. Based on the record before us, and consistent with the Rules of Discipline for the Mississippi Bar and our caselaw, this Court finds that Thomas D. Keenum should be disbarred permanently.

¶ 6. IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED as follows:

1. Thomas D. Keenum is hereby permanently DISBARRED from the practice of law in the State of Mississippi;
2. This order shall constitute notice of permanent disbarment in this cause;
3. The Clerk of this Court shall forward an attested copy of this order to Thomas D. Keenum and the Executive Director of the Mississippi Bar;
4. Thomas D. Keenum shall, within thirty days following entry of this order, notify clients and affected courts of his disbarment, properly disburse all funds he may hold in trust, and comply with all other requirements applicable to disbarred attorneys pursuant to Mississippi Rule of Discipline 11;
5. Thomas D. Keenum shall, within forty-five days following entry of this order, file an affidavit with this Court stating that all of his clients have been notified of his disbarment and his consequent inability to practice law in Mississippi, and that he has complied fully with all the requirements set forth in Mississippi Rule of Discipline 11, as well as the requirements of this order;
6. The Clerk of this Court shall immediately forward an attested copy of this order to the circuit court judges and chancellors in and for Prentiss County, Mississippi, and the senior judge of each court shall enter this order upon the minutes of his or her respective court;
7. The Clerk of this Court likewise shall immediately forward an attested copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States;
8. All outstanding disciplinary proceedings against Thomas D. Keenum, including Cause No. 2011-BD-00287 (which is Docket No. 09-257-1, pending before the Committee on Professional Responsibility), are hereby terminated; and
9. Costs of these proceedings are hereby assessed against Thomas D. Kee-num.

¶ 7. SO ORDERED, ADJUDGED, AND DECREED, this the 20th day of May, 2011.