Mangum v. Mississippi Parole Bd.

Citation76 So.3d 762
Decision Date29 November 2011
Docket NumberNo. 2010–CP–00822–COA.,2010–CP–00822–COA.
PartiesGerald MANGUM, Appellant v. MISSISSIPPI PAROLE BOARD, Shannon Warnock, Bobbie Thomas, Clarence Brown and Betty Lou Jones, Appellees.
CourtCourt of Appeals of Mississippi

76 So.3d 762

Gerald MANGUM, Appellant
v.
MISSISSIPPI PAROLE BOARD, Shannon Warnock, Bobbie Thomas, Clarence Brown and Betty Lou Jones, Appellees.

No. 2010–CP–00822–COA.

Court of Appeals of Mississippi.

Nov. 29, 2011.


[76 So.3d 764]

Gerald Mangum, appellant, pro se.

R. Stewart Smith Jr., attorney for appellees.

Before IRVING, P.J., MAXWELL and RUSSELL, JJ.

RUSSELL, J., for the Court.

¶ 1. Gerald Mangum appeals the decision of the Hinds County Circuit Court denying his Petition for Writ of Habeas Corpus or for Order to Show Cause and Motion for Evidentiary Hearing as a petition for post conviction relief (PCR). Mangum alleged that he was discriminated against by the Mississippi Parole Board (“Board”) because of his race. Mangum asserts on appeal that the circuit court abused its discretion by denying his petition without an evidentiary hearing. Upon review, we find that the circuit court erred in treating Mangum's Petition and Order to Show Cause as a PCR petition. Therefore, we reverse and remand.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Mangum was convicted of murder in 1981 and sentenced to life imprisonment with the possibility of parole in the custody of the Mississippi Department of Corrections. According to Mangum, he has been denied parole nine times.

¶ 3. Mangum filed a Petition for Writ of Habeas Corpus or for Order to Show Cause against the Board. In his petition, Mangum asked the circuit court to enter an order directing the Board “to show cause as to reasons why [Mangum] has been continuously and discriminatory [sic] denied [p]arole [.]” Subsequently, Mangum filed a supplement to his petition arguing that “although [he] may not have a constitutionally recognized liberty interest in parole ..., [he] does have a constitutionally recognized right not to be denied parole based on his race.” To support his

[76 So.3d 765]

claim, Mangum alleged additional facts, which we rephrase for clarity:

White prisoners, with similar or worse records than Mangum, have been granted parole by the Board.

Mangum is being discriminated by the Board on the basis of his race.

The Board granted parole to a white male, Douglas Hodgkin, although Hodgkin was convicted of a more heinous crime (rape and murder of a University of Mississippi graduate student) and although there was a large community opposition to Hodgkin's release on parole.

Hodgkin was paroled after serving only twenty-two years, where Mangum has served almost twenty-nine years.

Mangum has a prison[-]conduct record which exhibits the role of a model prisoner, having had no disciplinary action in over seventeen years.

Mangum did not have the extensive community opposition to parole that Hodgkin had.

Having no disciplinary action in over seventeen years, Mangum has demonstrated his willingness and ability to be a law-abiding citizen.

Unlike Hodgkin, Mangum had numerous favorable recommendations for parole from high-ranking prison personnel.

No summons was ever issued, and neither petition filed by Mangum contained a certificate of service to show that the State of Mississippi or the individual Board members were ever served with process.

¶ 4. On July 1, 2009, Mangum filed a motion for evidentiary hearing also without a certificate of service. The very next day, on July 2, 2009, the circuit court denied Mangum's request for relief. The order reads, in pertinent part, as follows:

THIS COURT, having considered Petitioner, Gerald Mangum's [p]ro [s]e, Petition for Writ of Habeas Corpus, is of the opinion that the motion should be and hereby is denied. The instant motion is in the nature of a motion for post-conviction relief and shall be treated as such.1 The Court finds that it plainly appears from the face of the motion, exhibits and prior proceedings in the case, that Petitioner's [m]otion is without merit and that Petitioner is not entitled to any relief on his claim(s). Miss.Code Ann. § 99–39–11(2) (2000).

IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED that Petitioner, Gerald Mangum's, Motion for Post–Conviction Collateral Relief should be and hereby is DENIED.

¶ 5. Mangum appeals the circuit court's order denying his petitions. We consider three issues on appeal: (1) whether the circuit court erred in treating Mangum's petition as one for post-conviction relief; (2) whether the circuit court had jurisdiction over Mangum's racial-discrimination claim; and (3) whether Mangum stated a claim upon which relief may be granted.

DISCUSSION

¶ 6. Whether the circuit court has jurisdiction is a question of law and is reviewed de novo. Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 9) (Miss.2001)). Likewise, “this Court reviews the trial court's dismissal of a lawsuit based on a question of law under a de novo standard of review.”

[76 So.3d 766]

Rochell v. State, 36 So.3d 479, 481 (¶ 7) (Miss.Ct.App.2010) (citing Horton v. Epps, 20 So.3d 24, 27 (¶ 5) (Miss.Ct.App.2009)).

I. Whether the Circuit Court Erred in Treating Mangum's Petition As One for Post–Conviction Relief

¶ 7. Although not raised by either party, we must address whether the circuit court properly treated Mangum's petition as one for post-conviction relief. Our PCR statute provides limited grounds upon which a person may seek relief from, among other things, convictions and sentences:

Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, ... 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)(a)–(j) (Supp.2011). In the instant case, Mangum did not dispute his conviction, sentence, plea, or any of the other grounds under the PCR statute. Rather, Mangum asserted a racial-discrimination claim. Therefore, the circuit court erred in treating Mangum's petition as one for post-conviction relief.

¶ 8. Under Mississippi Code Annotated section 99–39–9(4) (Supp.2011), “[i]f the motion received by the clerk does not substantially comply with the requirements of this section, it shall be returned to the petitioner if a judge of the court so directs, together with a statement of the reason for its return.” Mangum's petition was not one seeking relief under the PCR statute, but an attempt to file a lawsuit against the Board and four of its members alleging constitutional violations based on his race. The circuit court could have returned Mangum's petition to him with an explanation

[76 So.3d 767]

of its reason for doing so pursuant to Mississippi Code Annotated section 99–39–9(4).

¶ 9. Further, Mangum never served process on any of the named defendants as required under Rule 4 of the Mississippi Rules of Civil Procedure. Indeed, no summons was ever issued. Rule 4(h) provides that if the defendants are not served with the summons and complaint “within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.” M.R.C.P. 4(h).

II. Whether Mangum Stated a Claim Upon Which Relief May Be Granted

¶ 10. Mangum argues he asserted “non-conclusory claims which were fact-based.” On the other hand, the Board argues Mangum failed to state a claim for relief based on racial-discrimination because “his [s]upplemental pleading made the conclusory allegation that the Parole Board had denied him parole based on the fact that he is African American.”

¶ 11. To prevail on a racial-discrimination claim, Mangum must offer proof, “either in his petition or in the record[,] that establishes that he suffered [an] equal[-]protection violation by the application of the statute based on a suspect classification.” Hopson v. Miss. State Parole Bd., 976 So.2d 973, 976–77 (¶ 12) (Miss.Ct.App.2008). Further, proof of a racially discriminatory purpose is required in equal-protection-violation cases. Terrell v. State, 573 So.2d 732, 734 (Miss.1990) (citing Foster, 823 F.2d at 220). However, proof rarely consists of direct evidence. Terrell, 573 So.2d at 734 (citing Foster, 823 F.2d at 222). Instead, the evidence is usually circumstantial. Id.

¶ 12. Rule 8(a)(1) of the...

To continue reading

Request your trial
11 cases
  • Ducksworth v. State, 2014–CP–00921–COA.
    • United States
    • Court of Appeals of Mississippi
    • 18 août 2015
    ...Ducksworth's petition as a PCR motion, but that was in error pursuant to this Court's decisions in Mangum v. Mississippi Parole Board, 76 So.3d 762, 766 (¶ 7) (Miss.Ct.App.2011), Mack v. State, 943 So.2d 73, 75–76 (¶ 7) (Miss.Ct.App.2006), and McClurg v. State, 870 So.2d 681, 682 (¶ 6) (Mis......
  • Ducksworth v. State, 2014-CP-00921-COA
    • United States
    • Court of Appeals of Mississippi
    • 18 août 2015
    ...Ducksworth's petition as a PCR motion, but that was in error pursuant to this Court's decisions in Mangum v. Mississippi Parole Board, 76 So. 3d 762, 766 (¶7) (Miss. Ct. App. 2011), Mack v. State, 943 So. 2d 73, 75-76 (¶7) (Miss. Ct. App. 2006), and McClurg v. State, 870 So. 2d 681, 682 (¶6......
  • Jobe v. State
    • United States
    • Court of Appeals of Mississippi
    • 30 juillet 2019
    ...party." Id. Whether the circuit court has jurisdiction is a question of law and is reviewed de novo. Mangum v. Miss. Parole Bd. , 76 So. 3d 762, 765-66 (¶6) (Miss. Ct. App. 2011).I. The circuit court had jurisdiction to hear Jobe's petition for judicial review of his Harvoni request.¶19. Th......
  • Jobe v. State
    • United States
    • Court of Appeals of Mississippi
    • 17 décembre 2019
    ...party." Id. Whether thePage 7 circuit court has jurisdiction is a question of law and is reviewed de novo. Mangum v. Miss. Parole Bd., 76 So. 3d 762, 765-66 (¶6) (Miss. Ct. App. 2011). I. The circuit court had jurisdiction to hear Jobe's petition for judicial review of his Harvoni request.¶......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT