Moore v. Ruth

• Decision Date: 07 February 1990
• Docket Number: No. 07-58917,07-58917
• Citation: 556 So.2d 1059
• Parties: Eugene MOORE v. B.C. RUTH, Roy Long, et al., Mississippi Department of Corrections Parole Board (State of Mississippi).
• Court: Mississippi Supreme Court

Page 1059

556 So.2d 1059

Eugene MOORE v. B.C. RUTH, Roy Long, et al., Mississippi Department of Corrections Parole Board (State of Mississippi).

No. 07-58917.

Supreme Court of Mississippi.

Feb. 7, 1990.

Eugene Moore, Parchman, pro se.

Mike C. Moore, Atty. Gen., Wayne M. Snuggs, Asst. Atty. Gen., Jackson, for appellees.

Before HAWKINS, P.J., and ROBERTSON and PITTMAN, JJ.

ROBERTSON, Justice, for the Court:

I.

Petitioner complains that his parole has been unlawfully revoked but today presents the narrower question whether his pleadings are adequate that they may survive dismissal on their face. Petitioner's complaint is that he has been acquitted of the offense the State used as grounds for revoking his parole, by reason whereof he says he is entitled to have his parole reinstated. In these allegations Petitioner states a colorable claim for relief sufficient that it may not be dismissed at the present stage.

II.

On June 21, 1966, the Lowndes County Grand Jury indicted Petitioner Eugene Moore on a charge of murder. Shortly thereafter, Moore entered a plea of guilty and the Circuit Court sentenced him to life imprisonment. Moore was delivered to the custody of the Mississippi State Penitentiary at Parchman where he remained for over ten years.

In March of 1977, Moore was granted release from custody on parole. On August 18, 1977, Moore was arrested in Lowndes County and charged with the crime of rape. By reason of this charge, the Parole Board on October 17, 1977, ordered Moore's parole revoked and directed that he be returned to custody to complete the service of his original life sentence. Moore alleges that he was subsequently put to trial on the rape charge, at the end of which the jury returned a verdict of not guilty. Since that time he has repeatedly petitioned for re-release on parole, charging that he did not commit the offense for which his parole was originally revoked. The Parole Board has on each occasion denied his request and Moore remains in custody.

On September 25, 1987, Moore commenced the present action by filing in the Circuit Court of Sunflower County his pro se petition for a writ of habeas corpus, asserting the aforesaid facts and complaining of his "being continuously denied reinstatement of parole."

Without ordering an answer or any further proceedings, the Circuit Court sua sponte considered Moore's complaint on its face and ordered the complaint finally dismissed, apparently on grounds that parole is a matter of grace and not of right and that the Parole Board had discretion to deny parole. The Court did not address the question of whether Moore was entitled to have his original parole reinstated upon the not guilty verdict in the rape trial.

In due course, Moore moved the Circuit Court to reconsider its order and on January 12, 1988, the Circuit Court denied the motion. Moore now appeals to this Court.

III.

A.

Though styled as an action for habeas corpus, we consider Moore's application under the Mississippi Uniform Post-Conviction Collateral Relief Act. Miss.Code Ann. Sec. 99-39-5(1)(g) (Supp.1989); Bobkoskie v. State, 495 So.2d 497, 499 (Miss.1986). That act mandates that we study Moore's pleadings and ask whether he makes a substantial showing of denial of a state or federal right. Miss.Code Ann. Sec. 99-39-27(5) (Supp.1986); Neal v. State, 525 So.2d 1279, 1280-81 (Miss.1987); Billiot v. State, 515 So.2d 1234, 1236-37 (Miss.1987). Paraphrasing from Neal, the question is whether "on the papers and record before us, can we say with confidence that at any evidentiary hearing ... [Moore] will not be able to show that ... [his parole was wrongfully revoked]." Neal, 525 So.2d at 1281.

Our procedural posture is all important. We take the well-pleaded allegations of the complaint as true. See, e.g., Cain v. McKinnon, 552 So.2d 91, 91 (Miss.1989); McFadden v. State, 542 So.2d 871, 874 (Miss.1989); see Wilkinson v. Mercantile National Bank, 529 So.2d 616, 618 (Miss.1988); Knight v. Moore, 396 So.2d 31, 34 (Miss.1981) (quoting Franklin v. City of Marks, 439 F.2d 665, 670 (5th Cir.1971)). Indeed, where, as here, a prisoner is proceeding pro se, we take that fact into account and, in our discretion, credit not so well pleaded allegations, see Sanders v. State, 440 So.2d 278, 283 n. 1 (Miss.1983); Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), to the end that a prisoner's meritorious complaint may not be lost because inartfully drafted.

B.

The Circuit Court was certainly correct when it said parole was a matter of sound discretion, not of right, and that the Parole Board had broad discretionary authority regarding grants of parole, Harden v. State, 547 So.2d 1150 (Miss.1989); Davis v. State, 429 So.2d 262, 263 (Miss.1983), but that is not the point today. Moore has been granted parole, and the heart of his complaint is that the State impermissibly revoked his parole. On revocation, the State's authority is much narrower, for before one released on parole may be returned to custody, it must be shown that he has violated the terms and conditions of parole. Miss.Code Ann. Sec. 47-7-27 (Supp.1989). Obviously, commission of a felony while on parole is grounds for revocation, see Bobkoskie v. State, 495 So.2d at 500, nor is it necessary that parole authorities await the principal trial before commencing proceedings to have the parole revoked. None of this carries us far where, as here, the parolee is found not guilty of the principal charge which formed the basis of the order of revocation.

Although we have never addressed the question, it appears settled law in most jurisdictions that acquittal in a criminal proceeding does not per se preclude parole revocation predicated upon on the same charge, see, e.g., Avery v. State, 616 P.2d 872, 873-74 (Alaska 1980); Whitehead v. United States Parole Commission, 755 F.2d 1536, 1537 (11th Cir.1985); Standlee v. Rhay, 557 F.2d 1303, 1305-07 (9th Cir.1977). See also Annotation, Acquittal in Criminal Proceeding as Precluding Revocation of Parole on Same Charge, 76 A.L.R.3d 578 (1977). For one thing, the terms and conditions of parole are broader than a mere...