ORIGINAL FILED. JUL l ~in_tel~ JJ[i 0 SUPREME COURT. London Williams Jr # Dale Street. Vicksburg, MS

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1 ORIGINAL London Williams Jr # Dale Street Vicksburg, MS July 14,2017 Office of the Clerk Supreme Court & Court of Appeals P.O. Box 249 Jackson, MS Re: London Williams Jr. v. State Of Mississippi No: 2015~01155-COA Dear Clerk: Please find enclosed for filing the Reply Brief of London Williams in the above styled number and reference action. Your usual attention to this matter is genuinely appreciated. ~in_tel~ JJ[i 0 ~~Williams, Jr. ~ cc: Hon. W. Ashley Hines, Judge Hon. Darrell C. Baughn, Special Asst. Atty Gen. FILED JUL l OFFICE Of THE CLERK SUPREME COURT COURT OF APPEALS

2 ORIGINAL IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2015-TS COA LONDON WILLIAMS JR. APPELLANT v. MISSISSIPPI DEPARTMENT OF CORRECTIONS DOROTHY JOHNSON APPELLEES REPLY BRIEF OF THE APPELLANT FILED JUL l OFFICE OF THE CLERK SUPAEME COURT COURT OF APPEALS LONDON WILLIAMS JR# DALE STREET VICKSBURG, MS 39180

3 REPLY OF LONDON WILLIAMS JR TO THE RESPONSE Comes Now, Appellant, London Williams Jr., prose, and files this Reply as follows: STATEMENT OF ASSIGNMENT The MDOC is correct in stating, In accordance with M.R.A.P. Rule 16(d), this Court will retain those cases which involve II a major question of first impression." The issue before this Honorabl Court however is whether Mississippi Department Of Corrections(MDOC) and it officials excessed its authority and by doing so, violated and are still violating Williams' rights which are protected by the rights under the United States Constitution, Mississippi Constitution, Statute, Case Law, and MDOC policies and procedures. Also, these are II fundamental and urgent issues of broad public importance which requires prompt or ultimate determination." STATEMENT OF THE CASE The MDOC and its officials admits that a classification hearing was held on December 1, 2010 in which Williams was present, and that incest is a sex crime, he was classified as having committed a sex crime not eligible for any earned time. (Ex. C, E, G). This clearly shows that the MDOC has blatantly disregarded Mississippi law and as a result has violated Williams' rights under the 14th Amendment, Statute, Case law, and MDOC policies and procedures. The MDOC and its officials have failed to understand that MCA is not a sex offense nor a registrable sex offense, as defined in MCA

4 MCA is not listed as a " sex crime" nor a crime requiring the sentence be served day for day. It is defined by statute as adultery or fornication, which is a crime against the public morals and decency,mca, Title 97, chapter 20, not" crimes against the persons," MCA, Title 97, chapter 3. MCA defines which crimes qualify as a sex offense and MCA is not one of them. Without any other definition of what constitutes a "sex crime" as it pertains to MCA and , the definition as provided by MCA MDOC has exceeded it authority by redefining crimes. Even if MDOC had been given the authority to define or redefine criminal conduct, this would constitute an unconstitutional delegation of legislative authority. The authority to define or redefine crimes and provide the punishment therefor is vested exclusive in the legislative, and it may not delegate that power expressly or implication nor may an administrative agency enlarge the criminal liability of the statute. Miss. Const. art 4,& 33( vesting legislative power in the legislative); Miss. Const. art l,& 1-2(providing separation of powers). MDOC is part of the executive branch of government which constitutionally cannot define or redefine state crimes. It is also very clear that the State of Mississippi, Department Of Public Safety has admitted and confirm that MCA (incestuous adultery) is not listed as a sex crime or a registrable sex offense, as define in MCA (See attached Ex. B}. MDOC determination is in conflict with the department of public safety and contrary to provisions of MCA and the constitution. SUMMARY OF THE ARGUMENT Since Williams was not convicted of a sex crime, he is entitled to earned time by statute, case law, and MDOC SOP MDOC 2

5 unconstitutional authority denied Williams of any form of earned time, and including Meritorious Earned Time ("MET"). While out on probation, earned time and MET still apply. Therefore, the issues are not moot and clearly, MDOC's decision is in conflict with the department of public safety and contrary to the provision of MCA and the constitution. ARGUMENT In the present case, the MDOC has exceeded its authority by making a determination contrary to MCA Williams was convicted of the crime of incestuous adultery pursuant to MCA The crime of adultery or fornication is not considered a "sex crime". Indeed, it is a non-violent crime that has no victim. Instead, there are two actors. Incest can only be considered a sex crime when it is found within the offense of rape. Cochran vs. State, 969 so. 2d 119 (Miss Ct. App. 2007}. Williams is entitled to earned time by statute, case law, and MDOC SOP MDOC decision regarding Williams' classification status as a sex offender was not backed by substantial evidence, was arbitrary and capricious, did exceed its power, and violated Williams' statutory and constitutional rights. MDOC decision is "unsupported by substantial evidence, arbitrary and capricious, beyond the agency's scope or power, and violates the constitution and statutory rights ofthe aggrieved party." Siggers v. Epps, 962 So. 2d 78, 80 (Miss. CT. App. 2007) (citing Edwards v. Brooker, 796 So. 2d 991, 994 (Miss. 2001). Williams was never sentenced as a sex offender, MDOC classified him as a sex offender. Williams does not disagree that MDOC has sole authority to classify offenders. However, MDOC doesn't have the authority to define or redefine criminal conduct and classify offenders as a sex offender without a proper hearing before a panel, an opportunity to present evidence, substantial evidence, and notification as to why an offender is being classified as a sex offender. Williams, classification was not proper and 3

6 MDOC misinterpretated the statutory provisions. The errant classification by the MDOC was arbitrary and capricious and results in a deprivation of Williams' due process and epual protection of rights. Williams was convicted of incestuous adultery which is not considered a sex offense under the statutory laws of the State of Mississippi. Thus, the MDOC's decision to classify Williams as a sex offender is in error, and arbitrary and capricious. Classification is generally not considered to be a significant hardship that may require procedural protections, but there are some exceptions which include affecting parole eligiblity or good time credits. Neal v. Shimada, 131 F. 3d 818 {9th Cir. 1997}. Such is the exact situation in the instant case. As a direct result of the errant classification, Williams is unable to qualify for any good time credits which is a deprivation of liberty. In fact, since Williams should qualify for truty time, MET time or good time credits, not allowing this time to accrue or give him credit for which he qualifies has resulted in an illegal incarceration, by keeping him incarcerated longer than the sentence allowed. Courts have held that due process is denied if a prisoner is not released on time as a result of deliberate indifference, and in some cases, as the instant case, the deliberate indifference can and did constitute cruel and unusual punishment. Campbell v. Peters, 256 F. 3d 695, 700 {7th Cir. 2001}, Sample v. Diecks, 885 f. 2d 1099, 1114 {3rd Cir. 1989}; Campbell v. Illinois Department of Corrections, 907 F. Supp (N.D. Jllinois 1995). The MDOC has blatantly disregarded Mississippi Law and as a result has violated Williams' rights under the 14th Amendment. The MDOC has failed to provide any evidence of a proper hearing before a panel or that it allowed Williams to present any evidence at a proper hearing. Had MDOC and it official held a proper hearing and allowed evidence to be presented, it would not have classified Williams as a sex offender, violated his rights and would have avoided an illegal incarceration. The MDOC would like for this Honorable Court to believe that Williams failed to state a claim and that Williams has no liberty interest in his 4

7 classification. The MDOC is correct that it is vested with the sole authority to classify offenders. However, the MDOC cannot exceed the statutory provisions. Miss. Pub. Serv. Comm 'n v. Miss. Power and Light Co., 593 So. 2d 997 (Miss. 1991). In the present case, the MDOC has exceeded its authority by making a determination contrary to MCA Williams was never and has not been convicted of a violent or a sex crime. Next, Williams would like to point out the MDOC failure in believing that Williams has no property or liberty interest in any custodial classification under the United States Constitution or Mississippi law. MDOC and it officials stated that incest is a sex crime and that it is not a registrable sex offense MCA for registration purposes. According to Mississippi law, MCA defines which crimes qualify as a "sex crime". Without any other definition of what constitutes a "sex crime" as it pertains to MCA and , the definition as provided by MCA The Supreme Court of Mississippi held in Arnold v. State, 213 Miss. 667, 57 So. 2d 484 {1952} that the power of the "legislature" to define crimes and fix punishment for crimes was an unquestioned constitutional power. It is the exclusive authority of the legislature to define crimes and fix the punishment, therefor is without question. The United States Supreme Court in United States v. Wiltberner, 5 Wheat. {U.S.) 76, 5 I. Ed. 37 {1820} laid down the priniciple that the power to define a crime and the power of punishment was vested in the legislative. Williams' liberty interest is protected by due process in avoiding being labelled as a sex offender. Roe v. Farwell, 999 F. Supp. 174, {D. Mass. 199}. Williams has a liberty interest in being released on time, in comformity with the sentence imposed and with other relevant laws such as those providing good time.sample v. Dieks, 885 F. 2d 1099, 1114 (3rd Cir. 1989}; McGann v. Cunningham, 315 F. Supp. 2d 150, 155 (D.N.H. 2004} ("holding any continued detention after the state has lost its law authority to hold a prisoner deprives him of a liberty interest in freedom from restraint that is protected from unlawful state deprivation by Due Process Clause of the 5

8 Fourteenth Amendment"). In Neal v. Shimada/ 131 F. 3d {9th Cir. 1997)/ held that prisoners labelled as sex offenders who had not been criminally convicted of a sex offense are entitled to the same procedural protections as for a prison disciplinary proceeding. In Doe v. Pryor/ 61 F. Supp. 2d 1224/ 1231 {M.D. Ala. 1999)/ the Court held sex offenders' community notification statue is a deprivation of liberty, since it will damage the plaintiff's reputation and standing in the community and deprive him of state law rights to move without notifying state officials, to live with a minor or in certain locations and to change his name; will also foreclose employment and housing opportunities beyond those explicity forbidden; and will deprive the plaintiff of his legitimate privacy interest in hi home address, satisfying the "stigma-plus" test. (See attached Ex. A) MDOC exceeded its authority, the consequences of that, deprived Williams of liberty which affected his ability to good time, parole release and subject him to a mandatory day to day sentence. The MDOC "capricious" decision was done in a whimsical manner, implying a lack of understanding of and disregarding for the surrounding facts and settled controlling prinicples. CONCLUSION The evidence in the record before this Honorable Court clearly establishes that the MDOC's decision was nothing more than mere conclusory finding, done in a whimsical manner, implying a disregard for the surrounding facts and well settled controlling prinicples. Miss. State Dep't of Health v. Natchez Cmty. Hosp./ 743 So. 2d 973/ 977{Miss. 1999). While prison official has no duty to anticipate unforeseeable constitutional developments with respect to prisoners' confinement, he/she cannot hide behind a claim that particular factual predicate in question has never appeared in haec verba in a reported opinion; if application of settled principle to prisoner's treatment would ineverably lead to conclusion of unconstitutionality, 6

9 prison official may not take solace in ostrichism. U.S. C.A. Const. Amend. 8. MDOC and its officials violated the United States Constitution, Mississippi Constitution and certain Mississippi statutes, and acted with malice and reckless disregard for the rights of Williams. MDOC and its officials knew of or should have known of these rights and failed to correct them. State law granted Williams a sufficient expectancy of parole to entitle him to some measure of constitutuional protection with respect to parole decisions and earned time allowance. While a conviction and sentence extinguing an individual's right to freedom from confinement for the term of the sentence, they do not authorize the MDOC to define crimes, fix punishment or to subject Williams to punishment that are 11 1 totally without penological justification' 11, without affording him additional due process protections. U.S.C.A. Const. Amend. 14. The Supreme Court has stated that action by executive branch officials may deny substantive due process if it 11 shock the conconscience. 11 County of Sacramento v. Lewis, 532 U.S. 833, , Ct (1998). The Court said that conduct amounting to deliberate indifference may shock the conscience where the official realistically have time to deliberate. The consequences of labelling Williams as a sex offender is serious enough to constitute a deprivation of liberty if it affects his ability to earn good time or parole release. Gwinn v. Awmiller, 354 F. 3d at 1217 (good time); Neal v. Shimada, 131 F. 3d 818, (9th Cir. 1997) (parole eligibilty). The MDOC and its officials failed to provide Williams, 11 who has never been convicted of a sex offense", a proper hearing before classifying him as a sex offender which deprives him of a liberty interest. Chamber v. Colorado Dep't of Corr., 205 F. 3d 1237, 1242 (10th Cir. 2000). Those procedural requirements are set forth in the Supreme Court's decision in Wolff v. McDonnell, 418 U.S. 539, , Ct. 2963, 41 L. Ed. 2d 935 (1974). See Neal, 131 F. 3d at 830. (adopting the requirements for a hearing regarding the classification of an inmate as a sex offender). Williams complaint has a realistic chance of success, present an arguably sound basis in facts and law, and can prove a set of facts that 7

10 would warrant relief. And now, the MDOC and its officials seeks to have this Honorable Court take solace in ostrichism. London Williams, Jr # Dale Street Vicksburg, MS CERTIFICATION OF SERVICE I, London Williams, Jr., do hereby certify that I have this day mailed, postage prepaid, a true and correct copy of the above and foregoing REPLY BRIEF OF LONDON WILLIAMS, JR., to the following: Honorable W. Ashely Hines Circuit Court Judge, 20th District P.O. Box 686 Greenville, MS Hon. Darrell C. Baughn Special Asst. Atty Gen. 633 N. State St., Suite 520 Jackson, MS '\ So Certified'thi 14th day of Jul 7. 8

11 &'.,'~'~~~'. -.,.T'f'.' '-. - ~~-'..-.,,:' "- ~,' ~ f.!ldps o-epartrn~r.t 'of P~iS:lc Safety ~~Ul~~~ Issue Date: S N-ext Registration: County Residence: WARREN Emplo~r: NONE

12 Ex. b STATE OF MISSISSIPPI PHIL BRYANT, GOVERNOR DEPARTMENT OF PUBLIC SAFETY MISSISSIPPI HIGHWAY SAFETY PATROL ALBERT SANTA CRUZ, COMMISSIONER December 21, 2016 London Williams, Jr 105 Dale Street Vicksburg, MS RE: Mississippi Department of Public Safety Convicted Sex Offender Registration Dear Mr. Williams: This letter is written concerning your November 2, 2010 criminal conviction for Incest pursuant to MCA , by the Circuit Court of Warren County, Mississippi. We inform you that, according to Mississippi Statute, you are not required to register with the Mississippi Department of Public Safety (MOPS), Sex Offender Registry (SOR) as a convicted sex offender because Incest is not a registrable sex offense, as defined in MCA For this statutory reason, the agency must afford discretion to your particular case so as to not require your SOR registration upon this incident of conviction which is under our current consideration. Therefore, you will not have to contact either Warren County Sheriff's Office or the MOPS Driver's License Bureau concerning any current or future SOR registration because of your Hinds County, Mississippi conviction tor lncesr. Sincerely, ~ V\/ 7/ /} 7 fto~,1..,i r-y ~~ -/ L\ 7 Wesley B Luckey Assistant Director, MCIC Cc: Warren County Sheriff Department POST OFFICE BOX 958 j.\ckso:--;, :\1bSIS~IPPI TELEPI-JO~E ~-1212 F\X ~ w,vw.dps.statc,.ms.us