IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2016-CP ALLENGOUL APPELLANT MISSISSIPPI DEPARTMENT OF CORRECTIONS APPELLEE

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1 E-Filed Document Jul :42: CP Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2016-CP ALLENGOUL APPELLANT v. MISSISSIPPI DEPARTMENT OF CORRECTIONS APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY, MISSISSIPPI BRIEF OF APPELLEE JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI ANTHONY L. SCHMIDT, JR. MSB # STAFF ATTORNEY MISSISSIPPI DEPT. OF CORRECTIONS 633 NORTH STATE STREET, SUITE 522 JACKSON, MISSISSIPPI PH: (601) FAX: (601) ASCHMIDT@MDOC.STATE.MS.US I

2 DARRELL C. BAUGHN MSB #10602 SPECIAL ASSISTANT ATTORNEY GENERAL 633 NORTH STATE STREET, SUITE 520 JACKSON, MISSISSIPPI PH: (601) FAX: (601)

3 CERTIFICATE OF INTERESTED PARTIES THE UNDERSIGNED counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this Court may evaluate possible disqualifications or recusal. 1. Allen Goul, Inmate # 82871, Appellant (pro se) 2. Honorable Robert P. Krebs, Circuit Court Judge, 19th District 3. Jim Hood, Attorney General THE UNDERSIGNED counsel further certifies that the following attorneys have an interest in the outcome of this case: For Appellee, State of Mississippi and Mississippi Department of Corrections: 1. Anthony L. Schmidt, Jr., Staff Attorney, Mississippi Department of Corrections 2. Darrell C. Baughn, Special Assistant Attorney General SO CERTIFIED this 7th day of July BY: slanthonv L. Schmidt, Jr. ANTHONY L. SCHMIDT, JR. MSB # SPECIAL ASSISTANT ATTORNEY GENERAL 633 NORTH STATE STREET, SUITE 522 JACKSON, MISSISSIPPI PH: (601) FAX: (601) ASCHMIDT@MDOC.STATE.MS.US BY: sldarreli C. BClughn DARRELL C. BAUGHN MSB #10602 SPECIAL ASSISTANT ATTORNEY GENERAL 633 NORTH STATE STREET, SUITE 520 JACKSON, MISSISSIPPI PH: (601) FAX: (601) DBAUGHN@MDOC.STATE.MS.US 111

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES iii TABLE OF CONTENTS iv TABLE OF AUTHORITES v-vi STATEMENT OF ISSUES... 1 STATEMENT OF ASSIGNMENT STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT ARGUMENT I. Goul's appeal of MDOC's decision about his Rule Violation Report (RVR) is outside the thirty (30) day appeal time set by the Administrative Review Procedure (ARP), and he did not exhaust his administrative remedy II. III. IV. MDOC did not violate Goul's right to confrontation since no anonymous witnesses were used, and Goul does not have a liberty interest in the RVR process The Circuit Court of Greene County's Order Affirming Decision was legally sufficient MDOC provided substantial evidence to support the affirmation of the RVR against Goul CONCLUSION CERTIFICATE OF SERVICE IV

5 Cases TABLE OF AUTHORITES Edmond v. Anderson, 820 So. 2d 1 (Miss. Ct. App. 2002) Edwards v. Booker, 796 So. 2d 991 (Miss. 2001)... 9 Guy v. State, 915 So. 2d 508 (Miss. Ct. App. 2005) Henslee v. Lopez, 20 F.3d 470 (5th Cir.1994)... 7 Madison v. Parker, 104 F.3d 765 (5th Cir.1997) Meachum v. Fano, 427, U.S. 215 (1976) Mississippi Dept. of Transp. v. Trosclair, 851 So.2d 408 (Miss. Ct. App. 2003)... 8 Mixon v. Enlers, 90 So.3d 635,637 (Miss. Ct. App. 2012) , 10 Montana v. Comm'rs Court, 659 F.2d 19 (5th Cir.l981)... 7 Nelson v. Bingham, 116 So. 3d 172 (Miss. Ct. App. 2012) Moore v. MDOC, 936 So. 2d 941 (Miss. Ct. App. 2005)... 5 Putnam v. Epps, 63 So.3d 547 (Miss. 2011) Putnam v. Epps, 963 So.2d 1232 (Miss. Ct. App. 2007)... 6 Ross v. Epps, 922 So.2d 847 (Miss. Ct. App. 2006) ,9 iggers v. Epps, 962 So.2d 80 (Miss. Ct. App. 2007)... 6 Smith v. Wesley, 157 So. 3d 860 (Miss. Ct. App. 2015) Stanley v. Turner, 846 So. 2d 279 (Miss. Ct. App. 2003) State Bd. of Pub. Accountancy v. Gray, 674 So. 2d 1251 (Miss. 1996) Taylor v. Petrie, 41 So. 3d 724 (Miss. Ct. App. 2010) Terrell v. State, 573 So.2d 730 (Miss. 1990) , 10 Wilde v. MDOC, 88 So. 3d 792 (Miss. Ct. App. 2012) Wolfv. McDonnell, 418 U.S. 539 (1974) v

6 Rules M.R.A.P. Rule M.R.C.P. Rule Statutes Miss. Code Ann (1972, as amended) ,5 Miss. Code Ann (1972, as amended) ,6 Miss. Code Ann (1972, as amended) ,4 Miss. Code Ann (1972, as amended)... 5,8 VI

7 STATEMENT OF ISSUES I. Whether Goul's appeal of MDOC's decision about his Rule Violation Report (RVR) is outside the thirty (30) day appeal time set by the Administrative Review Procedure (ARP), and Goul did not exhaust his administrative remedies. I. Whether MDOC violated Goul's right to confrontation even though no anonymous witnesses were used, and whether Goul has a liberty interest in the RVR process II. III. Whether the Circuit Court of Greene County's Order Affirming Decision was legally sufficient. Whether MDOC provided substantial evidence to support the affirmation of the RVR against Goul. 1

8 STATEMENT OF ASSIGNMENT In accordance with M.R.A.P. Rule 16(d), this Court will retain those cases which involve "a major question of first impression." The first issue is that Goul filed his appeal of the APR petition outside the time limitations set by Miss. Code Ann and without exhausting his administrative remedies which means the court lacks jurisdiction over this case, and this issue is not a legal issue of first impression, but well-settled caselaw. Second, the confrontation issue raised by Goul is answered by the fact that he admitted to possessing SPICE and that there were no anonymous witnesses so that is not a case of first impression. Third, the Circuit Court of Greene County's Order was legally sufficient in finding that MDOC's decision was supported by substantial evidence so that issue is not one of first impression. Finally, MDOC presented substantial evidence to support its RVR and ARP so the final issue is not one of first impression. Also, M.R.A.P. Rule 16(d) provides this Court will retain those cases that contain "fundamental and urgent issues of broad public importance requiring prompt or ultimate determination." Since this case appears to be a common one of an inmate appealing the decision ofmdoc to issue a RVR and then to uphold that decision during the ARP due to substantial evidence, this case is most likely not one of urgent public importance. STATEMENT OF THE CASE Appellant, Allen Goul ("Goul"), is an inmate in the custody ofthe Mississippi Department of Corrections ("MDOC"). He is confined at the South Mississippi Correctional Institution ("SMCI"). In September 1993, Goul was convicted of a gruesome murder by the stabbing and strangulation of Betty Garrison and sentenced to life in prison. See Ex. A. Goul conspired with Betty Garrison's two daughters to murder 2

9 their mother, and he stabbed Betty Garrison several times in the chest and then strangled her until she stopped moving. His parole date was set for July 7,2002. See Ex. B. Goul also had parole hearings in 2005,2007,2008,2010,2012,2014, and See Ex. C. Goul's next parole hearing is set for April 21, See Ex. D. The Parole Board denied Goul's parole based on the serious nature of the offense and that they did not believe he had the ability or willingness to fulfill the obligations of a law-abiding citizen. See Ex. D. On March 26,2015 at approximately 1525, Goul was found with SPICE in Area II at SMCI. (R. at 34). A CID investigation was conducted, and it was proven that Goul had brought SPICE into Area II at SMCI. (R. at 34). Also, on that date, Goul admitted he had brought SPICE into Area II at SMCI. (R. at 34). Further, on March 26,2015, Goul signed the RVR and marked that he did not want to call any witnesses. (R. at 34). This report was signed by both the reporting employee and the delivering employee. (R. at 34). The name of the investigator and hearing officer were both listed on the RVR. (R. at 34). After a hearing and a consideration of the evidence, the CID investigation, and Goul's admission, it was determined, Goul violated MDOC's rules against possessing contraband in the prison. (R. at 34). In April 2015, Warden Marshal Turner delivered the First Step Response Form for RVRs to Goul's in response to his appeal of the March 26,2015 RVR through the ARP and found that after reviewing the facts concerning this RVR, that the policy and procedures were followed and denied his appeal. (R. at 35). Goul did not appeal this April 2015 ARP to the Second Step of the ARP so he did not exhaust his administrative remedies. (R. at 35). On June 11,2015, outside the thirty (30) day window for appeals 3

10 provided by Miss. Code Ann , Goul filed a Petition for Judicial Review; Appeal to [The] Grievance Procedure Pursuant to M.C.A with the Circuit Court of Green County. (R. at 6-18). On February 4, 2016, Goul filed a Writ of Mandamus with the Mississippi Court of Appeals. Thereafter, on March 4, 2016, the Circuit Court of Greene County issued an Order Affirming the Decision of MDOC through the ARP after being "fully advised" of the facts concerning the RVR and ARP and held MDOC's decision was not arbitrary or capricious, was supported by substantial evidence, was not beyond the powers of the ARP, and was not in violation of the rights of the petitioner. (R. at 48). Goul appealed this Order on April 4, (R. at 51). SUMMARY OF THE ARGUMENT Goul did not exhaust his administrative remedies with MDOC since he did not appeal his first step response to the ARP to the second step, and he waited more than thirty (30) days from the date of the ARP decision to file his appeal. Thus, this Court lacks jurisdiction to proceed in this case. MDOC did not violate Goul' s constitutional right to confrontation since he admitted to having the SPICE in his possession, he refused to introduce witnesses, and no anonymous witness was utilized during the process. Further, the Order of the Circuit Court of Greene County was legally sufficient and used the proper law in upholding MDOC's administrative decision as being supported by substantial evidence, not beyond the powers of the ARP, not arbitrary or capricious, and not in violation of the rights of the petitioner. Lastly, MDOC's decision to uphold the RVR in the ARP was based on substantial evidence, was within MDOC's authority, was not arbitrary or capricious, and did not violate Goul's constitutional or statutory rights. Therefore, this Court should uphold the Circuit Court of Greene County's Order of 4

11 Dismissal. ARGUMENT I. Goul's appeal of MDOC's decision about his Rule Violation Report (RVR) is outside the thirty (30) day appeal time set by the Administrative Review Procedure (ARP), and he did not exhaust his administrative remedy Miss. Code Ann (2) provides the procedure in which an inmate must pursue an administrative decision of MDOC prior to seeking judicial review. After seeking administrative remedy, Miss. Code Ann provides, "any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Sections through may, within thirty (30) days after receipt of the agency'sfinal decision, seek judicial review of the decision." From the record, it is apparent Goul initially pursued action through MDOC's ARP for his RVR concerning possession of the contraband SPICE, in which he received a first step response form dated April 2015 (R. at 35). Goul did not proceed to the second step so he did not exhaust his administrative remedies. Further, the record shows that Goul's appeal in the Greene County Circuit Court was not filed until June 11,2015, well past the allowable thirty (30) day period. See Stanley v. Turner, 846 So. 2d 279,282 (Miss. Ct. App. 2003). (R. at 3.) Filing within the statutorily-mandated time is jurisdictional. Id (citing Edmond v. Anderson, 820 So. 2d 1 (Miss. Ct. App. 2002». Since Goul failed to file his judicial review within thirty (30) days, the circuit court did not have jurisdiction. See Wilde v. MDOC, 88 So. 3d 792, 794 (Miss. Ct. App. 2012) (citing Moore v. MDOC, 936 So. 2d 941, 944 (Miss. Ct. App. 2005». Therefore, this Court lacks jurisdiction to hear Goul's appeal ofmdoc's ARP. 5

12 It is well-settled law that Miss. Code Ann states that an inmate must exhaust his administrative remedies before he can pursue a claim in circuit court. Miss Code Ann (2) mandates that "no state court shall entertain an offender's grievance or complaint which falls under the purview of the administrative review procedure unless and until such offender shall have exhausted the remedies as provided in such procedure." Likewise, this Court has held Miss. Code Ann "requires that a prisoner exhaust administrative remedies before a state court may entertain the prisoner's grievance or complaint." Siggers v. Epps, 962 So.2d 78, 80 (Miss. Ct. App. 2007). Further, this Court has dismissed Post Conviction Relief (PCR) cases when "its subject matter was cognizable under the administrative-review procedure." Putnam v. Epps, 63 So.3d 547,548 (Miss. 2011) (quoting Putnam v. Epps, 963 So.2d 1232, 1233 (Miss. Ct. App. 2007)). In this case, Goul is asking this Court to overturn the Circuit Court of Greene County's Order upholding MDOC's ARP. Since Gould did not appeal the Step One of the ARP to Step Two, he did not exhaust his administrative remedies. This Court has held that if an inmate "complains that MDOC incorrectly calculated his earned time allowance," he must first exhaust his administrative remedies before proceeding in Circuit Court. Guy v. State, 915 So. 2d 508, 508 (Miss. Ct. App. 2005). Goul did not exhaust his administrative remedies in this case so this Court lacks jurisdiction to hear his request for his R VR to be overturned. II. MDOC did not violate Goul's right to confrontation since no anonymous witnesses were used, and Goul does not have a liberty interest in the RVR process The Mississippi Supreme Court in Terrell v. State, 573 So.2d 730, 732 (Miss. 1990), held that "claims by inmates regarding radio and television privileges' do 6

13 not pertain to federal constitutional rights.' " (Quoting Montana v. Comm'rs Court, 659 F.2d 19,23 (5th Cir.1981) (abrogated on other grounds by Henslee v. Lopez, 20 F.3d 470 (5th Cir.1994)). In Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997), the United States Court of Appeals for the Fifth Circuit held that a prisoner's temporary loss of privileges were "merely changes in the condition of his confinement and do not implicate due process concerns. They are penalties which do not represent the type of atypical, significant deprivation in which a state might create a liberty interest." Id. This Court has held that the loss of privileges is not a property right that would constitute a violation of a constitutionally protected liberty interest. Mixon v. Enlers, 90 So.3d 635, 637 (Miss. Ct. App. 2012). Further, in Mixon v. Enlers, this Court held Mixon had no liberty interest that could give rise to a legitimate due-process claim even though he claimed MDOC failed to conduct a proper investigation, refused to take his statement, and failed to give him a legible copy of his RVR. Id. Likewise, the United States Supreme Court has differentiated the loss of good time which may require some due process from the loss of privileges which does not trigger due process concerns in this same analysis. Wolfv. McDonnell, 418 U.S. 539, (1974). The United States Supreme Court has also held that "to hold that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators." Meachum v. Fano, 427, U.S. 215,225 (1976). Goul's loss of privileges creates no liberty interest that would give rise to a legitimate due-process claim. Still, Goul actually was allowed to confront all the witnesses at the RVR, and the main witness was Goul himself when he admitted to possessing SPICE. CR. at 34). 7

14 III. The Circuit Court of Greene County's Order Affirming Decision was legally sufficient. M.R.C.P. 52(a) states that "in all actions tried upon the facts without ajury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly." First, the rule says "may" so in cases such as this one where neither party requests the court by motion to enter more specific findings of fact or law, it is discretionary only. The Trial court was not required to enter findings of fact and conclusions of law in a motorist and passenger's action against Department of Transportation under Mississippi Tort Claims Act, where case was not complex, and record did not reflect that any party requested findings of fact and conclusions of law. Mississippi Dept. of Transp. v. Trosclair, 851 So.2d 408,414 (Miss. Ct. App. 2003). Further, Miss. Code Ann does not require specific findings in the judicial review of an ARP. However, in this case, the Circuit Court of Greene County actually did make specific findings of fact and law in full compliance with M.R.C.P. S2(a). Goul claims that the Circuit Court of Greene County did not address his issue of the confrontation of witnesses in their final order. However, the court, after having been "fully advised" held that "the decision rendered by the ARP was not arbitrary or capricious, was supported by substantial evidence, was not beyond the powers of the ARP, and was not in violation of the rights of the petitioner" and then proceeded to cite Ross v. Epps, 922 So.2d 847 (Miss. App. 2006) and the presumption in favor of MDOC by quoting State Bd. Of Pub. Accountancy v. Gray, 674 So.2d 1251 (Miss. 1996). (R. at 48). Thus, the Circuit Court of Greene County not only correctly cited the facts in the underlying case, correctly cited the law. Further, they specifically held that MDOC's 8

15 decision in their ARP "was not in violation of the rights of the petitioner" which specifically addresses Goul's claim that his constitutional rights were violated when he was not allowed to confront the witness against him. IV. MDOC provided substantial evidence to support the affirmation of the RVR against Gout. The decision ofmdoc regarding Goul's ARP was supported by substantial evidence, was not arbitrary or capricious, was not beyond the agency's scope or powers, and did not violate his constitutional or statutory rights. The circumstances surrounding the decision of MDOC regarding Goul' s ARP were based upon significant findings. The decision of an administrative agency, such as the MDOC, will not be disturbed unless the decision is "unsupported by substantial evidence, arbitrary or capricious, beyond the agency's scope or powers, or violative of the constitutional or statutory rights of the aggrieved party." Taylor v. Petrie, 41 So. 3d 724, 727 (Miss. Ct. App. 2010) (citing Edwards v. Booker, 796 So. 2d 991, 994 (Miss. 2001)). There is a rebuttable presumption which favors the agency's decision and the challenging party has the burden of proving the contrary. Ross v. Epps, 922 So. 2d 847 (Miss Ct. App. 2006) (citing State Bd. of Pub. Accountancy v. Gray, 674 So. 2d 1251 (Miss. 1996)). Miss. Code Ann (2), requires a prisoner appealing an MDOC administrative decision to exhaust all administrative remedies prior to petitioning the circuit court to reverse the MDOC's decision. Nelson v. Bingham, 116 So. 3d 172, 174 (Miss. Ct. App. 2012). In this case, Goul admitted to possessing SPICE and bringing it into Area II at SMCI. (R. at 34). The RVR cites that Goul admitted to the introduction of this contraband into the prison on March 26,2015 at (R. at 34). Within twenty-four 9

16 (24) hours, a thorough CID investigation was conducted. (R. at 34). This CID investigation also produced as evidence against Goul which was so marked on the RVR. (R. at 34). In fact, when Goul signed for the RVR, he knew the reporting employee's name which was on the RVR and the delivering employee's name which was also on the RVR. (R. at 34). Also, Goul marked that he did not request any witnesses. (R. at 34). At the RVR hearing, Goul was allowed to provide a statement and question both the hearing officer and the investigator. (R. at 34). Based on Goul's confession to possessing SPICE and introducing this contraband into Area II at SMCI on March 26, 2015 at 1525, a thorough CID investigation, a fair and impartial hearing, Goul's statement at the RVR hearing, and the serious nature of this Rule C7 violation, Goul was found guilty. (R. at 34). Goul did not lose any trustee time or earned time as a result of this RVR, only the loss of some of his privileges for thirty (30) days. (R. at 34). Privileges are given at the discretion of prison officials and the loss of privileges is generally not considered a constitutionally protected liberty interest. See Terrell v. State, 573 So. 2d 730,732 (Miss. 1990); Smith v. Wesley, 157 So. 3d 860,862 (Miss. Ct. App. 2015) (citing Mixon v. Enlers, 90 So. 3d 635, 637 (Miss. Ct. App. 2012)). After a review of the record, it is apparent the decision of MDOC was supported by substantial evidence, was not arbitrary or capricious, was not beyond the agency's scope or powers, and did not violate the constitutional or statutory rights of Goul. The decision of the circuit court should be affirmed. CONCLUSION Goul failed to exhaust his administrative remedies by not appealing step one in the ARP process and failed to file his appeal within the required thirty (30) days after 10

17 MDOC's decision. MDOC did not violate Goul's right to confront witnesses since all the witnesses were known at the time of the RVR, and he admitted to possessing SPICE. Further, the loss of privileges by an inmate does not give rise to due process protections. Also, the Circuit Court of Greene County's Order was legally sufficient in that it accurately stated the facts and the law and specifically held that Goul's constitutional rights had not been violated. Further, MDOC's decision in the ARP to uphold the RVR was not arbitrary or capricious, was supported by substantial evidence, did not exceed MDOC's power, and did not violate any constitutional or statutory rights of Goul. Therefore, this Court should uphold the Circuit Court of Greene County's Order Affirming the Decision of MDOC. Respectfully Submitted, JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI BY: slanlhonyl. Schmidl. Jr. ANTHONY L. SCHMIDT, JR. MSB # STAFF ATTORNEY MISSISSIPPI DEPT OF CORRECTIONS 633 NORTH STATE STREET, SUITE 522 JACKSON, MISSISSIPPI PH: (601) FAX: (601) BY: sldarrell C. Baughn DARRELL C. BAUGHN MSB #10602 SPECIAL ASSISTANT ATTORNEY GENERAL 633 NORTH STATE STREET, SUITE 520 JACKSON, MISSISSIPPI

18 PH: (601) FAX: (601)

19 CERTIFICATE OF SERVICE I, Darrell C. Baughn., Special Assistant Attorney General for the State of Mississippi, Mississippi Department of Corrections do hereby certify that I have this day mailed, postage prepaid, a true and correct copy of the above and foregoing BRIEF FOR APPELLEE, to the following: Alen Goul, Inmate # South Mississippi Correctional Institution 2 P.O. Box 1419 Leakesville, Mississippi Honorable Robert P. Krebs Circuit Court Judge, 19 th District P.O. Box 998 Pascagoula, MS SO CERTIFIED this 7th day of July BY: sldarrell C. Baughn DARRELL C. BAUGHN MSB #10602 SPECIAL ASSISTANT ATTORNEY GENERAL 633 NORTH STATE STREET, SUITE 520 JACKSON, MISSISSIPPI PH: (601) FAX: (601) DBAUGHN@MDOC.STATE.MS.US 13