Robert E. Tubwell v. James V. Anderson
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-CP-00232-SCT
ROBERT E. TUBWELL
v.
JAMES V. ANDERSON, COMMISSIONER OF CORRECTIONS
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
08/12/1998
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
PRO SE
JAMES M. NORRIS
JANE L. MAPP
CIVIL - OTHER
AFFIRMED - 8/17/2000
9/22/2000; denied 1/18/2001
1/25/2001
BEFORE PRATHER, C.J., SMITH AND DIAZ, JJ.
PRATHER, CHIEF JUSTICE, FOR THE COURT:
INTRODUCTION AND STATEMENT OF THE CASE
¶1. Robert E. Tubwell ("Tubwell") is an inmate incarcerated in the custody of the Mississippi Department of
Corrections ("MDOC"). Tubwell is well known to this Court in his role as a prison writwriter and as a filer
of frivolous lawsuits and appeals.(1) In fact, this Court recently dismissed as frivolous an appeal by Tubwell
from a ruling which, as will be seen, is related to the appeal in the present case. Tubwell v. Grant, 2000
WL 19921 (Miss. Jan 13, 2000).(2)
¶2. The present appeal arises from the MDOC's revocation of Tubwell's earned "good time" credits
pursuant to the mandate of Miss. Code Ann. § 47-5-138 (Supp. 1999), following the dismissal as frivolous
of various lawsuits filed by Tubwell. Arguing that this statute is unconstitutional and that his good time
credits were improperly revoked, Tubwell has appealed to this Court.
DISCUSSION
I. Whether forfeiture of earned time, pursuant to Miss. Code Ann. § 47-5-138(3)(a) through
§ 47-5-138(3)(c) is unconstitutional where such statute contains no provisions to permit the
indigent inmate to appeal such order in forma pauperis and where permission to proceed
with such an appeal, in forma pauperis, is not permitted by law and is routinely denied.
¶3. The present appeal arises from the revocation of "good time" credits earned by Tubwell following the
dismissal as frivolous of various lawsuits filed by Tubwell. Included among these lawsuits is one recently
considered by this Court on appeal. In Tubwell v. Grant, Tubwell filed suit to prevent the MDOC from
moving him to a private prison facility without his consent or permission. The trial court dismissed this suit as
frivolous, and this Court recently affirmed, finding that:
(T)he MDOC has explicit authority to house state inmates at D.C.F. and other private facilities within
this state. Tubwell's claim of a liberty interest in the less restrictive conditions at Parchman is frivolous.
Tubwell v. Grant, 2000 WL 19921 at 4.
¶4. The record in the present appeal also contain other trial court rulings dismissing as frivolous lawsuits
filed by Tubwell.(3) In Tubwell v. Lee, Tubwell filed suit seeking to be upgraded from "B to A custody,"
which suit the trial judge found to be without merit and frivolous. In Tubwell v. Anderson, Tubwell filed
suit again, making what the circuit judge characterized as "random and frivolous" allegations regarding his
confinement. In Tubwell v. Moody, the circuit judge dismissed as frivolous a "Motion for Contempt
Citation and Sanctions or for Order Allowing Case to Proceed Without ARP."
¶5. Following each of these dismissals, the MDOC revoked 120 days of good time credits earned by
Tubwell, as required by statute, and Tubwell thus was faced with a total forfeiture of 480 days good time
credit. Section 47-5-138 provides that the MDOC "shall" forfeit an inmate's good time credit in the event
that a "final order" is issued dismissing a lawsuit filed by the inmate as "frivolous, malicious or for failure to
state a claim upon which relief could be granted." The statute provides in pertinent part that:
(3)(a) For the purposes of this subsection, "final order" means an order of a state or federal court that
dismisses a lawsuit brought by an inmate while the inmate was in the custody of the Department of
Corrections as frivolous, malicious or for failure to state a claim upon which relief could be granted.
(b) On receipt of a final order, the department shall forfeit:
(i) Sixty (60) days of an inmate's accrued earned time if the department has received one (1) final
order as defined herein;
(ii) One hundred twenty (120) days of an inmate's accrued earned time if the department has received
two (2) final orders as defined herein;
(iii) One hundred eighty (180) days of an inmate's accrued earned time if the department has received
three (3) or more final orders as defined herein.
¶6. Tubwell's primary argument on appeal is that Miss. Code Ann. § 47-5-138 is unconstitutional and that
his good time credits were therefore improperly revoked. Tubwell initially argues that § 47-5-138 is
unconstitutional in that it contains no provision for an inmate to file an in forma pauperis appeal from a ruling
ordering the forfeiture of a prisoner's earned good time credits. This argument is without merit. A review of
prior decisions of this Court and of the United States Supreme Court provide no support for Tubwell's
assertion of a constitutional right to appeal in forma pauperis from a dismissal as frivolous of a condition of
confinement lawsuit.
¶7. In Moreno v. State, 637 So.2d 200 (Miss. 1994), this Court interpreted Miss. Code Ann. § 47-5-76
as requiring the Department of Corrections to pay for an indigent inmate's court costs in condition of
confinement lawsuits only at the trial, rather than the appellate, level. Such being the case, it can not validly
be contended that § 47-5-138 is unconstitutional because it provides inmates with no automatic right to file
in forma pauperis appeals in suits which have been deemed by a trial court to be frivolous. Given that this
Court has held that no such right exists with regard to non-frivolous lawsuits, it would clearly be irrational
for this Court to hold the statute unconstitutional for failing to provide a right to appeal in forma pauperis in
cases in which the lawsuits have been dismissed as frivolous.
¶8. Nevertheless, it should be noted that trial judges retain the power to grant inmates leave to file in forma
pauperis appeals, even though § 47-5-138 does not require them to do so. The record in the present
appeal reveals that Tubwell, having secured leave from a circuit judge, is filing the present appeal in forma
pauperis. While Tubwell's well documented history of filing frivolous lawsuits and appeals might reasonably
give a trial judge pause before permitting such in forma pauperis appeals in the future, the present appeal
demonstrates that judges do retain this power. This point of error is without merit.
II. Whether forfeiture of earned time, and consequential elongating of actual time in prison,
is unconstitutional and violative of the Sixth Amendment to the United States Constitution
where such non-redemptory action is taken without first affording the indigent inmate the
right to be represented by counsel.
¶9. Similarly without merit is Tubwell's argument that § 47-5-138 is unconstitutional in that it contains no
provision granting inmates a right to counsel in appealing a revocation of good time credits under the statute.
Tubwell cites no authority which supports his arguments, and his arguments therefore carry very little
weight. In a related context, this Court has held that a right to the assistance of paid counsel in post
conviction appeals(4) exists only in death penalty cases. Jackson v. State, 732 So.2d 187, 190 (Miss.
1999); See also Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (no federal
right to appointed counsel in post-conviction proceedings). Given that this Court has not required paid
assistance of counsel in non-capital post-conviction appeals, it can not reasonably be contended that § 475-138 is unconstitutional for failing to provide a right of counsel for appeals from inmate lawsuits which have
been dismissed as frivolous. This argument is without merit.
III. Whether forfeiture of earned time, pursuant to Miss. Code Ann. § 47-5-138(3)(a)
through § 47-5-138(3)(c) (Supp. 1998) is unconstitutional where such statute, or the policy
and procedure used by appellee, fails to provide the inmate with a due process forfeiture
hearing under the requirements of the Fourteenth Amendment to the United States
Constitution.
¶10. Tubwell next argues that he was unconstitutionally deprived of a due process hearing in the present
case. A review of applicable authority does not support Tubwell's arguments in this regard. In Wolff v.
McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the United States Supreme Court
held that due process requires certain procedural protections before a prison inmate can be deprived of a
protected liberty interest in good time credits. However, the U.S. Supreme Court has made it clear that this
protection is rather limited, both with regard to procedural and substantive evidentiary requirements.
¶11. Where a prison disciplinary hearing may result in the loss of good time credits, the Supreme Court in
Wolff held that the inmate must receive: (1) advance written notice of the disciplinary charges; (2) an
opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present
documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on
and the reasons for the disciplinary action. Wolff, 418 U.S., at 563-67, 94 S.Ct., at 2978-80.
¶12. In a later decision, the U.S. Supreme Court held that a revocation of good time credits does not
comport with the minimum requirements of procedural due process unless the findings of the prison
disciplinary board are supported by "some evidence" in the record. Superintendent v. Hill, 472 U.S.
445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). The Supreme Court expressly declined to adopt a
more stringent evidentiary standard as a constitutional requirement, holding that:
Revocation of good time credits is not comparable to a criminal conviction ... and neither the amount
of evidence necessary to support such a conviction, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), nor any other standard greater than some evidence applies in this
context.
Hill, 472 U.S. at 454.
¶13. It is apparent that Miss. Code Ann. § 47-5-138 provides much greater procedural protections than
those which are typically found in extra-judicial prison revocation proceedings of the type discussed by the
U.S. Supreme Court in Wolff and Hill. Section 47-5-138 only provides for a revocation of good time
credits in the event that a "final order" is issued dismissing the prisoner's lawsuit. As noted supra, the statute
defines "final order" as "an order of a state or federal court that dismisses a lawsuit brought by an inmate
while the inmate was in the custody of the Department of Corrections as frivolous, malicious or for failure to
state a claim upon which relief could be granted." § 47-5-138(3)(a). Thus, it is apparent that an inmate is
only subjected to a loss of good time credits in the event that a state or federal court first considers the
inmate's lawsuit and dismisses it as "frivolous, malicious or for failure to state a claim upon which relief could
be granted."
¶14. The level of due process which has been afforded to Tubwell in the present context is illustrated by the
fact that, as noted earlier, this Court has recently considered one of the very motions filed by Tubwell,
which motion resulted in his loss of good time credits. Specifically, in Tubwell v. Grant, 2000 WL 19921,
this Court affirmed the dismissal as frivolous of a habeas corpus motion filed by Tubwell, in which he
complained that the MDOC had transferred him to a private prison facility without his consent. It can not
validly be contended that Tubwell has been deprived of his right to due process, and this argument is
without merit.
IV. Whether forfeiture of earned time, pursuant to Miss. Code Ann. § 47-5-138(3)(a)
through § 47-5-138(3)(c) is unconstitutional ex post facto law where such statutory provisions
were enacted and passed after the accreditation of the earned time which the statute forfeits
and where the statute is more onerous than any earned time forfeiture statute in effect at
the time of the commission of the crime or at the time of the accumulation of the earned
time.
¶15. Tubwell next argues that § 47-5-138 constitutes an unconstitutional ex post facto law, as applied to
the present case. Specifically, Tubwell argues that the statute unconstitutionally deprives him of good time
credits which he earned prior to the effective date of the statute. This argument is without merit.
¶16. The U.S. Supreme Court has held that the Ex Post Facto clause is "aimed at laws that 'retroactively
alter the definition of crimes or increase the punishment for criminal acts.' " California Dep't of
Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (quoting Collins v.
Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). The United States Constitution
"forbids the application of any new punitive measure to a crime already consummated ..." Lindsey v.
Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). A statute may violate the Ex post
facto Clause "even if it alters punitive conditions outside the sentence ... [or where it] substantially alters the
consequences attached to a crime already completed, and therefore changes 'the quantum of punishment.' "
Weaver v. Graham, 450 U.S. 24, 32-33, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981) (quoting Dobbert v.
Florida, 432 U.S. 282, 293-94, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)).
¶17. The record reveals that Tubwell filed the lawsuits which were later dismissed as frivolous after the July
1, 1996 effective date of § 47-5-138. As such, the punitive measures set forth in the statute only applied to
actions taken by Tubwell after the effective date of the statute. The fact that the effect of the statute is to
deprive Tubwell of good time credits which he earned prior to the effective date of the statute is, in the view
of this Court, irrelevant. In the view of this Court, a revocation of good time credits earned prior to effective
date of a statute is no more improper than the forfeiture of a car or other such property purchased prior to
the effective date of a statute providing for such a forfeiture. This point of error is without merit.
V. Whether Miss. Code Ann. § 47-5-138(3)(a) through § 47-5-138(3)(c) is unconstitutional
law where it applies to and is directed toward a certain class individuals, inmates, and
whether such intentional discriminatory application of the statute violates the equal
protection clause of the Fourteenth Amendment of the United States Constitution?
¶18. Tubwell next argues that § 47-5-138 is unconstitutional in that it violates the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution. This argument is without merit. Contrary to
Tubwell's assertions, neither prison inmates nor indigents constitute a "suspect" class entitled to heightened
scrutiny under the Equal Protection Clause. See Harris v. McRae, 448 U.S. 297, 323, 100 S.Ct. 2671,
65 L.Ed.2d 784 (1980) (indigents); United States v. King, 62 F.3d 891, 895 (7th Cir.1995) (prisoners).
Therefore, the statute does not violate the Equal Protection Clause so long as it is "rationally related to a
legitimate state interest." City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49
L.Ed.2d 511 (1976) (per curiam).
¶19. It is clear that the State has a legitimate interest in seeing that its courts are not overburdened with
frivolous litigation, and we conclude that § 47-5-138 is rationally related to that interest. See Roller v.
Gunn, 107 F.3d 227, 233-34 (4th Cir.1997); Hampton v. Hobbs, 106 F.3d 1281, 1286-87 (6th
Cir.1997). As such, the statute does not violate the Equal Protection Clause, and this point of error is
without merit.
VI. Whether forfeiture of earned time is unconstitutional where such forfeiture is carried out
without additional instructions or approval of the court and where it is arguably taken by
appellee as retribution against the indigent inmate for seeking judicial intervention against
appellee and his agents for alleged mistreatment, misconduct, illegal actions, or because the
indigent inmate challenged MDOC agency policy?
¶20. Tubwell next raises an objection to the manner in which the trial court processed the orders revoking
his earned time credits. Specifically, Tubwell argues that the "forfeiture of Appellant's earned time was
carried out by MDOC without any prior written instructions from the court concerning whether to forfeit
Appellant's earned time." Tubwell argues that the MDOC only learned of the dismissals based on its status
as a party to the litigation and Tubwell suggests that this fact, if true, somehow renders the forfeiture of
earned time invalid.
¶21. Tubwell's argument is lacking in both supporting evidence in the record and in any citation to legal
authority. As discussed infra, the record reveals that the circuit judge did in fact issue final orders dismissing
various actions filed by Tubwell as frivolous. It is both unclear and, in the view of this Court, irrelevant
whether the MDOC learned of these dismissals through its status as a party to the lawsuits or through being
forwarded a copy of the dismissals by the clerk. The fact remains that the lawsuits were in fact dismissed as
frivolous through the issuance of "final orders," thus implicating the provisions of § 47-5-138. This argument
is without merit.
VII. Whether the forfeiture of earned time, pursuant to Miss. Code Ann. § 47-5-138(3)(a)
through § 47-5-138(3)(c), was improper where the various orders rendered by the court were
not final and, therefore, did not invest the appellee with the authority to forfeit earned time
under such statute?
¶22. Tubwell next argues that the MDOC improperly forfeited his earned time, given that the orders
dismissing his lawsuits were not "final orders" within the meaning of § 47-5-138. Section 47-5-138 defines
the term "final order" as follows:
(3)(a) For the purposes of this subsection, "final order" means an order of a state or federal court that
dismisses a lawsuit brought by an inmate while the inmate was in the custody of the Department of
Corrections as frivolous, malicious or for failure to state a claim upon which relief could be granted.
A review of the orders dismissing Tubwell's actions in the present appeal indicates that the dismissals were,
in fact, final orders as defined by statute. In each of the orders, the trial court dismisses the lawsuit filed by
Tubwell and expressly finds that the suit was frivolous. The MDOC did not err in revoking Tubwell's good
time credits following the entry of these final orders against Tubwell, and his point of error is without merit.
VIII. Whether the circuit court erred in denying the habeas corpus petition without an
evaluation, finding of fact, or conclusion of law on the claims and without conducting an
evidentiary hearing.
¶23. Tubwell finally argues that the circuit court erred in denying his "habeas corpus" petition without
conducting an evidentiary hearing. However, Tubwell is unable to cite any disputed issues of fact in the
present case which require an evidentiary hearing. Indeed, the present appeal presents issues which are
either purely issues of law or which can be decided based upon the written record before this Court. There
is no indication that the trial court's resolution of this case would have been furthered by an evidentiary
hearing, and this point of error is without merit. The judgment of the trial court is accordingly affirmed.
¶24. AFFIRMED.
PITTMAN AND BANKS, P.JJ., SMITH, MILLS, WALLER, COBB AND DIAZ, JJ.,
CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
1. Tubwell is also well known to the federal courts in this State: Tubwell's repeated filing of frivolous
appeals led the Fifth Circuit to prohibit him from filing any further appeals with that court.
2. In an earlier case, Tubwell was sanctioned by this Court for abusing the judicial system by helping
another inmate bring frivolous lawsuits. Ivy v. Merchant, 666 So.2d 445, 451-52 (Miss.1995).
3. Although the present appeal is styled solely as an appeal in the Tubwell v. Anderson case, Tubwell's
arguments are considerably broader, implicating the constitutionality of Miss. Code Ann. § 47-5-138 as
well as asserting error in the other cases dismissed as frivolous.
4. This Court in Jackson noted that, in PCR cases, "(i)f an evidentiary hearing is required the judge may
appoint counsel for a petitioner who qualifies for the appointment of counsel under section 99-15-15,
Mississippi Code of 1972." Miss.Code Ann. § 99-39-23(1)(1994)(emphasis added). Nothing in the
UPCCRA requires that one seeking relief be furnished counsel, either at the trial level or on appeal."
Jackson, 732 So.2d at 190.
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