McClurg v. State


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Docket Number: 2002-CP-00324-COA
Linked Case(s): 2002-CP-00324-COA
Court of Appeals: Opinion Link
Opinion Date: 04-13-2004
Opinion Author: Thomas, J.
Holding: Affirmed
Additional Case Information: Topic: Post-conviction relief - Parties in interest
Judge(s) Concurring: McMillin, C.J., King, P.J., Bridges, Lee, Irving, Myers, Chandler and Griffis, JJ.
Concurs in Result Only: Southwick, P.J.
Procedural History: PCR
Nature of the Case: PCR
Trial Court: Date of Trial Judgment: 09-13-2001
Appealed from: Leflore County Circuit Court
Judge: Betty W. Sanders
Disposition: COMPLAINT DISMISSED WITH PREJUDICE; MOTION TO AMEND OR ALTER THE JUDGMENT DENIED
District Attorney: Frank Carlton
Case Number: 2001-0069-CICI
Note: On motion for rehearing
  Party Name: Attorney Name:  
Appellant: Morgan V. McClurg, Jr. a/k/a Morgan Vance McClurg




 PRO SE



  
Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: JANE L. MAPP  
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Topic: Post-conviction relief - Parties in interest
Summary of the Facts: The motion for rehearing is granted, and this opinion is substituted for the original opinion.
Summary of Opinion Analysis: Morgan McClurg, Jr., an inmate in custody of the Mississippi Department of Corrections, filed a complaint arguing that the distinction in parole eligibility made between similarly situated offenders merely on the basis of the timing of their conviction is a violation of the Equal Protection Clause of the Fourteenth Amendment. After the court dismissed the complaint, McClurg timely filed notice of appeal in forma pauperis. The court found the petition to be one for post-conviction relief and granted the motion to proceed in forma pauperis. However, McClurg should never have been allowed to proceed on appeal in forma pauperis since this is not a PCR. The original suit should have been dismissed for failure to properly name and serve the actual parties in interest, namely the Parole Board and Department of Corrections.


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