IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-00713-COA PATRICK FLUKER A/K/A PATRICK DANTRE FLUKER A/K/A PATRICK D. FLUKER APPELLANT

v. STATE OF MISSISSIPPI, MISSISSIPPI PAROLE BOARD APPELLEE DATE OF JUDGMENT: 05/04/2015 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PATRICK FLUKER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - OTHER TRIAL COURT DISPOSITION: PETITION FOR W R IT OF HABEAS CORPUS DENIED DISPOSITION: AFFIRMED - 08/04/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WILSON, J., FOR THE COURT: ¶1. Patrick Fluker pled guilty to arm ed robbery i n 2007 and was sentenced t o serve f if teen
y ears i n the custody of the Mississippi Departm ent of Corrections. By law, he is ineligible
f or parole. See Miss. Code Ann. § 47-7-3(c)(ii) (Rev. 20 1 5 ). In Novem ber 2014, Fluker
f iled a “Petition f

or W rit of Habeas Corpus o r f or Order to Show C a

use and Motion f

or Evidentiary Hearing” in the Forrest County Circuit Court, nam ing the State Parole Board as the respondent. Fluker a l l e g e s that legislation enacted in 2014 e x panded parole eligibility
f or persons convicted o f robbery af ter July 1, 2014, but n o t f or p ersons, such as him self ,convicted of robbery on or bef ore July 1, 2014. Fluker claim s that this d istinction violates his right to equal p rotection of the law. The circuit court sum m arily d enied Fluker petition. ¶2. The circuit court p roperly dism issed Fluker’s petition, a s his claim is without m erit.
For purposes of this appeal, we m ay set a side t he question whether Flu k e r h as correctly interpreted the 2014 am endm ents to the parole eligibility law. A state’s decision t o expand parole e l i g i b i l i t y only on a p rospective basis is rational and “does not discrim inate on any purposef u l or invidious basis.” Mayabb v . Johnson , 168 F.3d 863, 870-71 ( 5th Cir. 1999),

cert. denied , 5 28 U.S. 969 (1999). Accordingly , Fluker’s constitutio n al claim f ails as a

m atter of law, and we af

f irm the judgm ent of

the circuit court on the m e rits. ¶3. W e agree with the dissent t hat Fluker’s petition is best v iewed as a regular civil action against the Parole Board, not a m otion f or post-conviction relief

. See Ducksworth v. State , 174 So. 3d 323, 324 (¶¶4-5) (Miss. Ct. App. 2015). The dissent seem s t o suggest that venue in such a case is a jurisdictional i ssue that we m u st a ddress sua sponte. 1 H owever, other than
in certain s pecial c lasses of “local actions,” venue is not jurisdictional, and the f act that a case is f iled in an im

proper v enue “does not of itself af f ect the rig h t o f t h e c o urt t o hear and determ ine” the case on the m erits. Leake Cty. Coop. ( A.A.L.) v
. Barrett's Dependents , 226
So. 2 d 608, 615 (Miss. 1969). 2 The Mississippi R ules of Ci v i l Procedure m ake this clear.

1 T h e P aro le B o a rd d o es n o t m en tio n th e issu e in its b rief o n ap p eal.

2 T h e statu te p r e scrib in g th e p ro p er v en u e f o r f ilin g a d iv o rce co m

p lain t “is n o t a m ere statu te o f v en u e th at m a y b e w aiv ed b u t o n e o f j u risd ictio n o f su b j e c t m atter o f th e su it.” R o b erts v. R o b erts , 8 6 6 S o . 2 d 4 7 4 , 4 7 6 (¶6 ) (M iss. C t. A p p . 2 0 0 3 ) (q u o tin g P rice v. P rice , 2 0 2 M i ss. 2 6 8 , 2 7 4 , 3 2 S o . 2 d 1 2 4 (1 9 4 7 )). “[ T ] h e e s tate statu te p r escrib in g w h ere an estate m

u st b e f iled [ also ] g o es to su b

j ect m atter j u risd ictio n an d n o t m ere v en u e.” N a t'l H e rita g e R ea lty In c. v. E

s ta te o f B o les , 9 4 7 S o . 2 d 2 3 8 , 2 4 9 ( ¶3 5 ) (M i ss. 2 0 0 6 ). T h ese

2Rule 1 2(h)(1) provides that venue is an af f irm ative def

ense that “is waived” if it i s not tim ely

a s s e rted by m otion or answer. 3 A nd Rule 82(d) provides that “[ w]hen an a ction i s f i l e d lay ing v e nue in the wrong county , the action shall not be dism issed, but the court, on tim ely

m otion, shall transf

er t he a ction to the court i n w h i c h i t m ight properly have been f iled.” 4 Thus, even if we were to raise t h e i s s u e o f venue sua sponte, we could not a f f irm the dismissal of Fluker’s petition on that ground. Again, im proper v enue is a r eason to transf er

a case, not to dism iss it. Since we can easily af f irm the dism issal of Fluker’s petition on the

m erits, there is no reason to address the issue of venue. 5 ¶4. The dissent ultim ately a sserts that “neither the trial court nor the Court of Appeals has jurisdiction to consider this case o n t he m erits” because “no process has been issued.” The dissent is correct that we could af f irm based on insuf

f icient process, see McClurg v. State , 870 So. 2d 681, 682 (¶6) (Miss. Ct. App. 2004), but the dissent i s i ncorrect that the point is

a jurisdictional i ssue that we must raise sua sponte. The word “jurisdiction” does not appear

statu tes are lim ited ex cep tio n s to th e ru l e t h a t v en u e issu es d o n o t im p licate th e co u rt’s j u risd ictio n to h ear an d d ecid e th e case o n th e m erits. N o sim i lar statu te is in v o lv ed in th is case.

3 S e e a l so , e.g
. , F red e ricks v. M

a lo u f , 8 2 S o . 3 d 5 7 9 , 5 8 2 (¶1 6 ) (M iss. 2 0 1 2 ) (“V en u e is an af f irm ativ e rig h t th at g en erally m ay b e w aiv ed o r ab a n d o n ed .”).

4 S ee a lso , e.g
. , O

ffice o f G o vern o r D iv. o

f M ed ica id v. Jo h n so n , 9 5 0 S o . 2 d 1 0 3 3 , 1 0 3 5 (¶5 ) (M iss. C t

. A p p . 2 0 0 6 ) (“Wh en a c o u rt h as p ro p er j u risd ictio n b u t n o t v en u e, th e ap p ro p r iate actio n is to tran s f er th e case to a co u rt w h e re v en u e is p ro p er.”).

5 S im ilarly , in D u cksw o rth , su p r a , w e d eclin ed t o ad d ress th e q u estio n w h e th er v en u e w a s p ro p er in F o rrest C o u n ty b ecau se it w as clear th at th e p riso n e r’s claim

— th at th e P aro le B o ard h ad v io lated h is r ig h t s to eq u a l p r o t e c t io n an d d u e p ro cess o f law b y d en y in g h im p aro le a f ter g ran tin g p aro le to h is co -d ef en d an t— f

ailed o n th e m erits. S

ee D u cksw o rth , 1 7 4 S o . 3 d at 3 2 4

- 2 5 (¶¶6 -1 0 ) & n .1

. 3in the M

cClurg o p inion. Rather, this C ourt s im ply af f irm e d the dism issal of t he case based

on the prisoner’s f

ailure to nam e and serve the Parole Board after t he Attorney G e n e r al specifically raised a nd argued the point

. See id. at (¶¶5-6). Insuf f iciency of p rocess can be waived, and in this case the Parole Board has not r aised the issue i n i ts brief on appeal. The issue does not deprive this Court of jurisdiction to decide the case on the m erits. ¶5. The circuit court properly d enied Fluker’s petition because his claim is without m e r it. ¶6. T H E J U D G M E N T O F T H E FORREST COUNTY C I R C U I T C O U R T I S AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY. LEE, C .J., GRIFFIS, P .J., BARNES, I SHEE, FAIR AND GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE R ESULT WITHOUT SEPARAT E W R I TTEN OPINION. CARLTON, J., CONCURS IN THE RESULT ONLY WITHOUT S EPARATE W R I T T E N O P I N I O N . J A M E S , J . , DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY IRVING, P.J. JAMES, J., DISSENTING: ¶7. Because I would not af f i rm this case on the m erits, I respectf ully dissent. ¶8. Fluker f

iled his petition i n Forrest County , the county in which h e was convicted. A

m otion f iled under the Unif

orm Post-Conviction Collateral Relief Act m u s t b e f i led in the circuit court in which the def endant was convicted. McLamb v. State , 9 74 So. 2d 935, 938 (¶14) (Miss. Ct. App. 2008). See also Miss. Code Ann. § 99-3 9

- 7 ( R e v . 2015) (A PCR

m otion “shall be f

iled as a n original action i n the trial court

. . . . ” )

. M i s sissippi Code Annotated section 99-39-5 (Rev. 2015) provides lim ited grounds f or relief

. Section 99-39-5 does not include any

relief f r om Parole Board decisions. Section 99-39-5(1) provides: (1) Any p erson sente n c e d by a court of record of the State of M ississippi, including a p e rson currently incar c e r a t e d , c i villy com m itted, on parole or

4probation or subject to s ex of f e nder r egi s t r a t ion f

or the period of the registrat i o n or f

or the f irst f ive (5) y ears o f the registration, whichever is the shorter period, m ay f

ile a m otion to v acate, set aside or correct the j udgm ent or s entence, a m o t ion to r equest f orensic DNA testing of biological e vidence, or a m otion f

or an out-of

-tim e appeal if

the person claim s: (a) That the c onviction or the sentence was im posed in violation o f the Constitution of the United States or the Constitution or laws of Mississippi; (b) That the trial court was without jurisdiction to im pose sentence; (c) That the s tatute under w hich the c onviction and/or sentence was obtained is unconstitutional; (d) That the sentence exceeds the m axim um authorized by law; (e) That there exists evidence of m aterial f

acts, not previously

presented and heard, that requires vacation of th e c o n v iction or sentence i n the interest of justice; (f ) That there exists b i ological evidence secured in relation to the investigation o r prosecution attendant to the petitioner' s conviction not tested, or, i f previously tested, that can be subjected to additional DNA testing, that w ould provide a reasonable likelihood o f m o re probati v e r e s ults, and that testing w o u l d d e m o n s trate by reasonable probability t hat the petitioner would not h a v e been convicted o r would have received a lesser sentence if f a vorable results had been obtained through such f o r e n s i c D NA testing at the tim e of the original prosecution. (g) That his plea was m ade involuntarily ; (h) That his sentence has expired; his probation, parole or conditional release unlawf u lly revoked; or he is otherwise unlawf ully held in custody ; (i) That he is entitled to an out-of -tim e appeal; or (j) That the conviction or sentence is otherwise subject t o c ollateral attack upon any grounds of alleged error heretof ore available under a ny com m on law, statutory or other writ, m otion, petition, proceeding or rem edy

. ¶9. In response to the m ajority opinion, Ducksworth v. State , 174 So. 3d 323 (Miss. Ct.

5App. 2015), is a case a gainst the State. Fluker’s c ase is a gainst the Mississippi Parole Board,

which he m ade clear in his appellate brief

. Fluker c laim s that the P arole B oard violated his constitutional rights under the Fourteenth Am endm ent. The M ississippi Paro l e B o a r d has exclusive jurisdiction to grant or deny parole a s p r ovided by M ississippi Code Annotated sections 47-7-5(3) a nd 47-7-17 ( Rev. 2015). Also, Mississippi C o de Annotated s ection 99-
39- 1 1 ( 2 ) ( R ev. 2015) provides f or a judicial e xam ination and d ism issal of the original

m otion. The court does not have the power t o transf er a case if it does not h ave jurisdiction

or the power to act. T h e statute m andates a dism issal f or im proper venue or f

o r any other

reason where dism i ssal would be proper. “If it plainly appears f r om the f ace of the m otion,
any a nnexed e xhibits, and the prior proceedings in the case that the m ovant i s not entitled to
any relief , the judge m ay m ake an order f o r its dism issal and cause the petitio n e r t o be notif ied.” Id . The trial judge acted within his discretion in dism issing Fluker’s c ase. This statute does not require that these cases be transf erred. ¶10. The M ississippi Parole Board is a proper party , and F luker does n ot s e ek relief under section 99-39-5. See also McClurg v. State , 8 70 So. 2d 6 81, 682 (¶6) (Miss. Ct. App. 2004). Fluker’s petition did not c hallenge h is conviction or sentence and, theref ore, w as not a

m otion f o r postconviction relief

. Horton v. Epps , 966 So. 2d 839, 841 (¶4) (Miss. Ct. App. 2007). Venue f

or a regular civil action is governed by Mississippi Code Annotated section 11-11-3 (Rev. 2004). Section 11-11-3(1)(a)(i) provides: Ci v i l a c t i o ns of which the circuit court has original jurisdiction shall be com m enced in t he county where the d ef endant r esides, or, if a c o rporation, in the c ounty of its principal place of business, or i n the c o unty where a substantial alleged a ct o r om ission occurred or where a s ubstantial e v ent t hat

6caused the injury occurred. ¶11. On that basis, Fluker’s petition should not have b een f i led in Forrest County Circuit
Court. The trial c ourt did not specif ically state why jurisdiction was not proper. However,
I agree that the court did not have jurisdiction to hear the case. I n o rder f or the trial court to have jurisdiction to hear the case against the Parole Board on t he m erits, the d ef e n dant m ust

nam e and serve the actual parties in interest. In McClurg , this Court held, inter alia, a case should be dism issed f

or f ailure t o nam e and serve the parties in interest, nam ely the Parole Board and the Mississippi Departm ent of Corrections. Fluker has nam ed the Parole Board

a s t h e proper party , but n o p rocess has been issued in this case. Also t he r e w a s n o
appearance or answer f

iled o n behalf of the P arole Board. The State’s brief i s s ty led Patrick
F l uker v
. State of M

ississippi and not Patrick Fluker v. State of Mississippi , Miss i s s i p p i Parole Board

. The State treats the case as a PCR m atter and c oncludes that Fluker’s petition
f or parole eligibility under the PCR statute is im proper. The S tate’s brief is on behalf of the
State of Mississippi and n ot the Mississippi Parole Board. Theref ore, neither the t rial court

nor the Court o f A p p e als has jurisdiction to consider t his case on t he m erits. I would theref ore dism iss this case without prejudice. IRVING, P.J., JOINS THIS OPINION IN PART.

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