IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-KP-00686-SCT

LEROY TAYLOR McCRAY

v.

STATE OF MISSISSIPPI

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 05/16/95

TRIAL JUDGE: HON. ROBERT GIBBS

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE McCRORY

DISTRICT ATTORNEY: EDWARD J. PETERS

NATURE OF THE CASE: CRIMINAL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 8/14/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE PRATHER, P.J., ROBERTS AND MILLS, JJ.

ROBERTS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

Leroy Taylor McCray was found guilty of murder on January 17, 1973, and sentenced to life in

prison. This Court reversed and remanded for a new trial in McCray v. State, 293 So. 2d 807 (Miss.

1974). On remand, McCray was retried, found guilty, and once again sentenced to life in prison. His

conviction and sentence were affirmed by this Court in McCray v. State, 320 So. 2d 806 (Miss.

1975).

McCray was paroled on August 12, 1982. On February 6, 1990, he was issued a travel permit to

South Carolina to obtain work. He was to return to Mississippi no later than March 9, 1990. McCray

failed to report on the specified date. On March 30, 1990, McCray was arrested in Charleston, South
Carolina for driving with a suspended license, possession of crack cocaine, possession of a sawed off

shotgun and an open container of alcohol.

A warrant for the arrest of McCray was issued on April 5, 1990. McCray waived his right to a

preliminary parole revocation hearing on June 26, 1990. His parole was revoked on July 18, 1990.

McCray filed his Motion for Post-Conviction Relief in the Circuit Court of Greene County on July 6,

1993. That Motion was transferred to Hinds County on October 29, 1993. McCray's Motion for

Post-Conviction Relief was denied on May 16, 1995, by the Honorable Robert L. Gibbs. Aggrieved

by the lower court disposition of his Motion, McCray appeals to this Court raising the following

issues:

I. WHETHER THE MISSISSIPPI PAROLE BOARD ERRED BY CONSIDERING

UNCOUNSELED [SIC] MISDEMEANOR CONVICTIONS TO REVOKE

PETITIONER'S PAROLE.

II. WHETHER THE MISSISSIPPI PAROLE BOARD DENIED PETITIONER DUE

PROCESS OF LAW IN PAROLE RETAKING PROCEEDINGS INCONSISTENT

WITH ESTABLISHED PROCEDURE AFTER ISSUANCE OF WARRANT FOR

ARREST.

III. WHETHER THE MISSISSIPPI PAROLE BOARD ABUSED ITS DISCRETION BY

FAILING TO DISMISS OR QUASH PAROLE VIOLATOR WARRANT AFTER

PETITIONER WAS ACQUITTED OF ALL FELONY CHARGES.

IV. WHETHER THE LOWER COURT ERRED BY DENYING PETITIONER'S

REQUEST FOR RECUSAL OF THE LOWER COURT JUDGE.

STATEMENT OF THE FACTS

McCray was placed on parole on August 12, 1982, after being sentenced to serve a life sentence for

the crime of murder. On February 6, 1990, he was issued a travel permit to travel to South Carolina

for the express purpose to seek employment. The travel permit explicitly stated that McCray was to

return to Mississippi on March 9, 1990, or to call for an extension of his permit if necessary. McCray

failed to comply with these requirements.

On March 30, 1990, he was arrested and charged with driving with a suspended license, possession

of an open container of alcohol in a motor vehicle, possession of crack cocaine, and possession of a

sawed off shotgun. McCray was found guilty of driving with a suspended license and possession of

an open container of alcohol in a motor vehicle. The federal charges against McCray for possession

of a shotgun with a sawed-off barrel and possession of a firearm by a convicted felon were dismissed.

The reason the charges were dismissed were because McCray's parole was revoked, and any sentence

he received for the previously mentioned charges would be served concurrently with his state parole

revocation.

On April 5, 1990, a Warrant for Arrest of Paroled Prisoner was issued by Diane Davis, McCray's

field officer with the Mississippi Department of Corrections. In this warrant Davis specified that

McCray had violated the conditions of his parole by failing to report on March 9, 1990, or get an
extension. Also the warrant listed that McCray had been found guilty of driving with a suspended

license and possession of an open container of alcohol in a motor vehicle, both misdemeanors.

On June 26, 1990, McCray executed a Waiver of Right to Preliminary Parole Revocation Hearing. In

this document McCray requested that he be returned to the Mississippi State Penitentiary for parole

revocation hearing before the Mississippi Parole Board. On June 29, 1990, a Warrant for Retaking

Paroled Prisoner was issued to have McCray returned to Mississippi for a parole hearing before the

Mississippi Parole Board. On July 18, 1990, after a hearing before the Board, McCray's parole was

revoked on the grounds that he had violated the terms and conditions of his parole.

Believing his parole was erroneously revoked, McCray filed his Motion for Post-Conviction Relief in

Greene County. That Motion was transferred to Hinds County on October 29, 1993, and denied on

May 16, 1995. Aggrieved from the lower court disposition of his Motion, McCray brings his appeal

to this Court.

DISCUSSION OF THE ISSUES

I. WHETHER THE MISSISSIPPI PAROLE BOARD ERRED BY CONSIDERING

UNCOUNSELED [SIC] MISDEMEANOR CONVICTIONS TO REVOKE

PETITIONER'S PAROLE.

McCray for the first time on appeal raises the issue of whether the lower court erred by considering

his "uncounseled" misdemeanor convictions in South Carolina as grounds to revoke his parole. This

issue was not raised in McCray's Motion for Post-Conviction Relief presented to the lower court.

This Court has repeatedly held that an assignment of error may not be raised for the first time on

appeal. Berdin v. State, 648 So. 2d 73, 80 (Miss. 1994); Collins v. State, 594 So. 2d 29, 35

(Miss.1992).

However, in order to dispel any speculation as to the merits of the argument, the Court will discuss

it. McCray complains that his parole was revoked based on his misdemeanor convictions in South

Carolina where he appeared without counsel. He states that he should not have been subjected to

imprisonment for a misdemeanor conviction unless he was represented by counsel at his trial.

Argersinger v. Hamlin, 407 U.S. 25, 37 (1972). McCray argues that the Board erroneously revoked

his parole based on the "uncounseled" misdemeanors.

McCray's argument misinterprets his due process rights as applied to the revocation of his parole.

The Supreme Court has stated "the revocation of parole is not part of a criminal prosecution and thus

the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations."

Morrissey v. Brewer, 408 U.S. 471, 480 (1972). McCray was not imprisoned because of his

"uncounseled" misdemeanor convictions. He was incarcerated because he violated the conditions of

his parole. Therefore, the due process safeguards he was entitled to were only those associated with

the parole revocation hearings.

McCray's argument is procedurally barred and without merit.

II. WHETHER THE MISSISSIPPI PAROLE BOARD DENIED PETITIONER DUE

PROCESS OF LAW IN PAROLE RETAKING PROCEEDINGS INCONSISTENT
WITH ESTABLISHED PROCEDURE AFTER ISSUANCE OF WARRANT FOR

ARREST.

McCray contends the Parole Board denied him "due process of law in parole retake proceedings

consistant [sic] with established procedure after issuance of warrant for arrest." According to

Morrissey, "the revocation hearing must be tendered within a reasonable time after the parolee is

taken into custody." Morrisey, 408 U.S. at 488. McCray claims the Mississippi Parole Board failed

to conduct a timely full revocation hearing after execution of Warrant of Arrest of Paroled Prisoner

dated April 5, 1990. McCray argues that 18 U.S.C.A. § 4214 (c) requires that a parole violator

receive a final revocation hearing within ninety days of the date of retaking. Smith v. United States,

577 F.2d 1025, 1026 (5th Cir. 1978); Villarreal v. United States Parole Comm'n, 985 F.2d 835, 837

(5th Cir. 1993). McCray claims the ninety day clock began running on April 5, 1990, and the final

revocation hearing was conducted outside the ninety day window on July 18, 1990. We hold

McCray's second argument to be without merit.

McCray misreads 18 U.S.C.A. § 4214 (c) to apply to state prisoners, as well as federal prisoners. 18

U.S.C.A. § 4201(4) defines eligible prisoner as any federal prisoner. McCray was not a federal

prisoner. At the time of his parole revocation he was merely a state prisoner on parole under the

control and supervision of the Mississippi Department of Corrections.

McCray claims he was prejudiced because the Board extradited him back to Mississippi

approximately seven hundred miles from the place of his arrest or alleged violation. This prevented

him from calling witnesses that could favorably testify as to these allegations. McCray correctly

asserts that "due process would seem to require that some minimal inquiry" in the form of a

preliminary hearing "be conducted at or reasonably near the place of the alleged parole violation. . .as

promptly as convenient after the arrest while information is fresh and sources are available."

Morrissey, 408 U.S. at 485.

However, McCray's interpretations of the due process requirements in order to claim he was

prejudiced are without merit. In a document entitled Waiver of Right to Preliminary Parole

Revocation Hearing, McCray waived his right to a preliminary hearing. McCray's signature appears

below the following language:

After having these charges fully explained to me, and without waiving any other rights I may

have, Do Hereby Voluntarily Waive and relinquish my right to a Preliminary Parole Revocation

Hearing, and further request that I be returned to the Mississippi State Penitentiary for a Parole

Revocation Hearing before the Mississippi Parole Board.

The Court holds that the Mississippi Parole Board did not deny McCray his due process rights.

McCray's due process rights did not attach until after he was taken into custody pursuant to the

Warrant for Arrest of Paroled Prisoner. Therefore, this argument is without merit.

III. WHETHER THE MISSISSIPPI PAROLE BOARD ABUSED ITS DISCRETION BY

FAILING TO DISMISS OR QUASH PAROLE VIOLATOR WARRANT AFTER

PETITIONER WAS ACQUITTED OF ALL FELONY CHARGES.

The Federal Grand Jury for the District Court of South Carolina returned an indictment against
McCray for possession of a shotgun with a sawed-off barrel and possession of a firearm by a

convicted felon in violation of Title 26, U.S.C. §§ 5861(i) and 5871 and Title 18, U.S.C. §§ 922 (g)

and 924 (a). McCray claims that because he was acquitted of all felony charges his parole was

wrongly revoked. He cites the decision of Moore v. Ruth, 556 So. 2d 1059, 1062 (Miss. 1990),

where this Court stated the following:

The acquittal on the criminal charge means at the very least that, before the accused's parole

may be revoked, the State must offer actual proof that he committed an act violating the terms

and conditions of his parole, and the mere fact that he was arrested and charged with [a crime]

may hardly suffice.

This Court has stated that before parole can be revoked there must be a showing that the parolee has

violated the terms and conditions of his parole. Alexander v. State, 667 So. 2d 1, 4 (Miss. 1995).

McCray fails to understand the true nature of the disposition of the federal felony charges against

him. He was not acquitted of these charges. Rather the U.S. Attorney filed a Motion to Dismiss

Indictment against McCray. The reason stated in the Motion was that McCray was on parole at the

time he committed the offense, and the sentence he would receive for the offense would be served

concurrently with his state parole violation. Although the record is void of a ruling on this Motion, it

is apparent that the U.S. Attorney did not want to prosecute McCray for the offenses he was charged

with in the indictment. This failure to prosecute does not equal an acquittal.

The State responds that this argument is procedurally barred because it was not presented to the

lower court and should not be presented for the first time on appeal. Berdin, 648 So. 2d at 80.

Notwithstanding the procedural bar, this argument of whether McCray was acquitted of the felony

charges is irrelevant and moot as it relates to his parole revocation. Although the possession of

cocaine and the shotgun were listed as reasons for the revocation, there were other reasons as well.

McCray had failed to timely report to his parole officer, he was convicted of driving with a suspended

license, and was in possession of alcohol. The record contains documentation that McCray was in

fact convicted of the above offenses. In Moore, this Court stated "[o]n revocation, the State's

authority is much narrower, for before one released on parole may be returned to custody, it must be

shown that he has violated the terms and conditions of his parole." Moore, 556 So. 2d at 1061;

Alexander, 667 So. 2d at 4. The State provided the lower court with sufficient evidence of McCray's

parole violations.

This argument is procedurally barred because it was not raised at the lower court level. It should not

be presented for the first time on appeal before this Court. Alternatively, the argument is without

merit as there was a sufficient showing by the State that McCray violated the conditions of his parole,

the felony charges notwithstanding.

IV. WHETHER THE LOWER COURT ERRED BY DENYING PETITIONER'S

REQUEST FOR RECUSAL OF THE LOWER COURT JUDGE.

McCray filed a Motion to Recuse Circuit Judge Robert L. Gibbs, on November 21, 1994. The

Motion contained allegations of bias and prejudice on the part of Judge Gibbs based on his failure to

dispose of McCray's Motion for Post-Conviction Relief within six months. McCray alleged Judge

Gibbs engaged in an activity that was prohibited by the Code of Judicial Conduct when he wrote an
"extrajudicial" letter to the Mississippi Parole Board requesting addition information in order to make

a decision regarding McCray's original Motion. McCray also stated that Judge Gibbs was biased or at

least appeared biased because of his past representations of the Mississippi Department of

Corrections when he worked as an Assistant Attorney General.

McCray relies on Miss. Code Ann. § 9-1-11, which provides:

The judge of a court shall not preside on the trial of any cause where the parties, or either of

them, shall be connected with him by affinity or consanguinity , or where he may be interested

in the same, or wherein he may have been of counsel, except by the consent of the judge and of

the parties.

He also cites to the Code of Judicial Conduct Canon 3(A)(4) and (5), which states:

The judicial duties of a judge take precedence over all his other activities. His judicial duties

include all the duties of his office prescribed by law. In the performance of these duties, the

following standards apply:

* * *

(4) A judge should accord to every person who is legally interested in a proceeding, or his

lawyer, full right to be heard according to law, and , except as authorized by law, neither initiate

nor consider ex parte or other communications concerning a pending or impending proceeding.

A judge, however, may obtain the advice of a disinterested expert on the law applicable to a

proceeding before him if he gives notice to the parties of the person consulted and the substance

of the advice, and affords the parties reasonable opportunity to respond.

(5) A judge should dispose promptly of the business of the court.

Judge Gibbs entered his Opinion and Order denying McCray's Motion for Post-Conviction Relief on

May 16, 1995. In that document he set forth the reasons as to why no impropriety existed. He stated

that he did represent the Mississippi Department of Corrections as an Assistant Attorney General for

the State of Mississippi, but had not done so since 1989, some six years earlier. He also stated that he

had handled numerous cases involving the Mississippi Department of Corrections and found that the

intervening years had sufficiently eliminated any such appearance of impropriety.

The State responds that there was no showing that Judge Gibbs had any personal interest in, or

connection to the parties of, this particular case. While it is true that Judge Gibbs once represented

the Mississippi Department of Corrections, he did not represent that entity in this particular case.

The question that must be asked is whether a reasonable person, knowing all the circumstances,

harbor doubts about the judge's impartiality. Bredemeier v. Jackson, 689 So. 2d 770, 774 (Miss.

1997). "This Court presumes that a judge, sworn to administer impartial justice, is qualified and

unbiased. To overcome the presumption, the evidence must produce a 'reasonable doubt' about the

validity of the presumption." Id.; Turner v. State, 573 So. 2d 675, 678 (Miss. 1990).

McCray has failed to overcome the presumption that Judge Gibbs was unbiased. The record does not

contain the alleged letter to the Mississippi Department of Corrections. Thus, the presumption of
impartiality must stand in light of the intervening years that Judge Gibbs has served on the bench

since his representation of the Mississippi Department of Correction. This argument is without merit.

CONCLUSION

Because none of McCray's arguments on appeal have any merit, the lower court's decision to dismiss

his Motion for Post-Conviction Relief is affirmed. There was no error on the part of the Mississippi

Parole Board when it considered McCray's misdemeanors as violations of the conditions of his

parole. There was no due process violation by the Board in conducting the revocation hearing.

Although we hold the hearing was timely, McCray has failed to show unto this Court how he was

prejudiced if the hearing was not timely. The Board had sufficient evidence to revoke McCray's

parole without considering the federal felony charges against him. Also, McCray was not acquitted of

these charges as he contends. He simply was not prosecuted. Lastly, the trial judge correctly denied

McCray's Motion to Recuse. McCray failed to overcome the presumption of impartiality afforded by

this Court to every judge in this state. Therefore, the lower court's decision to dismiss McCray's

Motion for Post-Conviction Relief is affirmed.

LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, SMITH AND

MILLS, JJ., CONCUR.