IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CP-00861-COA
ALLERY HOPSON A/K/A ALLERY DELJUN APPELLANT HOPSON A/K/A ALLERY D. HOPSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/29/2019 TRIAL JUDGE: HON. ANDREW K. HOWORTH COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALLERY HOPSON (PRO SE) ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH ASHLEY LAUREN SULSER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 06/30/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Appearing pro se, Allery D. Hopson appeals from the Union County Circuit Court’s
dismissal of his motion for post-conviction collateral relief (PCR). After a review of the
record, we affirm.
FACTS & PROCEDURAL HISTORY
¶2. On October 13, 2006, a Union County grand jury indicted Hopson for two counts of
robbery with a deadly weapon in violation of Mississippi Code Annotated section 97-3-79
(Rev. 2006) for the robbery of Michael and Heather Whittington. Prior to his indictment,
Hopson absconded; authorities issued a fugitive-from-justice warrant and ultimately apprehended Hopson from the Shelby County Sheriff’s Office in Tennessee, where he had
been arrested for unrelated charges.
¶3. A September 17, 2014 order from the Union County Circuit Court reflects that
Hopson pled guilty to both counts of robbery as listed in his indictment. The court ordered
Hopson to serve thirty years in the custody of the Mississippi Department of Corrections
(MDOC) for each count, with five years suspended and five years of post-release supervision
for each respective sentence. On August 13, 2018, Hopson filed a PCR motion in the Union
County Circuit Court. Without holding a hearing, the court dismissed Hopson’s motion as
procedurally barred. From that dismissal, Hopson now appeals.
STANDARD OF REVIEW
¶4. We will not reverse a trial court’s dismissal of a PCR motion absent a finding that the
decision was clearly erroneous. McLaurin v. State, 114 So. 3d 811, 813 (¶4) (Miss. Ct. App.
2013) (citing Holloway v. State, 31 So. 3d 656, 657 (¶5) (Miss. Ct. App. 2010)). Where
issues of law are raised, we apply a de novo review. Rice v. State, 910 So. 2d 1163, 1164-65
(¶4) (Miss. Ct. App. 2005) (citing Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).
¶5. Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) provides, “If it plainly
appears from the face of the motion, any annexed exhibits and the prior proceedings in the
case that the movant is not entitled to any relief, the judge may make an order for its
dismissal and cause the petitioner to be notified.” On appeal, we will affirm the trial court’s
summary dismissal “if the movant fails to demonstrate a claim procedurally alive
substantially showing the denial of a state or federal right.” Dickens v. State, 119 So. 3d
2 1141, 1143-44 (¶6) (Miss. Ct. App. 2013) (quoting Robinson v. State, 19 So. 3d 140, 142 (¶6)
(Miss. Ct. App. 2009)).
DISCUSSION
¶6. In the case of a guilty plea, a claim under Mississippi’s Uniform Post-Conviction
Collateral Relief Act (UPCCRA) must be raised within the three-year period following the
entry of the judgment of conviction, or it is barred. Miss. Code Ann. § 99-39-5(2) (Rev.
2015). Hopson filed the current PCR motion nearly four years after the entry of his guilty
plea and conviction for robbery; he acknowledges that his claims are untimely and would
ordinarily be time-barred. However, Hopson correct asserts that “[e]rrors affecting
fundamental constitutional rights are excepted from the procedural bars[.]” Rowland v. State,
42 So. 3d 503, 506 (¶9) (Miss. 2010). Hopson argues that the circuit court erred by
dismissing his PCR motion without reviewing its claims—all of which allege violations of
fundamental rights.
¶7. “[F]our types of ‘fundamental rights’ have been expressly found to survive PCR
procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal
sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex
post facto laws.” Green v. State, 235 So. 3d 1438, 1441 (¶9) (Miss. Ct. App. 2017) (quoting
Salter v. State, 184 So. 3d 944, 950 (¶22) (Miss. Ct. App. 2015)). A review of the record
reveals that Hopson’s motion “fails to include any of the instances in which his case would
have been exempted from the three-year statute of limitations.” Campbell v. State, 194 So.
3d 204, 208 (¶15) (Miss. Ct. App. 2016) (citing Singleton v. State, 840 So. 2d 815, 818 (¶8)
3 (Miss. Ct. App. 2003)).
I. Ineffective Assistance of Counsel
¶8. First, Hopson claims that he received ineffective assistance of counsel. Hopson
argues that his plea counsel abandoned his “required duty of loyalty to his client” and that
he “acted with reckless disregard for [Hopson’s] best interest” by failing to “uphold his duty
to make reasonable investigations or make a reasonable decision that makes particular
investigations unnecessary” and “allow[ing] [Hopson] to plea to an indictment that was
abandon[ed], as well as an illegal extradition.”
¶9. We note that “ineffective assistance of counsel [claims] are not [ordinarily] excepted
from the time-bar, even though these claims involve fundamental constitutional rights.” Goul
v. State, 223 So. 3d 813, 815 (¶6) (Miss. Ct. App. 2017) (citing Jones v. State, 174 So. 3d
902, 907 (¶12) (Miss. Ct. App. 2015)). However, in instances involving “extraordinary
circumstances,” claims for ineffective assistance of counsel are also excepted from the
procedural bars outlined in the UPCCRA. See Chapman v. State, 167 So. 3d 1170, 1174
(¶12) (Miss. 2015). Here, Hopson presents no such circumstances.
¶10. Procedural bar notwithstanding, Hopson provides no evidence to support his claim,
only the assertion stated in his briefs. “It is an appellant’s duty to justify his arguments of
error with a proper record, which does not include mere assertions in his brief, or the trial
court will be considered correct.” Bias v. State, 245 So. 3d 534, 538 (¶13) (Miss. Ct. App.
2017) (quoting Bass v. State, 888 So. 2d 1187, 1190 (¶14) (Miss. Ct. App. 2004)). Therefore,
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CP-00861-COA
ALLERY HOPSON A/K/A ALLERY DELJUN APPELLANT HOPSON A/K/A ALLERY D. HOPSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/29/2019 TRIAL JUDGE: HON. ANDREW K. HOWORTH COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALLERY HOPSON (PRO SE) ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH ASHLEY LAUREN SULSER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 06/30/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Appearing pro se, Allery D. Hopson appeals from the Union County Circuit Court’s
dismissal of his motion for post-conviction collateral relief (PCR). After a review of the
record, we affirm.
FACTS & PROCEDURAL HISTORY
¶2. On October 13, 2006, a Union County grand jury indicted Hopson for two counts of
robbery with a deadly weapon in violation of Mississippi Code Annotated section 97-3-79
(Rev. 2006) for the robbery of Michael and Heather Whittington. Prior to his indictment,
Hopson absconded; authorities issued a fugitive-from-justice warrant and ultimately apprehended Hopson from the Shelby County Sheriff’s Office in Tennessee, where he had
been arrested for unrelated charges.
¶3. A September 17, 2014 order from the Union County Circuit Court reflects that
Hopson pled guilty to both counts of robbery as listed in his indictment. The court ordered
Hopson to serve thirty years in the custody of the Mississippi Department of Corrections
(MDOC) for each count, with five years suspended and five years of post-release supervision
for each respective sentence. On August 13, 2018, Hopson filed a PCR motion in the Union
County Circuit Court. Without holding a hearing, the court dismissed Hopson’s motion as
procedurally barred. From that dismissal, Hopson now appeals.
STANDARD OF REVIEW
¶4. We will not reverse a trial court’s dismissal of a PCR motion absent a finding that the
decision was clearly erroneous. McLaurin v. State, 114 So. 3d 811, 813 (¶4) (Miss. Ct. App.
2013) (citing Holloway v. State, 31 So. 3d 656, 657 (¶5) (Miss. Ct. App. 2010)). Where
issues of law are raised, we apply a de novo review. Rice v. State, 910 So. 2d 1163, 1164-65
(¶4) (Miss. Ct. App. 2005) (citing Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).
¶5. Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) provides, “If it plainly
appears from the face of the motion, any annexed exhibits and the prior proceedings in the
case that the movant is not entitled to any relief, the judge may make an order for its
dismissal and cause the petitioner to be notified.” On appeal, we will affirm the trial court’s
summary dismissal “if the movant fails to demonstrate a claim procedurally alive
substantially showing the denial of a state or federal right.” Dickens v. State, 119 So. 3d
2 1141, 1143-44 (¶6) (Miss. Ct. App. 2013) (quoting Robinson v. State, 19 So. 3d 140, 142 (¶6)
(Miss. Ct. App. 2009)).
DISCUSSION
¶6. In the case of a guilty plea, a claim under Mississippi’s Uniform Post-Conviction
Collateral Relief Act (UPCCRA) must be raised within the three-year period following the
entry of the judgment of conviction, or it is barred. Miss. Code Ann. § 99-39-5(2) (Rev.
2015). Hopson filed the current PCR motion nearly four years after the entry of his guilty
plea and conviction for robbery; he acknowledges that his claims are untimely and would
ordinarily be time-barred. However, Hopson correct asserts that “[e]rrors affecting
fundamental constitutional rights are excepted from the procedural bars[.]” Rowland v. State,
42 So. 3d 503, 506 (¶9) (Miss. 2010). Hopson argues that the circuit court erred by
dismissing his PCR motion without reviewing its claims—all of which allege violations of
fundamental rights.
¶7. “[F]our types of ‘fundamental rights’ have been expressly found to survive PCR
procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal
sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex
post facto laws.” Green v. State, 235 So. 3d 1438, 1441 (¶9) (Miss. Ct. App. 2017) (quoting
Salter v. State, 184 So. 3d 944, 950 (¶22) (Miss. Ct. App. 2015)). A review of the record
reveals that Hopson’s motion “fails to include any of the instances in which his case would
have been exempted from the three-year statute of limitations.” Campbell v. State, 194 So.
3d 204, 208 (¶15) (Miss. Ct. App. 2016) (citing Singleton v. State, 840 So. 2d 815, 818 (¶8)
3 (Miss. Ct. App. 2003)).
I. Ineffective Assistance of Counsel
¶8. First, Hopson claims that he received ineffective assistance of counsel. Hopson
argues that his plea counsel abandoned his “required duty of loyalty to his client” and that
he “acted with reckless disregard for [Hopson’s] best interest” by failing to “uphold his duty
to make reasonable investigations or make a reasonable decision that makes particular
investigations unnecessary” and “allow[ing] [Hopson] to plea to an indictment that was
abandon[ed], as well as an illegal extradition.”
¶9. We note that “ineffective assistance of counsel [claims] are not [ordinarily] excepted
from the time-bar, even though these claims involve fundamental constitutional rights.” Goul
v. State, 223 So. 3d 813, 815 (¶6) (Miss. Ct. App. 2017) (citing Jones v. State, 174 So. 3d
902, 907 (¶12) (Miss. Ct. App. 2015)). However, in instances involving “extraordinary
circumstances,” claims for ineffective assistance of counsel are also excepted from the
procedural bars outlined in the UPCCRA. See Chapman v. State, 167 So. 3d 1170, 1174
(¶12) (Miss. 2015). Here, Hopson presents no such circumstances.
¶10. Procedural bar notwithstanding, Hopson provides no evidence to support his claim,
only the assertion stated in his briefs. “It is an appellant’s duty to justify his arguments of
error with a proper record, which does not include mere assertions in his brief, or the trial
court will be considered correct.” Bias v. State, 245 So. 3d 534, 538 (¶13) (Miss. Ct. App.
2017) (quoting Bass v. State, 888 So. 2d 1187, 1190 (¶14) (Miss. Ct. App. 2004)). Therefore,
we find this issue to be barred and without merit.
4 II. Indictment
¶11. Hopson also submits that his original indictment for the robbery charges was resolved
by nolle prosequi. Hopson argues that the State failed to “re-indict” him following the nolle
prosequi and pursued his conviction under an invalid warrant in violation of his due process
rights.
¶12. Although, Hopson raises a facially colorable claim: “‘there must at least appear to be
some basis for the truth of the claim’ of a fundamental-constitutional-rights violation.” Evans
v. State, 115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013) (quoting Stovall v. State, 873 So. 2d
1056, 1058 (¶7) (Miss. Ct. App. 2004)). Again, Hopson offers no evidence to support this
claim,1 and the “‘mere assertion of [a] constitutional right violation’ does not trigger the
exception.” Id. (citing Wicker v. State, 16 So. 3d 706, 708 (¶5) (Miss. Ct. App. 2009)). In the
absence of evidence to substantiate Hopson’s claim, we find this issue to be without merit.
III. Due Process
¶13. Finally, Hopson argues that he was denied due process when the authorities failed to
grant him an extradition hearing before his transfer from Shelby County, Tennessee, to Union
County, Mississippi. Hopson avers that he was entitled to a hearing pursuant to the Interstate
Agreement on Detainers (IAD) and that the counties’ non-compliance warranted dismissal
of his charges with prejudice. However, Mississippi is not a party to the IAD; therefore, its
provisions are rendered immaterial here and this claim fails. Gardner v. State, 57 So. 3d 688
1 Hopson does cite to a document reflecting the disposition of the fugitive from justice warrant, which was resolved by nolle prosequi on September 2, 2008, in Shelby County; the document does not reflect any status or disposition related to Hopson’s robbery case.
5 (Miss. Ct. App. 2011); Smothers v. State, 741 So. 2d 205, 206 (¶6) (Miss. 1999).
CONCLUSION
¶14. Hopson admittedly filed the current PCR motion outside of the parameters allowed
by the UPCCRA. Hopson claims that the issues raised in the motion should be excepted
from procedural bars, but he fails to provide evidence in support of his contentions.
Accordingly, and for the reasons stated above, we affirm the circuit court’s dismissal of
Hopson’s PCR motion.
¶15. AFFIRMED.
CARLTON AND J. WILSON, P.JJ., GREENLEE, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR. C. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, C.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.