Allery Hopson a/k/a Allery Deljun Hopson a/k/a Allery D. Hopson v. State of Mississippi

CourtCourt of Appeals of Mississippi
DecidedJune 30, 2020
DocketNO. 2019-CP-00861-COA
StatusPublished

This text of Allery Hopson a/k/a Allery Deljun Hopson a/k/a Allery D. Hopson v. State of Mississippi (Allery Hopson a/k/a Allery Deljun Hopson a/k/a Allery D. Hopson v. State of Mississippi) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allery Hopson a/k/a Allery Deljun Hopson a/k/a Allery D. Hopson v. State of Mississippi, (Mich. Ct. App. 2020).

Opinion

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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Related

Smothers v. State
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Holloway v. State
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Robinson v. State
19 So. 3d 140 (Court of Appeals of Mississippi, 2009)
Stovall v. State
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Brown v. State
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910 So. 2d 1163 (Court of Appeals of Mississippi, 2005)
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42 So. 3d 503 (Mississippi Supreme Court, 2010)
Victor D. Jones v. State of Mississippi
174 So. 3d 902 (Court of Appeals of Mississippi, 2015)
William Dwayne Salter v. State of Mississippi
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Richard Chapman v. State of Mississippi
167 So. 3d 1170 (Mississippi Supreme Court, 2015)
Clyde Campbell v. State of Mississippi
194 So. 3d 204 (Court of Appeals of Mississippi, 2016)
Allen Goul v. State of Mississippi
223 So. 3d 813 (Court of Appeals of Mississippi, 2017)
Jake Bias v. State of Mississippi
245 So. 3d 534 (Court of Appeals of Mississippi, 2017)
Anthony Green v. State of Mississippi
235 So. 3d 1438 (Court of Appeals of Mississippi, 2017)
McLaurin v. State
114 So. 3d 811 (Court of Appeals of Mississippi, 2013)
Evans v. State
115 So. 3d 879 (Court of Appeals of Mississippi, 2013)
Gardner v. State
57 So. 3d 688 (Court of Appeals of Mississippi, 2011)
Singleton v. State
840 So. 2d 815 (Court of Appeals of Mississippi, 2003)
Bass v. State
888 So. 2d 1187 (Court of Appeals of Mississippi, 2004)

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Allery Hopson a/k/a Allery Deljun Hopson a/k/a Allery D. Hopson v. State of Mississippi, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allery-hopson-aka-allery-deljun-hopson-aka-allery-d-hopson-v-state-of-missctapp-2020.