IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CP-01338-COA
ANDREW JAMISON A/K/A ANDREW L. APPELLANT JAMISON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/20/2020 TRIAL JUDGE: HON. SMITH MURPHEY COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ANDREW JAMISON (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 02/01/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., GREENLEE AND SMITH, JJ.
BARNES, C.J., FOR THE COURT:
¶1. Andrew Jamison, appearing pro se, appeals the summary dismissal of his petition for
post-conviction relief (PCR), in which he argued that revocation of his post-release
supervision and recommitment to incarceration was improper and that issues regarding his
initial conviction of attempted armed robbery mandated reversal of that conviction. Finding
no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In January 2005, a DeSoto County grand jury indicted Jamison for one count of
attempted armed robbery of a Holiday Inn Express in Southaven, Mississippi, and one count of possession of a stolen firearm. After a two-day trial, a jury found Jamison guilty of both
counts. On January 18, 2006, the circuit court sentenced Jamison to ten years for the
attempted robbery conviction, with three years to serve and seven years of post-release
supervision, and five years to serve consecutively for possession of a stolen firearm, all in
the custody of the Mississippi Department of Corrections (MDOC).
¶3. Jamison did not attempt to appeal his conviction until approximately ten months after
trial, when on September 11, 2006, he filed in the Mississippi Supreme Court a pro se notice
of appeal with a motion for an out-of-time appeal. The supreme court remanded Jamison’s
request to the DeSoto County Circuit Court. On November 30, 2006, the circuit court
denied Jamison’s request, finding that he failed to show his appeal was not timely perfected
through no fault of his own. The circuit court noted Jamison failed to submit any affidavits
or other evidence in support of his motion. In his motion, Jamison stated that at his
sentencing hearing in January 2006 his defense counsel had informed the judge that he was
going to assist Jamison in his appeal. However, a copy of this transcript is in the record, and
as the circuit court noted, Jamison’s counsel had made no such statement. In fact, the judge
informed Jamison that he had a right to appeal and that his trial counsel was not responsible
for his appeal unless they agreed to the contrary. The judge also informed Jamison that he
could hire an attorney or make a proper application for a public defender, but Jamison did
neither. Jamison did not appeal the denial of his request for an out-of-time appeal.1
1 About two years later, Jamison filed a motion for “Judicial Review” with the Mississippi Supreme Court. In April 2009, the supreme court dismissed Jamison’s motion, finding it was procedurally barred as a successive motion.
2 ¶4. In June 2012, while on post-release supervision, Jamison was arrested for burglary
of a check-cashing business in Shelby County, Tennessee, and a firearm was found in his
possession. A federal grand jury indicted Jamison for being a felon in possession of a
firearm, and the burglary charge was abandoned.2 A warrant was issued for Jamison’s
arrest, and ultimately he was sentenced to approximately seven years for the federal crimes.
In August 2013, a field officer filed an MDOC affidavit in the DeSoto County Circuit Court
requesting revocation of Jamison’s post-release supervision ordered in January 2006 due to
the check-cashing crime.
¶5. While in federal custody, in March 2016 Jamison filed in the Mississippi Supreme
Court a motion entitled “Appeal from Circuit Court Order,” seeking permission to file a
PCR motion in the circuit court. He claimed he had “newly discovered evidence”
demonstrating his “actual innocence.” The supreme court denied his motion, treating it as
one for post-conviction relief and finding the motion was barred by the three-year statute of
limitations.
¶6. After Jamison’s release from federal custody in 2019, he was served with an
outstanding DeSoto County warrant and extradited to Mississippi. On August 13, 2019,
Jamison personally appeared before the circuit court, represented by counsel, for a
revocation hearing. Jamison admitted to violating the terms of his post-release supervision
by possessing the firearm that formed the basis for his federal charges. The circuit court thus
2 Jamison was ultimately convicted of being a felon in possession of ammunition and attempted robbery affecting commerce. Jamison v. King, No. 3:20-CV20-SA-JMV, 2020 WL 3490060, at *2 (N.D. Miss. June 26, 2020).
3 revoked his remaining two years of post-release supervision and recommitted him in the
custody of the MDOC.
¶7. In October 2019, Jamison again requested permission from the Mississippi Supreme
Court to file a PCR motion. The supreme court dismissed the motion without prejudice to
being pursued in the circuit court, citing Mississippi Code Annotated section 99-39-7 (Rev.
2015), which provides that PCR motions shall be filed in the circuit court unless the
petitioner’s conviction and sentence have been appealed to the supreme court and affirmed
or dismissed. The court noted that Jamison had unsuccessfully petitioned the circuit court
and supreme court for an out-of-time appeal, and thus he had never appealed his conviction
or sentence. Therefore, he could pursue his PCR claims in the circuit court without seeking
the supreme court’s permission.
¶8. Accordingly, Jamison filed with the circuit court the PCR motion leading to this
appeal, as well as various related documents, contending unlawful revocation of his post-
release supervision and recommitment, ineffective assistance of counsel for failure to file
a direct appeal,3 and insufficient evidence for his 2005 attempted armed-robbery conviction.
On November 20, 2020, in a detailed eight-page order, the circuit court dismissed Jamison’s
PCR motion, finding his claims were without merit.
STANDARD OF REVIEW
¶9. In reviewing the trial court’s denial or dismissal of a PCR motion, the appellate court
will reverse the judgment only if the “factual findings are clearly erroneous.” Berry v. State,
3 Jamison’s defense counsel passed away in 2018.
4 230 So. 3d 360, 362 (¶3) (Miss. Ct. App. 2017) (internal quotation mark omitted).
Questions of law, however, are reviewed de novo. Id.
ANALYSIS
¶10. We shall begin with a discussion of the issue properly before this Court—revocation
of Jamison’s post-release supervision—and then discuss the issues regarding his initial
conviction and denial of his request to file an out-of-time appeal.
I. Revocation of Post-Release Supervision
¶11. Jamison claims his post-release supervision was improperly revoked. He contends
the August 2013 MDOC affidavit filed by a field officer in the circuit court was a “sham.”
The affidavit stated that Jamison violated two conditions of his post-release supervision
(laws and firearms)4: (1) on June 23, 2012, Jamison was found at Top Dollar Check
Advance in Shelby County, Tennessee, with a Colt .32 revolver in his backpack; and (2) on
November 29, 2012, a federal indictment formally charged Jamison with possession of a
firearm by a felon, and he was taken into custody on December 4, 2012. Jamison claims that
the burglary charge and the federal firearm charge were dismissed in September 2013;
therefore, there was no factual basis for the revocation. Jamison also argues he was not
afforded due process during his revocation proceedings because the circuit court failed to
conduct a preliminary hearing within seventy-two hours of his arrest.
¶12. “Under Mississippi law, probation may be revoked upon a showing that the defendant
4 The affidavit contended Jamison violated, respectively, post-release supervision conditions (1) (“Defendant shall hereafter commit no offense against the laws of this or any state of the United States, or of the United States.”) and (10) (“[Defendant shall] [n]ot own or carry with him/her any weapons.”).
5 more likely than not violated the terms of probation.” Gray v. State, 269 So. 3d 331, 337
(¶21) (Miss. Ct. App. 2018) (quoting Smith v. State, 196 So. 3d 986, 996 (¶31) (Miss. Ct.
App. 2015)). However, the “mere arrest of a probationer is not a violation of probation.”
Brown v. State, 864 So. 2d 1058, 1060 (¶9) (Miss. Ct. App. 2004) (citing Moore v. State,
587 So. 2d 1193, 1194 (Miss. 1991)).
¶13. At the revocation hearing, the State explained it could show Jamison was arrested in
June 2012 for possession of a Colt .32 revolver in Shelby County at a check advance
business and subsequently pleaded guilty to the charge. Jamison responded by admitting
that he was in possession of the firearm as alleged by the State and that he understood the
events that caused his post-release supervision to be revoked. Further, Jamison denied there
was anything presented by the State that he would dispute or that needed clarification.
¶14. Jamison now argues that the basis of the MDOC’s affidavit is invalid, and thus his
post-release supervision was improperly revoked. He accurately claims the November 29,
2012 indictment and December 4, 2012 arrest were based upon the June 23, 2012 check-
cashing crime, but now he contends Shelby County’s burglary-of-a-building charge and the
federal possession-of-a-firearm charge were both dismissed.5 Moreover, he states that he
did not plead guilty to the federal indictment charge, as stated in the revocation transcript,
5 An MDOC violation report form dated July 11, 2013, attached to the MDOC affidavit details the charges resulting from the June 23, 2012 check-cashing crime. Jamison was initially arrested and charged with burglary and possession of a firearm by a felon. On September 18, 2012, the burglary charge was abandoned by writ of nolle prosequi. On November 29, 2012, Jamison was indicted by a federal grand jury for possession of a firearm by a felon. A superseding indictment was subsequently entered charging Jamison with two counts: possession of a firearm by a felon and attempt to obstruct commerce by robbery.
6 but “was found guilty by [a] jury on the federal indictment.”
¶15. Jamison is correct that the state burglary charge was abandoned. However, the
revocation was not based upon the burglary charge. The revocation was based upon his
being a felon in possession of a firearm. While it appears Jamison was ultimately convicted
by a jury of being a felon in possession of ammunition and not a firearm, Jamison never
corrected the State at the revocation hearing after being afforded every opportunity by the
circuit court to respond otherwise. Further, possession of a firearm in and of itself was a
violation of condition number 10 of his post-release supervision, regardless of whether he
was ultimately convicted of this charge. “A probationer does not have to be convicted of
a crime to be in violation of his probation but, rather, probation may be revoked when it is
more likely than not that a violation has occurred.” McCalpin v. State, 166 So. 3d 24, 26-27
(¶7) (Miss. 2013). Therefore, as the circuit court noted, the ultimate disposition of new
criminal charges that form the basis of revocation is immaterial.
¶16. At the revocation hearing, Jamison admitted under oath to possessing a firearm on
June 23, 2012, which formed the basis of his federal charges. He also admitted to
understanding the terms of his post-release supervision. Jamison was ultimately convicted
of two crimes stemming from that date and was sentenced to serve nearly seven years in
federal prison. Accordingly, the circuit court had a sufficient basis to revoke his post-release
supervision.
¶17. Additionally, Jamison argues that his right to due process was violated because he
was denied a preliminary revocation hearing under Mississippi Code Annotated section 47-
7 7-37(3) (Supp. 2018). This statute provides that within seventy-two hours of an offender’s
arrest for an alleged probation violation, an informal preliminary hearing must be held to
determine “whether there is reasonable cause to believe the person has violated a condition
of probation.” Id. The circuit court found the issue procedurally barred under Mississippi
Code Annotated section 99-39-21(1) (Rev. 2015) because Jamison failed to raise the issue
prior to the final revocation hearing. See Jones v. State, 270 So. 3d 1055, 1058-59 (¶11)
(Miss. Ct. App. 2018) (Defendant “failed to raise this issue at his revocation hearing; thus,
the issue regarding a lack of a preliminary revocation hearing was waived.”). We agree.
¶18. Despite the procedural bar, Jamison’s argument is without merit. While a probationer
is constitutionally “entitled to both a preliminary and final revocation hearing” before
revocation of post-release supervision, “the failure to hold separate hearings is not
necessarily reversible error.” Friday v. State, 141 So. 3d 18, 22 (¶13) (Miss. Ct. App. 2014)
(quoting Riely v. State, 562 So. 2d 1206, 1210 (Miss. 1990); Presley v. State, 48 So. 3d 526,
530 (¶14) (Miss. 2010)). The probationer “must show that prejudice resulted from the
failure to hold a separate preliminary [revocation] hearing.” Id. at 22 (¶13) (citing Presley,
48 So. 3d at 530 (¶14)). If no prejudice is found, and a formal revocation hearing was held
that met the minimum due-process requirements,6 then the failure to hold a preliminary
6 The minimum due-process requirements for a final revocation hearing are:
(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional
8 hearing is harmless error. Jones, 270 So. 3d at 1059 (¶11) (quoting Friday, 141 So. 3d at
22 (¶13)).
¶19. Jamison fails to show any prejudice resulted from the failure to hold a preliminary
hearing, and the transcript shows all minimum due-process requirements were met. The
circuit court’s order states Jamison was served with written notice of the claimed violations
and evidence five days prior to the August 2019 hearing. At the hearing, the State presented
the evidence against him, and Jamison had the opportunity to challenge this evidence but did
not. In fact, Jamison specifically stated he was waiving his rights to contest the violations
under Mississippi Rule of Criminal Procedure 27.3(e) and voluntarily stipulating to the
violations. Finally, the circuit court judge who presided over the hearing entered an order
describing the reasons for the revocation. All due process safeguards were given to Jamison
at his revocation hearing, and Jamison was not prejudiced; therefore, the lack of a
preliminary revocation hearing was harmless.
II. Ineffective Assistance of Counsel
¶20. Jamison claims his retained trial counsel was ineffective for failing to appeal his 2005
conviction. The State contends that not only is his claim without merit, but it is procedurally
barred as untimely and successive, as held by the circuit court. However, certain errors
affecting fundamental rights are excepted from the procedural bars of post-conviction relief.
parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.
Riely, 562 So. 2d at 1210.
9 Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010). A claim of ineffective assistance
of counsel may be excepted from procedural bar, but only in exceptional or extraordinary
circumstances. McDonald v. State, 307 So. 3d 497, 500 (¶7) (Miss. Ct. App. 2020) (citing
Conley v. State, No. 2011-M-01006, 2020 WL 949240, at *1 (Miss. Feb. 26, 2020) (order));
Chapman v. State, 167 So. 3d 1170, 1174 (¶12) (Miss. 2015). Yet “the mere assertion of
a constitutional right violation does not trigger the exception.” Wilson v. State, 294 So. 3d
101, 104 (¶8) (Miss. Ct. App. 2020) (quoting Evans v. State, 115 So. 3d 879, 881 (¶3) (Miss.
Ct. App. 2013)).
¶21. To succeed on the merits of an ineffective-assistance-of-counsel claim, the defendant
must prove (1) “counsel’s performance was deficient,” and (2) “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Lovett v. State, 270 So. 3d 133, 135 (¶5) (Miss. Ct. App. 2018)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “[T]here is a strong
rebuttable presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Wash v. State, 218 So. 3d 764, 767 (¶6) (Miss. Ct. App. 2017)
(internal quotation mark omitted).
¶22. Jamison claims he was “abandoned” by his trial counsel after sentencing, which
resulted in his direct appeal not being filed.7 Jamison contends that at the January 2006
sentencing hearing, his counsel stated he was going to file his appeal, but the transcript
7 Jamison also made these arguments in his motion for an out-of-time appeal, which the circuit court denied.
10 belies this assertion. Instead, defense counsel asked the judge under Osborn v. State8 to
advise Jamison of his appeal rights (specifically, that he had thirty days from the entry of the
sentencing order to file his appeal). The circuit court judge did so, and Jamison
acknowledged the right. Then the following exchange occurred:
[THE COURT]: I don’t know what your understanding is with [defense counsel], but do you understand that as a general rule that’s not [defense counsel]’s obligation unless y’all have agreed to the contrary? Do you understand that?
[DEFENDANT]: Yes, sir.
[THE COURT]: That means you need to hire your own lawyer to file an appeal if you wish to appeal, or if you cannot afford a lawyer, you need to make the proper application for a public defender. Do you understand that?
[THE COURT]: Do you have any questions in that regard?
[DEFENDANT]: No, sir.
The above colloquy shows there is no merit to Jamison’s argument that he was “abandoned”
by his defense counsel; there is no indication his counsel agreed to file his appeal or that
Jamison asked his attorney to file an appeal. See Howard v. State, 785 So. 2d 297, 300 (¶7)
(Miss. Ct. App. 2001) (The defendant’s deficiency-of-counsel argument failed when there
was no evidence to support the conclusion that the defense counsel had contracted and
8 In Osborn v. State, 695 So. 2d 570, 573 (Miss. 1997), the Mississippi Supreme Court quoted Wright v. State, 577 So. 2d 387, 390 (Miss. 1991), urging “trial courts to advise criminal defendants of their rights concerning appeal on the record at the time of sentencing and to solicit a decision in that regard.” However, the supreme court found in Osborn’s case that the trial court’s failure to elicit a decision from the defendant was not reversible error. Id.
11 obligated himself to pursue the defendant’s appeal.). Jamison provides no evidence to show
his counsel’s performance was deficient. Moreover, one year later, the circuit court denied
Jamison’s motion to file an out-of-time appeal, where he made the same arguments
regarding his trial counsel. The circuit court found he failed to show he was denied his right
to appeal through no fault of his own. Further, Jamison could have appealed this
determination but did not. Accordingly, his ineffective-assistance-of-counsel claim is
without merit, as is his assertion that he is entitled to out-of-time appeal.
III. Procedural Bars
¶23. The circuit court noted that Jamison’s arguments related to his original conviction and
sentence were separate from the revocation issue and found them procedurally barred from
consideration as both time-barred and successive. A defendant must file a PCR motion
within three years after the judgment of conviction is entered. Miss. Code Ann. § 99-39-
5(2) (Rev. 2015). Additionally, any order denying or dismissing a PCR motion bars a
second or successive motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). The movant
must bear “the burden of proving by a preponderance of the evidence that his claims are not
barred as successive writs.” Jenkins v. State, 325 So. 3d 1195, 1198 (¶8) (Miss. Ct. App.
2021).
¶24. Because Jamison did not file a direct appeal, he had three years from his judgment
of conviction, or January 2009, to file a motion for post-conviction relief. His current filing
is well past the statute of limitations. Further, Jamison has filed at least two other PCR
motions with the circuit court and the supreme court. Jamison himself states in his brief that
12 for the past several years he “has unsuccessfully pursued every avenue open to him in an
effort to obtain a decision on the merits of his appeal and to prove his conviction was
unlawful.”
¶25. In the circuit court’s November 30, 2006 order, Jamison’s motion for an out-of-time
appeal was denied, and he did not appeal this ruling. The circuit court explained that
Jamison’s arguments regarding his original conviction and sentence “are nothing more than
a request for reconsideration of [the trial court’s] prior ruling.” We agree. Jamison attempts
to overcome the procedural bar by arguing his claims are excepted under section 99-39-5(2)
because they involve “newly discovered evidence” about his 2005 conviction—that there
was another witness at the hotel on the night Jamison committed the attempted robbery who
will prove he did not commit an overt act of robbery. However, Jamison does not offer any
proof beyond his own statements to further this claim, and thus he fails to demonstrate his
arguments should be excepted. Accordingly, the circuit court did not err in finding
Jamison’s arguments related to his 2005 conviction are procedurally barred.
IV. Sufficiency of the Evidence
¶26. Jamison argues there was insufficient evidence for his initial conviction of attempted
armed robbery in 2005. He claims there was no overt act indicating he intended to rob the
hotel, and no statement from the victim/hotel clerk. Additionally, Jamison contends the trial
court erred in allowing expert testimony about fingerprints found on the firearm in his
possession.
¶27. Claims regarding sufficiency of the evidence and expert testimony are typically raised
13 on direct appeal and not in post-conviction actions. Mississippi Code Annotated section 99-
39-3(2) (Rev. 2020) provides that direct appeals are “the principal means of reviewing all
criminal convictions and sentences.” Post-conviction proceedings “provide prisoners with
a procedure . . . to review those . . . issues or errors which in practical reality could not be
or should not have been raised at trial or on direct appeal.” Id. Jamison should have raised
these issues on direct appeal, but as discussed, Jamison did not file a direct appeal, and he
did not appeal the denial of his request to file an out-of-time appeal. Further, these issues
are not grounds for post-conviction relief as found in section 99-39-5(1). The evidence
Jamison provides is not new, and the expert-witness issue was not previously raised.
Moreover, there is no trial transcript included in the record; Jamison relies upon a post-trial
hearing transcript to support his expert-witness argument.
Conclusion
¶28. For the foregoing reasons, the circuit court did not err in dismissing Jamison’s PCR
motion.
¶29. AFFIRMED.
CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.