Clay v. State

168 So. 3d 987, 2013 WL 1297192, 2013 Miss. App. LEXIS 147
CourtCourt of Appeals of Mississippi
DecidedApril 2, 2013
DocketNo. 2012-CP-00318-COA
StatusPublished
Cited by4 cases

This text of 168 So. 3d 987 (Clay v. State) 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
Clay v. State, 168 So. 3d 987, 2013 WL 1297192, 2013 Miss. App. LEXIS 147 (Mich. Ct. App. 2013).

Opinion

CARLTON, J.,

for the Court:

¶ 1. Louis Clay appeals from the Wilkinson County Circuit Court’s order denying his motion for post-conviction relief (PCR). Clay raises the following assignments of error: (1) whether he qualifies as an habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007) and Rule 11.03(1) of the Uniform Rules of Circuit and County Court; (2) whether the circuit court erred when it sentenced him to twenty years as a habitual offender; and (3) whether the circuit court erred when it failed to consider newly presented [989]*989evidence. After reviewing the record, we dismiss this appeal due to Clay’s failure to comply with jurisdictional requirements.

FACTS

¶2. In November 1996, a grand jury before the Wilkinson County Circuit Court indicted Clay for aggravated assault under Mississippi Code Annotated section 97-3-7 (Supp.2012) and for illegal possession of a firearm under Mississippi Code Annotated section 97-37-1 (Supp.2012). Clay was found guilty of the aggravated-assault charge, and the circuit court sentenced Clay as a habitual offender to twenty years in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole.

¶ 3. On April 30, 2002, on direct appeal, the Mississippi Court of Appeals affirmed Clay’s judgment of conviction of aggravated assault and sentence as a habitual offender of twenty years in the custody of the MDOC. The Mississippi Supreme Court denied certiorari on October 31, 2002.

¶ 4. On June 20, 2011, Clay filed his most recent PCR motion, asking the circuit court to find that, when he received his sentence in 1997, he did not meet the criteria of a habitual offender under section 99-19-81. Clay then asked the court to find that, since he did not meet the criteria to be sentenced as a habitual offender, he should now be resentenced as a non-habitual offender. The circuit court entered an order denying Clay relief. Specifically, the circuit court’s order provides in part:

This cause comes before the court upon Mr. Clay’s “Motion to Show Cause/Motion to Correct Judgment or Sentence.” The defendant was previously found guilty of aggravated assault following a jury trial, found to be a habitual offender following a hearing, and sentenced to serve a term of twenty years in the Mississippi Department of Corrections without benefit of reduction. The conviction and sentence were affirmed on direct appeal[.]
The defendant has filed numerous motions, all of which have been found to be without merit[.] ... The latest filing is directed solely at his habitual[-]offender status, which has been ruled on previously. The court finds that this issue has previously been ruled on[,] and no new information or authority is presented. Notwithstanding that finding, the court has carefully reviewed the latest filing and finds that the defendant is clearly entitled to no relief.

¶ 5. Clay now appeals the denial of his PCR motion.

STANDARD OF REVIEW

¶ 6. “The standard of review in cases involving the denial of a PCR motion is well settled: When reviewing a [trial] court’s decision to deny a [motion] for post-conviction relief, an appellate court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.’ ” Holloway v. State, 31 So.3d 656, 657 (¶ 5) (Miss.Ct.App.2010). However, we utilize a de novo standard of review when questions of law are raised. Id.

¶ 7. “Jurisdictional matters are [questions] of law; thus, the standard of review is de novo.” Havard v. State, 83 So.3d 452, 453 (¶ 4) (Miss.Ct.App.2012).1

DISCUSSION

I. LEAVE TO PROCEED IN THE CIRCUIT COURT

¶ 8. While not raised by the parties or the circuit court, the record is devoid of [990]*990an order granting Clay leave to file his most recent PCR motion in the circuit court. Mississippi Code Annotated section 99-39-7 (Supp.2012) provides in part:

Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such motion in the trial court.

As previously mentioned, this Court ruled on Clay’s direct appeal in 2002. Clay v. State, 829 So.2d 676, 678 (¶ 2) (Miss.Ct.App.2002). We have held:

As to post-conviction-relief motions brought after an unsuccessful direct appeal of a criminal conviction, the failure of the movant to obtain the prior permission of the supreme court to file the motion as set out in section 99-39-27 (leave to proceed in the trial court) deprives the circuit court — and, necessarily, this Court — of authority to reach the merits of the motion.

Williams v. State, 98 So.3d 484, 487 (¶ 8) (Miss.Ct.App.2012). In this case, the Court affirmed the conviction at issue on direct appeal, and the supreme court thereafter denied certiorari review. Because Clay failed to obtain permission from the supreme court before filing his present PCR motion, the circuit court lacked jurisdiction to consider the motion, and this Court likewise lacks jurisdiction.

II. SUCCESSIVE-WRIT BAR

¶ 9. Clay’s PCR motion raises another issue in that the motion constitutes a successive writ frivolously filed. An order denying a PCR motion is considered a final judgment and is a bar to successive motions. Miss.Code Ann. § 99-39-23(6) (Supp.2012). “Essentially, an appellant is granted one bite at the apple when requesting post-conviction relief.” Williams, 98 So.3d at 487 (¶ 10). We recognize, however, that exceptions to this rule exist. Id. Under section 99-39-23(6), “a prisoner may file a successive writ if the argument presented within that writ falls under one of the exceptions, has not been previously argued, and has not resulted in a circuit court’s decision rendered on the merits.” Williams, 98 So.3d at 487 (¶ 10). The Mississippi Supreme Court has previously warned Clay of continued PCR filings that fail to satisfy an exception to the successive-writ bar. We are mindful that Clay bears the burden of proving that he satisfies at least one of the exceptions to the successive-writ bar. Id. Furthermore, Clay must prove that even if he satisfies an exception, the circuit court has not previously entered a decision on the merits of those claims. Id.

¶ 10. Clay’s present PCR motion constitutes a successive writ because he has filed numerous PCR motions. He has also alleged in a prior PCR motion the same issues asserted in this appeal. Further, any additional arguments raised by Clay in the present appeal could have been raised at trial or previously on appeal. See Miss.Code Ann. § 99-39-21(1) (Rev. 2007).

¶ 11. The frivolous nature of this successive writ requires acknowledgment.

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Bluebook (online)
168 So. 3d 987, 2013 WL 1297192, 2013 Miss. App. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clay-v-state-missctapp-2013.