IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CP-00714-COA
DAVID JACKSON A/K/A DAVID DONNELL APPELLANT JACKSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/19/2020 TRIAL JUDGE: HON. DEWEY KEY ARTHUR COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DAVID JACKSON (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 08/10/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., WESTBROOKS AND McDONALD, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. David Donnell Jackson appeals from the Madison County Circuit Court’s order
denying his motion for post-conviction relief (PCR) as procedurally barred and without
merit. Finding no error, we affirm the circuit court’s judgment.
FACTS
¶2. In February 1987, Jackson pleaded guilty to the charge of burglary of an inhabited
dwelling at night while armed with a deadly weapon. The Madison County Circuit Court
sentenced him to serve eight years in the custody of the Mississippi Department of
Corrections (MDOC). Jackson served his sentence and was released from custody. ¶3. In 1998, Jackson was convicted of possession of cocaine with intent to distribute. The
circuit court sentenced Jackson, as a habitual offender, to serve thirty years in the custody of
the MDOC. Jackson’s 1987 burglary conviction was used as a basis for his habitual-offender
status.
¶4. On August 24, 2018, more than thirty years after his guilty plea for his 1987 burglary
conviction, Jackson filed a PCR motion challenging his 1987 burglary conviction. The trial
court dismissed Jackson’s PCR motion after finding that Jackson lacked standing to bring
his motion because he was no longer in custody under his 1987 burglary conviction and
sentence. On appeal, this Court found that pursuant to Howell v. State, 283 So. 3d 1100,
1105 (¶18) (Miss. 2019), “Jackson has standing to bring his PCR motion.” Jackson v. State,
287 So. 3d 1060, 1061 (¶4) (Miss. Ct. App. 2019). This Court accordingly reversed the order
dismissing Jackson’s PCR motion and remanded the case to the circuit court with instructions
for the trial court “to consider the merits of Jackson’s claims.” Id.1
¶5. On remand, the circuit court reviewed the following claims in Jackson’s PCR motion:
(1) the denial of his right to counsel; (2) involuntary guilty plea; (3) no factual basis for his
guilty plea; (4) ineffective assistance of counsel; and (5) insufficient indictment. In
reviewing Jackson’s PCR motion, the circuit court discovered that the transcript from the
1987 guilty plea hearing no longer exists. The circuit court judge stated that he contacted the
1 The record reflects that on May 11, 2020, after this Court remanded his case to the circuit court, Jackson filed a motion in the circuit court titled “motion for summary judgment” in which he reiterated his PCR claims.
2 court reporter from Jackson’s plea hearing and confirmed that the court reporter did not
maintain the notes from the guilty plea hearing. However, the record does contain Jackson’s
indictment for burglary of an inhabited dwelling at night with a deadly weapon, his guilty
plea petition, the pre-sentence investigation report, and Jackson’s judgment of conviction and
sentencing order.
¶6. On June 19, 2020, the circuit court entered an order denying Jackson’s PCR motion.
The circuit court found that Jackson’s claims were time-barred and also barred as a
successive motion. The circuit court additionally found that Jackson’s claims lacked merit.
¶7. Jackson now appeals from the circuit court’s order denying his PCR motion.
STANDARD OF REVIEW
¶8. We review a circuit court’s denial or dismissal of a PCR motion for abuse of
discretion. Purvis v. State, 240 So. 3d 468, 470 (¶7) (Miss. Ct. App. 2017). We “will not
disturb the [circuit] court’s factual findings unless they are clearly erroneous.” Id.
“Questions of law are reviewed de novo.” Id.
DISCUSSION
¶9. In February 1987, Jackson pleaded guilty to the charge of burglary of an inhabited
dwelling at night while armed with a deadly weapon. As stated, he filed a PCR motion
challenging his conviction and sentence in August 2018, more than thirty years after his
conviction. Unless an exception applies, Jackson’s PCR motion is time-barred because he
filed it well after the three-year statute of limitations set forth in Mississippi Code Annotated
3 section 99-39-5(2) (Rev. 2015).
¶10. The circuit court found that in addition to the time bar, Jackson’s PCR motion was
barred as a successive motion. The circuit court explained that Jackson “failed to raise the
claim regarding his underlying burglary conviction in either the direct appeal of his 1998
possession of cocaine with intent [to distribute] appeal or any of his previous PCR motions.”
The circuit court held that Jackson “should have raised this claim in his direct appeal or his
original [p]ost-[c]onviction motions.”
¶11. Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) states that “any order
dismissing the petitioner’s motion or otherwise denying relief under this article is a final
judgment and shall be conclusive until reversed. It shall be a bar to a second or successive
motion under this article.” Our review of the record shows that Jackson has filed previous
PCR motions relating to his 1998 possession-of-cocaine conviction. However, the PCR
motion before us, which Jackson filed in 2018, “takes issue with a new, separate and distinct,
plea, conviction, and sentence.” Smith v. State, 271 So. 3d 691, 694 (¶13) (Miss. Ct. App.
2018). The challenge here relates to his 1987 burglary conviction. Like Smith, we find that
“[n]othing in the record reflects any previous proceeding in which [Jackson] requested relief
from this . . . conviction and sentence. Consequently, [Jackson’s] [2018] PCR motion is not
successive.” Id. (citing Miss. Code Ann. § 99-39-23(5)-(6)).
¶12. Turning to examine whether Jackson’s PCR claims are excepted from the time-bar,
we recognize that section 99-39-5(2) sets forth several exceptions to the time-bar, including
4 “evidence, not reasonably discoverable at the time of trial, which . . . would have caused a
different result,” or the movant’s “probation, parole[,] or conditional release has been
unlawfully revoked.” Miss. Code Ann. § 99-39-5(2)(a)(i), (b). When a time-barred PCR
motion is filed, “the burden falls on the movant to show he has met a statutory exception.”
White v. State, 59 So. 3d 633, 635 (¶8) (Miss. Ct. App. 2011). In the case before us, Jackson
failed to demonstrate that any of the statutory exceptions apply to the time-bar.
¶13. The Mississippi Supreme Court has also held that “errors affecting fundamental
constitutional rights are excepted from the procedural bars” of the Uniform Post-Conviction
Collateral Relief Act (UPCCRA). Nichols v.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CP-00714-COA
DAVID JACKSON A/K/A DAVID DONNELL APPELLANT JACKSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/19/2020 TRIAL JUDGE: HON. DEWEY KEY ARTHUR COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DAVID JACKSON (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 08/10/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE CARLTON, P.J., WESTBROOKS AND McDONALD, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. David Donnell Jackson appeals from the Madison County Circuit Court’s order
denying his motion for post-conviction relief (PCR) as procedurally barred and without
merit. Finding no error, we affirm the circuit court’s judgment.
FACTS
¶2. In February 1987, Jackson pleaded guilty to the charge of burglary of an inhabited
dwelling at night while armed with a deadly weapon. The Madison County Circuit Court
sentenced him to serve eight years in the custody of the Mississippi Department of
Corrections (MDOC). Jackson served his sentence and was released from custody. ¶3. In 1998, Jackson was convicted of possession of cocaine with intent to distribute. The
circuit court sentenced Jackson, as a habitual offender, to serve thirty years in the custody of
the MDOC. Jackson’s 1987 burglary conviction was used as a basis for his habitual-offender
status.
¶4. On August 24, 2018, more than thirty years after his guilty plea for his 1987 burglary
conviction, Jackson filed a PCR motion challenging his 1987 burglary conviction. The trial
court dismissed Jackson’s PCR motion after finding that Jackson lacked standing to bring
his motion because he was no longer in custody under his 1987 burglary conviction and
sentence. On appeal, this Court found that pursuant to Howell v. State, 283 So. 3d 1100,
1105 (¶18) (Miss. 2019), “Jackson has standing to bring his PCR motion.” Jackson v. State,
287 So. 3d 1060, 1061 (¶4) (Miss. Ct. App. 2019). This Court accordingly reversed the order
dismissing Jackson’s PCR motion and remanded the case to the circuit court with instructions
for the trial court “to consider the merits of Jackson’s claims.” Id.1
¶5. On remand, the circuit court reviewed the following claims in Jackson’s PCR motion:
(1) the denial of his right to counsel; (2) involuntary guilty plea; (3) no factual basis for his
guilty plea; (4) ineffective assistance of counsel; and (5) insufficient indictment. In
reviewing Jackson’s PCR motion, the circuit court discovered that the transcript from the
1987 guilty plea hearing no longer exists. The circuit court judge stated that he contacted the
1 The record reflects that on May 11, 2020, after this Court remanded his case to the circuit court, Jackson filed a motion in the circuit court titled “motion for summary judgment” in which he reiterated his PCR claims.
2 court reporter from Jackson’s plea hearing and confirmed that the court reporter did not
maintain the notes from the guilty plea hearing. However, the record does contain Jackson’s
indictment for burglary of an inhabited dwelling at night with a deadly weapon, his guilty
plea petition, the pre-sentence investigation report, and Jackson’s judgment of conviction and
sentencing order.
¶6. On June 19, 2020, the circuit court entered an order denying Jackson’s PCR motion.
The circuit court found that Jackson’s claims were time-barred and also barred as a
successive motion. The circuit court additionally found that Jackson’s claims lacked merit.
¶7. Jackson now appeals from the circuit court’s order denying his PCR motion.
STANDARD OF REVIEW
¶8. We review a circuit court’s denial or dismissal of a PCR motion for abuse of
discretion. Purvis v. State, 240 So. 3d 468, 470 (¶7) (Miss. Ct. App. 2017). We “will not
disturb the [circuit] court’s factual findings unless they are clearly erroneous.” Id.
“Questions of law are reviewed de novo.” Id.
DISCUSSION
¶9. In February 1987, Jackson pleaded guilty to the charge of burglary of an inhabited
dwelling at night while armed with a deadly weapon. As stated, he filed a PCR motion
challenging his conviction and sentence in August 2018, more than thirty years after his
conviction. Unless an exception applies, Jackson’s PCR motion is time-barred because he
filed it well after the three-year statute of limitations set forth in Mississippi Code Annotated
3 section 99-39-5(2) (Rev. 2015).
¶10. The circuit court found that in addition to the time bar, Jackson’s PCR motion was
barred as a successive motion. The circuit court explained that Jackson “failed to raise the
claim regarding his underlying burglary conviction in either the direct appeal of his 1998
possession of cocaine with intent [to distribute] appeal or any of his previous PCR motions.”
The circuit court held that Jackson “should have raised this claim in his direct appeal or his
original [p]ost-[c]onviction motions.”
¶11. Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) states that “any order
dismissing the petitioner’s motion or otherwise denying relief under this article is a final
judgment and shall be conclusive until reversed. It shall be a bar to a second or successive
motion under this article.” Our review of the record shows that Jackson has filed previous
PCR motions relating to his 1998 possession-of-cocaine conviction. However, the PCR
motion before us, which Jackson filed in 2018, “takes issue with a new, separate and distinct,
plea, conviction, and sentence.” Smith v. State, 271 So. 3d 691, 694 (¶13) (Miss. Ct. App.
2018). The challenge here relates to his 1987 burglary conviction. Like Smith, we find that
“[n]othing in the record reflects any previous proceeding in which [Jackson] requested relief
from this . . . conviction and sentence. Consequently, [Jackson’s] [2018] PCR motion is not
successive.” Id. (citing Miss. Code Ann. § 99-39-23(5)-(6)).
¶12. Turning to examine whether Jackson’s PCR claims are excepted from the time-bar,
we recognize that section 99-39-5(2) sets forth several exceptions to the time-bar, including
4 “evidence, not reasonably discoverable at the time of trial, which . . . would have caused a
different result,” or the movant’s “probation, parole[,] or conditional release has been
unlawfully revoked.” Miss. Code Ann. § 99-39-5(2)(a)(i), (b). When a time-barred PCR
motion is filed, “the burden falls on the movant to show he has met a statutory exception.”
White v. State, 59 So. 3d 633, 635 (¶8) (Miss. Ct. App. 2011). In the case before us, Jackson
failed to demonstrate that any of the statutory exceptions apply to the time-bar.
¶13. The Mississippi Supreme Court has also held that “errors affecting fundamental
constitutional rights are excepted from the procedural bars” of the Uniform Post-Conviction
Collateral Relief Act (UPCCRA). Nichols v. State, 265 So. 3d 1239, 1242 (¶10) (Miss. Ct.
App. 2018) (quoting Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010)). “The
following fundamental-rights exceptions have been expressly found to survive 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.” Higginbotham v. State, 307 So. 3d 1253, 1256 (¶9) (Miss. Ct. App. 2020) (internal
quotation mark omitted) (quoting Nichols, 265 So. 3d at 1242 (¶10)). The supreme court has
additionally stated that “a claim of ineffective assistance of counsel may be excepted from
the statute of limitations . . . bar in ‘exceptional circumstances’ . . . or ‘extraordinary
circumstances[.]’” McDonald v. State, 307 So. 3d 497, 500 (¶7) (Miss. Ct. App. 2020)
(quoting 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)). However, “the mere
5 assertion of a constitutional right violation does not trigger the exception. . . . [Rather,] there
must be some basis of truth for his claim.” Higginbotham, 307 So. 3d at 1256 (¶9) (citations
omitted).
¶14. Jackson argues his PCR claims allege errors affecting his fundamental constitutional
rights, and therefore his claims are excepted from the time-bar in section 99-39-5(2).
Jackson asserts the following assignments of error in his PCR motion: (1) his indictment was
insufficient because it did not contain all of the essential elements of burglary of an inhabited
dwelling at night while armed with a deadly weapon; (2) the court failed to establish a factual
basis for his guilty plea; (3) his guilty plea was involuntary; (4) he was entitled to an
evidentiary hearing; (5) he received ineffective assistance of counsel. Jackson, as the PCR
movant, bears the burden of showing that a fundamental-rights exception applies to the time-
bar. Creel v. State, 305 So. 3d 417, 421 (¶9) (Miss. Ct. App. 2020).
¶15. We find that Jackson’s first four claims do not implicate any exception to the statute
of limitations. As to Jackson’s claim of ineffective assistance of counsel, our review of
Jackson’s PCR motion shows that he has failed to identify any exceptional or extraordinary
circumstances for excepting his claim of ineffective assistance of counsel from the time-bar.
Jackson argues that his defense counsel failed to object to the circuit court’s sentencing
Jackson for a crime for which he was not indicted (possessing a deadly weapon) and that his
defense counsel failed to advise Jackson of the essential elements of the charge against him.
However, Jackson’s indictment stated that he was charged with the offense of “burglary of
6 an inhabited dwelling at night while armed with a deadly weapon.” Furthermore, Jackson’s
guilty plea petition, which he signed under oath, reflects that his defense counsel advised him
about the elements of the charge to which he was pleading guilty and that Jackson understood
the elements of the charge. Jackson then handwrote the elements of the charge of burglary
of an inhabited dwelling at night while armed with a deadly weapon. Jackson’s plea petition
also reflects that he “believe[d] that [his] lawyer is competent and has done all that anyone
could do to counsel and assist [him] and that [he is] fully satisfied with the advice and help”
provided by his defense counsel.
¶16. In addition to finding Jackson’s PCR claims procedurally barred, the circuit court also
found that Jackson’s claims lacked merit. We find that the circuit court’s findings are
supported by the record.
¶17. After our review, we find that Jackson failed to meet his burden of proving that his
PCR claims are excepted from the UPCCRA’s time-bar. Although the circuit court
incorrectly characterized Jackson’s PCR motion as a successive motion, we find that the
circuit court did not abuse its discretion in determining that Jackson’s PCR motion was time-
barred and without merit. We therefore affirm the circuit court’s denial of Jackson’s PCR
motion.
¶18. AFFIRMED.
GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. BARNES, C.J., AND WILSON, P.J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. EMFINGER, J., NOT PARTICIPATING.