Michael Anthony McDade a/k/a Michael A. McDade v. State of Mississippi;

• Court: Court of Appeals of Mississippi
• Decided: August 25, 2020
• Docket: NO. 2019-CP-00785-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-00785-COA

MICHAEL ANTHONY McDADE A/K/A APPELLANT MICHAEL A. McDADE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/02/2019 TRIAL JUDGE: HON. ROBERT THOMAS BAILEY COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MICHAEL ANTHONY McDADE (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 08/25/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Appearing pro se, Michael Anthony McDade appeals from the circuit court’s denial

of his second motion for post-conviction collateral relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On November 20, 2008, McDade was indicted in Cause No. 658-08 by a Lauderdale

County grand jury for armed robbery in violation of Mississippi Code Annotated section 97-

3-79 (Rev. 2006) and robbery in violation of Mississippi Code Annotated section 97-3-73

(Rev. 2006). McDade was also charged as a habitual offender under Mississippi Code

Annotated section 99-19-83 (Rev. 2007). At the time of his arrest, McDade was on parole from a life sentence in connection with a prior conviction for murder.1 The new robbery

charge resulted in the revocation of his parole.

¶3. On November 30, 2009, McDade filed a sworn “Petition to Enter Plea of Guilty” in

Cause No. 658-08. McDade pleaded guilty to robbery in violation of Mississippi Code

Annotated section 97-3-73. After conducting a hearing, the court accepted McDade’s guilty

plea. McDade was sentenced to serve three years in the custody of the Mississippi

Department of Corrections (MDOC) as a habitual offender pursuant to Mississippi Code

Annotated section 99-19-81 (Rev. 2007) and ordered to pay court costs of $309.2 The

sentence was ordered to run consecutively to McDade’s life sentence for the murder

conviction.

¶4. On December 3, 2012, McDade filed his first PCR motion in the Lauderdale County

Circuit Court. McDade cited newly discovered evidence, a violation of his right to due

process, ineffective assistance of counsel, and a violation of his right against self

incrimination as bases for his motion. The circuit court denied his motion as frivolous, and

McDade filed a “Notice of Appeal” on January 14, 2014. On April 22, 2014, McDade filed

a pro se motion requesting the dismissal of his appeal, which he determined was without

merit. This Court entered an order granting McDade’s motion to dismiss on May 8, 2014.

¶5. On October 25, 2018, McDade filed the current PCR motion and now seeks to

1 McDade was charged and convicted of murder in Lauderdale County (Cause No. 1607-C). 2 Mississippi Code Annotated section 99-19-81 precludes McDade from a sentence reduction or suspension as well as early release.

2 challenge the legality of his sentences and alleges numerous constitutional violations.

Because we find that McDade’s is barred from raising these issues, we decline to address the

merits of his claims.

STANDARD OF REVIEW

¶6. The standard of review for the denial of PCR motions is well settled; we will only

disturb a decision that was clearly erroneous. Kirksey v. State, 728 So. 2d 565, 567 (¶8)

(Miss. 1999) (citing State v. Tokman, 564 So. 2d 1339, 1341 (Miss. 1990)). Questions of law

are reviewed de novo. Rice v. State, 910 So. 2d 1163, 1164-65 (¶4) (Miss. Ct. App. 2005)

(quoting Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).

DISCUSSION

¶7. On its face, McDade’s current PCR motion faces two major procedural hurdles—it

was both untimely and successive.

¶8. As previously noted, McDade’s first PCR motion, filed on December 3, 2012, was

denied by the circuit court; the motion currently before us is McDade’s second attempt at

relief under the Uniform Post-Conviction Collateral Relief Act. But, “any order dismissing

the petitioner’s motion or otherwise denying relief under [the UPCCRA] is a final judgment

and shall . . . be a bar to a second or successive motion under this article.” Mississippi Code

Annotated section 99-39-23(6) (Supp. 2009). “When a subsequent PCR motion is filed, the

burden falls on the movant to show he has met a statutory exception.” Stokes v. State, 199

So. 3d 745, 749 (¶10) (Miss. Ct. App. 2016) (quoting Williams v. State, 110 So. 3d 840, 843

(¶13) (Miss. Ct. App. 2013)).

3 ¶9. McDade’s current motion was also filed outside of the applicable three-year statutory

limitations period provided by the UPCCRA. Miss. Code Ann. §99-39-5(2) (Rev. 2015).

The record identifies November 30, 2009, as McDade’s date of conviction. The current

motion was filed on October 25, 2018, nearly a decade later and well outside of the three-

year window.

¶10. McDade concedes that his current claims would ordinarily be barred, but he argues

that his latest contentions involve fundamental rights and should be excepted from procedural

bars. Stated with more specificity, McDade claims that he is currently serving an illegal life

sentence because the MDOC improperly “removed his parole eligibility date.” McDade

alleges that because of the purported mistake, he served an illegal sentence from July 7,

2011, to September 3, 2014, and is due credit for the time served. McDade further asserts

that the State has infringed upon his Fourteenth Amendment right to due process; Fifth

Amendment right to be free from double jeopardy; and his Eighth Amendment right to be

free from the infliction of cruel and unusual punishment.

¶11. We recognize that “[e]rrors affecting fundamental constitutional rights are excepted

from the procedural bars of the UPCCRA.” Id. (citing Rowland v. State, 42 So. 3d 503, 507

(¶12) (Miss. 2010)). However, neither McDade’s exhibits nor the record evinces the alleged

constitutional violations articulated in his briefs. Instead, McDade relies on assertions,

evidenced only by his “personal knowledge.” Absent supporting proof, his“[m]ere assertions

of constitutional-rights violations do not suffice to overcome the procedural bar.” Id. (citing

Williams, 110 So. 3d at 843 (¶15)). Therefore, the circuit court properly dismissed

4 McDade’s PCR motion as successive and time-barred.

CONCLUSION

¶12. McDade asserts constitutional violations that, if supported by evidence, might warrant

exception to procedural bars. But McDade’s lone declarations are simply not enough.

Because McDade clearly fails to establish an excepted error, we must affirm the circuit

court’s dismissal of his successive and untimely claims. Accordingly, and for the reasons

stated above, we affirm.

¶13. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.