106 So.3d 836 (Miss.App. 2012), 2011-CP-00892-COA, Hughes v. State

• Citation: 106 So.3d 836
• Opinion Judge: MAXWELL, J.
• Party Name: Robert E. HUGHES a/k/a Robert Hughes a/k/a Robert Earl Hughes, Appellant v. STATE of Mississippi, Appellee.
• Attorney: Robert E. Hughes, appellant, pro se. Office of the Attorney General by Billy L. Gore, attorney for appellee.
• Judge Panel: Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR.
• Case Date: June 12, 2012
• Court: Mississippi Court of Appeals

Page 836

106 So.3d 836 (Miss.App. 2012)

Robert E. HUGHES a/k/a Robert Hughes a/k/a Robert Earl Hughes, Appellant

v.

STATE of Mississippi, Appellee.

No. 2011-CP-00892-COA.

Court of Appeals of Mississippi.

June 12, 2012

Rehearing Denied Oct. 16, 2012.

Certiorari Denied Jan. 24, 2013.

Page 837

[Copyrighted Material Omitted]

Page 838

Robert E. Hughes, appellant, pro se.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.

MAXWELL, J.

¶ 1. Robert E. Hughes appeals the May 2011 dismissal of two motions for post-conviction relief (PCR). Hughes had previously been denied post-conviction relief in March 2009. Thus, both motions are procedurally barred as successive. Because we find no applicable exception to this procedural bar, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 20, 2004, Hughes allegedly robbed Ladarreo Wells at gunpoint, taking his 1991 Chevrolet Caprice. Though Hughes was caught and arrested for armed carjacking, a Hinds County grand jury returned an indictment charging him with armed robbery. On the advise of counsel, Hughes pled guilty to armed robbery on March 14, 2006. The circuit court sentenced Hughes to twenty-five years in the custody of the Mississippi Department of Corrections, with ten years suspended and fifteen years to serve, followed by three years of post-release supervision.

¶ 3. In October 2007, Hughes filed his first PCR motion. He filed a second PCR motion on March 13, 2009, which was denied on March 31, 2009. Hughes did not appeal this order of denial. On December 13, 2010, he filed a third PCR motion. The circuit court dismissed this motion, along with his 2007 motion, by order dated May 16, 2011. It is from this order that Hughes appeals.

STANDARD OF REVIEW

¶ 4. We review the dismissal or denial of a PCR motion for abuse of discretion. We will only reverse if the trial court's decision is clearly erroneous. Crosby v. State, 16 So.3d 74, 77 (¶ 5) (Miss.Ct.App.2009). When reviewing questions of law, our standard is de novo. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). " The trial court may summarily dismiss a PCR motion where ‘ 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.’ " White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011) (quoting

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Miss.Code Ann. § 99-39-11(2) (Supp.2010)). " This court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate ‘ a claim procedurally alive substantially showing the denial of a state or federal right.’ " Id. (quoting Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009)).

DISCUSSION

¶ 5. On appeal, Hughes argues he is entitled to relief because his guilty plea was not valid and his counsel was ineffective. Because the March 2009 denial of post-conviction relief addressed both of these claims, we find these issues are procedurally barred. And we reject Hughes's re-characterization of his claims as errors affecting fundamental rights, not subject to the procedural bars. Instead, we find Hughes's mere assertions of constitutional-rights violations do not trigger any procedural-bar exceptions.

I. Procedural Bars

¶ 6. Under Mississippi Code Annotated section 99-39-23(6) (Supp.2011), an order " denying relief ... is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article." In Hughes's 2009 PCR motion, he raised the very same claims as his outstanding 2007 PCR motion— that his counsel was ineffective and his guilty plea was involuntary. The circuit court's March 2009 order expressly found these claims to be without merit. Hughes did not appeal this order. Because the 2009 order disposed of the claims also made in his 2007 motion, we find it acted as a procedural bar to this later-dismissed motion. See Madden v. State, 52 So.3d 411, 412 (¶ 7) (Miss.Ct.App.2010) (applying successive-writ bar to issues previously addressed by court when reviewing a separate PCR motion). Likewise, it barred his 2010 motion as successive under section 99-39-23(6).

¶ 7. Mississippi Code Annotated section 99-39-5(2) (Supp.2011) also requires that " [a] motion for relief under this article shall be made ... in case of guilty plea, within three (3) years after entry of the judgment of conviction." Hughes's 2010 motion was not filed until December 13, 2010, more than four-and-a-half years after his March 14, 2006 guilty plea. So, we find Hughes's 2010 PCR motion is also time-barred.

II. No Exceptions to the Procedural Bars Apply

¶ 8. Because Hughes raises issues that are both successive and untimely, we look to see whether an exception to these procedural...