Salter v. State, 2014–CP–00523–COA.

• Court: Court of Appeals of Mississippi
• Citation: 184 So.3d 944
• Docket Number: No. 2014–CP–00523–COA.,2014–CP–00523–COA.
• Parties: William Dwayne SALTER a/k/a William Salter, Appellant v. STATE of Mississippi, Appellee.
• Decision Date: 02 June 2015

184 So.3d 944

William Dwayne SALTER a/k/a William Salter, Appellant
v.
STATE of Mississippi, Appellee.

No. 2014–CP–00523–COA.

Court of Appeals of Mississippi.

June 2, 2015.
Rehearing Denied Oct. 20, 2015.
Certiorari Denied Feb. 11, 2016.

184 So.3d 946

William Dwayne Salter, appellant, pro se.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before IRVING, P.J., CARLTON AND JAMES, JJ.

JAMES, J., for the Court:

¶ 1. William Dwayne Salter (pro se) filed a third petition for post-conviction relief (PCR) with the Circuit Court of George County. The trial court dismissed Salter's petition. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 16, 2001, Salter pled guilty to burglary, armed robbery, and kidnapping. Salter was sentenced to six thirty-year concurrent sentences on four counts of kidnapping and two counts of armed robbery, and a seven-year consecutive sentence for burglary, all to be served in the custody of the Mississippi Department of Corrections.

¶ 3. At the plea hearing, Salter was represented by Fred Dobbins, who is now deceased. The trial court questioned Salter and determined that he understood the constitutional rights he was waiving by pleading guilty, that he understood the maximum and minimum sentences he could receive, and that he had not been promised anything or coerced into pleading guilty. Salter v. State, 876 So.2d 412, 414 (¶ 3) (Miss.Ct.App.2003).

¶ 4. Following Salter's conviction, he retained a new attorney, Robert Knockel, for the purpose of seeking PCR. On April 15, 2002, Salter filed a PCR petition contending that (1) the kidnapping was merely incidental to the commission of the armed robbery and not a separate and distinct

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crime; (2) he was denied effective assistance of counsel at his sentencing, because he and his mother were willing to testify regarding his mental health and provide mitigating evidence before sentencing; and (3) the trial court failed to make sure he had full knowledge of the critical elements of the charges against him. Id. at 413–14, 415–16 (¶¶ 1, 10). The trial court denied relief and this Court affirmed. Id. at 417 (¶ 15). We found that Salter failed to show that his counsel's performance was deficient or that he was prejudiced, as required by the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Salter, 876 So.2d at 416 (¶ 12).

¶ 5. On April 3, 2009, Salter, pro se, filed a second PCR petition. He contended that his guilty plea was involuntary and that his trial counsel was ineffective because both his trial attorney and the trial court misinformed him about his eligibility for parole and earned-time release. Salter v. State, 64 So.3d 514, 517 (¶ 6) (Miss.Ct.App.2010). Salter claimed he would have opted to proceed to trial instead of pleading guilty had he been informed that he was not eligible for parole and earned-time release. Id. The trial court dismissed the petition as a successive writ under Mississippi Code Annotated section 99–39–23(6) (Supp.2014). Salter, 64 So.3d at 515 (¶ 1).

¶ 6. On appeal, Salter argued that the newly-discovered-evidence exception to the procedural bar was applicable because he spent approximately eight years in prison thinking he would become eligible for parole and earned time after his tenth year. Id. at 516 (¶ 13). He claimed he was first informed that he was not eligible for parole and earned time during the eighth year of his sentence when he began asking questions about what he thought was an upcoming parole hearing. Id. Salter also argued that his claims of ineffective assistance of counsel and an involuntary guilty plea invoked the fundamental-right exception to the procedural bars. Id. at 517–18 (¶ 14).

¶ 7. As to Salter's newly-discovered-evidence argument, we held: "The concept of newly discovered evidence does not embrace a prisoner's untimely realization that legal errors occurred at his trial. Accordingly, we have held that a prisoner's failure to understand the law until conducting research into his case does not constitute newly discovered evidence." Id. at 517 (¶ 13) (quoting Pickle v. State, 942 So.2d 243, 246 (¶ 12) (Miss.Ct.App.2006) ). As to Salter's fundamental-right argument, we found that "[t]he supreme court has held that claims of ineffective assistance of counsel and involuntary guilty pleas are indeed subject to the procedural bars." Id. at 518 (¶ 14) (citing Kirk v. State, 798 So.2d 345, 346 (¶ 6) (Miss.2000) ). Accordingly, we found that Salter's petition was procedurally barred as a successive writ under section 99–39–23(6) and time-barred under Mississippi Code Annotated section 99–39–5(2) (Supp.2014). Salter, 64 So.3d at 517–18 (¶¶ 12, 15).

¶ 8. On December 10, 2012, Salter filed a third PCR petition. Salter contended that his trial counsel and PCR attorney were ineffective. Salter argued that the intervening decision of Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), served as an exception to the procedural bars. The trial court concluded that Martinez would not adversely affect either Salter's conviction or sentence. The trial court denied the petition and found that it was barred as a successive writ under section 99–39–23(6) and barred by res judicata.

¶ 9. We find that Salter's petition is time-barred and successive-writ barred, and no exception is applicable to overcome the procedural bars; thus, we affirm. Although

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not necessary to our decision because the time-bar and successive-writ bar are dispositive, we note that the petition is also barred by res judicata.

STANDARD OF REVIEW

¶ 10. A trial court's dismissal of a PCR petition will not be reversed absent a finding that the trial court's decision was clearly erroneous. Wilson v. State, 76 So.3d 733, 735 (¶ 9) (Miss.Ct.App.2011). However, when issues of law are raised, the proper standard of review is de novo. Id. The trial court may summarily dismiss a PCR petition where it plainly appears from the face of the petition, any annexed exhibits, and the prior proceedings in the case that the petitioner is not entitled to any relief. Miss.Code Ann. § 99–39–11(2) (Supp.2014). This Court will affirm the summary dismissal of a PCR petition if the petitioner fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right. White v. State, 59 So.3d 633, 635 (¶ 4) (Miss.Ct.App.2011).

DISCUSSION

¶ 11. Salter argues that the trial court erred by (1) failing to accept Martinez as an intervening decision as described in section 99–39–5(2)(a)(i) and section 99–39–23(6) ; (2) applying the res judicata doctrine to his ineffective-assistance claim; and (3) failing to accept the "previously acknowledged ineffective-assistance claim [regarding] the trial counsel, sentencing court[,] and paid attorney who filed the first [PCR petition,] meeting the two prong test of Strickland v. Washington. " Finding no error, we affirm the trial court's judgment.

I. Whether the intervening-decision exception applies to the procedural bars.

¶ 12. Under section 99–39–5(2), a PCR petition challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. An exception to the time-bar found in section 99–39–5(2) provides:

That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not

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