Wheeler v. State
| Decision Date | 14 April 2020 |
| Docket Number | NO. 2018-CP-01437-COA,2018-CP-01437-COA |
| Citation | 306 So.3d 751 |
| Parties | Johnnie E. WHEELER a/k/a Johnnie Wheeler a/k/a Johnnie Earl Wheeler, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: JOHNNIE E. WHEELER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, Jackson
BEFORE CARLTON, P.J., TINDELL AND McDONALD, JJ.
McDONALD, J., FOR THE COURT:
¶1. Johnnie Earl Wheeler appeals from the Lincoln County Circuit Court's dismissal of his motion for post-conviction collateral relief (PCR). The circuit court dismissed Wheeler's motion because it found that Wheeler had raised his issues in prior filings and that he was precluded from relitigating them under the doctrine of res judicata. Finding no error by the circuit court, we affirm.
¶2. Wheeler was sentenced to life imprisonment in 1970 and has been paroled several times. But, as the circuit court found in one of Wheeler's several post-conviction proceedings, Wheeler "promptly reoffends each time." He has also filed numerous PCR motions as summarized below, including the one now before us for review.
¶3. On September 23, 1970, a Lincoln County jury found Wheeler guilty of murder. Because the jury was unable to agree on a punishment, the circuit court sentenced him to life imprisonment. Wheeler challenged his conviction on appeal, but the appeal was dismissed because Wheeler had escaped from jail and was still a fugitive at the time the case was called for hearing. Wheeler v. State , 249 So. 2d 652, 652 (Miss. 1971).
¶4. At some point, Wheeler was paroled,1 but in August 1997 he was indicted for three separate counts of cocaine possession. Upon conviction of all counts, Wheeler was sentenced to a total of three years in custody, with two years to serve and one year of post-release supervision.
¶5. On February 26, 2004, Wheeler filed a PCR motion challenging the 1997 cocaine conviction and sentence. The circuit court denied his PCR motion, and Wheeler appealed. On appeal in Wheeler v. State , 903 So. 2d 756 (Miss. Ct. App. 2005), we affirmed the circuit court's denial, pointing out that by the time the PCR motion was filed, Wheeler's sentence should have been over. Id . at 757 (¶5). Wheeler provided no proof that he was still in custody. Id . At the time, only a prisoner in custody could file a PCR motion.2 Id . at (¶16). Assuming Wheeler was no longer in custody, we found that the circuit court did not have jurisdiction to consider the matter. Id. at 758 (¶6). Notwithstanding the lack of jurisdiction, we also pointed out that the circuit court had correctly held that Wheeler's PCR motion was time-barred because it was filed more than three years after his sentence. Id. at (¶7).
¶6. In 2012, when Wheeler had been paroled again, he was arrested and charged with two counts of felony shoplifting. The two shoplifting charges were dismissed in exchange for Wheeler's guilty plea to third-offense felony shoplifting.3 Because of this felony conviction, the parole board revoked Wheeler's parole in March 2013.
¶7. Thereafter, Wheeler filed a "Petition for Writ of Habeas Corpus" and a "Motion for Leave to Proceed in Forma Pauperis" in the circuit court, contending that his right to due process had been violated because he did not participate in the preliminary hearing for his parole revocation, that the sentence he was revoked for was "an old sentence that he had already served," and that he was convicted under the wrong name.
¶8. The circuit court held an evidentiary hearing on September 23, 2013, on Wheeler's motions, hearing arguments from both Wheeler and the State. In its February 3, 2014 written opinion, the court found that the version of Mississippi Code Annotated section 47-7-27(4) (Supp. 2012) that was in effect at the time mandated that an offender convicted of a felony while on parole shall immediately have his parole revoked. Therefore, the court found that the parole board acted properly. With respect to Wheeler's argument that he should not be incarcerated because he was indicted under the wrong name—Johnnie H. Wheeler instead of Johnnie E. Wheeler—the court noted that Wheeler was convicted in the 1970 murder case as "Johnnie H. Wheeler." The court reasoned that surely Wheeler knew in 1970 whether he was Johnnie H. or Johnnie E. Wheeler. Citing Richardson v. State , 769 So. 2d 230, 233 (¶4) (Miss. Ct. App. 2000), which held that "[i]f the defendant fails to plead that his name is not shown in the indictment before pleading guilty, he waives his right to claim that he was not the person named in the indictment," the court found that Wheeler had waived any complaint about the misnomer. The circuit court denied Wheeler any relief. The record does not reflect any appeal of this circuit court decision.
¶9. In November 2014, Wheeler was again released on parole. In January and February 2015, he was again arrested and charged with shoplifting. Because of these pending charges and because of Wheeler's failure to report, residence violations, and curfew violation, the parole board revoked Wheeler's parole on March 19, 2015.
¶10. Wheeler then filed a "Motion to Dismiss Revocation Proceedings" with the circuit court, which reviewed the matter and entered an order on January 4, 2016, dismissing the case for lack of jurisdiction. Wheeler appealed from that decision, and in an order dated March 31, 2016, a three-judge panel of the Mississippi Supreme Court dismissed the matter, finding that the circuit court's order was not appealable. Order, Wheeler v. State , No. 2016-TS-00100 (Miss. Mar. 31, 2016). However, the dismissal was "without prejudice to Wheeler's right to challenge the parole revocation through a petition for post-conviction relief." Id.
¶11. Thereafter, on April 29, 2016, Wheeler filed a petition for writ of habeas corpus in the supreme court, again challenging the revocation of his parole. Motion, Wheeler v. State , No. 2016-M-00621 (Miss. Apr. 29, 2016). In a June 22, 2016 order, the supreme court treated Wheeler's petition as an application for leave to proceed in the circuit court. Order, Wheeler v. State , No. 2016-M-00621 (Miss. June 22, 2016). The supreme court dismissed the petition without prejudice for it to be filed in the circuit court. Id.
¶12. Wheeler then filed a "Motion for Declaratory Judgment to Seek This Court's Recommendation for Parole Reinstatement for Failure to Prosecute" in the circuit court.4 Wheeler again challenged his 2015 parole revocation. On October 17, 2016, the circuit court denied the motion, saying that in 2015, Wheeler had been arrested on shoplifting charges, which Wheeler now claimed he would have not committed had he had proper medical attention. The court found this reason to be "nonsensical, repetitive, and not compelling" and denied the motion. There is no record of Wheeler's appealing of this decision.
¶13. Wheeler then filed in the circuit court a "Petition for Writ of Habeas Corpus Post-Conviction Relief," challenging his 2015 parole revocation again. In a November 21, 2016 order, the circuit court found that these same issues had been raised in the motion for declaratory judgment, which precluded re-litigation under the doctrine of res judicata, and denied Wheeler's petition. There was no appeal of this court order.
¶14. On May 14, 2018, Wheeler filed the latest PCR motion in the Lincoln County Circuit Court, which he styled "Petition for Post-Conviction Relief," and is the subject of this appeal. Wheeler apparently believed that the filing was authorized by the supreme court order of June 22, 2016. See supra ¶11. He again challenged his March 19, 2015 parole revocation, which he alleged violated his Fifth and Fourteenth Amendment rights. He recited his version of the two shoplifting incidents and how on March 18, 2015, he was served with a Mississippi Department of Corrections (MDOC) Violation Report Form on which he noted that he wanted a preliminary hearing and that he had witnesses. He was also served with a warrant for his arrest as a parolee offender. On that same day, his parole officer conducted a "Pre-Revocation Interview." The officer noted on the form memorializing this interview that Wheeler requested a preliminary hearing and had witnesses to present.
¶15. Continuing with the specifics of his 2015 parole violation, Wheeler said that on March 19, 2015, he was brought to Hinds County to attend a hearing before the parole board concerning the matter. The parole board revoked Wheeler's parole, noting that his time to serve was now "Full Term," which meant that he would henceforth be serving out his life sentence without eligibility for parole. Concerning his parole revocation, Wheeler alleged, among other things, that his due process rights were violated when fabricated charges of felony shoplifting were lodged against him, when he was deprived of a probable cause hearing, when there was no evidence to support the felony shoplifting charges, when the revocation hearing was not held in Lincoln County where his witnesses could testify, and when he had no chance to hire an attorney because he had no prior notice of the revocation hearing. Wheeler provided an MDOC document entitled "Rights of Parolee in Revocation Process" provided to him on February 9, 2015, which lists the rights that he claims were violated. Wheeler's May 14, 2018 PCR motion does not reflect that the MDOC was sent a copy or given notice of Wheeler's filing.
¶16. On November 20, 2018, Wheeler filed a mandamus petition with the supreme court, stating that his PCR...
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