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Bosarge v. State

Court of Appeals of Mississippi

March 11, 2014

JAMES H. BOSARGE, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 04/08/2013. TRIAL JUDGE: HON. ROBERT P. KREBS. TRIAL COURT MOTION FOR POST-CONVICTION RELIEF DISMISSED.

DISPOSITION: AFFIRMED.

FOR APPELLANT: JAMES H. BOSARGE (Pro se).

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART.

BEFORE IRVING, P.J., BARNES AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

OPINION

Page 25

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

FAIR, J.

¶1. Under Mississippi law, those convicted of armed robbery are not eligible to earn time toward an early, conditional release from prison. James Bosarge filed a post-conviction relief (PCR) motion contending that this violates his constitutional right to equal protection of the laws. The circuit court found that argument without merit and dismissed the motion. Because

Page 26

there is a rational basis for denying earned time to those convicted of armed robbery, we affirm.

STANDARD OF REVIEW

¶2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing " [i]f 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." Miss. Code Ann. § 99-39-11(2) (Supp. 2013). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶3. When reviewing the denial of a PCR motion, an appellate court " will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss. 2008). Our review of the summary dismissal of a PCR motion, a ...


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