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Dever v. State

Court of Appeals of Mississippi

February 7, 2017

ROBERT J. DEVER A/K/A ROBERT JORDAN DEVER A/K/A ROBERT DEVER A/K/A ROBERT DENVER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/08/2016

         HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. ROGER T. CLARK TRIAL JUDGE

          ATTORNEY FOR APPELLANT: ROBERT J. DEVER (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER

          BEFORE LEE, C.J., BARNES AND FAIR, JJ.

          FAIR, J.

         ¶1. Robert Dever pled guilty to two counts of exploitation of a minor after sending child pornography to a police officer who had answered Dever's bathroom-wall solicitations seeking to collaborate with other pedophiles.[1] Before us on appeal is Dever's second motion for post-conviction relief, where he contends, among other things, that his sentences have been rendered illegal by an intervening decision of the United States Supreme Court and that the statute under which he was convicted is defective. We find no merit to these contentions and thus conclude that Dever's motion is barred as a successive writ. We affirm the circuit court's dismissal of the PCR motion.

         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) (Rev. 2015). To succeed on appeal, the petitioner 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. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

         DISCUSSION

         ¶4. At the outset, we note that this is Dever's second motion for post-conviction relief. A second PCR motion is ordinarily barred as a successive writ. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015). There are certain exceptions outlined in the statute, such as intervening decisions of the Supreme Courts of Mississippi or the United States, newly discovered evidence, claims that the sentence has expired or probation or parole unlawfully revoked, and certain DNA-related claims. Id. Dever bears the burden of showing one of these exceptions applies. Jackson v. State, 860 So.2d 653, 661 (¶16) (Miss. 2003).

         ¶5. The Mississippi Supreme Court has also held that errors affecting fundamental constitutional rights are excepted from procedural bars. Rowland v. State, 42 So.3d 503, 507 (¶12) (Miss. 2010). But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar. Chandler v. State, 44 So.3d 442, 444 (¶8) (Miss. App. Ct. 2010). "There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived." Id.

         1.Intervening ...


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