ROBERT J. DEVER A/K/A ROBERT JORDAN DEVER A/K/A ROBERT DEVER A/K/A ROBERT DENVER APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 01/08/2016
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
LEE, C.J., BARNES AND FAIR, JJ.
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. 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.
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).
Our review of the summary dismissal of a PCR motion, a
question of law, is de novo. Id.
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).
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."