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Mays v. State

Court of Appeals of Mississippi

March 7, 2017

NICHOLAS DESMOND MAYS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 11/05/2015

         RANKIN COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JOHN HUEY EMFINGER

          ATTORNEY FOR APPELLANT: J. EDWARD RAINER

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

          FAIR, J.

         ¶1. Nicholas Desmond Mays pled guilty to sale of a controlled substance in Rankin County in 2012.[1] As a subsequent drug offender, he was sentenced to serve sixty years in the custody of the Mississippi Department of Corrections, with fifty years to serve and five years' post-release supervision.

         ¶2. Mays filed his first petition for post-conviction relief (PCR) in February 2013, claiming his counsel was ineffective. His PCR motion was dismissed. After unsuccessful appeals to this Court and the Mississippi Supreme Court, Mays filed his second PCR motion in September 2015. He reprised his ineffective-assistance-of-counsel claim and argued the Rankin County Circuit Court lacked jurisdiction because the crime actually occurred in Scott County. The circuit court dismissed Mays's PCR motion as a successive writ. Mays appeals.

         STANDARD OF REVIEW

         ¶3. "When reviewing a trial court's denial or dismissal of a motion for PCR, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review . . . legal conclusions under a de novo standard of review." Chapman v. State, 167 So.3d 1170, 1172 (¶3) (Miss. 2015) (citation and quotation omitted). We will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate "a claim procedurally alive substantially showing the denial of a state or federal right." Wilkerson v. State, 89 So.3d 610, 614 (¶7) (Miss. Ct. App. 2011).

         DISCUSSION

         ¶4. Under Mississippi's Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Section 99-39-23(6), in pertinent part, has an exception for newly discovered evidence. Such evidence must be "evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence." Miss. Code Ann. § 99-39-23(6).

         ¶5. In addition, "errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." Rowland v. State, 42 So.3d 503, 506 (¶9) (Miss. 2010). However, "the mere assertion of a constitutional right violation" does not trigger the exception. Wicker v. State, 16 So.3d 706, 708 (¶5) (Miss. Ct. App. 2009). To find an exception to the successive-writ bar, "[t]here must at least appear to be some basis for the truth of the claim" of a fundamental-constitutional-rights violation. Stovall v. State, 873 So.2d 1056, 1058 (¶7) (Miss. Ct. App. 2004).

         1.Jurisdic ...


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