OF JUDGMENT: 11/05/2015
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
GRIFFIS, P.J., FAIR AND WILSON, JJ.
Nicholas Desmond Mays pled guilty to sale of a controlled
substance in Rankin County in 2012. 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
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
"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).
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).
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.