ANDRE CONNER A/K/A ANDRE DESHAUN CONNER A/K/A DESHAWN CONNER A/K/A ANDRE D. CONNER APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/28/2016
COUNTY CIRCUIT COURT, HARRISON COUNTY CIRCUIT COURT, TRIAL
ATTORNEY FOR APPELLANT: ANDRE CONNER (PRO SE).
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
GRIFFIS, P.J., FAIR AND WILSON, JJ.
Andre Conner appeals from the denial of his motion for
post-conviction relief. He argues that the circuit court
should have granted him an out-of-time appeal, nearly seven
years after his time for filing a notice of appeal expired.
We affirm the circuit court's order denying Conner's
On August 25, 2004, a Harrison County jury found Conner
guilty of murder. On August 27, 2004, the circuit court
entered a final judgment of conviction and sentenced Conner
to life imprisonment. Conner was represented at trial by
privately retained counsel, and on August 31, 2004, his
attorney filed a timely motion for a new trial. For reasons
not disclosed by the record, more than four years passed
without a ruling on the motion. On November 18, 2008, Eric
Conner (Eric) filed a "petition for an out-of-time
appeal" on Conner's behalf. Eric Conner apparently
is Conner's brother, although nothing in the record on
appeal identifies him as such. On March 26, 2009, the court
entered an order denying Conner's motion for a new trial.
The order specifically stated, "Pursuant to Rule 4 of
the Mississippi Rules of Appellate Procedure, Conner shall
have thirty (30) days to file his notice of appeal."
Conner did not file a notice of appeal.
Almost seven years later, on February 19, 2016, Conner filed
a motion for post- conviction relief requesting leave to file
an out-of-time appeal. Conner alleged that his trial counsel
was ineffective because he failed to consult with Conner
about an appeal. Conner also alleged that he is indigent and
entitled to representation by the Indigent Appeals Division
of the Office of the State Public Defender. On March 28,
2016, the circuit court denied Conner's motion. The court
noted that there was no evidence that Conner asked his
attorney to file an appeal or that his attorney had agreed to
represent him on appeal. The court also concluded that Conner
offered no evidence as to why he should be granted an
out-of-time appeal after he "waited almost seven years
to move for post-conviction relief."
The record does not disclose why Conner's motion for a
new trial languished for four- plus years without a ruling or
why Conner did not appeal. But more important at this late
stage, there is nothing in the record to justify Conner's
failure to request an out-of-time appeal for almost seven
years after he failed to file a timely notice of appeal.
We recently addressed a similar request for an out-of-time
appeal following years of unexplained delay. Balle v.
State, 205 So.3d 1087 (Miss. Ct. App. 2016). We observed
that the Mississippi Uniform Post-Conviction Collateral
Relief Act expressly permits a prisoner to file a motion for
post-conviction relief requesting an "out-of-time
appeal, " Miss. Code Ann. § 99-39-5(1)(i) (Rev.
2015), "but such a claim is still subject to the
[Act's] three-year statute of limitations."
Balle, 205 So.3d at 1088 (¶2); accord
Buckley v. State, 919 So.2d 75, 77 (¶7) (Miss. Ct.
App. 2005); DeLoach v. State, 890 So.2d 934, 936
(¶7) (Miss. Ct. App. 2004). As in Balle,
Conner's motion for post-conviction relief is barred by
the Act's statute of limitations, and he has presented no
evidence that would bring his claim within any exception to
the time-bar. Balle, 205 So.3d at 1088
(¶2). Accordingly, we affirm the denial of his
motion for post-conviction relief.
THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, DENYING THE MOTION FOR POST-CONVICTION
RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,