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Tran v. State

Court of Appeals of Mississippi

April 18, 2017

DUNG THANK TRAN A/K/A JULIO TRAN A/K/A DUNG TRAN A/K/A DUNG T. TRAN A/K/A DUNG THANH TRAN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/25/2016

         GRENADA COUNTY CIRCUIT COURT, JOSEPH H. LOPER JR.

          ATTORNEY FOR APPELLANT: DUNG THANK TRAN (PRO SE).

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA BYRD.

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

          WILSON, J.

         ¶1. Dung Thank Tran appeals from an order dismissing his motion for post-conviction relief (PCR). The Grenada County Circuit Court dismissed Tran's motion for lack of jurisdiction because the Mississippi Supreme Court had denied Tran's application for leave to file the motion. We affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In March 1999, Tran sold cocaine to a confidential informant working for the Grenada Police Department. The transaction occurred in a room at the Holiday Inn in Grenada and was recorded with audio and video equipment set up by narcotics agents who monitored the buy from the next room. The audio and video tapes of the transaction were played at Tran's trial in the circuit court in January 2000. The jury found Tran guilty of selling cocaine, and he was sentenced as a violent habitual offender to life imprisonment without the possibility of probation or parole. On direct appeal, this Court affirmed Tran's conviction and sentence. Tran v. State, 785 So.2d 1112, 1120 (¶26) (Miss. Ct. App. 2001).

         ¶3. In 2010, Tran filed a PCR motion attacking a prior conviction for possession of cocaine, which resulted from a January 1995 guilty plea. Tran completed serving his sentence on that conviction and was released from custody prior to his 1999 arrest and conviction for selling cocaine. Tran sought to challenge his 1995 conviction via a PCR motion because it was one of the predicate felonies used to convict him as a violent habitual offender in 2000. The circuit court dismissed Tran's PCR motion, and this Court affirmed. Tran v. State, 92 So.3d 1278, 1278 (¶1) (Miss. Ct. App. 2011), cert. denied 95 So.3d 1274 (2012). This Court held that because Tran had already finished serving his sentence on the 1995 conviction, he could no longer collaterally attack that conviction via a PCR motion. Id. at 1279 (¶7). We also noted that Tran's attack on the 1995 conviction was clearly time-barred. Id. at (¶6).

         ¶4. In 2014, Tran filed an application in the Supreme Court in which he sought leave to challenge his present life sentence via a PCR motion in the trial court. Tran claimed that his sentence was "illegal" because of his alleged "actual innocence as a habitual offender." A panel of the Supreme Court denied Tran's application, finding that it was barred by the statute of limitations, the prohibition against successive applications, and res judicata and also "without merit." Tran v. State, 2014-M-00253 (Miss. April 11, 2014).

         ¶5. Undeterred, Tran filed a new PCR motion in the circuit court. Although Tran's obvious goal is to set aside his present life sentence, his motion may be interpreted as an attack on his prior (1995) conviction for possession of cocaine. Tran argues that his 1995 felony conviction is void because his offense was only a misdemeanor. He relies on amendments to the law that took effect more than nineteen years after he was convicted and more than sixteen years after he finished serving his sentence for the conviction.[1]

         ¶6. The circuit court dismissed Tran's motion pursuant to Mississippi Code Annotated section 99-39-7 (Rev. 2015), which provides that if a prisoner's conviction and sentence have been affirmed on direct appeal, he must request and obtain leave from the Supreme Court before he may file a PCR motion in the circuit court. Tran had not obtained permission from the Supreme Court; in fact, permission had been denied. Therefore, the circuit court determined that it was without ...


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