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
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 05/25/2016
COUNTY CIRCUIT COURT, JOSEPH H. LOPER JR.
ATTORNEY FOR APPELLANT: DUNG THANK TRAN (PRO SE).
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
IRVING, P.J., FAIR AND WILSON, JJ.
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.
AND PROCEDURAL HISTORY
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.
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).
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).
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.
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