OF JUDGMENT: 12/14/2015
COUNTY CIRCUIT COURT TRIAL HON. W. ASHLEY HINES, JUDGE
ATTORNEY FOR APPELLANT: WENDELL DUNCAN (PRO SE).
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA MCCLINTON.
LEE, C.J., BARNES AND CARLTON, JJ.
Wendell Duncan appeals the dismissal of his fifth motion for
postconviction relief (PCR) by the Washington County Circuit
Court. Finding no error, we affirm.
AND PROCEDURAL HISTORY
In 1994, Duncan was convicted of conspiracy to commit
burglary of a business and burglary of a business. He was
sentenced as a habitual offender under Mississippi Code
Annotated section 99-19-83 (Rev. 2007) to serve five years
for the conspiracy conviction and seven years for the
burglary conviction in the custody of the Mississippi
Department of Corrections (MDOC). The sentences were ordered
to run consecutively for a total of twelve years.
In 1995, Duncan was convicted of armed robbery. Duncan was
indicted as a habitual offender for two prior
convictions-shooting into an occupied dwelling and aggravated
assault. However, he was not sentenced as a habitual offender
for the armed-robbery conviction because the circuit judge
found that the State failed to prove Duncan's
habitual-offender status. Instead, Duncan was sentenced as a
nonhabitual offender to thirty years in the custody of the
MDOC, with the sentence ordered to run consecutively to the
previously imposed sentence as a habitual offender of twelve
years for the burglary and conspiracy convictions.
Duncan filed his first PCR motion in 1996, which was
dismissed by the circuit court. The Mississippi Supreme Court
affirmed the circuit court's judgment in 1998 in an
unpublished opinion in docket number 96-CA-01017-SCT. In
2005, Duncan filed numerous motions and other documents in
both the circuit court and the supreme court. The motions
were denied, and Duncan was sanctioned by the supreme court
for frivolous filings and barred from filing any further
documents until he had paid the sanctions. In 2008, Duncan
filed a motion in the circuit court to vacate his convictions
and sentences, which the circuit court treated as
Duncan's second PCR motion and dismissed as time-barred
and successive-writ barred. This Court affirmed the trial
court's dismissal in Duncan v. State, 28 So.3d
665, 667 (¶7) (Miss. Ct. App. 2009).
In 2011, the supreme court denied Duncan's motion for
leave to proceed in the circuit court, noting that Duncan had
failed to file a direct appeal of his convictions and
sentences. Duncan filed a motion in the circuit court to
correct his sentence, which the circuit court treated as
Duncan's third PCR motion and dismissed as
successive-writ barred. This Court affirmed the circuit
court's dismissal in Duncan v. State, 100 So.3d
996, 999 (¶13) (Miss. Ct. App. 2012). Duncan filed a
fourth PCR motion, which was again dismissed by the circuit
court. This Court again affirmed the circuit court's
dismissal in Duncan v. State, 170 So.3d 579, 582
(¶11) (Miss. Ct. App. 2014), finding that the PCR motion
was both time-barred and successive-writ barred.
In November 2015, Duncan filed a fifth PCR motion in the
circuit court, alleging an illegal sentence and ineffective
assistance of counsel for the conspiracy and burglary
convictions. The motion was dismissed as both time-barred and
successive-writ barred. Duncan now appeals the dismissal of
his fifth PCR motion.