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Green v. State

Court of Appeals of Mississippi

December 12, 2017

ANTHONY GREEN A/K/A ANTHONY EARL GREEN A/K/A ANTHONY E. GREEN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/09/2017

         MARSHALL COUNTY CIRCUIT COURT, HON. ANDREW K. HOWORTH TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: ANTHONY GREEN (PRO SE).

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE.

          BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

          FAIR, J.

         ¶1. In 2008, Anthony Green pled guilty to two counts of murder and one count of grand larceny. He did so as part of a plea agreement where, in exchange for Green's guilty pleas, the State agreed not to pursue capital murder charges and to recommend concurrent life sentences on the murder charges and a consecutive sentence on the grand larceny charge that was below the maximum term of incarceration for that offense. In 2016, Green filed a motion for post-conviction relief attacking his murder convictions, contending that his indictment was defective and that his guilty plea was involuntary. The circuit court dismissed the motion as time-barred. We affirm.

         STANDARD OF REVIEW

         ¶2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶9) (Miss. 1999).

         ¶3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

         DISCUSSION

         ¶4. Green acknowledges that his motion was filed more than three years from the entry of the judgment of his conviction, so it was time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). Ordinarily, claims made outside of the three-year statute of limitations must raise one of the exceptions found in Mississippi Code Annotated section 99-39-5(2)(a)-(b). "The movant bears the burden of showing he has met a statutory exception." Bell v. State, 95 So.3d 760, 763 (¶10) (Miss. Ct. App. 2012) (reversed in part on other grounds) (citation omitted). Green does not argue that he meets any of the statutory exceptions; instead, he relies on the Mississippi Supreme Court's oft-cited holding that "errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act]." See Rowland v. State, 42 So.3d 503, 507 (¶12) (Miss. 2010). Since the applicability of the fundamental rights exception depends on the particular claim, we will address each of Green's contentions in turn.

         1. Sufficiency of the Indictment

         ¶5. Green argues that his indictment failed to allege an essential element on the capital murder counts because it failed to identify the victim of the underlying felonies - robbery in one and robbery and arson in the other. First of all, this issue is irrelevant because Green pled guilty to "simple" murder, which does not require an underlying offense. Green's indictments ...


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