OF JUDGMENT: 04/17/2017
FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT TRIAL JUDGE:
HON. M. JAMES CHANEY JR.
ATTORNEY FOR APPELLANT: JIMMY CULBERT (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BILLY L. GORE
IRVING, P.J., FAIR AND WESTBROOKS, JJ.
On September 10, 1997, Jimmy Culbert pled guilty to kidnaping
and sexual battery. He was sentenced to six years for the
kidnaping charge and thirty years for the sexual battery
charge, to run consecutively. The record contains a copy of
the transcript of the plea-qualification hearing. During the
hearing, Culbert testified that his pleas were freely and
voluntarily entered with a full awareness and understanding
of his rights.
In 1999, he began filing petitions for relief from the
conviction and sentence. His fifth petition for
post-conviction relief (PCR) is now before the Court. We
affirm its summary dismissal.
"When reviewing a trial court's denial or dismissal
of a motion for PCR, we will only disturb the trial
court's factual findings if they are clearly erroneous;
however, we review . . . legal conclusions under a de novo
standard of review." Chapman v. State, 167
So.3d 1170, 1172 (¶3) (Miss. 2015) (citation and
quotation omitted). We will affirm a summary dismissal of a
PCR motion if the movant fails to demonstrate "a claim
procedurally alive substantially showing the denial of a
state or federal right." Wilkerson v. State, 89
So.3d 610, 614 (¶7) (Miss. Ct. App. 2011).
Culbert claims that his sentence was illegal since he did not
benefit from the amended statute that followed his crime but
preceded his sentencing. Under the Uniform Post-Conviction
Collateral Relief Act (UPCCRA), a motion for relief following
a guilty plea is untimely unless filed within three years
after entry of the judgment of conviction. Watts v.
State, 97 So.3d 722, 725 (¶7) (Miss. Ct. App.
2012); see Miss. Code Ann. § 99-39-5(2) (Rev.
2015). The UPCCRA also bars PCR motions from our review if
the movant has filed a previous PCR motion. Miss. Code Ann.
§ 99-39-23(6) (Rev 2015). Culbert filed his latest PCR
motion nearly twenty years beyond the applicable three-year
limitations period. This is also his fifth attempt for
post-conviction relief. So his motion is obviously both
time-barred and successive-writ barred unless he can show an
exception to these procedural bars. See Bell v.
State, 95 So.3d 760, 763 (¶10) (Miss. Ct. App.
2012) (citation omitted).
"[E]rrors affecting fundamental constitutional rights
are excepted from the procedural bars of the UPCCRA."
Rowland v. State, 42 So.3d 503, 506 (¶9) (Miss.
2010). However, "the mere assertion of a constitutional
right violation" does not trigger the exception.
Wickerv. State, 16 So.3d 706, 708
(¶5) (Miss. Ct. App. 2009). "There must at least
appear to be some basis for the truth of the claim before the
limitation period will be waived." Ross v.State, 87 So.3d 1080, 1082 (¶8) ...