DAVID R. GRAY Petitioner
STATE OF MISSISSIPPI Respondent
D. MAXWELL II, JUSTICE
the Court is David Gray's Application for Leave to
Proceed in the Trial Court. Gray was convicted of capital
murder and sentenced to life as an habitual offender.
Gray v. State, 472 So.2d 409 (Miss. 1985). This is
his first application for post-conviction relief. Because his
conviction and sentence were affirmed more than thirty years
prior to his filing, Gray's claim is time-barred.
extent Gray argues he is serving an illegal sentence-a claim
that is excepted from the time bar-his claim lacks merit.
Gray asserts his indictment did not properly notify him of
the prior convictions that formed the basis of his
habitual-offender status. But the list of prior convictions
attached to his indictment included all the information
required under Uniform Rule of Circuit and County Court 12.03
and clearly "suppl[ied] enough information to [Gray] to
identify with certainty the prior convictions relief upon by
the State for enhanced punishment." Mcllwain v.
State, 700 So.2d 586, 589 (Miss. 1997). Further, a life
sentence was the only sentencing option for his
non-death-penalty capital-murder conviction, regardless of
whether Gray was a habitual offender under Mississippi Code
Section 99-19-81 or Mississippi Code Section 99-19-83. Thus,
it is immaterial that the indictment did not mention Gray had
served a year or more on his separate prior
life sentence is clearly legal. Therefore, the application
for post-conviction relief should be denied.
THEREFORE ORDERED that David Gray's Application for Leave
to Proceed in the Trial Court is hereby denied.
WALLER, C.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.
COLEMAN, J., AGREES IN RESULT ONLY WITHOUT SEPARATE WRITTEN
KITCHENS, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN
STATEMENT JOINED BY KING, P.J.
KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH
SEPARATE WRITTEN STATEMENT:
Today's order mischaracterizes David Gray's claim by
stating, "Gray asserts his indictment did not properly
notify him of the prior convictions that formed the basis of
his habitual-offender status." I agree that there is no
apparent deficiency in that aspect of the indictment. But
that is not what Gray claims. What Gray actually does claim
is that he "never [was] indicted as a[n] habitual
offender . . . ." Because it is true that the State
never indicted Gray as an habitual offender, I would grant
his application for leave to proceed in the trial court for
Gray argues he is serving an illegal sentence, a claim exempt
from the time bar. Rowland v. State, 42 So.3d 503,
507 (¶ 12) (Miss. 2010). His argument is based on the
State's failure to indict him as an habitual offender.
Gray was convicted of capital murder, then was sentenced
under Mississippi Code Section 99-19-83 (Supp.
1981). Incorporated by reference, a list of