OF JUDGMENT: 02/20/2018
HARRISON COUNTY CIRCUIT COURT, HON. ROGER T. CLARK TRIAL
ATTORNEY FOR APPELLANT: KEITH LA'DALE PORTER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KATY TAYLOR GERBER
IRVING, P.J., CARLTON AND FAIR, JJ.
Keith Porter pleaded guilty to armed robbery and unlawful
possession of a firearm by a convicted felon. For his
armed-robbery conviction, the court sentenced him to
twenty-five years, with twenty years suspended and five years
to serve, in the custody of the Mississippi Department of
Corrections (MDOC). As for the
unlawful-possession-of-a-firearm conviction, the court
sentenced him, as a habitual offender, to serve ten years in
the custody of the MDOC. The circuit court also sentenced
Porter to five years of post-release supervision and ordered
his sentences to run consecutively. ¶2. Since his
conviction, Porter has filed four motions for post-conviction
relief (PCR). In his fourth PCR motion-the subject of this
appeal-he attacks his guilty plea to possession of a firearm
as a convicted felon. Finding the petition successive-writ
barred, the circuit court dismissed the petition without an
evidentiary hearing. Porter now appeals. Finding no error in
the circuit court's dismissal, we affirm.
A 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). And "this [C]ourt will affirm the summary
dismissal of a PCR motion if the movant fails to demonstrate
a claim is procedurally alive substantially showing the
denial of a state or federal right." Pinkney v.
State, 192 So.3d 337, 341-42 (¶13) (Miss. Ct. App.
2015) (internal quotation marks omitted).
"[T]he right to an evidentiary hearing is not
guaranteed." Id. at 341 (¶12). "A
[circuit] court enjoys wide discretion in determining whether
to grant an evidentiary hearing." Id.
To determine whether the circuit court erred in summarily
dismissing Porter's petition, this Court must look to the
merits of the petition. Under the Uniform Post-Conviction
Collateral Relief Act (UPCCRA), the dismissal of a PCR motion
is a final judgment and acts as a bar to a second, or
successive, motion raising the same issue or issues. Miss.
Code Ann. § 99-39-23(6) (Rev. 2015). "Essentially,
[a movant] is granted one bite at the apple when requesting
post-conviction relief." Dobbs v. State, 18
So.3d 295, 298 (¶9) (Miss. Ct. App. 2009). Because
Porter previously filed two PCR motions attacking his guilty
plea to possession of a firearm as a convicted felon, his
current claim is successive-writ barred.
We acknowledge that "errors affecting fundamental
constitutional rights are excepted from the procedural bars
of the UPCCRA." Rowland v. State, 42 So.3d 503,
507 (¶12) (Miss. 2010). "Only four
fundamental-rights exceptions have been expressly found to
survive procedural bars: (1) the right against double
jeopardy; (2) the right to be free from an illegal sentence;
(3) the right to due process at sentencing; and (4) the right
not to be subject to ex post facto laws." Carter v.
State, 203 So.3d 730, 731 (¶7) (Miss. Ct. App.
2016) (internal quotation mark omitted). The Mississippi
Supreme Court has clarified that "merely asserting a
constitutional-right violation is insufficient to overcome
the procedural bars." Fluker v. State, 170
So.3d 471, 475 (¶11) (Miss. 2015). Additionally,
"there must at least appear to be some basis for the
truth of the claim of a fundamental-constitutional-rights
violation." Evans v. State, 115 So.3d 879, 881
(¶3) (Miss. Ct. App. 2013) (internal quotation marks
Porter's claims do not implicate any
fundamental-constitutional-rights violations. Thus, the
circuit court did not abuse its ...