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Kennedy v. State

Court of Appeals of Mississippi

March 26, 2019

ERIC DENORRIS KENNEDY A/K/A ERIC D. KENNEDY A/K/A ERIC KENNEDY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/15/2016

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WINSTON L. KIDD

          ATTORNEY FOR APPELLANT: ERIC DENORRIS KENNEDY (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

         EN BANC.

          CARLTON, P.J.

         ¶1. Eric Kennedy appeals the Hinds County Circuit Court's denial of his motion for postconviction relief (PCR). After our review, we find Kennedy's PCR motion time-barred and successive-writ barred. We therefore affirm the circuit court's denial of Kennedy's PCR motion.

         FACTS

         ¶2. In 1997, a Hinds County grand jury indicted Kennedy and Nakiea Sutton for capital murder, in violation of Mississippi Code Annotated section 97-3-19(2) (Rev. 1994), stemming from the burglary and subsequent murder of Thomas Ward.

         ¶3. On June 10, 1998, Kennedy entered a guilty plea to the lesser-included offense of murder. The record reflects that in exchange for Kennedy's pleading guilty, the State recommended that Kennedy receive a sentence of life in prison. The plea petition reflects that the State also agreed not to seek adjudication of Kennedy's guilt in another matter that was then pending. After a plea hearing, the circuit court accepted Kennedy's guilty plea and sentenced Kennedy to serve life in the custody of the Mississippi Department of Corrections.

         ¶4. The record reflects that Kennedy filed his first PCR motion in 1998 and a second PCR motion in 2001. In 2002, the circuit court entered an order denying Kennedy's PCR motion.

         ¶5. On December 16, 2013, Kennedy filed a third PCR petition. On June 25, 2014, Kennedy filed a petition for a writ of mandamus in the Mississippi Supreme Court requesting that the supreme court compel the circuit court to rule on Kennedy's PCR motion. The mandamus case was assigned case number 2014-M-00851-SCT. On August 29, 2014, the circuit court signed an order denying Kennedy's PCR motion after finding that "the motion has no merit," but the circuit court failed to file and enter the order onto the circuit court's docket at that time. (In fact, the order denying his PCR motion was actually not entered until October 13, 2015.) In finding that the circuit court had ruled, the supreme court subsequently entered an order on November 5, 2014, dismissing Kennedy's petition for a writ of mandamus as moot.

         ¶6. On November 18, 2014, Kennedy filed a motion asking the supreme court to impose sanctions on the circuit court for not providing him a copy of its August 29, 2014 order denying his PCR motion within the time allowed for him to file an appeal. Kennedy claimed that this prevented his filing a timely appeal from the circuit court's denial of his PCR motion. Kennedy also requested that the supreme court treat his June 25, 2014 petition for a writ of mandamus as a notice of appeal or mandate that the circuit court reopen his time to appeal.

         ¶7. That same day, Kennedy also filed a notice of appeal from the circuit court's denial of his PCR motion, as well as a motion for an out-of-time appeal. Kennedy claimed that he never received a copy of the circuit court's August 29, 2014 order denying his PCR motion. When the circuit court failed to rule on his motion for an out-of-time appeal, Kennedy filed another petition for a writ of mandamus with the supreme court seeking to compel a ruling.

         ¶8. On June 9, 2015, the supreme court entered an order dismissing Kennedy's November 18, 2014 motion to impose sanctions on the circuit court. The supreme court explained as follows:

Rule 4(h) of the Mississippi Rules of Appellate Procedure allow[s] a party such as Kennedy to request the relief he now seeks directly from the [circuit] court. Kennedy has failed to show that he made such a request of the [circuit] court. Accordingly, we find that the matter is not properly before this Court and it should be dismissed to be re-filed in the [circuit] court.

         ¶9. On March 15, 2016, the circuit court entered an order denying Kennedy's November 18, 2014 motion to reopen the time to file a notice of appeal, and the supreme court dismissed that mandamus petition as moot on March 29, 2016.

         ¶10. On April 13, 2016, Kennedy filed a motion that he titled "Motion for Rehearing and Also Petition to Treat Filed Petition for Interlocutory Appeal as Direct Appeal." Kennedy also provided the docket from the circuit court showing that the order dated August 29, 2014, which denied his PCR motion, was not entered on the docket for more than thirteen months after it had been signed and stamped. As stated, the order denying Kennedy's PCR motion was not filed and entered until October 13, 2015.

         ¶11. The supreme court treated Kennedy's "Motion for Rehearing and Also Petition to Treat Filed Petition for Interlocutory Appeal as Direct Appeal" as a motion to reconsider his original mandamus petition in case number 2014-M-00851-SCT. A panel of the supreme court entered an order on May 25, 2016, holding that Kennedy timely had perfected an appeal of the order denying his second PCR motion because the order dated August 29, 2014, had not been filed and docketed until October 13, 2015. Per the instruction of the supreme court in Kennedy v. State, No. 2016-CT-00755-SCT, 2018 WL 4658354, at *3 (Miss. Sept. 27, 2018), we will address the merits of the circuit court's denial of Kennedy's December 16, 2013 PCR motion.

         STANDARD OF REVIEW

         ¶12. "We review the dismissal or denial of a PCR motion for abuse of discretion. We will only reverse if the [circuit] court's decision is clearly erroneous. When reviewing questions of law, our standard is de novo." Ware v. State, 258 So.3d 315, 317-18 (¶7) (Miss. Ct. App. 2018) (quoting Hughes v. State, 106 So.3d 836, 838 (¶4) (Miss. Ct. App. 2012)).

         DISCUSSION

         ¶13. As stated, Kennedy filed his first PCR motion on November 30, 1998.[1] In his motion, Kennedy asserted the following issues: (1) his plea was involuntary because his attorney told Kennedy if he pleaded guilty, he would receive a lesser sentence of life with eligibility for parole; (2) he was denied effective assistance of counsel because his attorney failed to conduct an independent investigation; (3) his attorney "is a liar," forced Kennedy to lie about his involvement in the crime, and promised him that if he went to trial, he would receive the death penalty; and (4) his attorney failed to inform him that he could petition the circuit court to reconsider his guilty plea on the basis that "he was not in [his] right mind to sign a plea agreement." The cause number listed on this first PCR motion is 97-3-218-02JEG.

         ¶14. Kennedy also filed several subsequent motions in the circuit court, including a second PCR motion. In this second PCR motion, filed on April 16, 2001, Kennedy argued the following issues: (1) he was denied effective assistance of counsel because his attorney failed to conduct an independent investigation; (2) the statute under which he was convicted was unconstitutionally applied during his sentencing; (3) he could show actual innocence through an alibi witness, eyewitness, and expert witness; (4) the circuit court lacked jurisdiction to impose a life sentence upon him without a jury; and (5) he was entitled to an evidentiary hearing due to alleged recanted testimony of Sutton, his co-indictee. The cause number listed on this second PCR motion is 251-98-1215.

         ¶15. On December 3, 2002, the circuit court entered an order denying Kennedy's PCR motion. The cause number listed on the order is 251-98-1215, which is the same cause number on Kennedy's second PCR motion. In its order, the circuit court found that "it plainly appearing from the motions, exhibits, and prior pleadings in the cases that [Kennedy] is not entitled to the relief requested and the motion should be dismissed."

         ¶16. On December 16, 2013, Kennedy filed a third PCR motion, arguing as follows: (1) Mississippi Code Annotated section 97-3-21 (Rev. 1994) and Mississippi Code Annotated section 47-7-3 (Supp. 1997) are void for vagueness because the statutes failed to inform Kennedy of "what type of specific life sentence he would serve"; (2) the Legislature's 2013 revision of section 97-3-21 qualifies as an "intervening decision" pursuant to the Uniform Post-Conviction Collateral Relief Act (UPPCRA); (3) he is entitled to an evidentiary hearing to determine the validity of his co-indictee's alleged recanted testimony; and (4) actual innocence. In the circuit court's order (dated August 29, 2014, and filed October 13, 2015) denying Kennedy's PCR motion, the circuit court held: "The [c]ourt, having reviewed this matter, and being otherwise thoroughly advised in the premises, is of the opinion that the motion ...


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