HOWARD HAYS A/K/A HOWARD THURMAN HAYS JR. A/K/A HOWARD HAYES JR.APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 02/20/2018
LEFLORE COUNTY CIRCUIT COURT HON. MARGARET CAREY-McCRAY JUDGE
ATTORNEY FOR APPELLANT: HOWARD HAYS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BILLY L. GORE
CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
Howard Hays appeals from the dismissal of his second motion
for post-conviction relief (PCR). Agreeing with the circuit
court that Hays's second PCR motion is barred as
successive, we affirm.
AND PROCEDURAL HISTORY
In 2015, Howard Hays pled guilty to one count of commercial
burglary (Count I) and one count of auto theft (Count II).
The circuit court sentenced Hays to serve seven years, day
for day, as a non-violent habitual offender for Count I and
five years, day for day, as a nonviolent habitual offender
for Count II. The circuit court also ordered that Hays's
sentences run consecutively.
In March 2016, Hays filed his first PCR motion in the circuit
court, asserting (1) ineffective assistance of counsel, (2)
failure to provide a timely initial appearance, (3) that the
State unlawfully detained him for more than 180 days without
a formal charge, and (4) that the State charged him with
grand larceny based upon an affidavit for petit
larceny. In July 2017, the circuit court summarily
denied Hays's PCR motion, finding it was not well taken.
Hays did not file a timely notice of appeal.
Nonetheless, in September 2017, Hays filed a second PCR
motion, making the same and additional assertions. The
circuit court summarily dismissed Hays's second PCR
motion, finding it was barred as an impermissible successive
writ. Hays now appeals.
"When reviewing a circuit court's denial or
dismissal of a PCR motion, we will reverse the judgment of
the circuit court only if its factual findings are clearly
erroneous; however, we review the circuit court's legal
conclusions under a de novo standard of review."
Gunn v. State, 248 So.3d 937, 941 (¶15) (Miss.
Ct. App. 2018) (quoting Berry v. State, 230 So.3d
360, 362 (¶3) (Miss. Ct. App. 2017)).
"Under Mississippi's Uniform Post-Conviction
Collateral Relief Act (UPCCRA), any order denying or
dismissing a PCR motion is a bar to a second or successive
PCR motion." Evans v. State, 115 So.3d 879, 880
(¶2) (Miss. Ct. App. 2013); see also Miss. Code
Ann. § 99-39-23(6) (Rev. 2015). On appeal, Hays does not
dispute that his claim is procedurally barred. Instead, Hays
raises a number of issues regarding his constitutional
rights. Hays asserts that (1) he was denied a timely initial
appearance; (2) he received ineffective assistance of
counsel; (3) he was denied his right to cross-examine
witnesses; (4) he was prosecuted on a defective indictment;
(5) he was convicted under an unconstitutional statute; (6)
he was ordered to serve an illegal sentence; (7) his Fourth
Amendment rights were violated; (8) the State used fraudulent
warrants for his arrest; (9) his Fourteenth Amendment rights
were violated; and (10) his sentence must be vacated.
Errors affecting certain fundamental rights are excepted from
PCR procedural bars. Carter v. State, 203 So.3d 730,
731 (¶7) (Miss. Ct. App. 2016). "[F]our types of
'fundamental rights' have been expressly found to
survive PCR 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." Green v.
State, 235 So.3d 1438, 1440 (¶9) (Miss. Ct. App.
2017) (quoting Salter v. State, 184 So.3d 944, 950
(¶22) (Miss. Ct. App. 2015)). But "mere assertions
of constitutional-rights violations do not suffice to
overcome the procedural bar." White v. State,
59 So.3d 633, 636 (¶11) (Miss. Ct. App. 2011) (citing
Chandler v. State, 44 So.3d 442, 444 (¶8)
(Miss. Ct. App. 2010)). "There must at least appear to
be some basis for the truth of the claim before the
procedural bar will be waived." Id. Further,