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Hays v. State

Court of Appeals of Mississippi

August 13, 2019

HOWARD HAYS A/K/A HOWARD THURMAN HAYS JR. A/K/A HOWARD HAYES JR.APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE 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

          BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.

          C. WILSON, J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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.

         ¶3. 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.[1] 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.[2]

         ¶4. 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.

         STANDARD OF REVIEW

         ¶5. "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)).

         DISCUSSION

         ¶6. "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.

         ¶7. 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, "the ...


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