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Hurns v. State

Supreme Court of Mississippi

September 11, 2019

VICTOR HURNS Petitioner
v.
STATE OF MISSISSIPPI Respondent

          ORDER

          JAMES D. MAXWELL II, JUSTICE

         Now before the en banc Court is Victor Hurns's "Successive Application/Motion for Postconviction Relief Under Miss. Code Ann. 99-39-5(1)(a)-(99-39-1)" and his "Motion to Amend P.C.R. to Supplement Arguments."

         This Court affirmed Hurns's murder conviction and life sentence, and the mandate issued in April 1993. Hurns v. State, 616 So.2d 313, 322 (Miss. 1993). Since then, he has filed at least thirteen applications for leave to seek post-conviction relief.

         In this application, Hurns raises four claims: (1) trial and appellate counsel rendered ineffective assistance; (2) the State failed to meet its burden of proof to show that he was the killer; (3) Dr. Steven Hayne's autopsy report and eyewitnesses' testimonies were inconsistent, which denied him a fair trial; and (4) the trial court plainly erred by granting Instruction S-5.

         After due consideration, we find the following.

         First, ineffective assistance of counsel can constitute an exception to the time, waiver, and successive-writ bars. Chapman v. State, 167 So.3d 1170, 1174-75 (Miss. 2015). See also Bevill v. State, 669 So.2d 14, 17 (Miss. 1996); Brown v. State, 187 So.3d 667, 671 (Miss. Ct. App. 2016). To warrant waiving those bars, however, the claim must have some arguable basis. Means v. State, 43 So.3d 438, 442 (Miss. 2010). We find Hurns's claim is insufficient to surmount the bars.

         Second, Hurns's remaining claims do not meet any recognized exception to the procedural bars. See Chapman, 167 So.3d at 1174-75; Smith v. State, 149 So.3d 1027, 1031-32 (Miss. 2014), overruled on other grounds by Pitchford v. State, 240 So.3d 1061 (Miss. 2017); Bell v. State, 123 So.3d 924, 925 (Miss. 2013); Rowland v. State, 98 So.3d 1032, 1035-36 (Miss. 2012), overruled on other grounds by Carson v. State, 212 So.3d 22 (Miss. 2016); see also Bevill, 669 So.2d at 17; Brown, 187 So.3d at 671. And even if they did constitute an exception, they lack any arguable basis to warrant waiving the bars. Means, 43 So.3d at 442.

         The order denying Hurns's last application said he has been sanctioned a total of $350. Order, Hurns v. State, No. 2018-M-00633 (Miss. July 26, 2018). The order also warned that "future filings deemed frivolous may result not only in additional monetary sanctions, but also restrictions on filing applications for post-conviction collateral relief (or pleadings in that nature) in forma pauperis." Id. We find that this filing is frivolous and that Hurns should be restricted from filing further applications for post-conviction collateral relief (or pleadings in that nature) that are related to this conviction and sentence in forma pauperis. See En Banc Order, Dunn v. State, No. 2016-M-01514 (Miss. Apr. 11, 2019).

         IT IS THEREFORE ORDERED the motion to amend is granted.

         IT IS FURTHER ORDERED the application is denied.

         IT IS FURTHER ORDERED Hurns is hereby restricted from filing further applications for post-conviction collateral relief (or pleadings in that nature) that are related to this conviction and sentence in forma pauperis. The Clerk of this Court shall not accept for filing any further applications for post-conviction collateral relief (or pleadings in that nature) from Hurns that are related to this conviction and sentence unless he pays the applicable docket fee.

         SO ORDERED.

          FOR THE COURT TO DENY WITH SANCTIONS: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, ...


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