IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI OTTIS J. CUMMINGS, JR. NO CP COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Apr :33: CP COA Pages: 8 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI OTTIS J. CUMMINGS, JR. APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: ABBIE E. KOONCE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE ISSUE STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT ARGUMENT Issue I: Cummings post-conviction relief motion is procedurally barred CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES STATE CASES Boyd v. State, 155 So.3d 914 (Miss. Ct. App. 2014) Cummings v. State, 29 So.3d 859 (Miss. Ct. App. 2010) Cummings v. State, 130 So.3d 129 (Miss. Ct. App. 2013).... 2, 3, 4 Dobbs v. State, 18 So.3d 295 (Miss. Ct. App. 2009)... 3 Rowland v. State, 42 So.3d 503 (Miss. 2010)... 2 Wallace v. State, 180 So.3d 767 (Miss. Ct. App. 2015) STATE STATUTES Miss. Code Ann (2008) Miss. Code Ann (2) Miss. Code Ann (6) ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI OTTIS J. CUMMINGS, JR. APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE ISSUE Issue I: Whether Cummings post-conviction relief motion is procedurally barred? STATEMENT OF THE CASE This appeal proceeds from the Choctaw County Circuit Court s denial of Ottis J. Cummings, Jr. s ( Cummings ) third motion for post-conviction collateral relief. On July 6, 2015, Cummings filed a Petition for a State Writ of Habeas Corpus, Pursuant to Miss. Code Ann (2008) Illegal Sentence/Wrongful Incarceration. (CP 4) Treating Cummings petition as a motion for postconviction collateral relief, the Honorable Joseph H. Loper, Jr., Circuit Judge, presiding, denied the petition on September 10, 2015, finding that it was successive-writ barred, time-barred, and barred by the doctrine of res judicata since Cummings last motion for post-conviction collateral relief raised identical issues. (CP 66-69) Cummings appealed on September 21, (CP 72) Cummings pleaded guilty in 1979 to burglary of a dwelling and aggravated assault. After serving out his sentence for those crimes, he was convicted in 2009 of a sixth felony driving under the influence charge. He was sentenced to life in prison without the possibility of parole as a habitual offender due to his 1979 convictions. See Cummings v. State, 29 So.3d 859 (Miss. Ct. App. 2010). He then filed two post-conviction relief motions, which were consolidated and then denied by the 1

5 trial court. This Court affirmed the trial court s denial on appeal. See Cummings v. State, 130 So.3d 129 (Miss. Ct. App. 2013). SUMMARY OF THE ARGUMENT Cummings current motion for post-conviction relief, styled as a petition for writ of habeas corpus, raises identical issues to those that have already been adjudicated by this Court on appeal. Cummings petition is successive-writ and time-barred, as well as barred by res judicata. He provides no actual evidence that he meets an exception to any of the procedural bars. Thus, the circuit court was correct in denying him post-conviction collateral relief. ARGUMENT Issue I: Cummings post-conviction relief motion is procedurally barred. On appeal, Cummings raises six issues surrounding his 1979 conviction for burglary and aggravated assault illegal sentence, denial of due process, substantive/fatal defective indictment, lack of subject matter jurisdiction, involuntary guilty plea, and ineffective assistance of counsel. These are essentially the exact same issues that he raised in his prior post-conviction relief motions that were addressed by this Court on appeal. Cummings, 130 So.3d at 131 ( 3). Cummings current petition should be considered time-barred, successive-writ barred and barred by the doctrine of res judicata, just as the trial court found. A motion for post-conviction relief should be made [i]n case of a guilty plea, within three (3) years after entry of the judgment of conviction. Miss. Code Ann (2). Cummings does not meet, nor does he claim to meet, any of the statutory exceptions to the time bar listed in section Instead, he argues that he meets the fundamental rights exception first introduced by Rowland v. State, 42 So.3d 503, 508 ( 16) (Miss. 2010). However, merely asserting a constitutional right violation is not sufficient to overcome the time bar. There must at least appear to be some basis 2

6 for the truth of the claim before the [procedural bar] will be waived. Cummings, 130 So.3d at 132 (internal quotations and citations omitted). This Court has held that: The Mississippi Uniform Post-Conviction Collateral Relief Act delivers a clear message regarding successive post-conviction relief writs. An order denying a motion for post-conviction relief is considered a final judgment and a bar to a second or successive motion. Essentially, an appellant is granted one bite at the apple when requesting post-conviction relief. Dobbs v. State, 18 So.3d 295, 298 (Miss. Ct. App. 2009) (internal citations omitted) (emphasis added). Mississippi Code Annotated Section (6) provides for limited exceptions to this successive-writ bar and Cummings does not raise any of them. Cummings earlier motion for postconviction relief, which was denied by the trial court and upheld by this Court, acts as a bar to his current motion for post-conviction relief. In addition to the two procedural bars discussed above, Cummings current motion should be barred by the doctrine of res judicata because he essentially raises the same issues that he did in his first motion. Mississippi Code Annotated Section (3) provides that, [t]he doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal. Since this Court in Cummings v. State, 130 So.3d 129 (Miss. Ct. App. 2013), addressed the same claims that Cummings now makes and affirmed the trial court s denial of his motion for postconviction relief, Cummings current claims are barred by the doctrine of res judicata. See Wallace v. State, 180 So.3d 767, 769 ( 8) (Miss. Ct. App. 2015). In Mississippi, since Rowland, only four types of fundamental rights have been expressly found to survive PCR procedural bars: (1) double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims. Boyd v. State, 155 So.3d 914, 918 (Miss. Ct. App. 2014). Cummings currently makes no showing that any violations of these fundamental rights 3

7 occurred over thirty years ago and this Court found no violations during his last appeal. Cummings, 130 So.3d at As a result, the trial court properly dismissed his latest motion for postconviction relief. CONCLUSION For the foregoing reasons, the State of Mississippi respectfully requests this Honorable Court to affirm the denial of Ottis J. Cummings, Jr. s post-conviction collateral relief motion. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) BY: /s/ Abbie E. Koonce ABBIE E. KOONCE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

8 CERTIFICATE OF SERVICE I, ABBIE E. KOONCE, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 8th day of April, Honorable Joseph H. Loper, Jr. Circuit Court Judge P.O. Box 616 Ackerman, MS Honorable Doug Evans District Attorney P.O. Box 1262 Grenada, MS Ottis J. Cummings, Pro Se, #33844 SMCI P.O. Box 1419 Leakesville, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Abbie E. Koonce ABBIE E. KOONCE SPECIAL ASSISTANT ATTORNEY GENERAL 5