Deriera Magee v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CP-01121-COA

DERIERA MAGEE A/K/A DERIE’RA MAGEE APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/25/2013
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DERIERA MAGEE (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED - 12/09/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.

BARNES, J., FOR THE COURT:

¶1. On July 21, 2000, Deriera Magee pleaded guilty to possession of a controlled

substance in Cause No. K-2000-013P and was sentenced to fourteen years, with six years to

serve in the custody of the Mississippi Department of Corrections (MDOC) and eight years

of post-release supervision (PRS).

¶2. Subsequently, on May 17, 2001, Magee pleaded guilty to possession of a controlled

substance with intent to distribute in Cause No. K-2001-094E, and he was sentenced to

fifteen years. Five years were to be served in the custody of the MDOC, consecutively to his
prior six-year sentence; the remaining ten years were to be served on PRS concurrently with

the eight years of PRS already imposed.

¶3. Magee was discharged from MDOC’s custody on April 29, 2008, to begin serving his

two concurrent PRS terms. However, on March 27, 2009, Magee was arrested and charged

with possession of a controlled substance with intent to distribute. As a result, the Pearl

River County Circuit Court revoked Magee’s eight-year term of PRS (Cause No. K-2000-

013P) on July 21, 2009. Inexplicably, the record reflects that prior to the revocation, a field

officer had filed a “Petition for Termination of Post-Release” for Cause No. K-2001-094E

on May 19, 2009, stating that Magee “ha[d] met the conditions of his [PRS].” 1

¶4. On September 5, 2012, Magee filed a motion for post-conviction relief (PCR),

contending that the revocation of his PRS for the 2000 sentence violated his rights against

double jeopardy, false arrest, and false imprisonment. He also brought a claim for ineffective

assistance of counsel. The Pearl River County Circuit Court judge dismissed Magee’s PCR

motion as being procedurally time-barred under Mississippi Code Annotated section 99-39-

5(2) (Supp. 2012). The judge also noted that Magee failed to cite any authority to support

his arguments. Finding no error, we affirm.

STANDARD OF REVIEW

¶5. A PCR motion may be summarily dismissed by a circuit court without an evidentiary

1
The petition to terminate his PRS erroneously stated that Magee had seven years to
serve, with eight years of PRS for Cause No. K-2001-094E. However, despite his argument
to the contrary, this clerical error is not relevant to Magee’s PCR motion or appeal.

2
hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the

prior proceedings in the case that the movant is not entitled to any relief.” Miss. Code Ann.

§ 99-39-11(2) (Supp. 2014). “To succeed on appeal, the movant must: (1) make a

substantial showing of the denial of a state or federal right and (2) show that the claim is

procedurally alive.” Scott v. State, 141 So. 3d 34, 35 (¶2) (Miss. Ct. App. 2014) (citing

Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999)). Unless the circuit court’s decision

is “clearly erroneous,” we will not reverse its dismissal of a PCR motion. Ashmore v. State,

127 So. 3d 303, 305 (¶5) (Miss. Ct. App. 2013) (citing Means v. State, 43 So. 3d 438, 441

(¶6) (Miss. 2010)). “However, questions of law are reviewed de novo.” Id.

DISCUSSION

¶6. Mississippi Code Annotated section 99-39-5(1)(h) (Supp. 2014) states that a PCR

movant “may file a motion to vacate, set aside or correct the judgment . . . if the person

claims . . . .[t]hat his sentence has expired; his probation, parole or conditional release

unlawfully revoked; or he is otherwise unlawfully held in custody[.]” In the case of a guilty

plea, the failure to file a PCR motion “within three (3) years after entry of the judgment of

conviction” results in a procedural bar. Miss. Code Ann. § 99-39-5(2).2

2
Section 99-39-5(2) provides:

A motion for relief under this article shall be made within three (3) years after
the time in which the petitioner’s direct appeal is ruled upon by the Supreme
Court of Mississippi or, in case no appeal is taken, within three (3) years after
the time for taking an appeal from the judgment of conviction or sentence has
expired, or in case of a guilty plea, within three (3) years after entry of the
judgment of conviction.

3
¶7. However, section 99-39-5(2)(b) provides an exception from the time-bar for “those

cases in which the petitioner claims that his sentence has expired or his probation, parole or

conditional release has been unlawfully revoked.” (Emphasis added).3 Despite this clearly-

stated exception to the time limitation in the statute, the trial court ruled that Magee’s motion

was time-barred. The specially concurring opinion posits a theory under which the trial court

could be correct. The concurrence contends that there is no “specific statute of limitations

for unlawful-revocation claims”; therefore, Magee’s claim is statutorily time-barred under

Mississippi Code Annotated section 15-14-49 (Rev. 2012), the “catch-all” statute of

limitations. In a recent case, Fluker v. State, 2013-CP-00608-COA, 2014 WL 2723882, at

*4 (¶18) (Miss. Ct. App. June 17, 2014) (petition for certiorari filed Nov. 10, 2014), our

Court stated in dicta that the general statute of limitations of section 15-1-49 would be an

additional bar to Patrick Fluker’s PCR motion.4 However, upon a more thorough

(Emphasis added).
3
Other exceptions outlined in section 99-39-5(2) are those cases where “there has
been an intervening decision of the Supreme Court of either the State of Mississippi or the
United States which would have actually adversely affected the outcome of his conviction
or sentence[,]” cases where a petitioner “has evidence, not reasonably discoverable at the
time of trial, which is of such nature that it would be practically conclusive that had such
been introduced at trial it would have caused a different result in the conviction or
sentence[,]” and those cases where biological evidence, not previously tested, exists “that
would provide a reasonable likelihood of more probative results and that testing would
demonstrate by reasonable probability that the petitioner would not have been convicted or
would have received a lesser sentence if favorable results had been obtained through such
forensic DNA testing at the time of the original prosecution.”
4
“Dicta are statements ‘not necessary to the court’s ruling.’” Smith v. Normand
Children Diversified Class Trust, 122 So. 3d 1234, 1237 (¶5) (Miss. Ct. App. 2013) (quoting

4
examination, we find this analysis contrary to the letter and spirit of the Uniform Post-

Conviction Collateral Relief Act (UPCCRA).

¶8. Section 15-1-49 provides a general three-year statute of limitations for “all actions for

which no other period of limitation is prescribed[.]” Section 99-39-5(2), however, clearly

provides a three-year limitation for filing post-conviction motions (that is, motions “for relief

under this article” – Title 99, Chapter 39, Article 1, the Mississippi Uniform Post-Conviction

Collateral Relief Act). The fact that a specific exception was created for “those cases in

which the prisoner claims that . . . his probation, parole or conditional release has been

unlawfully revoked”does not mean that there is no “prescribed” limitation, but rather that the

Legislature, in its wisdom, has decided to except certain cases from the prescribed limitation.

¶9. The concurring opinion argues that were we to apply the exception in section 99-39-

5(2), it would provide Magee with “an unlimited amount of time to file his unlawful-

revocation claim”; however, we must presume that the Legislature considered such issues

when enacting the language of the UPCCRA. Section 99-39-3(1) of the UPCCRA states that

“[t]he purpose of this article is to revise, streamline and clarify the rules and statutes

pertaining to post-conviction collateral relief law and procedures . . . and to provide the

courts of the state with an exclusive and uniform procedure for the collateral review of

McKibben v. City of Jackson, 193 So. 2d 741, 745 (Miss. 1967)). The discussion regarding
any applicable time-bar and exception to Fluker’s PCR motion was not necessary to our
disposition in that case. The motion was a successive writ, and the issue in his motion had
already been raised in a 2007 (timely) PCR motion. Therefore, this Court had already
concluded that res judicata prevented the relitigation of the issue. Fluker, 2014 WL
2723882, at *3 (¶16).

5
convictions and sentences.” (Emphasis added). Applying section 15-1-49’s “catch-all”

limitation to circumvent the specific exceptions to the statute of limitation prescribed in

section 99-39-5(2) would violate the letter and spirit of the law, which is to provide an

“exclusive and uniform procedure” for the review of claims brought under the UPCCRA.

Furthermore, if we employ the concurring opinion’s rationale to other stated UPCCRA

exceptions, a prisoner who was being held in custody, even though his sentence had expired,

could not bring a motion three years after the expiration of his sentence, to challenge his

unlawful imprisonment; he would have to remain in custody indefinitely. Or, if intervening

authority would provide a prisoner relief from his conviction or sentence, he would be time-

barred after three years from the date of that “intervening authority,” even though the

authority “would have actually adversely affected the outcome of his conviction or

sentence[.]” Therefore, applying the general “catch-all” statute of limitations to a prisoner’s

claims would violate the spirit of the UPCCRA and the Legislature’s specific intention that

such claims should not be time-barred.

¶10. The Mississippi Supreme Court has explicitly stated: “The UPCCRA is unambiguous

as it relates to parole revocations. Indeed, it could not be more clear: it excepts claims of

unlawful parole revocation from its three-year limitations period.” Edmond v. Miss. Dep’t.

of Corr., 783 So. 2d 675, 678 (¶12) (Miss. 2001) (emphasis added). Additionally, this Court

has consistently held that “[a] post-conviction claim alleging unlawful revocation of

probation is not subject to the time[-]bar of section 99-39-5(2).” Leech v. State, 994 So. 2d

850, 853 (¶9) (Miss. Ct. App. 2008) (citing Daggans v. State, 741 So. 2d 1033, 1037 (¶12)

6
(Miss. Ct. App. 1999)). Accordingly, we find that Magee’s PCR motion is excepted from

the procedural time-bar. Nevertheless, we find no merit to the issues presented by Magee

upon review.

¶11. Here, the circuit court revoked Magee’s PRS for Cause No. K-2000-013P (eight

years).5 Magee claims that the circuit court’s revocation subjected him to double jeopardy,

false arrest, and unlawful imprisonment, as he had been effectively discharged from both

PRS sentences. Magee is evidently under the impression that since a petition to terminate

his PRS for his 2001 conviction (Cause No. K-2001-094E) was filed with the circuit court,

he was also no longer serving his eight years of PRS for the 2000 conviction. However, he

has provided no evidence to support this claim. If an appellant does not support his

allegations of error with any argument or authority, an appellate court “need not consider the

issue.” Small v. State, 141 So. 3d 61, 69 (¶26) (Miss. Ct. App. 2014) (citing Jordan v. State,

995 So. 2d 94, 103 (¶14) (Miss. 2008)). Nothing in the record indicates Magee had been

released from his eight years of PRS under Cause No. K-2000-013P. Therefore, we cannot

find that his PRS was “unlawfully revoked.” 6

¶12. Consequently, we also find no merit to Magee’s ineffective-assistance-of-counsel

5
There is only one page from the revocation transcript in the record, but the circuit
judge specifically stated that he was revoking the eight-year PRS term.
6
Moreover, a circuit court’s reinstatement of a “suspended sentence first levied upon
the defendant is proper and is not in violation of the [D]ouble [J]eopardy [C]lause” unless
it is for a longer term than the original sentence. Brunson v. State, 796 So. 2d 284, 287-88
(¶14) (Miss. Ct. App. 2001).

7
claim pertaining to his counsel’s failure to provide the circuit court with his the petition for

the termination of PRS for the 2001 conviction. “A petitioner must produce ‘more than

conclusory allegations on a claim of ineffective assistance of counsel.’” McCray v. State,

107 So. 3d 1042, 1045 (¶12) (Miss. Ct. App. 2012) (quoting Carpenter v. State, 899 So. 2d

916, 921 (¶23) (Miss. Ct. App. 2005)).

¶13. As Magee has not shown he is entitled to any relief, we affirm the circuit court’s

dismissal of his PCR motion.

¶14. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO PEARL RIVER COUNTY.

LEE, C.J., IRVING, P.J., ISHEE AND CARLTON, JJ., CONCUR. ROBERTS,
J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY
GRIFFIS, P.J., MAXWELL AND FAIR, JJ. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.

ROBERTS, J., SPECIALLY CONCURRING:

¶15. I write separately because I find that Magee’s motion for post-conviction relief (PCR)

was untimely. On September 5, 2012, Magee filed a PCR motion and claimed that the Pearl

River County Circuit Court unlawfully revoked his post-release supervision on July 21, 2009.

Because Magee’s claim is based on the allegation that his post-release supervision was

unlawfully revoked, the three-year time limit for filing a PCR motion does not apply. Miss.

Code Ann. § 99-39-5(2) (Supp. 2014). But that does not mean that Magee had an unlimited

amount of time to file his unlawful-revocation claim.

¶16. A PCR motion “shall be filed as an original civil action.” Miss. Code Ann. § 99-39-7

8
(Supp. 2014). No Mississippi statute provides a specific statute of limitations for unlawful-

revocation claims. This Court recently held that the catch-all statute of limitations set forth

in Mississippi Code Annotated section 15-1-49(1) (Rev. 2012) applies to unlawful-

revocation claims. Fluker v. State, 2013-CP-00608-COA (¶18) (Miss. Ct. App. 2014). In

Fluker, this Court held:

Section 99-39-5(2) does not allow an unlimited period of time for Fluker to file
for post-conviction collateral relief. Section 99-39-5(2) specifically reads
“[e]xcepted from this three-year statute of limitations,” and this refers to the
three-year time-bar of section 99-39-5(2). It does not provide Fluker an
exception to the three-year statute of limitations in Mississippi Code
Annotated section 15-1-49 (Rev. 2012). Otherwise, any prisoner who claims
that his conditional release has been unlawfully revoked has no statute of
limitations and can bring his claims decades after his revocation. Such is not
the case.

Id. The majority does not overrule Fluker. Instead, it describes the time-bar rationale in that

case as “dicta.” That there were two equally applicable rationales for the outcome of that

case does not mean that one or the other qualifies as dicta.

¶17. Section 15-1-49(1) states that “[a]ll actions for which no other period of limitation is

prescribed shall be commenced within three (3) years next after the cause of such action

accrued, and not after.” The circuit court revoked Magee’s post-release supervision on July

21, 2009. Magee’s unlawful-revocation claim accrued on that day. He had three years from

that date to file his claim. Because Magee raised his unlawful-revocation claim in the PCR

motion that he filed on September 5, 2012, his claim was untimely. It is appropriate to

summarily dismiss an untimely PCR motion. Jones v. State, 700 So. 2d 631, 633 (¶6) (Miss.

1997). The circuit court mistakenly found that Magee’s PCR motion was untimely under

9
section 99-39-5(2) instead of section 15-1-49(1), but the circuit court reached the right result.

I would end the analysis here.

¶18. With utmost respect, I disagree with the majority’s conclusion that the application of

the catch-all statute of limitations conflicts with the spirit of the Uniform Post-Conviction

Collateral Relief Act (UPCCRA). I believe it conforms with that spirit. Through section 99-

39-5(2), the overwhelming majority of PCR petitioners have a limited amount of time – three

years from a certain triggering event – to file a collateral attack on their convictions or

sentences. But unlawful-revocation claims almost always arise well after three years from

the date of conviction or an appellate court’s decision to affirm a prisoner’s direct appeal.7

It follows that PCR petitioners who raise unlawful-revocation claims cannot be expected to

advance them before the event that triggers them occurs. Even so, no language within the

UPCCRA indicates that the Legislature did not intend for us to apply the catch-all statute of

limitations that it has enacted. It is illogical to suggest that the vast majority of PCR claims

have limited lifetimes, but unlawful-revocation claims are immortal.

¶19. Public policy supports the concept that prisoners have a limited but reasonable amount

of time to raise unlawful-revocation claims. Witnesses, attorneys, judges, court reporters,

7
For example, assume a prisoner pled guilty to manslaughter, and he was sentenced
to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with
five years suspended and fifteen years to serve, followed by five years of post-release
supervision. If he is discharged from MDOC custody and his post-release supervision is
revoked sixteen years after he pled guilty, it would be completely nonsensical to expect him
to have filed his unlawful-revocation claim within three years of his judgment of conviction
for manslaughter. Otherwise, his claim would have expired approximately thirteen years
before it arose.

10
and other essential participants in the revocation process eventually move, quit their jobs, die,

or otherwise become unavailable. Records become lost or misplaced, transcripts become

unobtainable, and memories fade. As the Mississippi Supreme Court has stated:

The primary purpose of statutory time limitations is to compel the exercise of
a right of action within a reasonable time. These statutes are founded upon the
general experience of society that valid claims will be promptly pursued and
not allowed to remain neglected. They are designed to suppress assertion of
false and stale claims, when evidence has been lost, memories have faded,
witnesses are unavailable, or facts are incapable of production because of the
lapse of time.

Cole v. State, 608 So. 2d 1313, 1317 (Miss. 1992). “It is a well-settled principle that a state

may attach reasonable time limitations to the assertion of . . . constitutional rights.” Id. at

1319. “Furthermore, statutes of limitations speak to matters of remedy and procedure, rather

than the destruction of fundamental rights.” Id. “While it is important that one convicted of

[a] crime in violation of constitutional principles should be a[ff]orded relief, it is also

important that reasonable diligence be required in order that litigation may one day be at an

end.” Id. at 1320. A reasonable statute of limitations “guards the state’s legitimate

expectation that it will not be called upon without due cause, to defend the integrity of

convictions that occurred many years ago, where records and witnesses are no longer

available.” Id. The same rationale applies to unlawful-revocation claims.

¶20. The majority expresses concern that a prisoner may be held indefinitely with no

remedy if he is held more than three years after his sentence has expired. Although such a

scenario seems highly unlikely, under those circumstances, a prisoner could still file for a

writ of habeas corpus. The UPCCRA did not abolish writs of habeas corpus under Article

11
III, Section 21 of the Mississippi Constitution. Carson v. Hargett, 689 So. 2d 753, 755

(Miss. 1996). Mississippi Code Annotated section 99-39-3(1) (Supp. 2014) states that the

UPCCRA is the “exclusive and uniform procedure for the collateral review of convictions

and sentences.” Depending on the scenario, a prisoner’s claim that he is being held after his

sentence has expired would not be a collateral attack on the validity of his conviction or

sentence. Instead, it would be based on his continued allegedly illegal confinement.

¶21. To summarize, I respectfully disagree with the majority’s conclusion that no statute

of limitations applies to unlawful-revocation claims. I find that the catch-all statute of

limitations applies. Notwithstanding my collegial difference of opinion in that regard, I agree

with the majority’s decision to affirm the circuit court’s judgment summarily dismissing

Magee’s PCR motion. I simply take a slightly different path to reach the same destination.

GRIFFIS, P.J., MAXWELL AND FAIR, JJ., JOIN THIS OPINION.

12