IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CP-00542-COA
VINCENT YOUNG A/K/A VINCENT EDWARD APPELLANT
YOUNG A/K/A VINCENT E. YOUNG
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/05/2016
TRIAL JUDGE: HON. JOHN KELLY LUTHER
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: VINCENT YOUNG (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOSEPH SCOTT HEMLEBEN
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED: 10/03/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
FAIR, J., FOR THE COURT:
¶1. In 1990, Vincent Young pled guilty to armed robbery. In exchange for joining the
State’s recommendation that he receive a life sentence, the prosecution dropped an
aggravated assault count and agreed not to prosecute Young as a habitual offender on the
armed robbery charge. The circuit court followed the agreed recommendation and sentenced
Young to life imprisonment under Mississippi Code Annotated section 97-3-79.
¶2. Now, more than twenty-five years later, Young has filed a motion for post-conviction
relief, claiming that his sentence was illegal because under the prevailing interpretation of
the statute at the time of his offense, only a jury could sentence him to life imprisonment for
armed robbery. The Mississippi Supreme Court recently abandoned that interpretation of the
statute’s operative language, holding that statutes which permit the trial court to sentence a
defendant to “any term” of incarceration include life sentences. Bester v. State, 188 So. 3d
526, 529-30 (¶¶7-10) (Miss. 2016). The circuit court dismissed Young’s petition, finding it
both time-barred and without merit under Bester. On appeal, Young acknowledges that his
sentence is legal in light of Bester, but he contends that applying Bester’s holding to him
amounts to an ex post facto law. We find that Young waived his right to challenge his
sentence by joining the State’s recommendation. We also conclude that Young’s sentence
was legal under Bester and that Bester did not violate the Ex Post Facto Clauses of the
Mississippi and United States Constitutions. We affirm the circuit court’s dismissal of
Young’s PCR motion.
STANDARD OF REVIEW
¶3. The circuit court may summarily dismiss a PCR petition “[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) (Rev. 2007). “On
appeal, this Court will affirm the summary dismissal of a PCR [petition] if the petitioner has
failed to demonstrate ‘a claim procedurally alive substantially showing the denial of a state
or federal right.’” Flowers v. State, 978 So. 2d 1281, 1283 (¶5) (Miss. Ct. App. 2008)
(quoting Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999)). We review questions of
law de novo. Johnson v. State, 962 So. 2d 87, 89 (¶8) (Miss. Ct. App. 2007).
2
DISCUSSION
¶4. Young argues that his claim is not subject to the time-bar because his fundamental
constitutional rights were violated by an illegal sentence. “[E]rrors affecting fundamental
constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction
Collateral Relief Act].” Rowland v. State, 42 So. 3d 503, 506 (¶9) (Miss. 2010). But mere
assertions of constitutional-rights violations do not suffice to overcome the procedural bar.
Chandler v. State, 44 So. 3d 442, 444 (¶8) (Miss. Ct. App. 2010). Rather, “there must at
least appear to be some basis for the truth of the claim before the [procedural bar] will be
waived.” Id.
¶5. Young acknowledges that his sentence is legal today in light of Bester v. State, 188
So. 3d 526, 529-30 (¶¶7-10) (Miss. 2016), where the Mississippi Supreme Court held that
statutes that permit the trial court to sentence a defendant to “any term” include sentences of
life imprisonment. Young argues, however, that at the time he was sentenced, the controlling
precedent of the Mississippi Supreme Court held that only a jury could pronounce a life
sentence for armed robbery. See, e.g., Stewart v. State, 372 So. 2d 257, 258 (Miss. 1979).
¶6. First of all, it is apparent that Young has waived any right to challenge the sentence
he received. Young voluntarily agreed to his life sentence as part of his plea bargain. The
circuit court’s order accepting Young’s plea and imposing his sentence explained that the
State “agreed to reduce that portion of the indictment charging [Young] as a habitual
offender in return for the acceptance by [Young] of a sentence of life imprisonment, as a
3
non-habitual, for the offense of [armed] robbery.” The parties to the plea bargain even
agreed that if Young’s life sentence is ever set aside, the State’s “agreement to reduce the
habitual offender portion of the indictment will have been abrogated and the said habitual
offender portion of the indictment will be restored . . . upon the request of the State.” Young
voluntarily accepted a life sentence with the possibility of parole1 in order to avoid a life
sentence without the possibility of parole as a violent habitual offender. And the circuit
judge who accepted Young’s plea found that it was “freely, voluntarily, knowingly, and
intelligently made.”
¶7. In this Court’s opinion in Bester, on materially indistinguishable facts, we held that
the defendant waived any objection to the legality of his life sentence by voluntarily agreeing
to the sentence as part of his plea bargain. Bester v. State, 188 So. 3d 576 (Miss. Ct. App.
2014), aff’d on other grounds, 188 So. 3d 526 (Miss. 2016). We reasoned that “Bester’s
sentence [was] not an illegal sentence, as life imprisonment is a sentence permitted as a
lawful punishment for forcible rape, albeit when imposed by a jury.” Id. at 578 (¶9).
Therefore, there was “no public-policy concern that Bester received a sentence not authorized
by statute.” Id. We further reasoned that “[b]y pleading guilty and negotiating a ‘mutually
acceptable’ plea agreement, Bester . . . waived his right to a trial by a jury of his peers, and
also the right for the jury to impose his sentence.” Id. at 580 (¶14). We held that Bester
1
A prisoner convicted of armed robbery prior to October 1, 1994, is eligible for
parole after he has served ten years. Miss. Code Ann. § 47-7-3(c)(i) (Rev. 2015).
4
could not, years later, “trifle with the circuit court and effectively renege on his plea
agreement after he freely and voluntarily waived his right to have a jury impaneled for his
trial and sentencing.” Id. at (¶15).
¶8. The supreme court affirmed on other grounds in Bester, but it did not disapprove of
this Court’s opinion. This Court’s opinion remains good law, and its reasoning applies to the
facts of this case. The record is clear that Young voluntarily agreed to a life sentence in
order to avoid the risk of a sentence of life without the possibility of parole. By doing so, he
waived any right to jury sentencing or to claim that his sentence is “illegal.”
¶9. Moreover, as the supreme court held in Bester, Young’s sentence was legal.2 Young
himself concedes that Bester controls; he just disputes the constitutionality of its application
to him. We shall address that issue in turn, but since this Court does not unanimously agree
that Bester controls, we will explain our reasons for finding it to be controlling precedent in
this case. The Mississippi Supreme Court held in Bester that the language of the statute,
which provided that the court could sentence the defendant to “any term” in the state
penitentiary, meant what it appeared to say – the court could sentence the defendant to any
term, including life imprisonment, even if no jury had chosen that punishment. Bester v.
2
Although we address this point in the alternative, as this Court routinely does in
post-conviction cases, our alternative holding on this point is not dicta. “[W]here a decision
rests on two or more grounds, none can be relegated to the category of obiter dictum.”
Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949); see also In re Hearn, 376 F.3d
447, 453-54 n.5 (5th Cir. 2004) (“It is well-established that alternative holdings of this Court
are binding on future panels.”).
5
State, 188 So. 3d 526, 529-30 (¶¶7-10) (Miss. 2016). The problem, according to the separate
opinion, is that Bester concerned the rape statute, while today’s case concerns the armed
robbery statute. The separate opinion reasons that even though the operative language of the
armed robbery statute and the operative language of the rape statute are identical, this Court
lacks the authority to apply the holding in Bester because the supreme court did not expressly
overrule any of its prior decisions addressing the armed robbery statute.
¶10. We certainly agree with the separate opinion that this Court, as an intermediate
appellate court, lacks the authority to overrule decisions of the Mississippi Supreme Court.
Nor do we claim the authority to ignore precedent because this Court believes the supreme
court would rule differently if it were to decide the case anew. We find Bester controlling
because, although it only expressly overruled rape cases, the supreme court’s former
interpretation of the armed robbery statute was expressly derived from a rape case that was
directly overruled by Bester. The holding in Bester was not premised on anything unique to
the rape statute. Instead, the court spoke to the construction of specific statutory language
– language that has direct application to today’s case because it is also used in the armed
robbery statute. The supreme court in Bester noted the “any term” language of the rape
statute and held:
“Any term” includes life imprisonment. “Our law has long provided that the
imposition of sentence following a criminal conviction is a matter within the
discretion of the Circuit Court, subject only to statutory and constitutional
limitations.” Jackson v. State, 551 So. 2d 132, 149 (Miss. 1989) (emphasis
added). Bester’s sentence violates neither. And “[s]o long as these are not
offended, we rarely interfere.” Id. As such, Bester’s sentence is not illegal.
6
Bester, 188 So. 3d at 529 (¶6). The operative language of the rape statute and the armed
robbery statute is identical. The rape statute (Mississippi Code Annotated section 97-3-
65(2)) read at the relevant time:
[U]pon conviction, [the defendant] shall be imprisoned for life in the State
Penitentiary if the jury by its verdict so prescribes; and in cases where the jury
fails to fix the penalty at life imprisonment the court shall fix the penalty at
imprisonment in the State Penitentiary for any term as the court, in its
discretion, may determine.
The armed robbery statute at issue in today’s case, Mississippi Code Annotated section 97-3-
79 (Rev. 2014) (which has not been amended since Young’s offense) reads:
[U]pon conviction, [the defendant] shall be imprisoned for life in the state
penitentiary if the penalty is so fixed by the jury; and in cases where the jury
fails to fix the penalty at imprisonment for life in the state penitentiary the
court shall fix the penalty at imprisonment in the state penitentiary for any term
not less than three (3) years.
The supreme court held in Bester that “any term” includes life sentences. Bester, 188 So. 3d
at 529 (¶6). We cannot fairly distinguish that holding simply because Bester was a rape case
and today’s case in an armed robbery case.
¶11. Furthermore, this Court has already addressed this issue, last year, and we concluded
that Bester applies to armed robbery cases. In Hayes v. State, 203 So. 3d 1144, 1146 (¶¶6-7)
(Miss. Ct. App. 2016), a post-conviction petitioner argued on appeal that his sentence was
illegal because it exceeded his life expectancy. He based his argument on Stewart v. State,
372 So. 2d 257 (Miss. 1979), which was an armed robbery case applying the pre-Bester
rationale to find a sentence illegal for exceeding the defendant’s life expectancy. This Court
7
noted that Stewart was the “progeny” of Lee v. State, 322 So. 2d 751 (Miss. 1975), a rape
case, and thus had been overruled by Bester when it expressly overruled Lee. See Hayes, 203
So. 3d at 1146 (¶¶6-7). This Court referred to Stewart (the armed robbery case) as no longer
being “good law.” Hayes, 203 So. 3d at 1146 (¶¶6-7).
¶12. The supreme court itself has also repeatedly held or observed that the rape and armed
robbery statutes, because they employ identical operative language, are inexorably linked.
In Stewart, the first armed robbery case employing the old interpretation of “any term,” the
supreme court referred to Lee, a rape case, as a “conflicting decision” to its prior armed
robbery precedent. Stewart, 372 So. 2d at 258. The Stewart court then simply applied its
holding in Lee, noting that it was the “sounder rule.” Id. at 259.
¶13. In 2014, Bester was previewed in separate opinions in Hampton v. State, 148 So. 3d
992 (Miss. 2014), and Foster v. State, 148 So. 3d 1012 (Miss. 2014), both of which
concerned the armed robbery statute and were handed down the same day. Justice Coleman
authored concurring opinions in both cases, which were joined in part by three other justices.
He offered the same reasons for overruling the prior interpretation of the “any term”
language that the court later adopted in Bester. Justice Coleman also noted that the rape
statute had the same relevant language, but its code section had been amended by the
Legislature in the years since the decision in Lee in 1975, while the armed robbery statute had
not been amended since Stewart in 1979. Thus, the only conceivable reason to distinguish
between Stewart and Lee cuts toward upholding Lee based on ratification by the Legislature
8
– but it was Lee the supreme court expressly overruled in Bester.
¶14. The dissenters in Bester also recognized that the same standard was at issue in both
rape and armed robbery cases. Justice Kitchens quoted Justice Chandler’s dissent in
Hampton describing Stewart and Lee as establishing “the standard” that had “been
consistently applied . . . to both armed robbery and forcible rape statutes.” See Bester, 188
So. 3d at 531 (¶17) (Kitchens, J., dissenting) (quoting Hampton, 148 So. 3d at 1010-11 (¶53)
(Chandler, J., dissenting)). Justice Chandler’s dissent in Hampton had further observed that
“[t]he sentencing statute for forcible rape uses substantially identical language, and our case
law consistently has applied both statutes in an identical manner.” Hampton, 148 So. 3d at
1010-11 (¶52).
¶15. Thus, we reaffirm our prior holding in Hayes – Bester overruled Stewart when it
overruled Lee. Stewart was explicitly based on Lee, the relevant statutory language is
identical, and the statutes have always been treated the same way by the supreme court. See
Hayes, 203 So. 3d at 1146 (¶¶6-7).
¶16. Finally, we turn to Young’s claim that a change in the interpretation of the statute
amounts to the imposition of an ex post facto law when applied to him, since Bester was
handed down long after he committed the offense. Young contends that the relevant standard
is an absolute one, outlined in Collins v. Youngblood, 497 U.S. 37, 50 (1990) – that Bester
“[made] more burdensome the punishment for a crime, after its commission.” But what the
United States Supreme Court actually held is that the Ex Post Facto Clause prohibits “any
9
statute . . . which makes more burdensome the punishment for a crime, after its commission,
after its commission.” Id. (quoting Beazell v. Ohio, 269 U.S. 167, 169 (1925)) (emphasis
added). Bester was a judicial decision, not the enactment of a statute. The Supreme Court
has held that judicial decisions are not subject to ex post facto challenges. See Rogers v.
Tennessee, 532 U.S. 451, 459-60 (2001). Thus, Bester’s contention is without merit.
¶17. A challenge, if it were to be made at all, must be under the Due Process Clause. The
relevant test is different and much more lenient – the judicial decision can be applied
retroactively unless it is “unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue.” Id. at 466. But this issue has not been briefed or
argued and is therefore barred on appeal. See Gilmer v. State, 955 So. 2d 829, 837 (¶29)
(Miss. 2007). We do not find it barred because Young cited the wrong constitutional clauses,
but because the due process question is one of first impression and it has not been briefed or
argued on appeal by either party. The fault lies with Young, who, as the appellant, was
required to raise the issue and meaningfully support his assignments of error with “the
reasons for those contentions, with citations to the authorities, statutes, and parts of the
record relied on.’” Hill v. State, 215 So. 3d 518, 524 (¶20) (Miss. Ct. App. 2017) (quoting
M.R.A.P. 28(a)(7)). “While pro se litigants are afforded some leniency, they must be held
to substantially the same standards of litigation conduct as members of the bar.” Id. (quoting
Sumrell v. State, 972 So. 2d 572, 574 (¶6) (Miss. 2008)).
¶18. Young’s challenge to Bester as an ex post facto law is without merit, and we will not
10
consider the potential due process issue because his total failure to address it bars it from
consideration on appeal.
¶19. AFFIRMED.
LEE, C.J., IRVING, P.J., GREENLEE AND WESTBROOKS, JJ., CONCUR.
BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. WILSON, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND
CARLTON, J.
WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:
¶20. The majority denies Young’s claim on three grounds: (A) by virtue of his voluntary,
negotiated plea agreement, Young waived his present challenge to the legality of his life
sentence, ante at (¶¶6-8); (B) the Ex Post Facto Clauses of the State and Federal
Constitutions apply to legislative acts, not judicial decisions, id. at (¶16); and (C) Young
waived any due process challenge to the retroactive application of Bester v. State, 188 So.
3d 526 (Miss. 2016), because he failed to brief that issue on appeal, id. at (¶¶17-18).
¶21. I concur in the result and in proposition (A)—that holding is dispositive, and the
opinion could end there. Proposition (B) is a correct statement of law. I have doubts about
proposition (C), but I would not write separately just to address that issue of waiver.
¶22. Rather, I write separately to address the majority’s extended digression on whether
Bester, a case interpreting the forcible rape statute, implicitly overruled Stewart v. State, 372
So. 2d 257 (Miss. 1979), a precedent interpreting the armed robbery statute. See ante at (¶¶9-
11
15). This digression is dicta,3 as it is not necessary to any of the “grounds” on which the
majority’s “decision rests.” Ante at n.2. After arguing at length that Bester overruled
Stewart, the majority renders the entire issue moot by declaring that Young has waived any
viable objection to the retroactive application of Bester. Ante at (¶¶16-18). If Young waived
that issue, then it simply does not matter whether Bester overruled Stewart.4
¶23. Ordinarily, I would not write separately just to respond to dicta. I do so here only
because the dicta is inconsistent with this Court’s obligation to continue to follow directly
controlling Supreme Court precedent.
¶24. I agree with the majority that if our Supreme Court extends Bester’s reasoning to the
armed robbery statute, then a circuit court will have the authority to sentence a defendant
convicted of armed robbery to life imprisonment without a jury recommendation. The armed
robbery statute provides that “in cases where the jury fails to fix the penalty at imprisonment
for life in the state penitentiary the court shall fix the penalty at imprisonment in the state
penitentiary for any term not less than three (3) years.” Miss. Code Ann. § 97-3-79 (Rev.
2014) (emphasis added). Interpreting the similarly worded forcible rape statute in Bester, the
Supreme Court held: “‘Any term’ includes life imprisonment.” Bester, 188 So. 3d at 529
3
“Dicta are statements ‘not necessary to the court’s ruling.’” Smith v. Normand
Children Diversified Class Tr., 122 So. 3d 1234, 1237 (¶5) (Miss. Ct. App. 2013) (quoting
McKibben v. City of Jackson, 193 So. 2d 741, 745 (Miss. 1967)).
4
The majority also states that it addresses the issue because “this Court does not
unanimously agree that Bester controls.” Ante at (¶9). This is circular. The disagreement
would not arise, and this opinion would not exist, if the majority opinion did not raise and
address the issue.
12
(¶6). Therefore, the Court held that the statute permitted a judge to impose a life sentence
without a jury recommendation. Id. I agree with the majority that there is no material
difference between the relevant language in the forcible rape statute and the armed robbery
statute; however, since its decision in Bester, the Supreme Court has not revisited the proper
interpretation of the armed robbery statute.
¶25. Our problem, as an intermediate appellate court, is that directly controlling Supreme
Court precedent holds that the armed robbery statute does not permit the sentencing judge
to impose a life sentence without a jury recommendation. See Stewart, 372 So. 2d at 259.
In Stewart, the Supreme Court held that unless a jury first determines that the defendant
should be sentenced to life imprisonment, the judge must sentence the defendant to “a
definite term” of years “reasonably expected to be less than life.” Id. The Supreme Court
has never overruled Stewart, and this Court lacks authority to do so.
¶26. Bester does not overrule Stewart. Indeed, the concise majority opinion in Bester
focused solely on the forcible rape statute and did not even mention Stewart or the armed
robbery statute. See Bester, 188 So. 3d at 527-30 (¶¶1-10). Only a dissent briefly referenced
Stewart. See id. at 531 (¶17) (Kitchens, J., dissenting).
¶27. Thus, while Bester’s reasoning signals that the Supreme Court may or is likely to
overrule Stewart in the future, that is no basis for this Court to declare that Stewart has
already been overruled. “This Court, sitting as an intermediate appellate court, is bound by
established precedent as set out by the Mississippi Supreme Court and we do not have the
13
authority to overrule the decisions of that [C]ourt.” Bevis v. Linkous Constr. Co., 856 So. 2d
535, 541 (¶18) (Miss. Ct. App. 2003). As the United States Supreme Court has instructed
the federal courts of appeals, “If a precedent of [the Supreme] Court has direct application
in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp. Inc.,
490 U.S. 477, 484 (1989). An intermediate appellate court may not, “on its own authority,
. . . take[] the step of renouncing” precedent of a higher court. Id.
¶28. The majority notes that this Court has “referred to Stewart . . . as no longer being
‘good law.’” Ante at (¶11) (quoting Hayes v. State, 203 So. 3d 1144, 1146 (¶7) (Miss. Ct.
App. 2016)). However, Hayes addressed a sentence for child exploitation that was imposed
under a materially dissimilar statute—a statute that specifies a maximum term of years. In
Hayes, we expressly recognized that Stewart’s holding “did not apply to sentencing statutes
that designate a specific maximum term of years.” Hayes, 203 So. 3d at 1146 (¶7). Given
that Stewart simply “did not apply” in Hayes, our commentary that Stewart was no longer
“good law” was dicta.
¶29. The majority also notes that Justice Coleman has argued in two specially concurring
opinions that Stewart should be overruled.5 However, those opinions were “joined in part”
5
Foster v. State, 148 So. 3d 1012, 1020 (¶26) (Miss. 2014) (Coleman, J., specially
concurring); Hampton v. State, 148 So. 3d 992, 1005 (¶36) (Miss. 2014) (Coleman, J.,
specially concurring).
14
by only three other justices, two of whom have since retired from the Court. Those special
concurrences are not precedent and, therefore, cannot overrule precedent.
¶30. Moreover, although Justice Dickinson joined Justice Coleman’s opinions in part, he
also wrote separately to state that “due-process considerations” would preclude retroactive
application of any decision overruling Stewart—i.e., that Stewart’s interpretation of the
statute would continue to govern in a case such as this one.6 Indeed, Justice Coleman himself
acknowledged that “the retroactive application of any holding overruling Stewart” would
raise due process “concerns.”7 He did not address that issue precisely because he recognized
“the fact that a majority of the Court disagree[d] with him and wishe[d] to uphold Stewart.”8
Thus, not even one justice in Foster or Hampton stated that Stewart should be overruled and
that its overruling should be applied retroactively in a case such as this. Only one thing is
clear from the various opinions in Foster and Hampton: a majority of the Court was
unwilling to overrule Stewart.
¶31. Overruling Stewart would also require the Supreme Court to consider the principle
of stare decisis, which is sometimes said to be “particularly applicable to cases involving the
6
Foster, 148 So. 3d at 1025-26 (¶39) (Dickinson, P.J., dissenting); accord Hampton,
148 So. 3d at 1006 (¶37) (Dickinson, P.J., dissenting).
7
Foster, 148 So. 3d at 1025 (¶37) (Coleman, J., specially concurring); Hampton, 148
So. 3d at 1005 (¶35) (Coleman, J., specially concurring).
8
Id. In Bester, the Court requested briefing from an amicus curiae on a similar issue
but then did not mention the issue in its opinion. See Bester, 188 So. 3d at 536 n.10 (King,
J., dissenting). Young raises the retroactivity issue in his brief in this appeal.
15
construction of statutes.” Land Comm’r v. Hutton, 307 So. 2d 415, 421 (Miss. 1974). That
remains a decision for the Supreme Court, not this Court.
¶32. On behalf of the State, the Attorney General “recognizes that . . . this Court . . . cannot
expressly overrule Stewart.” The State raises this issue—whether the armed robbery statute
permits a life sentence without a jury recommendation—only to preserve it “for certiorari
review, should such a review be necessary.” The State’s primary argument is that this Court
should affirm because Young waived any challenge to his life sentence when he accepted the
sentence as part of a voluntary, negotiated plea agreement. Thus, the State also recognizes
that only the Supreme Court can overrule Stewart.9
¶33. Following its discussion of Bester and Stewart, the majority finds that Young’s
retroactivity claim is “barred” for a second reason: He cites the wrong constitutional clauses.
Young mistakenly relies on the Ex Post Facto Clauses of the State and Federal Constitutions,
which govern the retroactive application of legislative acts, rather than the “limitations on
ex post facto judicial decision making . . . inherent in the notion of due process.” Rogers v.
Tennessee, 532 U.S. 451, 456 (2000) (emphasis added); ante at (¶¶16-18). In other words,
the substance of Young’s claim is clear, but he relies on the wrong authority, so the claim is
barred. This seems strict for a pro se prisoner who, on his first motion for post-conviction
9
While a concession by the Attorney General is not binding on this Court, see
McCollum v. State, 186 So. 3d 948, 950 n.7 (Miss. Ct. App. 2016), it is at least as
noteworthy as a concession of a pro se litigant. See ante at (¶9) (noting that “Young himself
concedes that Bester controls”).
16
relief, filed a concise, legible, and intelligible brief that presents only one claim.10 But if
Young’s claim really is barred for two different reasons, that just makes the majority’s
extended discussion of Bester and Stewart all the more unnecessary.
¶34. In summary, I concur in the holding in paragraph eight of the majority opinion. I
respectfully dissent from the dicta that follows because it is inconsistent with this Court’s
obligation to follow directly controlling Mississippi Supreme Court precedent.
GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.
10
See, e.g., Chapman v. State, 167 So. 3d 1170, 1172 (¶7) (Miss. 2015) (“[A] pro se
prisoner’s meritorious claims may not be ignored because of inartful drafting.”); cf. Slayton
v. Willingham, 726 F.2d 631, 634 n.7 (10th Cir. 1984) (“A pro se litigant’s mere citation of
the wrong constitutional amendment does not preclude his cause of action so long as the
facts he alleges state a claim under an obviously applicable constitutional provision.”).
17