IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CP-00532-COA
KEITH MAGEE A/K/A KEITH QUINN A/K/A APPELLANT
DUDE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/10/2017
TRIAL JUDGE: HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: KEITH MAGEE (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 08/21/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
BARNES, J., FOR THE COURT:
¶1. Keith Magee, appearing pro se, appeals the Marion County Circuit Court’s summary
dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On December 3, 2004, Magee was indicted by a Marion County grand jury on the
charge of capital murder under Mississippi Code Annotated section 97-3-19(2)(e) (Rev.
2014). On January 18, 2008, Magee entered a plea of guilty to capital murder as an
accessory before the fact, and was sentenced to serve a term of life imprisonment without
eligibility for parole in the custody of the Mississippi Department of Corrections.
¶3. On September 24, 2010, Magee filed his first PCR motion, claiming that his life
sentence without parole was illegal. The trial court entered an order denying relief, and
Magee appealed. In November 2013, this Court issued a mandate dismissing Magee’s
appeal for failure to file a brief.
¶4. Magee filed his second PCR motion on June 7, 2016, alleging that his indictment
failed to charge an essential element for capital murder (intent to cause the death of the
victim) and ineffective assistance of counsel because his attorney failed to advise him of his
allegedly defective indictment. Following this motion, on October 17, 2016, Magee filed
a document entitled “Amended Claims” to his PCR motion. In this pleading, he raised two
more ineffective-assistance-of-counsel claims: failure to seek dismissal of his case due to
a speedy-trial violation, and an involuntary plea and denial of due process because his
attorneys did not seek a competency examination and hearing before Magee’s guilty plea
was accepted.
¶5. On January 6, 2017, the trial court entered an order summarily dismissing Magee’s
motion, finding it time-barred and successive, as well as without merit. However, the trial
court only addressed the claims raised in Magee’s June 2016 PCR motion, and not the
“amended claims.” The trial court accordingly amended its order, addressing his two
“amended claims,” and found them without merit as well. Magee timely appealed,
apparently abandoning his defective-indictment claim, but arguing against the procedural
bar. He also claims he should have been afforded a competency and evidentiary hearing and
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that he suffered ineffective assistance of counsel related to the speedy-trial issue.
STANDARD OF REVIEW
¶6. This Court reviews a circuit court’s denial or dismissal of a PCR motion for an abuse
of discretion. This Court “will not disturb the trial court’s factual findings unless they are
clearly erroneous.” Purvis v. State, 240 So. 3d 468, 470 (¶7) (Miss. Ct. App. 2017).
Questions of law, however, are reviewed de novo. Id.
ANALYSIS
¶7. We shall discuss the merits of the issues Magee raises on appeal; however, as the trial
court ruled, Magee’s PCR motion is both time-barred and successive, as will be discussed
first.
I. Procedural Bars
¶8. Magee first argues that his PCR motion is excepted from the procedural bar under
Rowland v. State, 42 So. 3d 506 (Miss. 2010), as his claims allegedly affect fundamental
constitutional rights.
¶9. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order
denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann.
§ 99-39-23(6) (Rev. 2015). Further, a PCR motion challenging a guilty plea must be filed
within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2)
(Rev. 2015). This Court has upheld time- and successive-writ bars in capital murder post-
conviction proceedings. See Randall v. State, 148 So. 3d 686, 688 (¶¶7-8) (Miss. Ct. App.
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2014). This PCR motion is Magee’s second one relating to his capital-murder conviction
and was filed over eight years after his judgment of conviction on January 18, 2008.
Accordingly, his PCR motion is procedurally barred.
¶10. However, Magee attempts to overcome the procedural bar by claiming his motion is
excepted due to the intervening decision of Rowland. In that case, the Mississippi Supreme
Court held that “errors affecting fundamental constitutional rights are excepted from the
procedural bars of the UPCCRA.” Rowland, 42 So. 3d at 506 (¶9). However, “‘the mere
assertion of a constitutional right violation’ does not trigger the exception.” Evans v. State,
115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013). The claim must at least appear to have
some basis of truth. Fundamental rights excepted from procedural bars have included
ineffective assistance of counsel in death-penalty post-conviction cases, illegal sentences,
and double jeopardy. Smith v. State, 149 So. 3d 1027, 1032 (¶10) (Miss. 2014) (overruled
on other grounds by Pitchford v. State, 240 So. 3d 1061 (Miss. 2017)). In this case, Magee’s
ineffective-assistance-of-counsel claim does not implicate a fundamental-constitutional-
rights violation.
¶11. Moreover, although Magee’s claim that the trial court should have conducted a
competency hearing before accepting his guilty plea could implicate a fundamental
constitutional right, Magee fails to present any evidence that such a hearing was warranted.
Because Magee presents no valid exception to the procedural bars, this issue is without
merit.
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II. Competency Hearing
¶12. Magee argues his constitutional rights were violated because the trial court failed to
conduct a competency determination before he entered his plea. Uniform Rule of Circuit
and County Court 9.061 states in part: “If before or during trial the court, of its own motion
or upon motion of an attorney, has reasonable ground to believe that the defendant is
incompetent to stand trial, the court shall order the defendant to submit to a mental
examination . . . .” “The defendant bears the burden of proof to show by substantial
evidence that his competency to stand trial is in question.” Higginbotham v. State, 122 So.
3d 1205, 1210 (¶14) (Miss. Ct. App. 2013). Magee fails to meet his burden.
¶13. Here, according to the trial-court docket, neither Magee nor his attorney requested
a competency determination. Moreover, our review of the record indicates such a
determination was not warranted. Although the entire plea-hearing transcript is not included
in the record, the trial court did attach the pertinent portions of the sentencing transcript
following Magee’s guilty plea pertaining to his competency. Magee stated he understood
the proceedings. Further, his two attorneys attested to his competency, as did Magee’s
mother and brother, who executed a “certification of counsel” that he had been apprised of
his rights and was “very knowledgeable of what he’s doing.” He testified that he was not
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We note that the Uniform Rules of Circuit and County Court relating to criminal
practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July
1, 2017. But because the former rules were still in effect at the time of Magee’s plea, Rule
9.06 is applicable to his case.
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under the influence of drugs or alcohol, had no emotional or physical problems that would
prevent him from understanding the proceedings, could read and write, and understood the
petition and charge against him. Accordingly, the record reflects that Magee was competent
to stand trial, and the trial court did not abuse its discretion in failing to order a sua sponte
Rule 9.06 competency hearing.
III. Evidentiary Hearing
¶14. Next, Magee argues that the trial court erred in dismissing his PCR motion without
holding an evidentiary hearing. “The trial court has ‘considerable discretion’ in determining
whether to grant an evidentiary hearing.” Whatley v. State, 123 So. 3d 461, 471 (¶33) (Miss.
Ct. App. 2013). Not every PCR motion must be afforded a full adversarial hearing. “The
movant must prove, through affidavits or otherwise, the potential existence of such facts
that, if proven at the hearing, would entitle him to relief.” Id. “[A] trial court may
summarily dismiss a petition for PCR, without having held an evidentiary hearing, when it
is clear that the petitioner is not entitled to relief . . . .” State v. Santiago, 773 So. 2d 921,
923-24 (¶11) (Miss. 2000) (citing Miss. Code Ann. § 99-39-11(2) (Rev. 2015)). Magee did
not demonstrate any potential facts which might have entitled him to relief. Therefore, the
trial court did not err in denying an evidentiary hearing.
IV. Ineffective Assistance of Counsel
¶15. Magee was appointed two attorneys. He argues that they were ineffective for failing
to move for a dismissal of his case due to lack of a speedy trial. He also contends that they
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improperly coerced him to plead guilty and failed to request a competency hearing before
he pleaded guilty.
¶16. Under the Strickland test, in order to succeed on an ineffective-assistance-of-counsel
claim, the defendant must show that his trial counsel’s performance was deficient, and he
was prejudiced by that deficiency. McCollum v. State, 81 So. 3d 1191, 1192-93 (¶8) (Miss.
Ct. App. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “In the context
of a guilty plea, the defendant must show that his ‘counsel’s errors proximately resulted in
the guilty plea and, but for counsel’s error, the defendant would not have entered the guilty
plea.’” Wash v. State, 218 So. 3d 764, 766 (¶6) (Miss. Ct. App. 2017) (quoting McCollum,
81 So. 3d at 1193 (¶8)). “The defendant ‘must show unprofessional errors of substantial
gravity,’ and allege such facts with ‘specificity and detail.’” Id. at 766-67 (¶6). “[T]here is
a strong rebuttable presumption that counsel’s conduct falls ‘within the wide range of
reasonable professional assistance.’” Id. at 767 (¶6).
¶17. In Baker v. Wingo, the United States Supreme Court established a four-part balancing
test to determine whether the right to a speedy trial was violated: “length of delay, reasons
for delay, whether the defendant asserted his right to a speedy trial, and whether the defense
suffered any prejudice from the delay.” Johnson v. State, 68 So. 3d 1239, 1241 (¶6) (Miss.
2011) (citing Baker v. Wingo, 407 U.S. 514, 530 (1972)). “[A] delay of eight months or
longer is presumptively prejudicial.” Id. at 1242 (¶7) (citing Smith v. State, 550 So. 2d 406,
408 (Miss. 1989)). Magee was arrested in October 2004, indicted on December 3, 2004, and
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entered a guilty plea on January 18, 2008. Our review of the trial-court docket shows that
Magee’s trial was continued approximately nine times; however, the reasons for the delays
are not apparent from the docket. Although the delay in this case does raise a presumption
of prejudice, Magee has not provided any evidence of actual prejudice such as loss of
witnesses or evidence, dimness of witness memories, or stale investigation. See Johnson,
68 So. 3d at 1242-43, 1245 (¶¶6, 11, 18). Further, Magee did not assert his right to a speedy
trial; in the record before us, an argument regarding a speedy trial is not mentioned until
post-conviction proceedings, and even then it was in his “amended claims” to his second
PCR motion. Asserting a violation of a speedy trial is not the same thing as asserting a right
to a speedy trial. Franklin v. State, 136 So. 3d 1021, 1035-36 (¶54) (Miss. 2014).
Accordingly, the record before us does not indicate a motion to dismiss by Magee’s counsel
would have been successful.
¶18. Further, Magee provides no proof that his attorneys coerced him into pleading guilty
or that his plea is invalid. Indicted for capital murder, Magee was eligible for the death
penalty. Counsel’s strategy to work out a guilty plea in exchange for a life sentence and
advice to him to take the plea would hardly be considered ineffective assistance. Finally,
as we find no merit to Magee’s competency argument, we cannot say his attorneys were
ineffective for failure to move for a competency hearing. This issue is without merit.
¶19. We therefore affirm the circuit court’s summary dismissal of Magee’s PCR motion.
¶20. AFFIRMED.
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LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
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