IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CP-00007-COA
HENRY GIBBS, JR. A/K/A HENRY GIBBS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/30/2016
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: HENRY GIBBS JR. (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED: 01/09/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
FAIR, J., FOR THE COURT:
¶1. Henry Gibbs pled guilty to armed robbery. The court sentenced him to thirteen years
in the custody of the Mississippi Department of Corrections, with eight years to serve
followed by five years’ post-release supervision. Gibbs filed a petition for post-conviction
relief, which the court dismissed. Because Gibbs’s claims are not within the purview of the
Mississippi Uniform Post-Conviction Collateral Relief Act, we affirm the circuit court’s
dismissal.
STANDARD OF REVIEW
¶2. The circuit court may summarily dismiss a PCR motion without an evidentiary 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) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial
showing of the denial of a state or federal right and (2) show that the claim is procedurally
alive. Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999).
¶3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo.
Id.
DISCUSSION
¶4. Mississippi Code Annotated section 99-39-5(1) (Rev. 2015) provides the grounds for
available relief under a PCR motion:
(1) Any person sentenced by a court of record of the State of Mississippi,
including a person currently incarcerated, civilly committed, on parole or
probation or subject to sex offender registration for the period of the
registration or for the first five (5) years of the registration, whichever is the
shorter period, may file a motion to vacate, set aside or correct the judgment
or sentence, a motion to request forensic DNA testing of biological evidence,
or a motion for an out-of-time appeal if the person claims:
(a) That the conviction or the sentence was imposed in violation
of the Constitution of the United States or the Constitution or
laws of Mississippi;
(b) That the trial court was without jurisdiction to impose
sentence;
(c) That the statute under which the conviction and/or sentence
was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously
presented and heard, that requires vacation of the conviction or
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sentence in the interest of justice;
(f) That there exists biological evidence secured in relation to
the investigation or prosecution attendant to the petitioner’s
conviction not tested, or, if previously tested, that can be
subjected to additional DNA testing, 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.
(g) That his plea was made involuntarily;
(h) That his sentence has expired; his probation, parole or
conditional release unlawfully revoked; or he is otherwise
unlawfully held in custody;
(i) That he is entitled to an out-of-time appeal; or
(j) That the conviction or sentence is otherwise subject to
collateral attack upon any grounds of alleged error heretofore
available under any common law, statutory or other writ,
motion, petition, proceeding or remedy.
¶5. In his PCR motion, Gibbs claimed that (1) he did not match the description given by
the victim; (2) the photo lineup used was suggestive; (3) he was forced to either go to trial
or enter a guilty plea; (4) the State took too long to get an extradition warrant; and (5) his
conviction was predetermined. None of Gibbs’s claims are grounds for relief under section
99-39-5, and therefore his motion should be dismissed. Accordingly, we affirm the circuit
court’s judgment.
¶6. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON,
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GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
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Henry Gibbs, Jr. v. State of Mississippi
Combined Opinion