Earnest Sykes v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-00611-COA
EARNEST SYKES
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
1/23/2004
HON. LEE J. HOWARD
CLAY COUNTY CIRCUIT COURT
EARNEST SYKES (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DISMISSED
AFFIRMED - 07/19/2005
BEFORE BRIDGES, P.J., IRVING AND MYERS, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
On April 3, 1993, Earnest Sykes pled guiltyto the sale of cocaine and was sentenced as an habitual
offender to a thirty year sentence in the custody of the Mississippi Department of Corrections.
¶2.
In Sykes v. State, 757 So. 2d 997 (Miss. 2000), the Mississippi Supreme Court on motion for
rehearing held that Sykes motion for post-conviction relief was not time-barred and remanded the case to
the Clay County Circuit Court for a decision on the merits of Sykes’ motion for post-conviction collateral
relief (PCR). The circuit court denied Sykes’ motion and he again appealed the denial of post-conviction
relief. On January 31, 2002, the Mississippi Supreme Court issued a mandate affirming the trial court’s
finding.
¶3.
On August 25, 2003, Sykes filed another motion for post-conviction relief in the Circuit Court of
Clay County without first filing a motion with the Mississippi Supreme Court for leave to file in the circuit
court. See Miss. Code Ann. § 99-39-7 (Supp. 2004). The circuit court dismissed the motion based on
jurisdictional grounds. Sykes has appealed from that decision.
¶4.
In his brief to this Court, Sykes raises five issues: (1) ineffective assistance of counsel; (2)
involuntary guilty plea; (3) defective indictment; (4) newly discovered evidence; and (5) the trial court was
without jurisdiction to impose sentence. Sykes carries the burden of proving that his claims are not
procedurally barred. Massey v. State, 843 So. 2d 74, 75 (¶7) (Miss. Ct. App. 2003). Because we find
that Sykes’ claims are procedurally barred and that the circuit court correctly dismissed the motion, we
affirm that court’s decision.
1. Res Judicata and Successive Writ
¶5.
Mississippi Code Annotated section 99-39-23(6) provides:
[A]ny order dismissing the prisoner’s motion or otherwise denying relief under this article
is a final judgment and shall be conclusive until reversed. It shall be a bar to a second and
successive motion under this article . . . . [E]xcepted from this prohibition are those cases
in which the prisoner can demonstrate either that there has been an intervening decision of
the Supreme Court of either the State of Mississippi or the United States which would
have adversely affected the outcome of his conviction or sentence of that he 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 that it would have caused a
different result in the conviction or sentence . . . .
¶6.
Sykes’s claims concerning his guilty plea were reviewed by the circuit court after remand from the
Mississippi Supreme Court. The circuit court specifically found that Sykes’ claim that his attorney was
ineffective for failing to object to the indictment was barred pursuant to Brandau v. State, 662 So. 2d
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1051 (Miss. 1995). The claim of defective indictment is based on the same misconception of the law.
The court also found that the plea colloquy established that Sykes was properly advised of the constitutional
rights being waived.
¶7.
Sykes entered his guilty plea after trial in his case had already begun. The “newly discovered
evidence” is based on Sykes’s argument the State’s witness Mark Smith was not a credible person. There
is no indication that this witness’s testimony played any part in the guilty plea. This witness’s testimony was
known at the time of Sykes’s early PCR motion and appeal to the supreme court. The final assignment
of error in this appeal is based on the cumulative effects of the earlier issues. The issues raised by Sykes
in his current PCR under consideration are essentially the same as was considered by the courts in the
previous PCR and appeal.
¶8.
Sykes’s claims are procedurally barred based on the successive writ bar and res judicata.
2. Time Bar
¶9.
In his first appeal, the Mississippi Supreme Court overturned the decision of the Court of Appeal
and found that Sykes’ first motion for post-conviction relief was timely filed. In its decision the supreme
court adopted the “mail box rule” for filing motions for post-conviction relief. Sykes, 757 So. 2d at (¶14).
Sykes mailed his motion two days before the expiration of the three year statute of limitations, but the
motion was not received and stamped filed by the trial court until two days after the expiration of the three
year period.
¶10.
Mississippi Code Annotated section 99-39-5 (2) provides:
A motion for relief under this chapter shall be made within three (3) years after the time in
which the prisoner’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 the case of a guilty plea, within
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three (3) years after entry of the judgment of conviction.
....
¶11.
Sykes’s PCR motion was fioled on August 25, 2003 or more than ten years after his initial guilty
plea. The present motion was clearly not filed within the three year period and would be procedurally
barred on this basis.
3. Lack of Jurisdiction
¶12.
Mississippi Code Annotated section 99-39-7 provides that the PCR motion shall be filed as a civil
action in the trial court “except in cases in whichthe prisoner’s conviction and sentence have been appealed
to the supreme court.” The statute specifically provides that “the motion . . . shall not be filed in the trial
court until the motion have first been presented to a quorum of the justices of the supreme court of
Mississippi . . . .” As this Court held in Doss v. State, 757 So. 2d 1016, 1017 (¶5) “[t]his procedure is
not merely advisory, but jurisdictional.” Therefore, we are bound to affirm the trial court’s finding that it
lacked jurisdiction to consider Sykes’ motion.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY DISMISSING THE
MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF APPEAL
ARE ASSESSED TO CLAY COUNTY.
KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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