Brian Runnels v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-01088-COA
BRIAN RUNNELS
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
3/24/2004
HON. LAMAR PICKARD
CLAIBORNE COUNTY CIRCUIT COURT
BRIAN RUNNELS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
ALEXANDER C. MARTIN
CIVIL - POST-CONVICTION RELIEF
DENIED
AFFIRMED - 07/19/2005
BEFORE LEE, P.J., IRVING AND CHANDLER, JJ.
LEE, P.J., FOR THE COURT:
¶1.
The appeal in this case is the result of a series of circuitous filings, petitions and motions filed by
Brian Runnels. Finding that Runnels’s arguments lack merit, we affirm the judgment of the trial court.
STATEMENT OF FACTS
¶2.
In 1995, Runnels, along with four co-defendants, was indicted for the October 29, 1994, armed
robbery and murder of Timothy Tillman. On April 21, 1995, Runnels pled guilty to manslaughter and
armed robbery and received a sentence of twenty years and sixteen years, respectively, to be served
consecutively.
¶3.
On November 1, 1995, Runnels filed his first motion for post-conviction relief. This motion was
denied on December 22, and, on January 17, 1996, Runnels filed a notice of appeal. On April 7, 1997,
Runnels filed affidavits of arrest for four persons. On October 24, 1997, the Mississippi Supreme Court
affirmed the trial court’s December 22 ruling without published opinion. On February 28, 1998, Runnels
filed his second motion for post-conviction relief; however, he did not bring his motion for a hearing or
pursue it further. On June 6, 2000, Runnels filed his third motion for post-conviction relief, which was
denied. Runnels then filed a motion for reconsideration on July 17, 2000. On May 16, 2001, Runnels filed
his first petition to show cause, which was denied. Runnels then filed a notice of appeal. On February 17,
2004, Runnels filed a second petition for an order to show cause, which was also denied.
¶4.
It is from the denial of this second petition to show cause which Runnels now appeals, arguing two
issues: (1) whether the trial court erred in not “accepting” Runnels’s motions and (2) whether the trial court
clerk violated Runnels’s right to access the courts by her alleged failure to send Runnels notice of a
judgment or order regarding his motion for post-conviction relief, thereby prohibiting him from appealing.
¶5.
We find that Runnels’s contentions lack merit, and we affirm the decision of the trial court.
DISCUSSION
¶6.
Runnels’s primary argument is that he never received notice of the disposition of his second motion
for post-conviction relief. Runnels now argues that because he did not receive notice of the denial of his
second motion for post-conviction relief, he was denied the opportunity to appeal. We disagree.
¶7.
First, we note that under the Mississippi Uniform Post-Conviction Collateral Relief Act, an order
denying post-conviction relief acts as a bar to a successive motion seeking post-conviction relief. Miss.
Code Ann. § 99-39-23 (6) (Rev. 2000). Thus, when the trial court dismissed Runnels’s first motion for
post-conviction relief, that dismissal barred further pursuit of post-conviction relief in the trial court.
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Accordingly, Runnels was barred from filing his second motion for post-conviction relief unless he fit into
two narrow exceptions. One exception is if either the Mississippi or United States Supreme Courts has
since the prisoner’s conviction construed the law in a manner to alter the law that underlay the petitioner's
conviction or sentence. Miss. Code Ann. § 99-39-23 (6) (Rev. 2000). The second exception is if the
prisoner has evidence which was not reasonably discoverable at trial, that “is of such a 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.” Miss. Code Ann. § 99-39-23 (6) (Rev. 2000). Unless the motion conformed
to one of these exceptions, the second motion for post-conviction relief was never properly before the trial
court. The record does not contain a copy of Runnels’s motion for relief, thus we must assume that his
petition did not meet the statutory exceptions.
¶8.
Runnels argues that he was prevented from appealing the denial of his second motion for post-
conviction relief. Notably, the record does not contain evidence that the trial court ever denied the petition.
In filing his second motion for post-conviction relief, Runnels began a civil action separate and apart from
his first motion for post-conviction relief. Berryman v. State, 734 So. 2d 292, 294 (¶8) (Miss. Ct. App.
1999). Furthermore, Runnels carries the burden of pursuing his requested relief. “It is the duty of the
movant, when a motion or other pleading is filed . . . to pursue said motion to hearing and decision by the
court.” URCCC 2.04. The record before this Court does not indicate that the trial court ever ruled on
Runnels’s motion or dismissed it for his failure to prosecute. Additionally, it is not possible that the motion
for post-conviction relief was dismissed automatically due to Runnels’s failure, because some affirmative
action is required by the court to dismiss a case due to a petitioner’s failure to prosecute. Berryman, 734
So. 2d at 294 (¶8). No action was taken by the trial court, thus there is no ruling from which Runnels may
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appeal to this Court. “Therefore, we conclude our review of this issue by simply resolving it adversely to
him.” Millender v. State, 734 So. 2d 225, 233 (¶33) (Miss. Ct. App. 1999).
¶9.
Finally, Runnels’s allegation that the circuit court clerk impeded his right to appeal the disposition
of his second motion for post-conviction relief is not substantiated by the record before this Court. As
discussed above, Runnels’s motion is still pending and is awaiting dismissal by the trial court as a successive
writ. Runnels also accuses the circuit court clerk of failing to maintain a proper record of his filings;
however, this claim is soundly refuted by the record before us. As evidenced by the detailed docket
submitted with the record, the clerk has kept a meticulously detailed record of the plethora of letters,
motions, petitions and other filings Runnels has submitted.
¶10.
We find that Runnels’s contentions are not properly before this Court, and we further find that the
trial court did not err in dismissing Runnels’s petition.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF CLAIBORNE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO CLAIBORNE COUNTY.
KING, C.J., BRIDGES, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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