David Barnes v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-00416-COA
DAVID BARNES
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
2/27/2006
HON. ROBERT G. EVANS
COVINGTON COUNTY CIRCUIT COURT
DAVID BARNES (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED.
AFFIRMED - 5/01/2007
BEFORE MYERS, P.J., CHANDLER AND GRIFFIS, JJ.
MYERS, P.J., FOR THE COURT:
PROCEDURAL HISTORY AND STATEMENT OF FACTS
¶1.
On February 6, 2003, charged with the murder of Carole Chambliss, David Barnes pled guilty
to manslaughter in the Covington County Circuit Court. Barnes was sentenced to twenty years in
the custody of the Mississippi Department of Corrections, with seventeen years to be served in the
Mississippi State Penitentiary, and the remaining three years suspended pending successful
completion of three years supervised probation. On April 17, 2003, Barnes filed a pro se motion for
post-conviction relief in which he raised the following issues: (1) violation of his right against selfincrimination, (2) ineffective assistance of counsel, (3) violation of his right to a speedy trial, (4)
denial of due process, (5) defective indictment, and (6) excessive sentence. The circuit court denied
Barnes’ motion, finding that it “merely set out legal conclusions” and failed to state a “factual basis
upon which relief [could] be granted.” On appeal, this Court affirmed the circuit court judgment
denying Barnes’ motion for post-conviction relief. See Barnes v. State, 920 So. 2d 1019 (Miss. Ct.
App. 2005). Barnes filed a second motion for post-conviction relief on February 27, 2006, alleging
(1) defective indictment, (2) violation of his right to a speedy trial, and (3) ineffective assistance of
counsel. Finding Barnes’ second motion to be a prohibited successive writ, the circuit court again
denied post-conviction relief. Aggrieved, Barnes now appeals the denial of his second motion.
¶2.
We find Barnes’ motion to be procedurally barred as both an impermissible second attempt
to obtain post-conviction relief that does not fall within any of the enumerated statutory exceptions,
as well as time-barred because it was filed beyond the statutory three-year time limit. Accordingly,
we affirm the circuit court’s denial of Barnes’ motion.
LEGAL ANALYSIS
¶3.
The relevant code section on successive attempts to obtain post-conviction relief reads in
part: "The dismissal or denial of an application under this section is a final judgment and shall be
a bar to a second or successive application under this article." Miss. Code Ann. § 99-39-27(9) (Supp.
2006). The enumerated exceptions to the final judgment rule are stated in section 99-39-27(9) as
follows:
Likewise excepted 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 actually adversely
affected the outcome of his conviction or sentence or 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 it would have caused a
different result in the conviction or sentence.
¶4.
Barnes argues that his second petition for post-conviction relief is not successive because it
is based on three affidavits from the circuit court which certify that the circuit court has no records
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of (1) the grand jury proceedings in which he was indicted, (2) the affidavit of the grand jury
foreman, or (3) the minutes of the grand jury, which Barnes claims to all be newly discovered
evidence under section 99-39-27(9) that, if introduced at trial, would have adversely affected the
outcome of his conviction and sentence. However, we hold that such evidence was easily
discoverable at the time of trial, had a trial been held in this cause, and the exception is inapplicable.
Therefore, Barnes’ second motion for post-conviction relief is procedurally barred as an
impermissible successive writ. We further note, that Barnes offers this evidence only in support of
the defective indictment claim, and brings forth no new evidence in support of either the alleged
speedy trial violation or ineffective assistance of counsel claim.
¶5.
In addition to being procedurally barred under section 99-39-27(9), Mississippi Code
Annotated section 99-39-5(2) (Supp. 2006) establishes a three-year time limit in which motions for
post-conviction relief may be filed. Section 99-39-5(2) reads in relevant part: "[a] motion for relief
under this article shall be made . . . in case of a guilty plea, within three (3) years after entry of the
judgment of conviction." Barnes’ judgment of conviction was entered on February 7, 2003.
However, Barnes’ second motion for post-conviction relief was not filed until February 27, 2006.
Thus, Barnes’ motion is time-barred, unless it fits within some enumerated statutory exception. The
same two exceptions enumerated in section 99-39-27(9) discussed above apply to the three-year time
limit in section 99-39-5(2). Nobles v. State, 843 So. 2d 734, 735 (¶¶5-6) (Miss. Ct. App. 2003).
Having already held that the exceptions are inapplicable to Barnes’ claims, we find Barnes’ second
motion for post-conviction relief time-barred under section 99-39-5(2), and affirm the circuit court’s
denial of Barnes’ motion on this additional ground.
¶6.
THE JUDGMENT OF THE COVINGTON COUNTY CIRCUIT COURT DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO COVINGTON COUNTY.
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KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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