James Herman Avara v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-00813-COA
JAMES HERMAN AVARA
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
4/18/2006
HON. MIKE SMITH
PIKE COUNTY CIRCUIT COURT
JAMES HERMAN AVARA (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 9/25/2007
BEFORE KING, C.J., CHANDLER AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
This case comes before the Court on appeal from the April 18, 2006, judgment of the Circuit
Court of Pike County dismissing James Herman Avara’s motion for post-conviction relief. We
affirm the dismissal.
FACTS
¶2.
A Pike County Grand Jury indicted James Herman Avara for the murder of his girlfriend,
Mamie Avara, on January 19, 1999. After a jury trial, Avara was convicted and sentenced on May
27, 1999, to a life sentence in the custody of the Mississippi Department of Corrections. Avara filed
a petition for an out-of-time appeal on December 29, 1999, in Pike County Circuit Court which was
denied on June 28, 2000. The Mississippi Supreme Court affirmed the circuit court’s denial of
Avara’s petition on December 13, 2000. On March 21, 2006, Avara filed a motion for records and
transcripts seeking post-conviction relief under Mississippi Code Annotated section 99-39-5. The
Pike County Circuit Court dismissed his motion on April 18, 2006, as time-barred and as a
successive writ.
¶3.
Avara argues on appeal that he has newly discovered evidence which was not reasonably
discoverable at the time of his trial which would have changed the result of his case had it been
presented. Avara also argues that he received ineffective assistance of counsel, that the State failed
to present exculpatory evidence to the defense, that improper evidence was presented at trial in
violation of his Miranda rights, that the jury verdict was against the overwhelming weight of the
evidence, and that the State gave an improper jury instruction.
DISCUSSION
¶4.
“In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard
of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s
decision was clearly erroneous.” Smith v. State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct. App. 2002)
(citing Kirksey v. State, 728 So. 2d 565, 567 (¶8) (Miss. 1999)). Questions of law, however, are
reviewed de novo. Russell v. Performance Toyota, Inc., 826 So. 2d 719, 721 (Miss. 2002).
¶5.
Motions for post-conviction relief must be filed within three years after the time for direct
appeal of the conviction or sentence has expired. Miss. Code Ann. § 99-39-5(2) (Supp. 2006).
There are several exceptions enumerated in the statute which may enable a prisoner to overcome the
statute of limitations and allow the motion for post-conviction relief to be heard. Id. The prisoner
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may overcome the statute of limitations if he can show that there has been an intervening decision
of the United States Supreme Court or the Mississippi Supreme Court which would have affected
the outcome of his conviction or sentence; that he has new evidence which was not reasonably
discoverable at the time of his trial; that his sentence has expired; or that there has been an unlawful
revocation of his parole, probation, or conditional release. Id. Additionally, when a fundamental
constitutional right is involved, a post-conviction relief motion may be considered after the threeyear time limit has passed. Maston v. State, 750 So. 2d 1234, 1237 (¶14) (Miss. 1999).
¶6.
Avara was convicted and sentenced in May 1999. He filed his motion for post-conviction
relief on March 21, 2006, nearly seven years after his conviction. The Pike County Circuit Court
denied his motion on April 18, 2006, as being barred by the statute of limitations. Avara contends
that the circuit court should have considered his appeal in light of newly discovered evidence which
was not reasonably discoverable at the time of his trial in 1999.
¶7.
The evidence Avara claims to be newly discovered is an evidence submission form for the
Mississippi Crime Laboratory listing the victim as Mamie Avara and the offense as suicide. The
same form, however, names the suspect as James Avara. Avara claims in his brief that he did not
receive this evidence until June 2006 from the attorney who represented him at trial. However, the
medical examiner, whom Avara credits for gathering the information in the form, testified at Avara’s
trial, and Avara’s attorney cross-examined him. To overcome the statute of limitations, newly
discovered evidence must be “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. § 99-39-5(2) (Supp. 2006). To be sufficient to overcome the statute of limitations, the
newly discovered evidence would need to be almost certain to have caused a different result in
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conviction or at sentencing. Ouzts v. State, 817 So. 2d 585 (¶8) (Miss. Ct. App. 2001). Because
Avara’s claim of newly discovered evidence does not rise to this level, his motion for postconviction relief cannot be excepted from the statute of limitations.
¶8.
Avara also claims that his attorney’s failure to obtain the autopsy report or to present it to the
jury during trial constituted ineffective assistance of counsel. The Mississippi Supreme Court held
in Maston that it “has never held that merely raising a claim of ineffective assistance of counsel is
sufficient to surmount the procedural bar.” Maston, 750 So. 2d at 1237 (citing Bevill v. State, 669
So. 2d 14, 17 (Miss. 1996)). Moreover, the Mississippi Supreme Court has also held that the threeyear statute of limitations for post-conviction relief claims includes claims of ineffective assistance
of counsel. Kirk v. State, 798 So. 2d 345, 346 (¶6) (Miss. 2000) (citing Luckett v. State, 582 So. 2d
428, 430 (Miss.1991)). Avara’s claim of ineffective assistance of counsel does not fall within any
of the exceptions to the three-year statute of limitations for post-conviction relief.
¶9.
This Court finds that Avara’s motion for post-conviction relief was barred by the statute of
limitations set forth in Mississippi Code Annotated section 99-39-5(2). Avara was convicted and
sentenced in May of 1999, and the post-conviction relief motion was filed in March of 2006, well
past the three-year statute of limitations. Avara’s previous motions for relief were denied; therefore,
this appeal is also denied as being a successive writ under Mississippi Code Annotated section 9939-23(6). Because none of Avara’s claims is within the exceptions to the statute of limitations or
to the bar against successive writs, his motion for post-conviction relief was time-barred and was a
successive writ. The trial court did not err in dismissing Avara’s motion.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DISMISSING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO PIKE COUNTY.
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KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ISHEE AND ROBERTS, JJ., CONCUR.
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