C. D. Pickle, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CP-01404-COA
C.D. PICKLE JR.
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
08/19/2009
HON. RICHARD A. SMITH
LEFLORE COUNTY CIRCUIT COURT
C.D. PICKLE JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED-11/30/2010
BEFORE LEE, P.J., ISHEE AND MAXWELL, JJ.
ISHEE, J., FOR THE COURT:
¶1.
C.D. Pickle Jr. was convicted of capital murder and sentenced to life in the custody
of the Mississippi Department of Corrections (MDOC). Pickle filed a motion for postconviction relief (PCR), which the Leflore County Circuit Court dismissed. Pickle now
appeals to this Court and contends that the circuit court erroneously dismissed his PCR
motion as procedurally barred and frivolous. Finding no error, we affirm.
FACTS
¶2.
In 1975, Pickle, then sixteen years old, was indicted by a Holmes County grand jury
for the capital murder of Mary Elizabeth Harthcock. The indictment charged that on
November 26, 1974, Pickle killed Harthcock after he had raped her. Pickle was subsequently
convicted and sentenced by the Holmes County Circuit Court to death. In 1977, the
Mississippi Supreme Court reversed Pickle’s conviction and remanded the case for a new
trial. Pickle filed a motion for change of venue, which was granted. His second trial was
held before the Leflore County Circuit Court in 1978, where he was convicted again and
sentenced to life in the custody of the MDOC. Pickle never perfected an appeal from that
conviction.
¶3.
Though the record is unclear, some time between March or April 1978 and December
1981, Pickle petitioned the Leflore County Circuit Court for permission to file an out-of-time
appeal from his conviction, which was denied. On review, the Mississippi Supreme Court
ordered an evidentiary hearing on the issue of whether Pickle had knowingly and
intelligently waived his right to appeal. After concluding the evidentiary hearing, the circuit
court determined that Pickle had properly waived his right to appeal. Accordingly, the circuit
court again denied Pickle’s request for an out-of-time appeal. The supreme court affirmed
the denial in March 1982.
¶4.
In September 1997, Pickle filed a PCR motion seeking an out-of-time appeal from his
1978 conviction and sentence. The circuit court denied the motion, finding that it had
already determined Pickle had knowingly and intelligently waived his right to appeal and that
Pickle had raised no other issues which would entitle him to an out-of-time appeal. Pickle
appealed this decision to the supreme court. In July 2001, the supreme court affirmed the
circuit court’s decision and held that Pickle was collaterally estopped from seeking an out-of-
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time appeal because the issue of his entitlement to an out-of-time appeal had been
adjudicated sixteen years before. Pickle v. State, 791 So. 2d 204, 207 (¶14) (Miss. 2001).
¶5.
In June 2004, Pickle filed another PCR motion in the circuit court. Pickle argued that
in his 1978 trial, the jury was erroneously instructed, and his counsel was ineffective. He
further argued that he was innocent. The circuit court dismissed Pickle’s PCR motion as
time-barred and as a successive writ.
The circuit court further held that Pickle was
collaterally estopped from filing the motion since the issue of his entitlement to an out-oftime appeal had already been determined. This Court affirmed the circuit court’s decision
in May 2006. Pickle v. State, 942 So.2d 243, 247 (¶15) (Miss. Ct. App. 2006). Pickle then
petitioned the supreme court for writ of certiorari, which was denied on November 20, 2006.
¶6.
In June 2009, Pickle filed the following: “Motion for Reconsideration of Court’s
Findings of Fact, to Vacate it’s [sic] Interlocutory Order as Void and to Supplement Pending
Petition for Out-of-Time Appeal Complaint with Joinder of Appeal Claims of Constitutional
Trial Errors, Before Final Judgment Order is Rendered by this Court.” On August 19, 2009,
the circuit court denied and summarily dismissed all motions filed by Pickle. In its order, the
circuit court noted that Pickle’s motion was frivolous and also mentioned at least three
federal lawsuits and three state lawsuits filed by Pickle, which the circuit court also deemed
frivolous. Accordingly, the circuit court barred Pickle from bringing any action regarding
his incarceration, either in federal or state court, absent immediate danger or physical injury.
It is from the circuit court’s decision dismissing Pickle’s instant PCR motion and deeming
it frivolous that Pickle now appeals.
STANDARD OF REVIEW
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¶7.
This Court will not disturb a trial court’s dismissal of a PCR motion unless the
decision is clearly erroneous. Williams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App.
2004); Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999). Questions of law are reviewed
de novo. Id.
DISCUSSION
¶8.
Under Mississippi Code Annotated section 99-39-23(6), second or successive PCR
motions are procedurally barred. A successive PCR motion is prohibited unless a prisoner
can show the existence of newly discovered evidence that would alter the outcome of the
prisoner’s sentence, an intervening decision from the United States Supreme Court or State
of Mississippi, or, in the case of a prisoner who has filed a prior petition requesting DNA
testing, DNA test results that were not previously presented or available. Miss. Code Ann.
§ 99-39-23(6) (Supp. 2009). In essence, “an appellant is granted one bite at the apple when
requesting (PCR).” Dobbs v. State, 18 So. 3d 295, 298 (¶9) (Miss. Ct. App. 2009) (internal
citations omitted).
¶9.
The record clearly indicates the current PCR motion on appeal is Pickle’s third PCR
motion. This Court has previously affirmed the circuit court’s dismissal of Pickle’s second
PCR, wherein we stated: “The instant PCR [motion] was Pickle’s second pertaining to his
March 1978 conviction; his first PCR [motion] was dismissed. Therefore, the instant PCR
motion was barred as a successive writ.” Pickle, 942 So. 2d at 245 (¶9). Accordingly, we
find no error in the circuit court’s ruling that the PCR motion in question is procedurally
barred.
¶10.
Furthermore, while the circuit court did not specifically address the issue of Pickle’s
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PCR motion being time-barred in addition to it being procedurally barred, this Court raises
the issue on its own. Mississippi Code Annotated section 99-39-5(2) provides prisoners three
years in which to file an appeal for PCR. Miss. Code Ann. § 99-39-5(2) (Supp. 2009). The
date on which the three-year statute of limitations begins to run depends on the circumstances
of the case.1 Id. With regard to Pickle, the three-year period began to run on the last date
from which his 1978 conviction was immediately appealable. While the rule allows for PCR
after the three-year time frame in limited circumstances, Pickle’s case does not fall within
one of the exceptions.2 Accordingly, under Mississippi Code Annotated section 99-39-5(2),
Pickle’s PCR motion regarding his thirty-two-year-old conviction is time-barred.
¶11.
Finally, this Court has recognized it is within a circuit court’s discretion to dismiss
claims as frivolous without conducting an evidentiary hearing where “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.” Walters v. State, 21 So. 3d 1166, 1169 (¶11) (Miss.
1
Mississippi Code Annotated section 99-39-5(2) states that an appeal for PCR may
be filed within three years after the time in which “the petitioner’s direct appeal is ruled upon
by the Supreme Court of Mississippi or, in case not appeal is taken, within three . . . years
after the time for taking an appeal from the judgment of conviction or sentence has expired,
or in case of a guilty plea, within three . . . years after entry of the judgment of conviction.”
Miss. Code Ann. § 99-39-5(2).
2
Mississippi Code Annotated section 99-39-5(2)(a) provides that the three-year
statute of limitations for requesting post-conviction relief may be extended if: (1) an
intervening decision of the Mississippi Supreme Court or United States Supreme Court
exists which was not “reasonably discoverable” at the time of trial and that would have
caused a different result in the conviction or sentence if it had been introduced at trial; or (2)
biological evidence exists that can be subjected to additional DNA testing and the results of
which would show a “reasonable probability” that the petitioner’s sentence would have been
lesser or the petitioner would not have been convicted had the DNA results been obtained
at the time of the original prosecution. Miss. Code Ann. § 99-39-5(2)(a)(i) and (ii).
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2009) (citing Miss. Code Ann. § 99-39-11(2) (Supp. 2009)). We will not overturn a circuit
court’s ruling that a PCR motion is frivolous and should be dismissed absent a finding that
the decision was clearly erroneous. Williams, 872 So. 2d at 712 (¶2). In deeming the instant
PCR motion to be frivolous, the circuit court noted that the PCR motion in question is
Pickle’s third PCR motion and that Pickle has filed at least six frivolous lawsuits in state and
federal court relating to his conviction. Accordingly, we find no error in the circuit court’s
dismissal of Pickle’s PCR motion and determination that the PCR motion is frivolous.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
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