Robert Lee DeLoach v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-01490-COA
ROBERT LEE DELOACH
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
DISPOSITION ON REMAND:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
5/20/1997
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
CARRIE A. JOURDAN
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
FORREST ALLGOOD
CRIMINAL - FELONY
GUILTY OF ARMED ROBBERY, SENTENCED
TO 22 YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
APPEAL DISMISSED - 3/18/2003
DENIED - 08/05/2003
WRIT GRANTED - 12/04/2003; REVERSED AND
REMANDED TO COURT OF APPEALS 05/13/2004
AFFIRMED - 07/13/2004
EN BANC.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
Robert Lee DeLoach was convicted of armed robbery in 1997. He did not file a notice of appeal
until 2001. This Court dismissed the appeal as untimely. DeLoach v. State, 856 So. 2d 388 (Miss. Ct.
App.), cert. granted, 860 So. 2d 1223 (Miss. 2003). Our decision was reversed, and the case was
remanded to us for a decision on the merits of the issues that DeLoach raised in his appeal.1 DeLoach v.
State, 2001-CT-01490-SCT (Miss. May 13, 2004). The merits attack the effectiveness of DeLoach's
trial counsel. The arguments are unpersuasive, and we affirm.
FACTS
¶2.
DeLoach was convicted of the armed robbery of a Junior Food Store in which about $450 was
taken from the store manager. He was represented by appointed counsel and was sentenced to serve
twenty-two years in the custody of the Mississippi Department of Corrections.
¶3.
DeLoach appeals and argues that he was given ineffective assistance by his counsel. The State
presented evidence that the store's manager had identified DeLoach as the perpetrator. Initially, the
manager was unable to select one person in a photographic lineup. She was able during the third lineup
to identify DeLoach as the man who robbed her. DeLoach's counsel made no motion to suppress this
identification. The State also presented evidence that DeLoach had access to the type of truck that the
witness identified as being involved in the crime.
¶4.
DeLoach claimed that during the time of the robbery, he was asleep at his sister's home. He also
claimed that he did not have a truck that day and in fact had to take a ride with his nephew to his daughter's
home that day. He argues here that his counsel failed to subpoena these witnesses until the day before his
trial. In the courtroom during his trial, DeLoach wore a prison uniform and claims that had his family been
contacted, he would have been provided with clothing and grooming that would have made him appear less
1
Those seeking a writ of certiorari after being dissatisfied in this Court would be well-served
to join all their complaints, including those not ruled upon here, in their petitions for the writ. Perhaps
the Supreme Court would rule on the other issues, avoiding the inefficiencies and delays attendant to a
remand here to consider the other issues.
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prejudicial before the jury. DeLoach argues that these failures by his attorney were to the level of being
ineffective assistance.
PROCEDURAL ISSUES
¶5.
We initially dismissed the appeal as being untimely. DeLoach, 856 So. 2d at 389. This Court had
in several cases interpreted an appellate rule to mean simply what it says, namely, that if a party dissatisfied
with a trial court judgment does not file a notice of appeal within the initially available time period, that
person has a right to file a request reopening the period for appeal "within 180 days of entry of the judgment
or order or within 7 days of receipt of such notice [of the entry of judgment], whichever is earlier. . . ."
M.R.A.P. 4(h). See DeLoach, 856 So. 2d at 389; Watson v. State, 841 So. 2d 218, 219 (Miss. Ct.
App. 2003); McGruder v. State, 835 So. 2d 104, 105 (Miss. Ct. App. 2003); Badger v. State, 826 So.
2d 777, 779 (Miss. Ct. App. 2002); Harris v. State, 826 So. 2d 765, 768 (Miss. Ct. App. 2002). Our
first DeLoach decision and that in McGruder were reversed by the Supreme Court. DeLoach, 2001-CT01490-SCT (Miss. May 13, 2004); McGruder, 2001-CT- 01542-SCT & 2003-TS-00689-SCT (Miss.
Sep. 11, 2003).
¶6.
The Supreme Court said that it was doubtful that "a trial court has authority to remedy the failure
to file timely a notice of appeal" after the rule-defined maximum delay of 180 days. McGruder,
2001-CT-01542-SCT & 2003-TS-00689, at (¶4). The Court then stated, though, that an appellate court
may suspend the appellate rules and grant an out-of-time appeal "where a person is convicted of a crime
and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed
by law by the acts of his attorney or the trial court." Id., quoting Jones v. State, 355 So. 2d 89, 90 (Miss.
1978). The Court also cited a case that permitted the suspension of the time to appeal under Appellate
Rule 4 "when justice demands," at least in criminal cases. Fair v. State, 571 So. 2d 965, 966 (Miss.
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1990). Both precedents were written before amendments to Rule 4 were made that created an outer limit
of 180 days to file for an out-of-time appeal. M.R.A.P. 4(h), as amended effective July 1, 1997, 689-692
So. 2d LXII, LXIV-V (West Miss. Cases 1997); see Harris, 826 So. 2d at 767. The language in
Appellate Rule 2 allowing suspension also predates this amendment to Rule 4(h). Id.
¶7.
The Supreme Court determined that the necessary relief for criminal defendants is to override the
180-day limitation set out in the rule itself. However, another available route is to file for post-conviction
relief, a procedure that permits a prisoner to seek to convince a court that he is "entitled to an out-of-time
appeal." Miss. Code Ann. § 99-39-5 (1)(h) (Rev. 2000). That remedy is able to protect inmates who
"through no fault of their own" have not had an appeal of their underlying conviction. Though such a
remedy might need to be brought within three years of the final judgment of conviction under section 99-395(2), a failure to seek some relief within three years may not be a situation that should be called "no fault"
of the inmate. A later plea for relief would have to show an exceptional situation to which the three year
bar does not apply, which is a reasonable constraint. Relying on post-conviction relief would also leave
in effect the plain language of Appellate Rule 4(h), which sets an outer limit on how late a request for a
direct appeal can be made.
¶8.
Nonetheless, the Supreme Court which wrote the rule also is the final arbiter on its meaning. It held
that Appellate Rule 4(h) solely limits the discretion of trial courts and not that of appeals courts.
McGruder, 2001-CT-01542-SCT & 2003-TS-00689-SCT, at (¶4). We have cited decisions in which
we have held to the contrary. We consider them and any similar ones to be overruled to the extent they
are inconsistent with the high court's decisions in McGruder and DeLoach.
¶9.
It should be noted that if the 180-day limit is sometimes to be waived at the discretion of the
appellate court, at least when a criminal defendant otherwise will not receive appellate review, the result
4
will likely be that the limit must never apply to such criminal defendants. Case-by-case discretion may be
unproductive and inefficient since the prisoner whose appeal is not permitted will be able to show to a
federal court the inconsistent state results:
When a state-law default prevents the state court from reaching the merits of a
federal claim, that claim can ordinarily not be reviewed in federal court. Thus, had
respondent proceeded to federal habeas on the basis of the Miranda claim upon
completing his direct review in 1978, federal review would have been barred by the
state-law procedural default.
State procedural bars are not immortal, however; they may expire because of later
actions by state courts. If the last state court to be presented with a particular federal claim
reaches the merits, it removes any bar to federal-court review that might otherwise have
been available.
Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (citations omitted). Failure to apply a procedural bar
consistently and regularly to criminal appellants' claims will result in that bar not being considered an
adequate state ground; federal habeas review beyond the procedural bar will be required. E.g., Dugger
v. Adams, 489 U.S. 401, 410 n.6 (1989). We doubt that the state Supreme Court would wish for such
an open invitation to be issued for relitigating convictions in federal court. Therefore, it is difficult to envision
situations in which a state criminal defendant would ever not be able to file for an out-of-time appeal from
his conviction, though the Supreme Court did refer to the delay needing to be the fault of someone besides
the defendant himself. If all timing rules are subject to being suspended, then for purposes of habeas
analysis, there may be no timing rules.
¶10.
The Supreme Court in its remand of the present case and in McGruder implied that trial judges do
not have authority to grant an out-of-time appeal later than 180 days after the judgment. The Court has
also stated that the appellate courts may grant such appeals. What is the proper order for a trial judge
when presented with such a request is an issue for another day.
INEFFECTIVE ASSISTANCE OF COUNSEL
5
¶11.
DeLoach claims that his trial counsel should have moved to have the eye-witness testimony of the
store manager suppressed, should have ensured some of his relatives were in the courtroom to testify so
that they could support his alibi, and should have ensured he was dressed in something other than his prison
uniform. In order for DeLoach to establish that his case should be reversed because of attorney errors,
he must show that his attorney was significantly deficient, and that but for counsel's errors, the outcome of
the prosecution likely would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶12.
DeLoach's trial counsel, Donna Smith, made a request for discovery and disclosure prior to trial.
During trial, Smith cross-examined the store owner as to her inability to identify DeLoach as the perpetrator
until the morning of the trial. She questioned witnesses as to whether DeLoach had access to the truck
used during the crime. Smith made objections during testimony and moved for a directed verdict at the
conclusion of the State's case-in-chief. There was also an attempt to have family members testify on
DeLoach's behalf. Telephone calls were made to them before trial. When the family failed to attend the
courtroom proceedings, Smith requested subpoenas for these witnesses. She discussed with DeLoach that
the decision whether to testify belonged to him. Smith called a barber to testify about DeLoach's
appearance to compare his usual hairstyle with the description the store manager gave of the robber. She
also made opening and closing statements in which she presented his alibi. Smith prepared and submitted
jury instructions to the court.
¶13.
The performance by DeLoach's attorney does not fall to the level required for a finding of
ineffective assistance. On the merits of this appeal, we find no error and affirm.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF
CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-TWO YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
COSTS ARE ASSESSED TO LOWNDES COUNTY.
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KING, C.J., BRIDGES, P.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ.,
CONCUR.
7
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