Alvin Da'von Thompson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01329-COA
ALVIN DA’VON THOMPSON
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
09/26/2007
HON. LESTER F. WILLIAMSON, JR.
LAUDERDALE COUNTY CIRCUIT COURT
ALVIN DA’VON THOMPSON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
- DISMISSED
AFFIRMED - 02/03/2009
EN BANC.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY AND FACTS
¶1.
On August 10, 2006, a jury in the Lauderdale County Circuit Court found Alvin
Thompson guilty of possession of cocaine with intent to sell. Thompson was sentenced to
serve thirty years in the custody of the Mississippi Department of Corrections. In the agreed
sentencing order, which was approved by the trial court, the State agreed to dismiss pending
charges, and Thompson agreed not to file an appeal or a motion for post-conviction collateral
relief in the matter. Furthermore, according to the agreement, Thompson would not be
sentenced as a habitual offender.
¶2.
On February 26, 2007, Thompson filed a motion to vacate the agreed sentencing
order. The trial court summarily dismissed Thompson’s motion, treating it as a motion for
post-conviction relief. Thompson now appeals, asserting the following issues which we have
reordered for clarity: (1) the trial court failed to fully examine his motion and note his actual
innocence; (2) the verdict was against the overwhelming weight of the evidence; (3) the State
failed to prove the elements of the crime charged; (4) the trial court erred in accepting the
jury verdict because the State failed to prove the charge; (5) he is innocent of the crime
charged; (6) the indictment was defective; (7) the State committed prosecutorial misconduct
in cross-examining him; (8) he received ineffective assistance of counsel; and (9) he was
denied due process.
STANDARD OF REVIEW
¶3.
A trial court’s dismissal of a motion for post-conviction relief will not be reversed
absent a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872
So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004). However, when issues of law are raised, the
proper standard of review is de novo. Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).
DISCUSSION
¶4.
Thompson’s first five issues listed above are barred and, therefore, are discussed
together. Thompson asserts that the State failed to prove that he was actually guilty of
possession with intent to sell. Mississippi Code Annotated section 99-39-21(2) (Rev. 2007)
prohibits raising an issue on post-conviction relief that was factually determined at trial and
on direct appeal. Thus, Thompson is barred from relitigating his guilt in his motion for post-
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conviction relief. We also note that, if this Court were to review the merits of Thompson’s
claims, Thompson has failed to present a record containing proof of his allegations. It is
incumbent upon a post-conviction relief petitioner to present a record containing proof to
support his petition. Holifield v. State, 852 So. 2d 653, 658 (¶13) (Miss. Ct. App. 2003). We
now turn our attention to the other four issues raised by Thompson on appeal.
I. WAS THE INDICTMENT DEFECTIVE?
¶5.
Thompson alleges that his indictment was defective. However, Thompson has failed
to provide this Court with a copy of his indictment. As stated previously, it is Thompson’s
duty to present proof to support his petition. Id. This issue is without merit.
II. DID THE STATE COMMIT PROSECUTORIAL MISCONDUCT?
¶6.
Thompson asserts that, when cross-examining him, the prosecutor inquired as to his
“application for an [sic] court appointed counsel.” While there is no record of the trial before
this Court, in his brief, Thompson confesses that his counsel objected, and the objection was
sustained and a limiting instruction was given. Mississippi Code Annotated section 99-3921(1) (Rev. 2007) provides that collateral estoppel precludes raising any issue in postconviction relief that could have been raised at trial or upon appeal.
This issue is
procedurally barred. Moreover, if it were not barred, it would be without merit. A timely
objection promptly sustained by a trial court and directions to disregard improper arguments
generally cure “any taint of prejudice” to the defendant. Turner v. State, 721 So. 2d 642, 645
(¶6) (Miss. 1998) (citation omitted).
III. WAS THOMPSON’S TRIAL COUNSEL INEFFECTIVE?
¶7.
Thompson argues that his trial counsel was ineffective. Prisoners alleging ineffective
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assistance of counsel in a post-conviction relief petition must show the elements of the claim
with specificity and detail. Sandifer v. State, 799 So. 2d 914, 918 (¶12) (Miss. Ct. App.
2001). Specifically, Thompson must allege facts showing his counsel’s performance was
deficient, and that the deficient performance prejudiced his defense.
Strickland v.
Washington, 466 U.S. 668, 687 (1984). Furthermore, a prisoner’s ineffective assistance
claim is without merit when the only proof offered is the prisoner’s own affidavit.
Buckhalter v. State, 912 So. 2d 159, 162 (¶13) (Miss. Ct. App. 2005).
¶8.
Thompson’s chief argument is that his attorney did not interview him until the day
before the trial. However, Thompson fails to state how this prejudiced his defense. We are
unpersuaded by Thompson’s vague assertions and find no merit to this issue. We note that
his attorney was able to procure a sentencing deal where Thompson would not be sentenced
as a habitual offender and arranged for the dismissal of another charge with a potential sixtyyear sentence.
IV. WAS THOMPSON DENIED DUE PROCESS?
¶9.
In his final issue on appeal, Thompson asserts that the clause of his agreed sentencing
order prohibiting him from seeking post-conviction relief denies him due process. The State
does not contend that Thompson’s waiver of post-conviction relief is a waiver of his
constitutional right to habeas corpus under Article 3, Section 21 of the Mississippi
Constitution. Nothing in our Constitution or jurisprudence suggests that an individual can
ever lose his right to challenge the legality of his incarceration. However, it is still
incumbent upon a post-conviction relief petitioner to meet the procedural and substantive
requirement of post-conviction relief pleadings. Therefore, while Thompson retained the
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ability to challenge the legality of his incarceration, nothing in the record shows that he is
illegally confined. This issue is without merit.
¶10. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.
KING, C.J., MYERS, P.J., GRIFFIS, BARNES, ISHEE, ROBERTS AND
CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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