IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01609-COA DAVID SAMUEL-RAMOS FELICIANO A/K/A DAVID FELICIANO A/K/A DAVID SAMUEL FELICIANO APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/08/2015 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: OLIVER E. DIAZ JR. DAVID NEIL MCCARTY ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA BYRD JASON L. DAVIS NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF AS A SUCCESSIVE W RIT DISPOSITION: AFFIRMED - 02/28/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ. ISHEE, J., FOR THE COURT: ¶1. David Sam

uel-Ram os Feliciano was indicte d a s a h a b i t u al o f f ender and pleaded guilty

to one count of f

elony f leeing the scene of an accident. Because he was a habitual of f ender, he could have been sentenced to the m axim um penalty o f t wenty y e ars; h owever, the Circuit Court of the Second Judicial District of Harrison County

sentenced Feliciano to seventeen and one-half y e ars to s e r v e i n the custody of the Mississippi Departm ent of Corrections(“MDOC”). The circuit court reduced the sentence based on a joint recom m endation m ade

by the State and def

ense counsel. Feliciano f iled a m o tion to vacate, set aside, and correct his s entence under the U nif orm Post-Conviction Collateral Relief Act (“UPCCRA”) and was denied relief

. Feliciano then f

iled a second motion under the UPCCRA, which the circuit

court denied because the m o t ion was barred as a successive writ. Feliciano now appeals, and

we f ind t h a t t h e c ircuit court did not err in deny ing Feliciano’s successive writ. Thus, we af f irm

. FACTS ¶2. On Septem

ber 26, 2012, at approxim ately 1 1 : 1 5 p . m . , F e l i c i a n o was driving his f riend’s t ruck when he p ulled o ut in f ront of traf

f ic a n d c o llided with a m otorcy clist, who died shortly thereaf

ter. Feliciano lef

t the s cene and hid at a f

riend’s house, b ef

ore his f riends convinced him to seek m edical t reatm ent. His f riend called the p olice, and Feliciano turned him self in. He was later indicted f or f elony l eaving the scen e o f t h e a c c i dent, and was indicted as a habitual of

f ender due to several past f elony convictions. ¶3. O n N o vem

ber 8, 2013, Feliciano pleaded guilty , and the circuit cour t a d e q u a t e l y perf orm ed the required plea colloquy bef ore accepting Feliciano’s plea. Feliciano told the circuit c ourt that h e f

led the scene because he was in shock, b u t l a ter adm itted that he was
out on bond f

o r another charge a t the tim e of the collision. The c ircuit court s pecif ically asked Feliciano i f he ever had “any blow to [ his] h ead, loss o f c o n s c iousness, loss of

m em ory , or any other serious injury that in [ his] o pinion would c ause [ him ] n ot to f ully understand what [ he was] doing.” Feliciano answered, “No, m a’am .”

2¶4. As part of F elicano’s plea a greem ent, t he State recom m ended that h e serve seventeen

y ears and six m o nths, day -f or-day , in the custody o f the MDOC. The c ircuit court accepted the recom m endation. ¶5. On August 8, 2014, Feliciano f iled a m otion to v a c a t e , s e t a s i d e , and correct his sentence, “pursuant to M i ssissippi C o de Sections 99-39-1, et seq., known as the [ UPCCRA].” T h e c ircuit c ourt denied the m otion, f inding i t did not com

ply with the statutory require me nts of the UPCCRA, and alternatively , that it was without m erit. Feliciano did not appeal the ruling. ¶6. A p p r o x i m a t e l y o n e y e a

r l a t e r , F e l i c i a

n o f i l e d h i s s e c o n d postconviction-relief (“PC R ” )

m otion claim ing that n ew m edical evidence was discovered, that his plea was not voluntarily

m ade, and that he received inef f ective assistance of c o unsel. Again, the circuit court denied the m otion and held that it w as p rocedurally barred under the U PCCRA as a successive writ, and alternatively , that i t, too, w as without m erit. Feliciano a ppeals the denial of his second

m otion. DISCUSSION ¶7. Mississippi C ode Annot a t e d s e c tion 99-39-23(6) (Rev. 2015) applies to successive writs. Section 99-39-23(6) p rovides that a prisoner who raises a n issue that the c i rcuit court addresses in a f

inal judgm ent with specif ic f indings of f acts and conclusions of law cannot raise t he issue again. “Any m otion f iled af ter an entry of the f

inal judgm e nt and asserting the

sam e issue is p rocedurally barred as a secondary or successive writ.” Parham v. State , 174 So. 3d 880, 883 (¶11) (Miss. Ct. App. 2015).

3¶8. In Feliciano’s f irst PCR m otion, he argued that new m edical evidence was discovered

t hat negated the intent elem ent f or his crim e. He subm itted the report of a doc t o r w h o asserted that Feliciano experienced the m edical occurrence o f “f ight o r f l ee” o n the night of the acc ident. No evidence was subm itted to establish the doctor as an expert, and his f indings were based on a m anual f or at-hom e m edical r ef

erences. Furtherm ore, the doctor’s report did not discuss any t hing related to Feliciano’s com p etency or m ental capacity at the tim e he entered his guilty plea. T he circuit court f ound that not o nly w as Feliciano’s m otion not in com

pliance with the UPCCRA, but i t a l so f ailed on the m erits because there was no

new m edical evidence that would allow relief under the UPCCRA. ¶9. Feliciano’s s econd PCR m otion a g a i n a l l e g e d t h a t n e w me dical evidence was discovered, this tim e s pecif ically ref erencing an i ncident that occurred when he was f ourteen
y ears old and was s truck by a v a n . He argued that the incident a f f ected his m em ory and cognitive a

bilities, a nd he supported his argum ent by showing that he had to e n roll in specialeducation classes af

ter the van s t r u c k h im

. The circuit court again f ound that this was not newly discovered e vidence, s ince Feliciano h a d k n own of this injury f or approxim ately twenty y ears, a n d t o l d t h e circuit court during his plea c olloquy t hat he did n ot have any injuries that would im

pair his ability

to com petently enter his plea. ¶10. Lastly , Feliciano argued that he received inef f ective assistance of counsel b ecause his attorney did not request that a m ental evaluation be conducted. Errors af f ecting f undam ental rights are excepted f

rom the procedural bars of t he UPCCRA. H owever, “the m ere assertion of a constitutional right violation” does not e n gage the e x ception. To prevail on a claim of

4inef

f ective a ssistance of counsel, a def endant m ust show: (1) his counsel’s p erf orm ance was def icient; and (2) the d e f

iciency prejudiced his def e nse. Strickland v. W

ashington , 466 U.S. 668, 687 ( 1984). W e decline to d iscuss the m e rits of t h i s a r gum ent i n depth, because we agree with the circuit court’s f inding that there was n o “indication that Feliciano behaved in

a m anner that should have caused the attorney to recognize any pr o blem .” There were no grounds k nown t o def

ense counsel that would require him to m ove f o r a m ental evaluation; theref ore, his f ailure to m ove f

or such an evalua t i o n c annot be considered d ef icient. The inef f ective-assistance-of

-counsel claim is w ithout m erit, and thus does not propel Feliciano over the procedural bar to his successive writ. ¶11. T h e c i rcuit court c onducted a thorough review and d etailed analy s is of Feliciano’ s f irst PCR m otion, and d id so again with his second. Though his f irst PCR m otion was not in t he particularized f

orm a t required under the UPCCRA, Feliciano speci f i cally requested relief under the U PCCRA, and the circuit court adjudicated the m o tion on the m e rits and in accordance with the UPCCRA. Theref ore, we f ind no error, and we af

f irm

. ¶12. T H E J U D G M E N T O F T H E H A R R I SON COUNTY CIR C U I T C O U R T , S E C O N D J U D I C I A L D I S T R I C T , D E N Y I N G T H E M O T I O N F O R POSTCONVICTION RELIEF IS A F F I R M E D . A L L C OSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
L E E , C .J., GRIFFIS, P . J . , B A R N E S , C A R L T O N , F A I R , W I L S O N , G R E E N L E E AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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