IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-CP-00088-COA CURTIS DAVIS, JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/18/2012 TRIAL JUDGE: HON. C.E. MORGAN III COURT FROM W HICH APPEALED: MONTGOMERY COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CURTIS DAVIS JR. (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DENIED DISPOSITION: AFFIRMED - 04/28/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ. ROBERTS, J., FOR THE COURT: ¶1. Curtis Davis Jr. appeals the denial of his second post-conviction-relief (PCR) m otion,

s e e k i n g r elief based on newly discovered DNA evidence. W e agree with t he trial cour t ’ s f inding that Davis’s m o tion is barred as a successive writ and af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Davis was indicted f o r the capital m

urder of his f

ather-in-law, W i lliam McCuiston, and f or possession of a f

irearm by a convicted f

elon. On A ugust 31, 2010, Davis pled guilty

to m anslaughter and possession of a f irearm b y a c o nvicted f

elon. He w a s sentenced totwenty y ears and ten y ears, respectively , with the sentences to run consecutively

.

¶3. On May 24, 2011, D avis’s counsel f iled a P C R mo t i o n in the Montgom ery County Circuit Court, asserting t hat Davis ’ s conviction and sentences should be vacated based on newly discovered DNA evidence. The DNA evidence was r etrieved f rom swabs taken f

rom

a gun, phone, s h o e , a n d various other objects f ound at the c rim e s cene. T he test results excluded Davis as a contributor to the sam p les. Davis argued he would have chosen to go

to trial based on the lack of DNA evidence had he k nown the results prior to his plea, since the State had no other evidence linking him to the crim e. He also argued his cousin, Betty Young, com m i tted t he m

u r der, a s evidenced b y her knowledge of the gun’s location af ter the

m urder and her f

inancial m otive. ¶4. The trial court denied the m otion, f inding Davis’s a r gum ents either had been waived or were without m erit. First, the trial court noted that on August 5, 2010, p rior to his plea, Davis had m o ved to com pel the DNA test r e s u l t s . H i s m otion a r gued that the State had violated discovery rules b y f ailing to provide h im with the results. 1 Crim e lab records show the results becam e available on August 27, 2 010, f our day s bef

ore D avis entered h i s p l e a. The trial court f

ound that b ecause the results were available prior to his plea, they were not newly d i scovered evidence. The trial court f urther f ound t h e r e was no evidence the State suppressed the test results, and all argum ents c ontained in the m otion to com pel were waived by Davis’s plea. A s the trial court f ound, when Davis pled guilty , “he waived his positions

1 S ee B ra d y v
. M a ryla n d , 3 7 3 U .S

. 8 3 , 8 7 (1 9 6 3 ) (“[ S ] u p p r essio n b y th e p ro secu tio n o f ev id en ce f

av o rab l e t o an accu sed u p o n req u est v io lates d u e p ro c ess w h ere th e ev id en ce is m aterial eith er t o g u ilt o r to p u n ish m en t, irresp e ctiv e o f t h e g o o d f aith o r b ad f

aith o f th e p ro secu t io n . ”). 2raised in his [ m ]otions to [ s]uppress [ his conf ession] and [ c]om

pel” the DNA results. The trial court likewise f

o und Davis’s “allegations against Betty Young do not constitute newly discovered evidence and were waived by the pleas.” ¶5. Notwithstanding, the trial c ourt exam ined t he D NA test results and f ound no m erit to Davis’s claim t hat the r e sults would have m aterially af f ected his plea. The s wabs taken f rom the phone revealed t he victim ’s DNA, which t he trial court noted was “no t u n u s ual considering the hom icide took place in [ the victim ’s] hom e.” The other s wabs p roduced no DNA results. The DNA results did not exclude Davis as the perpetrator. They only excluded him a s a contributor to the s am ples. The trial c ourt f

ound that the absence of DNA evidence did not exonerate Davis, and that while “there is n o f orensic evidence linking [ Davis] with the crim e, there are h i s conf ession and statem ents i n t he p lea c olloquy that do.” Davis’s PCR

m otion was denied on June 8, 2011. No appeal was taken of the trial court’s decision. ¶6. On October 10, 2012, Davis f il e d a p r o s e p e t i t i on e ntitled “W rit of Mandam us,” which the trial court treated as a PCR m otion. Davis again argued he was entitled to relief based on his discovery of the DNA test results af t er his plea. He argued the DNA test results

were newly discovered evidence, his counsel was inef f ective f or f ailing to advise him that he could wait on the DNA t est results bef ore pleading guilty , and his conf ession was coerced. On October 19, 2 012, the trial court denied the m o tion as s uccessive-writ barred. Davis f iled

a m otion to reconsider, which was also denied. ¶7. Davis appeals, raising the f ollowing issues: (1) the t rial c o u r t e r r e d i n deny ing his PCR m otion when there was newly discovered e xculpatory evidence; (2) the trial court erred

3in f

i nding his PCR m otion successive-writ barred; ( 3) his a t torney was inef f ective f or f ailing

to a dvise h im of his r ight t o w a i t on the DNA results; and ( 4) his due-process r ights were violated because the State f a iled to disclose the D NA test results. W e f ind no error and af f irm

. STANDARD OF REVIEW ¶8. T h e decision to deny a PCR m otion will not be disturbed u nless c l early e r r o n e o u s . Rowland v. State , 42 So. 3d 503, 506 (¶8) (Miss. 2010). Questions of law are reviewed de

novo. I d. ANALYSIS ¶9. Davis’s s econd PCR m otion was sum m arily denied as a successive writ. Mississippi Code Annotated s ection 99-39-23(6) (Supp. 2014) provides that an o rder dism issi n g or deny ing a PCR m otion acts a s a b ar t o a s uccessive PCR m otion. Several exceptions exist

to the successive-writ bar, including claim s of newly discovered evidence under s ection 99- 39-23(6) and “errors af

f ecting f undam ental constitutional rights[ .]” Smith v. S tate , 149 So. 3d 1027, 1031-32 (¶¶8-11) (Miss. 2014) ( quoting Rowland , 42 S o. 3d a t 507 (¶12)) (holding that c o n s t i t u t i onal claim s are excepted f rom the s uccessive-writ bar and the com m on-law doctrine of r es judicata). I t i s undisputed that Davis’s s econd PCR was a successive writ. Thus, we m

ust determ ine whether Davis has shown any exceptions to the procedural bar. 1. New ly Discovered Evidence ¶10. D a v i s f

i r s t a r g u e s h e i s e n t itled to r elief based on the newly discovered DNA evidence. Davis a rgues he learned of the DNA test results af ter his plea, and t he results

4would have changed the outcom e of his conviction. H e asserts he w o uld not have pled guilty

had he known the results excluded him as a contributor to swab sam ples taken f

rom the crim e scene, since the State had no other evidence against him

. ¶11. Newly

discovered evidence is “evidence, not reasonably discoverable at the tim e of trial, which is of such nature that it would be prac t i c a l l y c o nclusive that, if i t had been introdu c e d a t t r i a l, it would have caused a dif f erent result in the conviction or sentence.” Miss. Code Ann. § 99-39

- 2 3 ( 6 )

. 2 In order to p rovide an exception to t he p rocedural bar, “[ t]he e vidence m u s t b e b o t h n ewly discovered a nd m a terial to the outcom e of [ the def endant’s] convictions.” McCoy v. State , 111 So. 3d 673, 676 ( ¶8) (Miss. Ct. App. 2012). However, “when a d e f

endant pleads guilty , he is adm itting t hat he com m itted t he of f ense . Theref ore, by def

inition, a plea of guilty negates any notion that there is som e undiscovered evidence which c ould prove his innocence.” Bell v. State , 2 So. 3 d 747, 750 ( ¶10) (Miss. Ct. App. 2009) (quoting Jenkins v. State , 986 So. 2d 1031, 1034 (¶12) (Miss. Ct. App. 2008)). ¶12. As the trial court f

ound when it denied Davis’s f irst PCR m otion, t he DNA r esults do

not qualif y as newly discovered e vidence, and they are not m aterial to the outcom e of Davis’s conviction. The DNA test results were available f our day s prior t o Davis’s plea. D avis has

not shown that the r esults were not available to h im , or that the State suppressed the results.

2 In h is b rief

, D av is asserts h e is en t itled to relief u n d e r M ississip p i C o d e A n n o tated sectio n 9 9 -3 9 -5 ( 2 )(a)(i)-(ii) (S u p p . 2 0 1 4 ). S u b sectio n (i) p ro v id e s an ex cep tio n to th e th reey ear tim e -b a r ap p l ied to P C R m o tio n s f o r claim s o f n ew ly d isco v ered ev id e n ce. S u b sectio n (ii) p ro v id es an ex cep tio n t o th e tim e-b a r w h ere th e r esu lts o f n ew o r ad d itio n al D N A testin g w o u l d h av e f

av o rab ly af

f ected t h e d ef

en d an t’s co n v ictio n o r sen ten ce h ad th e resu lts b een av ailab le at th e t im e. N e ith er ap p l ies h ere. D av is’s m o tio n w as n o t tim e-b arred , an d h e d o es n o t assert a n eed f

o r n ew o r ad d i tio n al D N A testin g . We w ill ex am in e D a v i s’s arg u m en t u n d er th e ex cep t io n set o u t in sectio n 9 9 -3 9

- 2 3 (6 ). 5Further, the results d o not p rovide exculpatory inf orm a tion. Davis a rgues the test results are exculpatory because, without any DNA e vidence, the State h ad no p roof that he com m itted the m urder. However, this is not true. ¶13. Regardless of t he absence of DNA evidence, the S tate had evidence o f Davis’s guilt because Davis c onf

essed to law enf

orcem ent that he killed McCuist o n . H i s conf ession to Montgom ery

County Sherif f Jerry Nix is as f

ollows: Sherif f Nix: Okay , when y ou went inside. W here did y ou go to? Davis: Uh, he keep his weapon i n his closet. I went back there and got

it. Sherif f Nix: Okay

. Davis: ‘Cause I knew– I knew he just whatn’t gone [ sic] let m e talk to

him

. Sherif f Nix: Okay

. Davis: Uh, when h e cam e in, I went in the corner. I knew he was gone

go [ sic] get it. Sherif f Nix: Okay

. Davis: Uh, I put it down. He alway s have b e e n a h o t h ead. W hen he

saw it. Sherif f Nix: So when – Davis: W hen – w hen he t ried to grab it, I went at it, a nd I got him f irst. Sherif f Nix: You went ahead and had the gun, so y ou said. Davis: Yes, sir. I had– Sherif f Nix: You had it in the kitchen. W hen he com e in t h e d o o r , what happened?

6Davis: Uh, that’s as f ar as he went. H e c ouldn’t g o – I think when he saw m e, I kind of

scared him

. Sherif f Nix: And then what’d y ou do? Davis: I shot him

. Sherif f Nix: That’s when y ou shot him

– when he com e in the door – com e to the kitchen there. Davis: Yes, sir. Sherif f Nix: How m any

tim e s did y ou shoot him ? Davis: Twice. Sherif f Nix: Okay

. W as h e try ing to get away f rom y ou when y ou shot him , or was he standing there looking at y ou, or – Davis: He was l ooking at m e. I think I initially scared him

. He wasn’t

expecting it. May

be f ind his wif

e at t h e d oor. Uh, but I shot him

. W hen I shot him twice, he f e ll f acing the u h – [ h]e f

ell in – I call it the living room

. ¶14. Further, by p leading g uilty , Davis nullif ied any assertion that h e could som ehow later
prove his innocence through undiscovered evidence. See Bell , 2 So. 3d at 7 50 (¶12). During his plea colloquy , the State provided a f a ctual basis f

o r his g uilt, w hich Davis adm itted was true. His plea colloquy

reads as f

ollows: BY THE COURT: I will he a r f r o m t h e S t a t e o n t h e f

actual basis of

each charge. [ STATE]:

. . . [ T]he State would show i n a trial of t his m atter as to

Count One, the Def

endant is pleading to the lesser included of ma n slaughter. T he State would show t hat this Def endant did kill a h um a n being, that being Mr. Wi lliam M cCuiston without m alice and in the heat o f passion b y t h e u s e o f a dangerous weapon, that being a .30-30 rif le. As to Count Tw o, the State would show

–
7both o f these took place on Decem ber 1st, 2009, Your Honor. Show that this Def endant d i d p ossess a .30-30 Marlin rif l e a f ter he had been convicted of statutory r ape in Oktibbeha County in 2008, wh e r e he received a 20 y ear suspended sentences. . .

. [ Davis] conf essed to the killing in that he shot h im at his hom e , and this was tape recorded af

ter giving a Mirandized statem ent. BY THE COURT: Y o u h a v e h e a r d what the State i ntends to prove i n t h e

event this m atter would go to court. D i d y ou d o those thing? [ DAVIS]: Yes, Your Honor.
BY THE COURT: Are y ou pleading guilty t o each charge because y ou are,

in f act, guilty of them ? [ DAVIS]: Yes, Your Honor. Davis also adm itted under oath during his plea colloquy t hat his plea was voluntary and of his own f ree will. W e give “a strong presum ption of v alidity ” to statem ents m a de under oath. Loden v. State , 43 So. 3d 365, 396 (¶57) (Miss. 2010). ¶15. Davis has n ot shown a claim of newly discovered evidence s uch that he can overcom e the s uccessive-writ procedural bar. The DNA evidence was not newly d iscovered or m aterial

to Davis’s plea, and, regardless, Davis negated any c l aim s of innocence when he entered his plea. This issue is without m erit. 2. Ineffective Assistance of Counsel ¶16. Davis a rgues his counsel was inef f ective by f ailing to advise him that he could wait f or the DNA t est results b ef ore p leading guilty

. He also asserts that his counsel coerced h im into pleading g uilty , telling him that if he did not p lead, he could be sentenced to death or lif e without parole.

8¶17. To prevail o n a claim of inef f ective assistance of counsel, a petitioner m ust show: (1) his counsel’s perf

orm ance was def

icient, and (2) the def

iciency w as prejudicial. S trickland

v. W a shington , 466 U.S. 668, 6 87 (1984). In order f or h i s c l a i m t o be excepted f rom the successive-writ bar, Davis m ust show his couns e l com m itted an error a f f e cting his f undam ental constitutional rights. See Smith , 149 So. 3d at 1031-32 (¶10). “It is conceivable that under the f

acts o f a particular case, [ an appellate c ourt] m i g h t f i n d that a lawy er’s perf orm ance was so def

icient, and so prejudicial to the d e f e n d a nt, that the def

endant’s f undam ental constitutional r ights were violated.” Bevill v
. S tate , 669 So. 2d 14, 17 (Miss.
1 9 9 6 ). “However,

. . . m erely raising a claim of inef f ective assistance of counsel i s [ in]suf f icient to surm ount the procedural bar.” I d. ¶18. Davis’s argum ent that his counsel coerced him into pleading guilty

without waiting

on t h e D N A t e s t results is without m erit. D avis was indicted f or capital m

urder and possession o f a weapon by a f elon. On August 23, 2010, Davis w as of f ered a staggered plea bargain. It stated that Davis could plea d g u i lty to the l esser charge of m anslaughter and possession of

a f irearm by a f e lon, if he entered his plea p rior to the hearing o n his m otion

to suppress his conf

ession, which w as scheduled f or A ugust 31, 2010. If he accepted the plea prior to the hearing, h e would be sentenced to a total of thirty y ears. However, if the plea

w a s not accepted bef

ore the hearing, the S tate w ould pursue a lif e sentence without the possibility of parole. Davis chose to plead and accept the lesser s entence, and he has sworn his plea was voluntary

. ¶19. Davis has provided no evidence his a tto r n e y g a v e h i m e r roneous advice. Mere

9assertions in a PCR petitioner’s brief are insuf f icient t o s u p port a claim o f inef f ective assistance of counsel. Clark v. State , 54 So. 3 d 304, 308 (¶13) (Miss. Ct. App. 2011) (citing
V i elee v
. State , 6 53 So. 2 d 920, 922 (Miss. 1995)). Davis’s unsupported c l a i ms a r e insuf f icient to prove his counsel was inef f e ctive. ¶20. Davis h as not shown inef f e ctiveness on behalf

of his counsel and has not overcom e the procedural bar. This issue is without m erit. 3. Brady Violation ¶21. Lastly , Davis a rgues t he State illegally suppressed the DNA test r esults, which were f avorable to his def

ense. ¶22. In Brady v. Maryland , 373 U.S. 83, 87 (1963), the United States Suprem e Court held that “the suppression by the prose c u t ion of evidence f avorable to an accused upon request violates due process where t he eviden c e i s ma t erial either to guilt or to punishm ent, irrespective of the good f

aith or bad f

aith of the prosecution.” To establish a Brady v iolation, the d ef endant m ust s how: “(1) t he evidence at issue i s f a v o rable t o t he accused, either because it is exculpatory , or because it is im peaching; (2) the S tate suppressed the e vidence, either willf

ully or i nadvertently ; and (3) prejudice ensued.” Skinner v. Switzer , 562 U.S. 521 (2011) (citation and internal quotation m arks om itted). ¶23. On August 5 , 2 010, Davis m oved to com pel the DNA test results. Crim e l ab records show the DNA results becam e available on A ugust 27, 2 010, f o ur day s prior to D avis’s plea. There is no evidence tha t t he test results were not available to Davis, or that the State suppressed the test results. And even if there w as, Davis has f ailed to show t he evidence

1 0“was f

a vorable to h is def

ense or that the o u t c o me o f the proceedings would have been dif f erent had he been shown the

. . . evidence.” Rustin v . State , 138 So. 3d 270, 274 (¶12) (Miss. C t. App. 2014). The DNA test results only exclu d e d D a v i s as a c ontributor to the

sam ples t a k e n and were n ot exculpatory

. Further, as the trial court f ound, when Davis entered his plea, he waived the argum ents in his m otion to com pel the test results. ¶24. Davis has not s hown a Brady violation, and he h as not o vercom e the successive-writ procedural bar. This issue is without m erit. ¶25. THE JUDGMENT OF THE MONTGOMERY COUNTY C I R C U I T COURT DENYING THE MO T I O N F O R P O S T
- C O N V I C T I O N R E L I E F I S A F F I R M E D . ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY. LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAX WELL AND F A I R , J J., CONCUR. IRVING, P . J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. J AMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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