IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-CP-00558-COA BARRON BORDEN A/K/A BARRON LECOUR BORDEN A/K/A BAM APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/01/2014 TRIAL JUDGE: HON. DALE HARKEY COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BARRON BORDEN (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DISMISSED DISPOSITION: AFFIRMED - 09/29/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ. BARNES, J., FOR THE COURT: ¶1. B a r r o n Borden, Eddie Pugh, and Torenda W hitm ore were indicted f or the cap i t a l

m urder of Kelsey McCoy , with the underly ing f elony of kidnapping; aggravated assault of Rahm a n M ogilles; and third-degree a r s o n o f Mogilles’s vehicle. On October 8, 2008, Borden a nd Pugh were convicted in the United States District Court f or the District of Southern Mississippi of the f o l l o w i ng f

ederal o f f enses: (1) conspiring to com m it kidnapping; (2) kidnapping and aiding an d a b e t ting the kidnapping of McCoy ; (3) kidnapping a nd t he aiding and abetting of the kidnapping of Mogilles; (4) f elon in p ossessionof a f

irearm ; and (5) possession of a f i rea r m i n c onnection with a crim e of violence. See United States v. Pugh , No. 1:08-CR-00130-W J G-RHW , 2009 W L 2928757, at *1 (S.D

. Miss. Sept. 11, 2009). Both B orden and Pugh were sentenced to lif e im prisonm ent, plus f

ive
y ears. 1 ¶2. On January 6, 2011, Borden entered a guilty p lea in the Jackson County Circuit Court

to capital m

urder and a n Alford plea to third-degree a rson. 2 He w as sentenced on January 14, 2011, to lif

e im prisonm ent without parole f or capital m

urder and to three y ears i m prisonm ent f or arson, with the sentences to run concurrently

. Borden’s Mississippi convictions were to run consecutively

to his f e deral sentences. ¶3. Borden f

i led a m o tion f

or post-conviction r e l i e f ( PCR) o n J anuary 2 4, 2012, which asserted that (1) his counsel’s perf orm ance was inef

f ective; (2) h is plea was not voluntarily , knowingly , a nd intelligently given; (3) he w as legally innocent; and (4) there was no f actual basis t o s u p p o r t h is guilty plea and A lford plea. The circuit court denied the PCR m otion, and on appeal, this Court af f i rm ed the judgm e n t. B orden v. State , 1 22 So. 3d 8 18, 825 (¶29) (Miss. Ct. App. 2013). ¶4. Borden f

iled a Request f

or Relief f

rom Judgm ent Under Rule 60(b)(b), on February

1 A f ter a j u r y trial in Jack s o n C o u n ty C ircu it C o u rt, P u g h w as co n v icted o f cap ital mu r d e r , ag g rav ated a ssau lt, an d th ird -d eg ree arso n , f o r w h i ch h e receiv ed co n secu t iv e sen ten ces o f lif

e f o r cap ital m

u rd er, tw en t y y ears f

o r ag g rav a ted assau lt, a n d th ree y ears f o r th ird -d e g ree arso n . T h is C o u r t af f irm ed th ese c o n v ictio n s in P u g h v. S ta te , 1 0 1 S o . 3 d 6 8 2 (M iss. C t. A p p . 2 0 1 2 ).

2 In N o rth C a ro l in a v. A lfo rd

, 4 0 0 U

. S

. 2 5 , 3 7 (1 9 7 0 ), th e S u p rem e C o u rt ru led t h at a d ef en d an t m ay p lead g u i lty , w ith o u t ad m ittin g to th e actu al g u ilt o f th e ch arg ed crim e, in o rd er to av o id co n v ictio n an d a p o ten tially h arsh er sen t en ce at trial. 214, 2014, claim ing he w as s ubjected to double jeopardy , as he was convi c t e d f or the sam e crim e in both f

ederal and s tate jurisdictions, and his c ounsel was inef f e c t ive f or f ailing to raise this issue. Treating the request as a P CR m otion, t he c ircui t c o u r t d i s mi s s ed it as a successive writ on April 1, 2014. ¶5. Finding that the issues raised by Borden on appeal have no m e rit, we af f irm the circuit court’s dism issal of

Borden’s m otion.
DISCUSSION ¶6. Borden argues that the circuit judge erred in d ism iss i n g h i s P C R mo t i o n a s a successive writ. A circuit court’s dism issal o r denial of a PCR m otion is reviewed f or abuse of d iscretion. Hughes v
. State , 106 So. 3d 836, 838 (¶4 ) (Miss. C t

. App. 2 012). A circuit

court “m ay s um m arily dism i ss a PCR m otion where ‘ it plainly appears f r om the f ace of the

m otion, any annexed exh i b i t s a n d t h e prior proceedings in the case that the m ovant is not entitled to any relief

.’” Id

. at 838-39 (quoting Miss. Code Ann. § 99-39-11(2) (Supp. 2010)).
“W e w ill only reverse if the [ circuit] court’s d ecision is clearly erroneous.” Id

. at 838 (citing Crosby v
. State, 1 6 So. 3d 7 4, 77 (¶5) (Miss. Ct. App. 2009)). Q uestions of law are reviewed de novo. Id . (citing W

illiams v. State , 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004)). ¶7. Mississippi Code Annotated section 99-39-23(6) (Supp. 2014) states that an order “dism i ssing the petitioner’s m otion or otherwise d eny ing relief . . . is a f inal judgm ent and shall be conclusive until reversed. It shall be a bar to a second or successive m o tion under this article.” Borden does not dispute on appeal that his PCR m o tio n i s a successive writ. However, he c ontends t hat his state convictions f or capital m

urder while i n the c o m m ission

3of k idnapping and arson subjected him t o double j eopardy , a f undam e ntal right t hat excepts his claim s f

rom any procedural bars. See Rowland v. State , 42 So. 3d 503, 507-508 (¶¶12, 14) (Miss. 2010) (holding f undam ental rights, such as d ouble jeopardy , “are excepted f rom the p rocedural bars of the [ Unif o rm Post-Conviction Collateral Relief Act]”). 3 His r easoning is that he already had been convicted in f e d eral court f

or the sam e of

f enses. ¶8. W e f

ind no m erit to Borden’s claim that his M ississippi convictions subjected him to double jeopardy

. T he Mississippi S u p r e me Court h as held that the “ principles of dual sovereignty wil l n o t bar a s ubsequent state prosecution f ollowing a f

e deral conviction.”
Evans v. State , 725 So. 2d 613, 659 (¶172) (Miss. 1997). The Dual Sovereignty doctrine r ecognizes t hat m ore than one of f ense results where a single crim inal act violates the laws of m ore than one State or a State and the Federal Governm ent. W hen such is the case, the d ef endant i s not subjected to d ouble jeopardy in s uccessive prosecutions by t he separate sovereigns f

o r the sam e crim inal act.
Brown v. State , 7 3 1 So. 2d 595, 600 (¶12) (Miss. 1999) ( citing Heath v. A labama, 474 U.S. 82, 86 (1985)). Theref

ore, “a def

endant can be prosecuted in both s overeigns f o r the sam e crim inal act em a nating f

rom a com m on n ucleus of f acts, without running a f

oul of double jeopardy .” Maston v. State , 802 So. 2d 186, 188 (¶10) (Miss. Ct. App. 2001).

3 B o rd en ’s m o tio n is also su b j ect to th e th ree-y ear tim e-b ar. S ee M iss. C o d e A n n . § 9 9 -3 9 -5 (2 ) (S u p p . 2 0 1 4 ) (“A m o tio n f o r relief u n d e r th is article s h all b e m ad e. . . . in [ th e] case o f a g u i lty p lea, w ith in t h ree (3 ) y ears af ter en try o f th e j u d g m e n t o f co n v ictio n .”). We ack n o w led g e th at th e reaso n f o r th e d elay ap p eared to b e b ecau se B o rd en w a s aw aitin g th e o u tco m e o f h i s f

irst ap p eal to th i s C o u rt b ef o re f ilin g h is m o t io n f

o r relief

. (T h e m an d ate w a s issu ed o n F e b r u a r y 1 1 , 2 0 1 4 , an d B o rd en f i led h is req u est f

o r relief o n F e b ru ary 1 4 , 2 0 1 4 .) R eg a rd less, th is p ro ced u ral b ar is g o v ern ed b y th e sam e an aly sis as th e su ccessiv ew r it b a r.

4¶9. W h ile the acts com m itted by Borden arose f rom o f t h e s a me s e t o f f a cts and circum stances, they c onstitute violations of the laws o f t wo separate sovereigns. Theref ore, there was no violation of

Borden’s f

undam ental right against double jeopardy

. ¶10. Borden’s rem aining cl a i m i s t h a t c o u n s e l was inef f e ctive f or f ailing to “ raise the double[ -]jeopardy def

ense.” As w e have f

o und Borden’s double-jeopardy claim to be without m erit, we decline to address this issue on appeal. See Fair v
. State , 102 So. 3d 1165,
1168 n.3 (Miss. Ct. App. 2012) (declining to address argum ent that “ c o u n s el rendered inef f ective assistance by advising [ def endant] t o plead guilty to a m ulti-count indictm ent that

s u b j e c t e d him to double jeopardy ,” as there was no m erit t o underly ing claim of dou b l e jeopardy ). ¶11. According l y , w e f i n d t h at the circuit court did not e r r i n dism issing Borden’s PCR

m otion. ¶12. T H E J U D G M E N T OF THE CIRCUIT COURT OF J ACKS O N C O U N T Y DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY. LEE, C.J., IRVING AND GRIFFIS, P .JJ., ISHEE, CARLTON, M AX WELL, FAIR, JAMES AND WILSON, JJ., CONCUR.

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