IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-CP-00774-COA
C.D. PICKLE JR. A/K/A CLANTON D. PICKLE JR. A/K/A C.D. PICKLE APPELLANT

v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/11/2018 TRIAL JUDGE: HON. RICHARD A. SMITH COURT FROM W HICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: C.D. PICKLE JR. (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 09/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ. GREENLEE, J., FOR THE COURT : ¶1. C.D. Pickle J r. appeals the Lef lore County C ircuit Court’s dism issal of h is m otion f or post-conviction relief

(PCR). Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. “The procedural history associated with this case is quite extensive, as Pickle has f iled

num erous m otions bef

ore the c ircuit court.” Pickle v. State , 203 So. 3d 753, 755 (¶4) (Miss. Ct. App. 2016). This Court has sum m arized the procedural history as f ollows:

In 1975, a Holm es County grand jury indicted Pickle f or the c apital m

urder of Mary Elizabeth Harthcock. The indictm ent charged t h a t , o n N ovem ber 26, 1974, Pickle raped Harthcock and then killed her. A j ury sub s e q u e ntly convicted Pickle a nd sentenced him to death. The M ississippi Suprem e Courtreversed Pickle’s conviction i n 1 977 a nd rem anded the case f o r a new trial. Pickle v. State , 345 So. 2d 623, 624 (Miss. 1977). His s e cond trial was h eld in the Lef lore C ounty Circuit Court in 1978, w here he was convicted a g ain and sentenced to lif

e in the custody of the MDOC. The record ref lects that P ickle f ailed to perf

ect a direct appeal f

rom that conviction.
At som e point between March or April 1978 and Decem ber 1981, P i c kle pet i t i oned the circuit court f or perm ission to f

ile an out-of

-tim e appeal f

rom hi s c o n v i c tion, w hich the circuit court denied. On review, the Mississippi Suprem e Court o r dered an evidentiary hearing on the i ssue of whether P ickle had knowingly a n d i n t elligently waived his right to appeal. Af ter the evidentiary hearing, the circuit c ourt determ ined t h a t Pickle had properly waived his right to a

ppeal a nd, thus, again d enied Pickle’s request f or an outof -tim e appeal. T he suprem e court a f f irm ed the denial in March 1982. P ickle v. State , 791 So. 2d 204, 205 (¶4) (Miss. 2001).

In Septem

ber 1997, Pickle f

iled a PCR m otion again seeking an o ut- o f -tim e appeal f rom his 1978 convicti o n a n d s entence. The circuit court denied the
m otion, explaining that it h ad already d eterm ined Pickle ha d knowingly and intelli g e n t l y w aived his right to appeal and that Pickle had raised no other issues that would entitle him to an out-of -tim e appeal. On appeal, the suprem e court af f irm ed the circuit court’s decision and h eld that Pickle was collaterally
e s topped f

rom seeking an out-of

- tim e appeal because the issue of hi s entitlem ent to a n out-of

-tim e appeal had been adjudicated sixteen y ears bef ore. In June 2004, Pickle f

iled a nother PCR m otion in the circuit court, arguing that in his 1978 trial, the judge erroneously instructed the jury , and that his counsel
was i nef f ective. Pickle f

u r ther argued that he was innocent. The c i rcuit court dism i ssed Pickle’s P CR m otion as tim e-barred a nd as successive-writ barred. The c ircuit court f

urther held that Pickle was collaterally estopped f rom f iling the PCR m otion since the issue of his entitlem ent t o an out-of -tim e appeal had already been determ ined. This Court af f irm ed the circuit court’s d ecision in May 2006. Pickle v. State , 942 So. 2d 243, 247 (¶14) (Miss. C t. App. 2006). P ickle then petitioned the suprem e court f or a writ of certiorari, which th e court denied on Novem

ber 20, 2006.

In June 2009, Pi c k l e f

i l e d [ another PCR m otion]. On August 19, 2009, the circuit court d e nied and sum m arily dism i ssed all m otions f iled by Pickle. The cir cuit court barred Pickle f rom b ringing any other action regarding his incarceration, ei t h e r i n f ederal or s tate court, absent i m m ediate danger or phy sical injury

. Pickle appealed. On a p pe a l , t h i s Court af

f irm ed the circuit court’s dism issal of Pickle’s PCR m otion and d ete r mi n a t i on that the PCR
m otion was f

rivolous. Pickle v. State , 64 So. 3d 1009, 1012 (¶11) (Miss. Ct.

2App. 2010).

S i g n i f i cantly , the prior d ism issals of P ickle’s petitions, as set f orth above , relied on t h e prem i se that no other issues would entitle him to relief under Mississippi Code A nnotated section 99-39-5. Since that tim e, section 99-39-5
was a m ended t o establish r elief by providing an exception f or DNA testing in
cases where such testing a nd technology were not available at the t im e o f trial. On Septem

ber 15, 2011, Pickle f

iled a nother PCR m otion wherein he claim ed insuf f icient e vidence existed to support his capital-m urder conviction, and f

or the f irst tim e, requested DNA testing of the biological evidence collected dur i n g t h e m

u rder investigation. On October 11, 2011, the circuit court sum m arily d ism issed Pickle’s m otion as tim e-barred and successive-writ barred without holding an evidentiary hearing.
Pickle [ appealed] the dism issal of his PCR motion, arguing that his PCR
m otion [ was] excepted f

rom the successive-wri t a n d t im e-bars. Pickle also argue[ d ] that the circuit court e r r ed in deny ing his request f or DNA testing, claim ing that an exception to the statutory b ar e xist[ ed] under section 99-39- 5(2). W e rem and[ ed] this case to the circuit court f or an evidentiary

hearing to determ ine whether a b asis exist[ ed] f or the e xception to the t im e-bar to grant relief pursuant to section 99-39-5(2)(a)(ii).
Pickle, 203 So. 3d at 755-56 (¶4) (quoting Pickle v. State , 115 So. 3 d 8 9 6 , 8 9 7

- 98 (¶¶3-9) (Miss. Ct. App. 2013)). “On rem and, the circuit court held a n e v i d e n t iary hearing, specif ically address i ng DNA testing; however, the court rejected P ickle’s argum ents and
dism issed his PCR m otion.

. . . ” I d

. This Court af

f irm ed the circuit court’s decision in

Novem ber 2016. Id . at 759 (¶17). ¶3. On March 12, 2018 , P i c k l e f i l e d another PCR m otion wherein he claim ed that his
constitutional rights were d enied at sentencing. Specif i cally , P ickle claim ed o n due process
and equal protection grounds that the court should have considered alternative s e ntencing
under the Youth Court Act and that his counsel was inef f ective f o r f ailing to request that the

court do so. On April 1 1, 2018, the circuit court dism issed Pickle’s m otion as procedurally

3barred without an evidentiary hearing. Now Pickle appeals.
DISCUSSION ¶4. We address whether the circuit court erred by sum m arily dism issing Pickle’s P C R

m otion. “W hen reviewing a c ircuit court’s dism issal of a P CR m otion, this Court will only

reverse a circuit court’s f a ctual f indings if the f

indings are d e t e rm ined to b e clearly
erroneous.” Id . at 756 (¶5). However, questions of law are reviewed de novo. Id

. ¶5. U n d e r the Unif

orm Post-Conviction C ollateral Relief Act (UPCCRA ) , a n y o r d e r deny ing or dism issing a PCR m o tion i s a bar t o a second or successive PCR m o tion. Miss.
Code Ann. § 99-39-23(6) (Rev. 2 0 15). Additionally , Pickle h ad three y ears f rom the

enactm ent of the Mississippi Unif orm Po s t

- C o n v i c t ion Collateral Relief A ct o n April 17, 1984, to f ile a PCR m otion. Truitt v. State , 878 So. 2 d 244, 245 (¶3) (Miss. C t. App. 2004).
Because Pickle’s PCR m otion is not his f irst and was f

i led approxim ately

thirty y ears af ter
the tim e f o r taking an appeal expired, it is procedurally b arred. Furtherm ore, “res judicata
prevents the litigation of claim s that ‘were m ade or s hould have been m ade’ during previous litigation.” Savinell v. S t a t e , 2 1 4 So. 3d 1061, 1063 (¶8) (Miss. Ct. A pp. 2016) (quoting Riley v. State , 150 So. 3d 138, 140 (¶8) (Miss. Ct. App. 2014)). ¶6. W e acknowledge that “error s a f f e c t ing ‘f undam ental rights’ m ay be excepted f rom procedural bars.” Rowland v. State , 42 So. 3d 503, 505-06 (¶7) (Miss. 2 010). But “the m ere
assertion of a constitutional[

- ]right violation does not trigger the e x ception.” E vans v. State , 115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013) (citing W icker v. State , 16 So. 3d 706, 708 (¶5) (Miss. Ct. App. 2 009)). To f ind an exception to the bar, “there m ust at l east appear to

4be som e basis f or the truth of the c laim

. . . .” Id

. (quoting Stovall v. State , 873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004)). ¶7. Pickle’s assertions in h is m ost recent P CR m o tion are j u s t t h a t

— mere assertions.
Pickle provides no support (such as a transcrip t f r o m his 1978 trial) f

or his claim that his
constitutional rights t o d

u e process and equal p rotection were violated. B ecause Pickle has
f ailed to dem onstrate that the trial judge did not consider a lternative sentencing, his claim is not excepted f

rom the procedural bars. 1 ¶8. AFFIRMED. BARNES, C.J., CARLTON AND J. W ILSON, P.JJ., WE STBROOKS, T I N D E L L , M c D O N A L D , L A W R E N C E , M c C A R T Y A N D C
. W I L S O N , J J
. , C O N C U R
.

1 A lth o u g h p ro ced u rally b arred , w e n o t e th at th e Y o u th C o u rt A ct p r o v i d es th at th e y o u th c o u rt d o es n o t h av e j u risd ictio n w h ere “[ a] n y act attem p ted o r co m m itted b y a ch ild , w h ich if co m m itted b y an ad u l t w o u ld b e p u n ish ab le u n d e r s t a t e o r f ed eral law b y lif

e im p riso n m en t o r d e ath [ .] ” M i ss. C o d e A n n . § 4 3 -2 1 -1 5 1 ( 1 )(a) (R ev . 2 0 1 5 ).
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