IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-CP-01290-COA WILLIAM DEWAYNE SAVELL A/K/A DEWAYNE SAVELL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/06/2014 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM W HICH APPEALED: NESHOBA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W I LLIAM DEW AYNE SAVELL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED APPELLANT’S PETITION FOR POST-CONVICTION RELIEF AND DENIEDAPPELLANT’S REQUEST FOR PRETRIALHEARING TRANSCRIPT DISPOSITION: AFFIRMED - 07/21/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE AND CARLTON, JJ. CARLTON, J., FOR THE COURT: ¶1. Af ter uns u c c e s s f

u l l y appealing his m

urder conviction and then f iling several other unsuccessf

ul m otions, W illiam Deway ne Savell f

iled a “Petition f

o r Order to Show Cause” with the Neshoba County Circuit Court. 1 Savell argued that his latest pe t i tion was not a petition f or post-conviction relief (PCR) but i nstead s ought a d eterm ination of “why the

1 S av ell n am ed t h e f

o llo w in g as resp o n d en ts to h is p e t i t i o n : M arcu s G o rd o n , P atti D u n c an L ee, M ark D u n can , C h risto p h er C o llin s, an d E d m u n d P h illip s Jr.respondents should not p r oduce a t ranscript of the [ pretr i a l ] hearing in S avell’s case.” 2

Treating Savell’s f

iling as a PCR petition, ho w e v e r , the c i rcuit court dism issed Savell’s petition and denied his request f or a pretrial-hearing transcript. ¶2. In appealing the circuit court’s denial of his request f or a pretrial-hearing transcript and dism issal of his show-c a u s e p etition, Savell d isputes t he circuit court’s seizure of his

m otorcy cle, which he claim s he i ntended to s ell to use the p roceeds t o hire a def ense attorney f or his trial. 3 Savell argues o n appeal to this Court that t he circuit court’s ref usal to provide him with a copy of his pretrial-hearing transcript im paired his ability to appeal and violated his due-process rights. Finding no error, we af f irm

. FACTS ¶3. Af ter a jur y c o n v i c t e d S a v e l l o f t he m u rder o f Mandy Davis, the circuit court sentenced him to l i f

e im prisonm ent i n the custody of the M ississippi Departm ent of
Corre c t i o n s . Savell v
. State , 928 So. 2d 961, 964 (¶1) (Miss. C t. App. 2006). Savell then appealed his conviction and sentence to this Court. Id. Finding no error, we af f irm ed. Id. ¶4. In 2009, Savell f

iled a “Petition f

or a n Order of Disinterm ent f

or Autopsy ” with the

c i r cuit court. Savell v. State , 78 So. 3d 376, 3 77 (¶1) (Miss. Ct. App. 2011). T h e c i r c u i t
court treated the petition as a PCR m otion and dism issed b e c a u s e S a v e ll f ailed “to obtain

2 A s ref lected in t h e reco rd , th e h earin g at issu e in S av el l ’ s c u r r e n t p etitio n is th e p retrial h e arin g h eld to d eterm in e h is in d ig en cy statu s.

3 P r io r to S av ell’s trial, th e circu it co u rt h eld th e h earin g to d eterm in e w h eth er S av ell w a s in d ig en t. A f

ter d eterm in i n g S av ell to b e in d ig en t, th e circu it co u r t ap p o in ted atto rn ey s to rep r esen t S av ell o n h is p e n d in g m u rd er ch arg e. 2leave f

rom th e s u p r e me c ourt as required by Mississippi Code Annotated section 99-39-7 (Supp. 2010).” Id. a t (¶7). In a ddressing Savell’s appeal of the circuit court’s judgm ent, this
Court n oted that Savell had p reviously f iled three applications f

o r leave t o proceed with the

s u p r e me c o u r t , each of which w as denied or dism i ssed. I d. a t (¶¶3-6). Af

ter f inding that Savell f a iled to o btain perm ission f rom the suprem e court bef ore f iling h is 2009 PCR m otion in circuit court, we af

f irm ed t he circuit court’s dism issal of Savell’s 2009 m otion. Id. at 378 (¶10). ¶5. On August 4, 2014, S avel l f i l e d a n e w petition with the circuit court, which is the f ocus of the m atter presently bef ore this Court. In his “Petition f or Order t o Show Cause,” Savell r epeatedly asserted that he was not attacking t he t r i a l p r o c e edings resulting in his

m urder c onviction and that his p etition f ailed to constitute a PCR petition. Instead, Savell insisted that his petition f or a show-cause order sought to establish that th e c i rcuit court’s f ailure to provide him a copy of the transcript of his pretrial i ndigency hearing deprived h im of due process and im

p eded his a bility to f

ile a n appeal. According to Savell’s assertions, the p retrial-hearing transcript would show t h a t t h e c i r c u i t court violated Savell’s f undam ental constitutional rights. Savell a rgued that the m issing transcript ref lected that t he circuit court erred b y f irst seizing personal property Savell allegedly intended to use to hire an attorney and by then declaring Savell indigent. ¶6. Despite S avell’s repeated assertions that his petition was n ot a ctually a PCR petition, Savell requested that the r e s p o n dents nam ed in his petition p rovide answers regarding the

3investigation into Davis’s m u rder and certain evidence pre s e n t e d at Savell’s trial. Specif ically , Savell’s petition questioned why authorities f ailed to investigate a “ shoe print” when Savell claim ed he could “show positive proof that the gray tennis shoes were irrelevant

a n d not i nvolved in the crim e.” 4 Savell’s petition also challenged the testing of certain biological evidence gathered during the investigation into Davis’s m urder. ¶7. On August 6, 2014, the circuit court entered an order deny ing S avell’s petition. The circuit court f

ound that, although Savell claim ed his petition was n ot a PCR pet i t i o n , he sought to attack “ the testim ony a nd evidence that the State used to c o nvict h im .” As a result, the circuit court concluded that Savell’s petition was, in f act, a PCR petition. 5 ¶8. The circuit court f urther f ound that Mississippi Cod e A n n o t a t e d s e c t i o n 99-39-7 (Supp. 2014) r equired Savell to obtain perm ission f r om the suprem e court bef o re f iling a PCR petition in circuit court. Because Savell f ailed to seek leave f

rom the suprem e court, the circuit court f

ound that it lacked jurisdiction to e n t ertain Savell’s petition. The circuit court theref

o re dism issed the p etition. In addition, the circuit c o urt f ound Savell’s petition

to be tim e-barred since it was f iled outside the three-y ear tim e lim it provided by t he Unif orm Post-Conviction Collateral Relief Act ( U P C C R A ). See Miss. Code Ann. § 99-39-5(2) (Supp.

4 D u rin g th e in v estig atio n in to D av is’s m u rd e r, au th o rities d isco v ered sh o e p rin ts at a lo catio n related to th e crim e th at m atch ed a p air o f sh o es later seized f ro m S av ell’s h o m e. S a vell , 9 2 8 S o . 2 d at 9 6 6 (¶1 0 ).

5 S ee D o b b s v
. S ta te , 6 S o . 3 d 1 0 8 5 , 1 0 8 8 (¶6 ) (M i ss. 2 0 0 9 ) (“T h e M ississip p i U n if o rm P o s t-C o n v ictio n C o llateral R elief A ct p ro v id es f o r th e f i lin g o f a [ P C R ] m o tio n f

o r th e p u r p o se o f attack in g a crim in al co n v ictio n an d /o r sen ten ce.”). 42014) (“A m otion f or relief under this a rticle shall be m ade within three (3) y ears af ter the tim e in which the petitioner’s direct appeal is ruled upon[

. ]”). ¶9. In addressing Savell’s request f or the pretrial transcript f rom his indigency hearing, the circuit court acknowledged that the court reporter who transcribed Savell’s trial was now deceased. The circuit court f urther stated that it was “unaware of the existence of t he subject of [ S avell’s] request.” As a result, the circuit court denied Savell’s request f or his pretrialhearing transcript. A ggrieved by t he circuit court’s judgm ent d ism issing his current petition and deny ing his request f

or h is p retrial-hearing transcript, Savell n ow appeals t o this Court.
STANDARD OF REVIEW ¶10. “ Wh en r e viewing a c ircuit court’s denial or d ism issal of a PCR [ petition], we w i l l

reverse t he j udgm ent of t he circuit court only if its f actual f indings are ‘clearly erroneous’; h o w e v e r , w e review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State , 65 So. 3d 358, 360 (¶10) (Miss. Ct. App. 2011) (citation om itted).
DISCUSSION ¶11. Following his conviction and sentence f or Davis’s m

urder, Savell appealed his case

on the m e rits. Savell , 928 So. 2d at 9 67 ( ¶ 1 4 )

. Upon review, this Court af f irm ed Savell’s conviction a nd sentence. I d

. a t 9 6 4 ( ¶ 1). As a result, Mississippi statutory law requires Savell to obtain the suprem e court’s perm ission to proceed bef o re f iling a subsequent PCR petition with the circuit court. See Miss. Code A nn. § 99-39-7. As p rovided by section 99- 39-7:

5W h ere the conviction and s entence have been af f irm e d on appeal or the appeal has been dism issed, the m o tion u nder this article shall not be f iled in the trial court until the m otion shall have f i r s t been presented to a quorum of the Justices of the Suprem e Court of Mississippi, convened f or said purpose either in term tim e or in vacation, and an order granted allowing the f iling of such m otion in the trial court. ¶12. Despite Savell’s assertions that his petition presents an independent original action, the circuit court f

ound that his petition f

or a show-cause o rder constituted a PCR petition that sought to challenge the testim ony and evidence the State used to convict Savell of Davis’s

m urder. As our caselaw establishes, “[ a] p l e a d i n g cognizable under the U PCCRA will be treated a s a m otion f

or [ PCR] that is subject to the procedural r ules pro mu l g a t e d t herein, regardless of how the p laintif f has denom inated o r c h a r a c t erized the pleading.” Knox v. State , 75 S o. 3d 1030, 1 035 (¶12) (Miss

. 2 0 1 1 ) (citations om itted). W e a lso a cknowledge that Savell f

ails t o cite any authority to show that he is entitled t o a f ree transcript when f

iling an independent original action. ¶13. Because S avell’s petition f or a show-cause order p r e s e n ted a “pleading cognizable under the UPCCRA,” we f ind that it was essentially a PCR petition and that the c ircuit court correctly treated it as such. S ee id. As a result, S avell was required t o seek leave t o proceed f rom t he suprem e court bef ore f iling his PCR petition with the circuit c o urt. H owever, as the record ref lects, Savell f

ailed to do so. ¶14. As our caselaw recognizes, where the conviction and sentence were af f ir m e d on direct appeal, “ [ j]urisdiction over a ny subsequent f iling f or [ PCR] is vested in the [ suprem e court].” Savell , 78 So. 3 d a t 378 (¶9). “Additionally , the suprem e court’s denial of an application f or
6leave to seek [ PCR] i n the circuit court is a f inal judgm ent a nd bars successive applications f or relief pursuant to the UPCCRA.” D oss v. State , 126 So. 3d 1026, 1028 (¶6) (Miss. Ct. App. 2013) (citing Miss. Code Ann. § 99-39-27(9) (S u p p . 2013)). Thus, w ithout f irst obtaining perm ission f

rom the suprem e court f

or leave to p roceed, Savell possessed no right to f i le his present PCR petition with the circuit court. Theref ore, based on the f

acts of this

case and our precedent, we af f irm the circuit court’s denial of Savell’s request f or a transcript and the dism issal of

Savell’s PCR petition. ¶15. T H E J U D G M E N T O F THE NESHOBA C O UNTY CI R C U I T C O U R T I S AFFIRMED. ALL C OSTS O F THIS APPEAL ARE A S S ESSED TO NESHOBA COUNTY. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, ISHEE, MAX WELL AND FAIR, JJ., CONCUR. J AMES, J., CONCURS I N PART WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.

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