IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-CP-00007-COA JESSIE T. BEAL A/K/A JESSIE BEAL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 12/07/2017 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JESSIE T. BEAL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 09/11/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. CARLTON, J., FOR THE COURT: ¶1. O n May 27, 2009, J e ssie Beal pleaded guilty to statutory rape in Ma d i s o n C o u n t y Circuit Court. H e was sentenced to twenty -three y ears in t he custody o f the Missis sippi Departm ent of C orrections ( MDOC). Beal now appeals the dism issal of h is f ourth m otion
f or postconviction relief (PCR). Finding no error, we af f i rm . FACTS AND PROCEDURAL HISTORY ¶2. Beal was a r r e s t e d f o r s t a t u t o r y r a p e of a child in violation of Mississippi Code Annotated section 97-3-65(1)(a) (Rev. 2014) on May 12, 2008. Beal’s f irst indictm ent was nolle prosequied on June 30, 2008, and he was released on bond to await f u rther action by the Madison County

grand jury . A later indictm ent w as brought on October 8 , 2008. Thisindictm ent provides t hat the July 2 008 grand jury was recalled o n Septem ber 10, 2008. As f ound by this Court in a ddressing one of Beal’s prior PCR m otions, “the investigation was delay ed because the victim w as p regnant, and the S tate waited to indict until the baby was delivered and DNA tests could b e perf orm e d to determ ine paternity .” Beal v. State , 118 So. 3d 162, 165 (¶10) (Miss. Ct. App. 2012) ( Beal II ). ¶3. Beal pleaded guilty to the statutory rape charge on May 27, 2009. The State described the f actual basis f

o r B e a l’s arrest and statutory rape charge at his guilty -plea hearing as f ollows: [ O]n or about the 25th d ay of April, 2008, the Departm e nt of Hum an Services was notif

ied about a m inor child who at that tim e was [ f if teen], but would have been [ f

ourteen] at the tim e. She . . . tested positive at the school f or b e i n g p r e gnant. T he Departm ent o f Hum an S ervices went to t he school where they interviewed the m inor child

. . . . That f em ale child

. . . related to the Departm ent of Hum an Services that she had had sex wit h t h e d e f endant, t h a t t he def

endant resided in the sam e hom e that she was residing, wh i c h a t that tim e was w ith h er a

unt. A t that tim e, the C anton P olice Departm ent was a l s o notif i ed, based upon statem ents m ade by the victim in this cas e . A warrant w as issued f

or M r. Beal’s arrest. Mr. Beal

. . . w ould have been [ thirty -f ive] y e ars of age at t he tim e that this child was conceived. That conception date would h ave been between October 1st, 2 007, and October 31st, 2007.
A DNA sam

p le was taken of the child once the child was born i n July

. That sam pl e was com

pared with the beucle (phonetic) swab, which was retrieved f

rom this def endant, Mr. Jessie Beal. The State, if this case went to trial, [ it] would call Dr. Bo Scales. Dr. Scales would t estif y that, based upon the DNA testing that he perf orm ed, that the probability of paternity in this c ase is 99.99 percent as com

pared to an u ntested, unrelated m an of the sam e race. So based upon the statem ents of the victim in this c ase and t h e D N A t e s ting of the child that was conceived, the State would show that they d id in f act have s exual i ntercourse b etween those dates listed in t he indictm ent and that tha t sexual intercourse did occur in Madison County , and that this def endant was
2m ore than thirty -six m o nths older than the victim

.

By a sentencing order dated July 8, 2009, t he trial c ourt sentenced Beal to twenty -three y ears in the custody of

the MDOC. ¶4. T o d a t e , B e a l h a s f i l e d f our PCR m otions. Beal f i led h is f irst PCR m o t i o n o n Decem ber 28, 2009, alleging that he was denied his r ight to a tim ely i nitial appearance; his trial counsel was inef

f ective; and his guilty plea was involuntary

. The t rial court dism issed his m otion. Beal appealed, a rguing that his constitutional r ights were violated when he was
not given a tim ely initial a p p earance; his t rial counsel was inef f ective because he f

ailed to raise t his issue; and his guilty plea was involuntary b ecause it was inf luenced by the tim ing of his initial appearance. This Court af f irm ed t he t rial court’s judgm en t , f inding that each of the issues B eal raised were w ithout m e r i t

. B e a l v. State , 58 S o. 3d 709, 710-11 (¶¶3-7) (Miss. Ct. App. 2011) ( Beal I ). ¶5. Beal f

iled h i s second P CR m o ti o n o n N o v em ber 2 , 2011, alleging that the State’s pre-indictm e nt delay prejudiced his def ense and that his guilty plea was not knowingly and intelligently entered. The t r ial court dism issed Beal’s second PCR m otion as a successive writ. Beal appealed, arguin g t h a t his constitutional r ights were violated due to the State’s pre-indictm e nt delay and that his guilty plea was i nvalid because he did not knowingly waive his right against self

-incrim i nation. This Court af f irm ed the trial court’s j udgm ent, f inding that Beal had no arguable basis f or either of his claim s, a nd thus his second PCR m otion was
not excepted f

rom the successive-writ procedural bar. Beal II , 118 S o. 3d at 164-65 (¶¶3-12).

3¶6. O n February 2, 2015, B eal f iled his t hird PCR m otion, alleging that his i n d i c t me n t violated his rights against double jeopardy and that his trial counsel was inef f ective because he did not raise this issue. The trial court dism issed Beal’s third PCR m otion as tim e-barred and as a successive writ. A lso, in its order allowing Beal to procee d i n f o r ma pauperis on appeal, the trial court, in relevant part, placed Beal on notice of M ississippi Code Annotated section 47-5-138(3)(a) (Rev. 2011). 1 The t rial court w arned Beal of possible f orf eiture of
any earned tim e he had accum ulated should any of h is f uture f ilings “be determ ined by

the
Court to b e f

rivolous, m alicious, o r [ warranting] dism iss[ al] f or f ailure to state a claim upon which relief

could be granted.” ¶7. Beal appealed t he t rial court’s judgm e nt, a r g u i n g t h a t h e w a s subjected to double jeopardy because he was indicted a second t im e f or the sam e crim e f

ound in a prior indictm ent that h ad been nolle prosequi e d. He also a rgued that h is trial counsel was inef f ective because h e f

ailed to raise the d ouble-jeopardy claim

. This Court af f irm ed the trial
court’s judgm ent, f

inding no m erit in Beal’s double-jeopardy c laim b ecause t he Mississippi Suprem e Court has held that “ t he State can re-indict a n accused f or the s am e o f

f ense af ter

1 S ectio n 4 7 -5 -1 3 8 (3 ) allo w s M D O C to f o r f eit an in m ate’s e arn ed tim e u p o n receip t o f a “f in al o rd er,” t h at is d ef

in ed as “an o rd er o f a sta t e o r f e d e r a l c o u rt th at d ism isses a law su it b ro u g h t b y an in m ate w h ile t h e in m ate w as in t h e c u s t o d y o f th e D ep artm en t o f C o rrectio n s as f

riv o lo u s, m alicio u s[ ,] o r f o r f a ilu re to state a claim u p o n w h ich r elief co u ld b e g ran ted .” M iss. C o d e A n n . § 4 7 -5 -1 3 8 (3 )(a). S ectio n 4 7 -5

- 1 3 8 (3 ) also p r o v id es th at o n receip t o f a “f

in al o rd e r,” an in m ate sh all f o rf e i t : ( 1 ) s ix ty d ay s o f an i n m ate’s accru ed earn ed tim e b ased o n th e f irst f in al o rd er receiv ed ; (2 ) 1 2 0 d ay s earn ed t im e if M D O C h as receiv ed tw o f

i n al o rd ers; a n d (3 ) 1 8 0 d ay s o f e a rn ed tim e i f M D O C receiv es th ree o r m o re f in al o rd e rs. M iss. C o d e A n n . § 4 7 -5 -1 3 8 ( 3 )(b ). 4an order of nolle prosequi has been entered.” Beal v. State , 186 So. 3d 9 43, 945 ( ¶8) (Miss.

Ct. App. 2016) ( Beal III

) (quoting State v. Shumpert , 723 So. 2 d 1 1 6 2 , 1165 (¶16) (Miss. 1998)). This Court also r ejected Beal’s inef f ective-counsel claim as procedurally barred, as well as being without m erit because it was based o n his c o unsel’s f ailure to raise the doublejeopardy claim , which the Court had already f o und was without m erit. Id. a t (¶¶10-11). ¶8. Beal f

iled his f ourth PCR m otion on Novem ber 21, 2017, alleging that there was no probable cause to a rrest him in May 2008 on the s tatutory rape charge; that h e was subjected

t o d o u b l e j eopardy due to his indictm ent on the s tatutory rape charge that was in the prior indictm ent t hat had b een nolle prosequied; and that he rec e i v e d inef f ective assistance of counsel. The t rial court dism issed Beal’s f ourth PCR m otion as tim e-barred and as a successive writ, determ ining t hat Beal’s m otion did not f all within any exception to these procedural bars. In dism is s i ng Beal’s lawsuit, t he trial c o urt conf irm ed that in addition to reviewing Beal’s f

ourth PCR m otion and exhibits, t he Court had also reviewed t he f iles f or Beal’s thre e previous postconviction r e l ief f ilings, each of which contain a copy of petitioner’s crim inal f

ile, and the o pinions rendered b y the Mississippi Court of Appeals in relation to B eal’s three p revious postconviction relief f ilings, identif

ied above a s B e a l I

, Beal II , and Beal III

. ¶9. The t rial court also dism i ssed Beal’s f ourth PCR m otion as f

r ivolous and deem ed it

a “f inal order” f

or purposes of section 47-5-138(3)(a). 2 The trial court f ound that Be a l’s

2 A s n o ted ab o v e, u n d er s ectio n 4 7 -5

- 1 3 8 ( 3 ), a n in m ate can lo s e accru ed earn ed t im e if h e f i les a law su it th at i s d i sm issed b y a state o r f ed eral co u rt as “f

riv o lo u s, m alicio u s[ ,] o r 5f

ourth PCR m otion asserted essentially the sam e issues as those asserted in Beal’s p rior PCR

m otions, these p rior PCR m otions had b een dismi s s e d by t he t rial c ourt, and each of those dism issals had been af

f i rm ed by the Mississippi Court of Appeals. The tria l c o u r t also conf irm ed t hat it had p l aced Beal o n notice of section 47-5-138(3)(a) in Cause No. 45CIl:15-cv-00048-c af

ter his third PCR m o tion. ¶10. Beal appeals t he dism issal of his f ourth P CR m otion, asserting, p r o s e , t hat (1) his constitutional r ights were violated because there was no probable cause to arrest h im in May 2008; (2) he was subjected to double jeopardy when he was indicted a second tim e f or the

sam e crim e f

ound in a prior indictm ent that had been nolle p rosequied; and ( 3) he received inef f ective assistance of

counsel because his counsel did not raise either of these issues.
STANDARD OF REVIEW ¶11. “W hen reviewing a t rial court ’ s d e c i s i o n t o d i sm iss a petition f or p ostconviction relief

, this C ourt will not disturb the trial court’s f actual f indings unless they are f

ound to be clearly
erroneous.” Stokes v. S

tate , 238 So. 3d 6 31, 633 ( ¶7) (Mis s . C t

. App. 2018). “However, where questions of

law are raised, the applicable standard of review is de novo.” Id.
DISCUSSION
I. Procedural Bars ¶12. In its order dism issing Beal’s f ourth PCR m otion, the trial court f o und that the m o tion

f o r f ailu re to state a c laim u p o n w h ich relief co u ld b e g ran ted .” M iss. C o d e A n n . § 4 7 -5

- 1 3 8 (3 )(a). 6was both tim e-barred and barred as a successive writ. The Unif orm Post-C o n v iction Collateral Relief A ct ( UPCCRA) provides that P CR m otions m ust be f iled within three y ears af ter entry of the judgem ent of

conviction where a guilty plea has been m ade. Miss. Code
Ann. § 99-39-5(2) (Rev. 2015); see Avery v. Sta t e , 1 0 2 S o . 3d 1178, 1180 (¶5) (Miss. Ct. App. 2012). Beal pleaded g uilty to the statutory rape charge b rought against him on May 27,
20 0 9

. T h e trial c ourt’s judgm ent of conviction was entered that sam e day , a nd on July 8, 2009, the t rial court entered i ts sentencing order, sentencing Beal to twenty -three y ears in the
MDOC. B eal’s f

ourth PCR m otion was not f iled until Novem

ber 21, 2017, o ver f

ive y ears past the three-y ear l im itations period. On i ts f a ce, Beal’s f

o urth P CR m otion was untim ely
f iled. ¶13. T h e U P CCRA also i m poses a bar against s u ccessive writs. S ee Mi s s . C o d e A n n . § 99-39-23(6) (Rev. 2015) (“[ A ] n y order dism issing the petitioner’s m otion or o therwise deny i n g r e lief under this article is a f inal judgm ent and shall be conclusive until reversed.
It shall be a bar to a second or successive m otion under this a rticle.”). This appeal concerns Beal’s f ourth PCR m otion. The trial court dismi s s e d Beal’s three prior PCR m otions, and each of those dism issals were af f irm ed b y this C ourt. Beal ’s f o urth PCR m otion is successive. ¶14. W e recognize that errors af f ec t i n g f u n d a me n t a l r i g h t s a r e e x c e p t e d f rom the
UPCCRA’ s p r o c e d u ral bars. R o wland v. State , 42 S o. 3d 503, 507 ( ¶9) (Miss. 2010). However, “a m ere assertion of a constitutional- right v iolation does not a utom atically

7preclude the application of the procedural bars.” Stokes , 238 So. 3d at 634 (¶10). In order

to f ind an exception t o a procedural b ar, “there m u st a t least a

ppear to be som e b asis f

or the truth of the [ m ovant’s] claim [ s].” Id. Beal, as the m ovant, bears the burden of proving an exception applies to the UPCCRA’s procedural bars. Brandon v. State , 108 So. 3d 999, 1004 n.3, 1006 (¶¶12, 23) (Miss. C t. App. 2013). As d etailed b elow, the record ref lects that Beal
f ailed to m eet this burden.
II. Probable Cause for Beal’s Arrest ¶15. Beal asserts that his constitutional rights were violated because there was no probable

cause to arrest him in May 2008. As this Court explained in Beal I , “[ u] pon the entry o f a valid guilty plea, certain challenges are waived by the def endant.” Beal I

, 58 So. 3d at 710 (¶3). These include constitutional challenges m ade under the Fourth Am endm ent, such as Beal’s probable-cause challenge here, a nd his “untim ely i nitial a ppea r a n c e ” c hallenge in Beal I

. See Battaya v. State , 861 So. 2d 364, 365-66 (¶¶3-8) (Miss. Ct. App. 2003). Beal does not challenge the validity or voluntariness of h is guilty plea. Just as this Court held that Beal waived his “untim ely initial appearance” claim i n Beal I upon entry of his guilty plea ( Beal I , 5 8 So. 3d at 710 (¶3)), so t oo did Beal waive his probable-cause challenge now bef ore this Court. Battaya , 861 So. 2d at 366 (¶¶7-8) (“From a constitutional

. . . p erspective, the issue [ of lack of

probable cause] is . . . waived by the entry of a guilty plea.”); see also Swilley v. State , 93 So. 3d 901, 904 (¶¶7-9) (Miss. Ct. App. 2012). ¶16. Even if Beal had not waived his probable-caus e c h a l l e nge, we observe that Beal points

8to no evidence in the r ecord dem onstrating that his arres t lacked probable cause. On the

contrary , as set f

orth above, the record contains the State’s recitation of t he detailed f actual basis supporting Beal’s arrest and statutory rape c harge presented at Beal’s guilty plea hearing. W e f

ind no a buse of discretion in t he trial court’s d eterm ination that Beal f ailed to show that his probable-cause challen g e constituted a n exception to the UPCCRA’s procedural bars.
III. Double Jeopardy ¶17. Beal asserts h e was s u bjected to double j eopardy when he w as indicted a second tim e f or t he sam e crim e f

ound in a prior indictm ent that had been nolle prosequied. Beal asserted this identical cl a i m in B eal III

. This Court rejected Beal’s double-jeopardy claim there as f ollows:
Our suprem e court has held that “the State can re-indict a n a c c u s e d f or the sam e of f ense af ter an order of n o l l e p r o s e qui has b een entered.” State v. S humpert , 723 So. 2d 1162, 1165 ( ¶16) (Miss. 1998); s ee also Beck w i t h v
. S t a t e , 6 15 So. 2d 1134, 1145-48 (Miss. 1992) (holding that a nolle prosequi order is not an actual acquittal or conviction on the me r i t s t o bar another prosecution). Beal was not acquitted, nor was he even tried. He w a s n ot prosecuted a second tim e because of his guilty plea and resulting convi c t i o n . Nor did he r eceive m ultiple punishm ents. Thus, we f ind no merit to Beal’s claim that his indictm ent subjected him to double jeopardy

. Beal III , 1 86 So. 3d at 945 (¶¶8-9). This sam e holding applies to Beal’s identical c laim here.
IV. Ineffective Assistance of Counsel ¶18. Beal asserts that he r eceived inef f e ctive assistance of counsel because h is counsel did

9not raise the probable-cause i ssue or the double-jeopardy issue a t his guilty -plea hearing. W e

reject this assertion f

or the sam e reasons w e r ejected e ssentially the sam e assertion in Beal I and Beal I

II

. First, Beal’s inef

f ective-counsel c l aim i s n ot excepted f rom the UPCCRA’s procedural bars. S

ee B e al III

, 1 8 6 So. 3d at 945 (¶10); see also Kirk v. State , 798 So. 2d 345, 346 (¶6) (Miss. 2000); Gaulden v. State , 240 So. 3d 503, 507 (¶9) (Miss. Ct. App. 2018). ¶19. Second, a s we explained in Beal I , under Strickland v. W

ashington , 4 66 U.S. 668, 687 (1984), “Beal m

ust allege f

acts showing his counsel’s perf orm ance was def

icient, and that the def icient p e r f

o r m ance prejudiced his d ef ense.” Beal I

, 58 So. 3d at 7 11 (¶5). Beal wholly f ailed to m eet this requirem ent here, as he did not state with p arti c u l a r i t y h o w his counsel’s perf

orm ance was def

icient, nor did he show any resulting prejudice. ¶20. Third, Beal’s inef

f ective-counsel claim is based on his counsel’s f a ilure to raise the probable cause and double jeopardy issues at Beal’s guilty -plea heari n g . W e have determ ined above t hat both of these claim s f a il o n the me r i t s. Beal’s inef f ective-counsel claim , based on these assertions, likewise f ails. See Beal III

, 186 So. 3d at 945 (¶11). For each of these reasons, we af f i rm the trial court’s determ ination that B eal’s inef f e c t i vecounsel claim

is not an exception to the procedural bars applicable here.
V. Dism issal of Beal’s Fourth P CR Motion as Frivolous under S ection 47-5-138(3) ¶21. The trial court also dism issed Beal’s f o u r t h P C R m otion as f

rivolous under section 47-5-138(3) in light o f ( 1) Beal’s three prior PCR m otions asserting esse n t i a l l y the sam e issues as those asserted h ere; (2) the trial court’s dism issal of each of those m o tions; (3) this
1 0Court’s af

f irm a nce o f each of those dism issals in Beal I , Beal II and Beal III

; and ( 4) the trial
court’s dete r

m ination that B eal’s f

ourth PCR m otion was a l so procedurally barred and lacked

m erit. A s noted above, under section 4 7-5-138(3), an inm ate can lose earned tim e if he f iles

a m otion that is f

rivolo u s, m a licious, o r f

ails to state a claim upon which r elief can be granted. The trial court placed Beal o n notice of section 47-5-138(3)’s ram if ications in Cause No. 45CIl:15-cv-00048 relating to Beal’s third PCR m otion. ¶22. Beal does not r aise any issue or argum ent i n his appellant’s brief concerning the trial
court’s dism issal of his f

o urth PCR m otion as f

rivolous under section 47-5-138(3)(a). Beal, theref ore, has waived this issue. In re B.A.H. , 225 So. 3d 1220, 1239 (¶62) (Miss. Ct. App. 2016) (issues not r aised in a ppellant’s initial b rief are w aived); 3 see Sanders v. State , 678 So. 2d 663, 670 (Miss. 1996); Claverie v. State , No. 2 017-CP-00433-COA, 2018 W L 1281526, at *7 (¶33) (Miss. Ct. App. Mar. 13, 2018). ¶23. Even if Beal h ad not waived this i ssue, the Mississippi Suprem e Court has held that

a m otion is “ f

rivolous” f

or purposes of

section 47-5-138(3) if

the com p laint does not have

a “realistic chance of success”; f ails to “present a sound basis i n f act or law”; and no f

acts

are shown “that would warrant relief .” Dock v
. State , 8 02 So. 2d 1051 , 1 0 5 6 (¶11) (Miss. 2001); see W

a ddell v. State , 99 9 S o . 2d 375, 3 78-79 (¶¶13-14) (Miss. Ct. App. 2008). “A trial court’s conclusion that a m otion is f rivolous is reviewed f

or abuse of d iscretion.” Dock , 8 0 2 S o . 2d at 1056 (¶11). W e agree with t he trial court that Beal’s argum ents are b o t h

3 B eal d id n o t f

i le a rep ly b rief

. 1 1procedurally b arred and without m erit. Accordingly , we f ind no abuse of

discretion in the

t r i al court’s determ ination that Beal’s f ourth PCR m otion was f rivolous f o r p urp o s e s o f section 47-5-138(3). ¶24. AFFIRMED. LEE, C.J., I RVING AND GRIFFIS, P.JJ. , BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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