IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-CP-00103-COA KIRBY SHAVERS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/23/2015 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: KIRBY SHAVERS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 12/06/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. CARLTON, J., FOR THE COURT: ¶1. Kirby S havers f

iled a m otion f

or postconviction r e l i e f ( P C R ) in the Rankin County Circuit Court alle g i n g t h a t he received an illegal sentence and inef f e ctive assistance of counsel. The t rial court dism issed Shavers’s PCR m o tion as tim e-barred and successive-writ barred. Shavers f

iled a m otion f

or reconsideration, which t he trial court denied. This appeal
f ollowed. Finding n o error, we af f irm the trial court’s s um m ary dism i ssal of S havers’s PCR

m otion.
FACTS ¶2. On August 4, 2008, Shavers pleaded guilty in the Rankin Co u n t y C i r cuit Court torape, kidnapping, burglary of a d w e l l ing, g rand larceny , and aggravated assault. The trial

court sentenced Shavers to seventeen y ears f or rape, f i fteen y e ars f

or kidnapping, t wenty -f

ive
y ears f or burglary , f

ive y ears f

or grand larceny , a nd twenty y ears f or aggravated assault. The trial court ordered the rape and burglary sentences t o run concurrently , and ordered the

rem aining sentences to r

un consecutivel y t o e a c h other and to t he sentences f or rape and burglary , resulting in a sentence of sixty -f ive y ears in the c u s t o d y o f the Mississippi Departm ent of

Corrections (MDOC). ¶3. In 2011, Shavers f iled a PCR m otion raising “questions concerning double jeopardy , the legality

of his sentence, and the perm issibility of his m u lti-count indictm ent.” Shavers

v. State , 9 4 So. 3d 362, 363 ( ¶4) (Miss. Ct. App. 2012). The trial court dism issed S havers’s
PCR m otion af

ter determ ining that he was not entitled to relief

. Shavers then appealed the dism issal. On appeal, this Court a ddressed whether Shavers’s s e ntence was e xcessive, and
f ound: [ I]t is clear f

rom the plea colloquy [ that] Shavers w as aware of the m axim um and m inim

um sentences f

or each crim e . The trial court acknowledged the ef f ect of these sentences, which m eant Shavers, who w as approxim ately f i f ty y ears old a t t h e t i me o f the plea hearing, would spend t he rest of his l if e in prison. However, the trial court stated it had im posed the sentences in light of the nature and severi ty of Shavers’s crim es and his prior crim inal history

. Each sentence Shavers received was within the statutory lim its. Id

. at (¶6). This Court also held t hat Shavers’s appeal lacked m erit, and accordingly af f irm ed the trial court’s dism i ssal of Shavers’s PCR m otion. Id . at 364 (¶8). ¶4. On Novem

ber 1 3 , 2 0 1 5 , Shavers f

iled a petition f

or a writ of habeas corpus, which the trial court t reated as a PCR m otion. The r ecord ref lects that the trial court reviewed the

2transcript of S h a v ers’s guilty -plea and sentencing hearings conducted on August 4, 2008, and

August 11, 2008, r espectively , as well as Shavers’s crim inal f ile. The trial c ourt then entered

an order dism issing Shavers’s PCR m otion as both tim e-barred and b arred as a s u ccessive writ. The trial court held that it “plainly appears f rom the f ace of t he [ PCR m otion] that [ the]
pe t i t i o n e r i s not entitled to a ny relief and [ this court] f urther f i nds that the [ PCR m otion] should a lso be d i sm issed pursuant t o [ Mississippi Code Annotated section] 99-39-11(2) [ (Rev. 2015)].” ¶5. Shavers f

iled a m otion f

or reconsideration, which t he trial court d enied. This appeal
f ollowed. On appeal, Shavers claim s he received inef f ective assistance of counsel. Shavers
argues that his counsel rejected every request h e ma d e c o n cerning the c ase, including his request to f

ocus o n the lack of DNA evidence, and lack of m edical records regarding the victim ’s injuries. Additionally , Shavers claim s t hat his counsel l ed him t o believe that if he accepted a plea deal, the court would use a lif e-expectancy chart during sentencing, which would allow Shavers to receive a lesser sentence. Finally , Shavers argues that his s ixty -fivey ear sentence is e xcessive b ecause it was g reater than his rem aining lif e expectancy

. Shavers reasons that the sentence is an illegal violation of his f undam ental rights.
STANDARD OF REVIEW ¶6. W h en reviewing a trial court’ s s u mma r y d i s mi s s a l o f a PCR m o tion, this Court

em ploy s a clearly -erroneous standar d o f r e view. Jones v. State , 174 S o. 3d 902, 905 (¶8) (Miss. Ct. App. 2015). H owever, when q uestions o f law are raised, we em ploy a de novo standard of review. Id

. Section 99-39-11(2) provides: “If it plainly ap p e a r s f rom the f ace

3of the m otion, any annexed exhibits and the prior proceedings in the case that the m ovant is

n o t e n t itled to a ny relief , the judge m ay m ake an order f or its dism issal and c a u s e t h e petitioner to be notif

ied.” ¶7. Shavers b ears the b u rden of showing by a preponderance of the evidence he is entitled

to postconviction relief

. Roach v. State , 116 S o. 3d 1 26, 131 (¶15) (Miss. 2013); Miss. Code
Ann. § 99-39-23(7) (Rev. 2015). Additionally , Shavers “bears the burden of proving by a preponderance of t he evidence that his [ P CR] claim s are not b arred as successive writs.” See
W illiams v. State , 110 So. 3d 840, 843 (¶13) (Miss. Ct. App. 2013). W e af f irm dism issals

or denials of PCR m otions when the m ovant f a ils to dem onstrate “a c laim procedurally alive substantially showing the denial of a state or f ederal right.” B orden v. State , 122 So. 3d 818, 821 (¶7) (Miss. Ct. App. 2013).
DISCUSSION ¶8. The record ref

l ects that S havers pleaded guilty t o rape, k i d n a p p i n g , burglary of a dwelling, grand larceny , a nd aggravated assault on August 4, 2008. S havers f i led this PCR

m otion b ef

ore us on Novem

ber 13, 2015, m ore than seven y ears af ter en t e r i n g h i s p leas. Mississippi Code Annotated s ection 99-39-5(2) (Rev. 2015) provides t h a t i n the case of guilty plea, “[ a] m otion f

or relief under this article shall be m a de . . . within three (3) y ears af ter entry o f t he judgm ent of conviction.” A s a r e s ult, Shavers’s PCR m otion is clearly untim e ly and barred by the three-y ear s tatute of lim itations of the M ississippi U n if orm Postconviction Collateral Relief Act (UPCCRA). ¶9. However, we a cknowledge that the U PCCRA has provided certain exceptions f rom

4this three-y ear statute of lim itations in cases where the p etitioner ca n d em o nstrate the

f ollowing: (a)(i) That there has been an interveni n g d e c i s i o n of the Suprem e Court of either the State of Mississippi or the United States which w ould have actually adversely a f

f ected the outcom e of his c o nvicti o n o r sentence or that he h as evidence, n ot reasonably d iscoverable at the t im e of trial, which i s of such nature that it would be practically conclusive that h ad such b een i ntroduced at trial it would have caused a dif f erent result in the conviction or sentence; or (ii) That, even if the petitioner pled guilty or nolo contendere, or conf essed or adm itted to a crim e , there exists biological evidence not tes t e d , o r , if previously tested, that c an be subjected to additional DNA testing that w ould provide a reasonable l i k e l ihood of m ore probative results, and that testing would dem onst

r a t e b y r e a s o n a

b le probability that t he petitioner would not have bee n convicted or would have received a lesser sentence if f a vorable results h a d b e e n o btained through such f orensic DNA t esting at the tim e of th e original prosecution. (b) Likewise e x c e p t ed are those cases in which the petitioner claim s that his sentence has expired or his probation, parole or conditi onal release has been unlawf u lly revoked. Likewise excepted are f i lings f o r post-conviction relief in capital cases which shall be m ade within one (1) y ear af ter conviction. Miss. Code A nn. § 99-39-5(2). W e additionally recognize that e rrors af f ecting a def

endant’s
f undam ental constitutional rights a lso c onstitute exceptions to this tim e-bar. Blount v. State , 126 S o. 3d 927, 931 (¶13) (Miss. Ct. App. 2013). Although S havers’s P CR m otion is clearly tim e-barred, Shavers asserts that his counsel’s assistance was inef f ective and h e received an illegal sentence, all of

which violated his f

undam ental constitutional rights. ¶10. Mississippi Code A n n o t a t e d section 99-39-23(6) (Rev. 2015) a lso bars successive
PCR m otions: The o rder as provided in subsection (5) of this section or any o rder dism issing the petitioner’s m otion or otherwise deny i ng relief under this article i s a f i nal judgm ent and s h all be conclusive until reversed. I t shall be a bar to a second

5or successive m o tion under this article.

¶11. The petitioner “bears the b urden of proving by a preponderance of the e v idence that his claim s are not b a rred as successive writs.” W illiams , 110 So. 3d at 843 ( ¶13); Miss. Code
Ann. § 99-39-23(7). As stated, Shavers f iled a PCR m ot i o n i n 2 0 11 asserting that he received an illegal sentence. This Court ultim ately held that “ [ e ] a c h sentence Shavers received was within the statutory l im its,” and af f irm ed the trial court’s dism issal of S havers’s
PCR m otion. Shavers , 94 So. 3d at 363 (¶6). In his current P CR m otion, f i led i n Novem

ber 2015, Shavers again c laim s that he received a n illegal s entence. Upon review, we f ind that Shavers’s PCR m o t ion f

ails t o a ssert any of the exceptions p rovided by section 99-39-23(6) relieving him f

rom t he successive-writ b ar. Furtherm ore, we f ind no r eason to set aside the previous f

inding of this Court that Shavers’s sentences were within the s t atutory lim its. Id .;

see also Foster v. State , 148 So. 3d 1012, 1016 (¶12) (Miss. 2014) (citing Grayer v. State , 120 So. 3 d 964, 969 (¶16) ( Miss. 2013) (“A s entence is not ille g a l u nless it e xceeds the

m axim u m statutory penalty f

or the crim e.”). Accordingly , we f ind Shavers’s c l aim of an illegal sentence procedurally barred as a successive writ. ¶12. The M iss i s s i p p i S u p r e me C o u r t has held that claim s of inef f ective assistance of counsel are subject to the procedural bars of the UPCCRA. Salter v. State , 64 So. 3d 514,
518 (¶14) (Miss. Ct. App. 2010) (citing Kirk v. State , 798 So. 2 d 345, 346 (¶6) (Miss. 2000)); see also Avery v. State , 179 So. 3d 1182, 1190 (¶16) (Miss. Ct. App. 2015) (“The suprem e
court has not y et held that ef f ective assistance of counsel is a f undam ental c onstitutional right that m ay overcom e procedural bars in noncapital cases.”). W e acknowledge that

6[ t]hough it is conceivable that under the f acts of a particular case, a lawy e r’s perf orm ance was so def

icient, a n d so prejudicial to t he def endant that the d e fe n d a n t ’ s fundam ental c onstitutional rights were violated, our s u p r e m e c o u

r t has never h eld that m erely raising a claim of inef f ective assistance o f counsel is suf f icient to surm ount the procedural bar.
W illiams , 110 So. 3d at 8 44 (¶21) (citing Smith v. State , 922 So. 2d 4 3 , 4 7 ( ¶ 9 ) (Miss. Ct. App. 2 006)). Accordingly , this Court m ust review Shavers’s i nef f ective-assistance-of

counsel claim to determ i ne whether it i s s uf f icient t o invoke the f

undam ental-rights exception. As previous l y s t a t e d , “[ t]he burden is on the PCR m ovant to show he

. . . is entitled to relief by a preponderance of the evidence.” Smith v. State , 129 So. 3d 243, 245 (¶5) (Miss. Ct. App. 2013). ¶13. T h e s u p r e m e c o u r t has explained that in order to prevail on a claim of inef f ectiv e assistance of counsel, a petitioner “m ust dem o nstrate two things: (1) t hat his c o u nsel’s representation f

ell below an o b

j e c t i v e standard of r easonableness; and (2) that but f or counsel’s errors, there is a reasonable probability that the o utcom e of the proceeding would hav e b e e n dif

f erent.” Avery , 179 So. 3d at 1188 (¶13) (internal q uotation m arks om itted) (citing Hannah v. State , 943 So. 2d 2 0, 24 ( ¶ 6 ) ( Miss. 2006)); see also Strickland v. W ashington , 466 U.S. 668, 687-88 (1984). ¶14. In Avery , 179 S o. 3d at 1 1 8 8 ( ¶ 1 3 ) , this Court recognized that w ith regard to guilty pleas, a petitioner “m

ust show that there is a r easonable probability that, b u t f or counsel’s

errors, [ he] would not h a ve pleaded guilty , would h ave insist e d o n g o i n g t o trial, and the

outcom e would have been d i f f e r ent.” Furtherm ore, “a def endant m ust plead claim s of inef f ective a ssistance of counsel with specif i city , and the c l a i m m

u st be supported by

7af

f idavits other than h is own.” Id

. at 118 8

- 8 9 ( ¶ 1 3 )

. “ When a m ovant f ails to attach any supporting a f

f idavits and relies solely on his own sworn m otion, h is i nef f ective-assistance claim m ust f ail.” Id . at 1189 (¶13). ¶15. Shavers claim s that he was not a ppointed counsel until he had spent eight m onths in jail. In support of his claim of inef f ective assistance, Shavers a sserts that his counsel rejected
every request concerning the case as well as the lack of evidence a g ainst Shavers—nam ely , lack of DNA e vidence and lack of m edical records regarding injuries—and that his counsel led him to believe that if he accepted a plea d eal, the court would use a lif e-expectancy chart, allowing Shavers to receive a lesser sentence. ¶16. Upon re v i e w o f S h avers’s claim s, w e f ind that the r ecord contains no evidence or af f idavits in support o f Shavers’s claim that he was not a ppointed counsel until he had spent eight m onths in j ail. The r ec o r d also contains no evidence o r af f idavits in s upport of Shavers’s claim that his c ounsel l ed him to believe he w ould receive a lesser sentence if he accepted the plea deal. S ee Avery , 179 So. 3d at 1188 (¶13) ¶17. Regarding his assertion that his counsel f ailed to argue that a lack of DNA evidence

o r m edical records existed to prove Shavers’s g uilt, we f ind the record contains n o docum ents, evidentiary

support, or af

f idavits supporting these statem ents. In his appellate brief , Shaver s s i mp l y states that i f he had received ef f ective assistance f

rom his counsel,

“ [ t]he DNA establishes that count one[ , rape,]

. . . would be highly questionable s i n c e Shavers’s DNA was not a m a tch, as well as count f ive[ , aggravated assault,] and whether [ the victim ’s] jaw was actually broke[ n].” Shavers claim s t hat “counsel allowed that this was a

8lost cause that unless the S tate released such inf orm ation the j ury wou l d believe he was capable bec a u se o f count one,” which we can only i nterpret as m e aning that his counsel advised Shavers that g oing to t rial and using a ny alleged DNA evidence would not prove his innocence. ¶18. Contrary to Shave r s ’ s a s s e r t i o n that D NA evidence could clear him of any rape charges, the record b e f

ore u s contains the transcript f r om the p lea hearing, wherein the State inf orm ed the trial c ourt that t he State possessed DNA evidence f rom a rape kit perf

orm ed on the victim

. The State provided on the record that the “DNA would say that it was i n f act Mr. Shavers w h o d e p o sited that sem e n sam ple.” The State also provided: “At the tim e of his arrest, the pants [ that] Mr. Shavers was wearing

. . . were subm itted to the State Crim e Lab, and the victim ’s DNA cam e back, a s am ple of her D NA cam e back there in the clothes

. . . he was w earing.” W hen t he trial court asked Shavers if he disagreed w ith any of the f acts presented, Shavers responded, “No, sir, y our Honor.” ¶19. Moreover, the record ref lects that Shavers subm itted his plea to the trial court under oath wherein h e acknowledged that he understood the m eaning and ef f ect of his guilty plea,

as well as the of

f enses to which he pleaded guilty

. Additionally , a t h is plea hearing, Shavers

swore u n d er oath that his def ense counsel had a dvised him of the nature of the of f ense. Shavers also af

f i rm ed that he a nd his def

e nse counsel d iscussed the elem ents of t he crim es charged a g ainst S h a v e r s as w ell as any f acts Shavers believed m ight be necessary f or any possible d ef

enses. Shavers stated under oath that he was s atisf ied with his d ef

ense counsel’s service.

9¶20. Accordi n g l y , w e f i n d t h a t S h a vers has not suf f iciently alleged that h is counsel’s perf orm ance f ell below an objective standard o f reasonableness. Shavers thus f ailed to prove the f irst part of the Strickland analy sis. W e a l s o f i n d t h a t Shavers f

ailed to dem onstrate a reasonable probability

that the outcom e of the proceeding would have been dif f erent if his def ense counsel had subm itted DNA e vidence or m edical records. See Avery , 179 So. 3d at 1188 (¶13). ¶21. Af ter reviewing the record, we f ind t hat Shavers’s c laim s of inef f ective assistance of counsel lack suf

f icient evidentiary s upport. Shavers p rovides only h is own assertions to support his claim s. I

d

. at 1188-89 (¶13). W e theref ore a f f i r m the trial court’s sum m ary dism issal of

Shavers’s PCR m otion as tim e -barred and successive-writ barred. ¶22. T H E J U D G M E N T O F T H E R A N K I N C O U N T Y C I R C U I T C O U R T DISMISSING THE M OTION FOR POSTCONVI CTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY. LEE, C.J., IRVING AND G RIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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