IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-CP-00734-COA PATRICK DANTRE FLUKER A/K/A PATRICK D. FLUKER A/K/A PATRICK FLUKER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/12/2017 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PATRICK DANTRE FLUKER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 07/17/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. In 2007, P atrick Fluker pled guilty to arm ed robbery

. The circuit court s e ntenced him to twenty y ears in the custody of the Mississippi D epartm ent of Corrections, w ith f ive y ears suspended and f

i f teen y ea rs to serve, and o rdered the sentence t o run c onsecutively to a sentence that Fluker was serving on a 2003 ar m ed robbery conviction. Fluker has since f iled at least f our m otions f

or p ost-conviction relief (PCR) related to his 2007 conviction. All of his m otions have b een denied, and the denials have been a f f i rm ed when appealed. See Fluker v. State , 1 7 So. 3d 181 (Miss. Ct. App. 2009); Fluker v. State , 191 So. 3d 1 27 (Miss. Ct. App. 2016), cert. denied, 203 So. 3d 600 (Miss. 2016); see also Fluker v. S tate , 200 So.3d 1148 (Miss. Ct. App. 2016) (af f irm ing the dism issal of Fluker’s com p laint seeking parole eligibility on his 2007 convi c t i o n ) , c e rt. denied, 214 So. 3d 1058 (Miss. 2017); Fluker v. State , 2 So. 3d 717 (Miss. Ct. App. 2008) (af f irm ing the denial of PCR on F l u k e r ’ s 2003 conviction); Fluker v. State , 170 So. 3d 517 (Miss. Ct. App. 2014) (sam e), a ff’d, 170 So. 3d 471 (Miss. 2015) (sam e); Fluker v. State , 210 So. 3d 1062 (Miss. C t
. App. 2015) (sam e),

ce r t

. denied, 202 So. 3 d 209 ( Miss. 2016). In the PCR m o tion that is the subject of this appeal, F luker alleges that (1) he w as denied a s p eedy trial; (2) his plea was involuntary ; (3) he was d enied the e f

f ective assistance of counsel; and (4) th e c i rcuit court lacked “subject

m atter jurisdiction” b ecause “the State r e p e aled its boundaries.” 1 He also alleges that his

m otion is n ot subject to the procedural bars of the Unif o rm Post-Conviction Collateral Relief Act (UPCCRA) because his claim s involve “f undam ental c onstitutional rights.” The circuit court denied Fluker’s m o tion as procedurally barred. Fluker then appealed. ¶2. W e af

f irm

. This i s at least the f

ourth P CR m otion that Fluker h as f iled related to his 2007 conviction. The UPCCRA bars such successive m otions. Miss. C ode Ann. § 99-39- 23(6) (Rev. 2015) (providing that an order denying a PCR m otion “shall be c onclusive until reversed” and “shall be a bar to a second or successive [ PCR] m otion”). In addition, Fluker f iled the m otion ten y ears af ter he pled guilty

. Theref

ore, the m otion is also untim ely

. Miss.

1 This Court has h eld “that Mississippi still pos s e s s e [ d ] sovereign state power” and that our courts still had jurisdiction notwithstanding the boundary repeal that Fluker alleges. Carlock v. Carlock, 7 43 So. 2 d 4 2 4 , 425 (¶¶3-5) (Miss. Ct. App. 1999). C ongress has the unquestioned power t o set s tate boundaries, which rem ained in e f f ect at a ll t im es. S

ee United States v. Louisiana , 363 U.S. 1, 35 (1960). 2Code Ann. § 99-39-5(2) (Rev. 2 0 15) (providing that a P CR m otion m ust b e f iled within three y ears a f ter a judgm e nt of

conviction entered on a guilty plea). None of the issues raised in Fluker’s m otion involve “f undam ental rights” that are e x c e p t e d f rom the UPCCRA’s procedu r a l b ars. See Green v. State , 235 So. 3d 1438, 1440 (¶9) (Miss. Ct. App. 2018) (listing “ f undam ental rights” that are excepted f rom the A ct’s procedural b ars). A petitioner cannot avoid th e Act’s procedural bars sim ply by asserting that “f

undam ental rights” are at stake when, as in this case, there is no evidence to support such a claim

. W e m ade the sam e point when we af

f irm ed the d enial o f o n e o f Fluker’s prior PCR m o tions two y ears ago. Fluker , 191 So. 3 d at 129 (¶6). For these reasons, w e af f irm the circuit court’s order denying Fluker’s PCR m otion. ¶3. W e also conclude that Fluker’s m otion and appeal are f ri v o l ous because h is claim s had no hope of success and no basis in f a ct or law. See Dock v. State , 802 So. 2d 1051, 1056 (¶11) (Miss. 2001). C learly , Fluker’s m otion i s procedurally barred, and he f ails to identif

y any a r g u able exception t o the procedural bars. Moreover, Fluker unsuccessf ully litigated claim s a lleging an involuntary plea and inef f ec t i v e assistance in at least one prior PCR

m otion. See Fluker , 17 So. 3 d at 182 (¶2). Finally , our Suprem e Court has long h eld that a def endant waives his right to a speedy trial by p leading guilty

. A nderson v. State , 577 So. 2 d 390, 391-92 (Miss. 1 991). Because h is m otion an d appeal are f r ivolous, Fluker shall f orf eit earned tim e p ursuant to M ississippi Code Annotated section 47-5-138(3) (Rev. 2015). See Dock, 802 So. 2d at 10 5 6 (¶11) (“Sections 47-5-138(3)(a) and (b) are f ully a pplicable

3against p ro s e litigants who seek post-conviction relief .”); McLamb v. State , 974 So. 2d 935, 939 (¶17) (Miss. Ct. App. 2008) (“The circuit court did not sanction [ the petitioner] pursuant to section 47-5-138(3), but the statute does n ot l im it s uch a f i nding to the trial c ourt.”). This opinion s hall be s ent to the Departm ent of C orr e ctions, and the Departm ent shall f orf eit earned tim e as provided in section 47-5-138(b). 2 ¶4. AFFIRMED. LEE, C . J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

2 This action is also deem ed f rivolous f or purposes o f Mississippi Code A n n o t a t ed section 47-5-76 (Rev. 2015), which governs in f orm a pauperis f

ilings by inm ates. 4