IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-CP-01843-COA LOUIS J. CLAY, JR. A/K/A LOUIS CLAY A/K/A SPOOLA BOO A/K/A LOUIS CLAY, JR. A/K/A LEWIS CLAY A/K/A LOUIS JAMES CLAY, JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/17/2015 TRIAL JUDGE: HON. FORREST A. JOHNSON JR. COURT FROM W HICH APPEALED: W I LKINSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: LOUIS J. CLAY JR. (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION TO EXPUNGE THREE 1979 CONVICTIONS DISPOSITION: AFFIRMED – 05/16/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: C ONSOLIDATED WITH N O. 2016-CP-00020-COA LOUIS J. CLAY, JR. A/K/A LOUIS CLAY A/K/A SPOOLA BOO A/K/A LOUIS CLAY, JR. A/K/A LEWIS CLAY A/K/A LOUIS JAMES CLAY, JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/11/2016 TRIAL JUDGE: HON. GEORGE W ARD COURT FROM W HICH APPEALED: W I LKINSON COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: LOUIS J. CLAY JR. (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNTNATURE OF THE CASE: POST-CONVICTION RELIEF

TRIAL COURT DISPOSITION: DISMISSED MOTION FOR W R IT OF ERROR CORAM NOBIS DISPOSITION: AFFIRMED – 05/16/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. IRVING, P.J., FOR THE COURT: ¶1. Louis Clay Jr. appeals the W ilkinson County Chancery C ourt’s judgm ent dism issing his p etition f

or writ of error coram nobis f or lac k o f s u b

j ect-m a tter jurisdiction. Clay also appeals the W ilkinson C ounty Circuit Court’s judgm ent deny i ng his m otion to expunge three 1979 convictions f

or selling m arijuana. Finding no error, we af f irm both judgm e nts. FACTS ¶2. In Septem

b er 1 979, Clay pleaded guilty to three s eparate charges of selling m arijuana in cause num

bers 3951, 3952, and 3956. For e a ch conviction, t he W ilkinson C ounty Circuit Court senten c e d h im to concurrent term s of three y ears in the custody of the Mississippi
D e p a rtm ent of Corrections (MDOC), with six m onths to serve, f ollowed by f

ive y ear s o f post-release supervision. In 1984, MDOC f iled a peti t i o n t o term inate Clay ’s probation because he h ad “com

ple t ed his f

ive[ -]y ear probationary sentence.” MDOC requested that the circuit court term i nate Clay ’s p robation and discharge him

. On the sam e day that MDOC f iled its petition, the circuit court entered a discharge order related to all three of Clay ’s 1979 convictions. The circuit court also entered an “order to expunge,” which stated that it was i n r e sponse to MDOC’s petition. The “order to expunge” f urther stated that C l a y h a d “satisf actorily c o m

pleted his f

ive[ -]y ear probationary sentence, and it is ordered that such

2sentence b e . . . expunged f rom [ Clay ’s] record.” Although the “order to expunge” ref erred
to a s ingular sentence, the sty le of the docum e n t r ef lects that it pertained to all three of Clay ’s 1979 cases. ¶3. In Novem

ber 1 996, Clay was indicted f or aggravated assault. H e was also charged as a nonviolent habitual o f f ender based on his 1979 convictions. Clay was later convicted of aggravated assault and sentenced a s a h abitual of f ender. Clay v
. State , 829 So. 2d 676, 678 (¶1) ( Miss. Ct. App. 2002). This Court af f i rm e d t he c i rcuit c ourt’s judgm ent. Id

. at 688 (¶33). In so doing, we h eld that “Clay ’s argum ent that double jeopardy [ had] occurred in the [ circuit c ourt]’s f

inding [ that he qualif

ied f or s entencing as a] habitual of f e nder [ f ailed].” Id

. at 687 (¶29). ¶4. Since then, Clay has f iled num erous u nsuccessf ul applica t i o n s f

o r l e a v e to f

ile a

m otion f or post-conviction relief (PCR) related to his aggravated-ass a u lt conviction. 1 In Septem ber 2014, the Mississippi Suprem e Court entered an o rder d eny ing what i t described

as C lay ’s seventh application. Clay v. State , 2014-M-00016. Citing Floyd v. State , 155 So. 3d 883, 890 (¶19) ( M iss. Ct. App. 2014), Clay had unsuccessf ully requested leave to claim that h e wa s n o t a h abitual of f ender because his three 1979 convictions s h ould have been considered one conviction. Having previously warned Clay twice a bo u t f i l ing f rivolous docum ents, the suprem e court f ound t hat Clay ’s seventh application was also f rivolous, so

1 S ee C la y v. S t a t e , 1 6 8 S o . 3 d 9 8 7 (M iss. C t. A p p . 2 0 1 3 ); C l a y v. S ta te , 2 0 1 0 -M

0 1 5 2 1 ; C la

y v. S ta te , 2 0 0 9

- T S -0 0 1 7 1 ; C la y v. S t a te , 2 0 0 7 -M -0 0 8 8 8 ; C la

y v
. S ta te , 2 0 0 6 -M

0 1 1 9 2 ; C la

y v. S ta t e , 2 0 0 5 -M -0 2 0 1 0 ; C la y v. S ta te , 2 0 0 3 -M -0 2 1 1 7

. 3the suprem e court sanctioned Clay $100. ¶5. On June 29, 2015, Clay f i led a “writ of error c o ram nobis” 2 in the W ilkinson County Chancery Court. Clay wanted the chancellor to com m a nd the circuit court to e x a mi n e the record regarding a num

ber of PCR claim s, or send the record to an appellate court so it could

exam ine the record. T reating Clay ’s petition as a P CR m otion, t he chancery court f ound that it l a c k e d s ubject-m atter jurisdiction. Furtherm ore, because Clay h ad n ot obtained the
suprem e court’s leave to f ile a PCR m o tion, the c hancery court h eld that it could not transf er Clay ’s petition t o t h e c i rcuit court. Consequently , t he chancellor dism issed C lay ’s PCR

m otion. Clay ’s appeal has been docketed as Clay v. State , 2016-CP-00020-COA. ¶6. A p p r o x i ma t e l y o n e m onth af ter he f iled the “writ o f error coram n o b i s ” i n t h e chancery court, Clay f

iled a “m otion f

or autom atic expunction” in the circuit c ourt

. C l a y sought to expunge his t hree 1979 c onvictions, and h e again argued that they should count as

one conviction as set f

or t h in Floyd

. Clay then reasoned that those three convictions— treated as one per Floyd— were his f

irst conviction, s o the c ircuit court should e x p u n g e it.

2 C lay clearly m isu n d ersto o d th e h isto r ical an d o u td ated p u rp o se o f a p etitio n f o r w rit o f erro r c o ram n o b is. “L iterally , ‘ c o ram n o b is’ m e an s ‘o u r co u rt,’ o r ‘b e f o re u s .’ T h eref

o re, th e w r it o f e r r o r c o r a m n o b is w as ad d ressed t o th e very co u rt [ th a t] h a d ren d

ered th e ju d g m en t ra th er t

h a n to a n a

p p ella te o r o th er review in g co u rt .” S ta te v. M ixo n , 9 8 3 S .W.2 d 6 6 1 , 6 6 7 (T en n . 1 9 9 9 ) ( em p h asis ad d ed ) (citin g B lack ’ s L aw D ictio n ary 3 0 4 (5 th ed .1 9 7 9 )). “S in ce n e it h e r t h e r i g h t to m o v e f o r a n ew t rial n o r th e rig h t to ap p eal w e re r eco g n ized at co m m o n law , th e w r i t o f erro r co ram n o b is w as d ev elo p ed as a p r o ced u ral m ech an ism to allo w co u rts to p ro v id e relief u n d er lim i ted circu m stan ces.” Id

. a t 6 6 6 -6 7 (f o o tn o t e o m itted ) (citin g M o rg an P rick ett, Writ o f E rro r C o r a m N

o b i s i n C a l ifo rn ia , 3 0 S an ta C lara L . R ev . 1 , 3 (1 9 9 0 )). 4On Novem ber 2 0, 2015, t he ci r c u i t c o u r t denied Clay ’s m o tion. Clay h as appealed that decision, as well. It h as been docketed as Clay v
. State , 2015-CP-01843-COA. B a s e d on their s h ared procedural history and related subject m atter, we have consolidated Clay ’s two appeals. DISCUSSION
I. Jurisdiction ¶7. In h i s p e t i t i o n f

o r w r i t of error c oram nobis, C lay argued that (1) Judge Forrest Johnson should have recused f rom his aggravated-assault trial; ( 2) he is not a habitual of f ender based on Floyd ; (3) b e cause Judge L illie Blackm o n Sanders had recused, she lacked authori t y t o a p point Judge J ohnson to preside o ver the aggravated-assault t rial; (4) Judge Johnson im

properly allowed his trial counsel, Gus Serm os, “to w ithdraw af ter f iling Clay ’s notice of appeal, but p r ior to h i m f i ling a direct appeal,” a nd he “was stripped of his appointed counsel” bef

ore he f iled a d irect appeal brief

; (5) the habitual-of

f ender portion of the a g g r a v ated-assault charge was def e ctive because i t did n ot s p ecif y t hat Clay had sold

m arijuana; and (6) the aggr a vated-assault indictm ent was def ective. Clay reiterates those claim s on appeal. H owever, the operative question is w hether the chan c ellor had subjectm atter jurisdiction. ¶8. “[ W ]hether t he chancery court had jurisdiction to hear a p articular m atter is a question of law that we r e view de novo.” Copple v. State , 1 96 S o. 3d 189, 191 (¶6) (Miss. Ct. App. 201 6 )

. “ Subject-m atter jurisdiction is a threshold inquiry that m ust be resolved bef

ore the

5c o u r t adjudicates the m erits of a c ase.” Id

. at ( ¶7) (quoting Knox v
. State , 75 So. 3d 1030,

1034 ( ¶10) (Miss. 2011)). “W hen, as here, there is a f acial attack on subject-m atter jurisdiction, the allegations in the [ prisoner’s petition] are taken as true. However, when a [ prisoner]’s allegations of jurisdiction are questioned, t he [ prisone r ] b e a rs the b urden to prove jurisdiction by

a preponderance of

the evidence.” Id

. ¶9. W h en the Mississippi Legislature enacted the Mississippi Unif orm Post-Conviction Collateral Relief Act (UPCCRA), it abolished t he com m o n-law writ of error coram n obis and

m ade s uch relief available exclusively through the UPCCRA. Miss. Code Ann. § 99-39-3(1) (Rev. 2015). “[ A]nd the p urpose o f th[ e UPCCRA] is to provide prisoners with a procedure, lim ited in nature, to review t hose objections, def enses, claim s, questions, i ssues[ ,] or errors

w h i c h in practical reality could not be or should n ot h ave been raised at trial o r on direc t appeal.” Miss. Code A nn. § 99-39-3(2) (Rev. 2015). M oreover, because all o f Clay ’s claim s

were collateral attacks on his aggravated-assault conviction o r sentence, h e was obligated to raise t hem in a PCR m otion. See Miss. Code A nn. § 99-39-5(1)(j) (Rev. 2015) (A prisoner

m ust f ile a PCR m otion if

he claim s “[ t]hat the conviction or sentence is otherwise subject
to c ollateral attack upon any grounds of alleged error heretof ore available under any com m on law, statutory , or other writ, m otion, petition, proceeding[ ,] or rem edy .”). ¶10. “Claim s c ognizable under the UPCCRA a re o u t s i d e t h e equity jurisdiction of the chancery court.” C

opple , 196 So. 3d at 193 (¶14). Generally , a chancery c ourt is obligated
to transf er a case to circuit court if the case is u nder t he circuit c ourt’s exclusive j urisdiction.

6Miss. Const. a rt. 6, § 162. But because Clay ’s aggravated-assault conviction had been

af f irm ed on d i r e c t a p peal, and he had not f ulf i lled his obligation t o obtain l eave f rom the
suprem e court to f

ile a P CR m otion, the chancery court could not transf er Clay ’s petition f

or writ of error coram n o bis. See Miss. Code Ann. § 99-39-7 (Rev. 2 015). “This procedure is
not m erely advisory , but jurisdictional.” Copple , 196 So. 3d at 193 (¶14) (quoting Dunaway

v. S tate , 111 So. 3d 117, 118 (¶6) (Miss. Ct. App. 2013)). The chancery court c ould not have transf erred Clay ’s PCR m otion without circum venting section 99-39-7. Thus, the chancery
court did not err when it dism issed Clay ’s PCR m otion f or l ack of subject-m atter j urisdiction.
II. Expungement ¶11. Clay argues that the circuit court erred when it denied his m otion to e xpunge his three 1979 convictions f

or selling m arijuana. Clay ’s t hree 1 979 convictions were not e ligible f or expungem ent. C lay claim e d his 1979 convictions should be expunged under t hree dif f erent
statutes. One was Mississippi Code Annotated section 41-29-150 (Rev. 2013). But section 41-29-150(d)(1) provides f or expungem ent o f certain of f enses only if there has not been an “adjudication of guilt.” That c learly did not occur regarding Clay ’s three 1979 convictions. The circuit court accepted h i s g u ilty pleas, sentenced him f o r each of the three c harges, and did not withhold adjudicating Clay guilty of each charge. ¶12. Clay ’s reliance o n Mississippi Code A nnotated section 9 9

- 1 5

- 5 7(1) (Rev. 2015) is also m isplaced. Section 99-15-57(1) allows one to apply f o r expunction of certain of f enses f ollowing a guilty p lea, but o n ly if the guilty

plea occurred “within six

. . . m o nths prior to

7March 31, 1983[ .]” All three of Clay ’s guilty pleas occurred on Septemb e r 19, 1979. It

f ollows that Clay was not eligible f or relief under section 9 9-15-57(1). See Caldwell v. State , 564 So. 2d 1371, 1 373 (Miss 1990) (holding t hat a p r i s o n e r w h o had pleaded guilty on October 9, 1979, was ineligible f or relief under section 99-15-57(1)). ¶13. F i n a l l y , C l a y c l a i me d h i s t h r e e 1979 convictions should be expun g e d u n d e r Mississippi Code A nnotated section 99-19-71 (Rev. 2015). Section 99-19-71(2)(a) does not
contem plate expunction of any of f ense related to t he s ale of a controlled substance. Section 99-19-71(2)(b) states t hat som eone who was y o unger than t wenty -one y ear s o l d w h e n he

com m itted a f

elony m a y request expungem ent of a single conviction a f ter a tim e. But Clay

w a s twenty -seven when he entered his three 1979 g uilty pleas. Thus, none of thos e convictions were eligible f or expungem ent u

n d e r s e c t i o n 9 9

- 1 9

- 71(2)(b). Even i f Clay would have been eligible based on his a ge, section 99-19-71(2)(b) provides a circuit court with the disc r e t i o n t o decline t o e xpunge “ any f elony t hat, in the determ ination of the circuit court, is related to the distribution of a contr o l l e d s u b stance

. . . .” Id

. All of Clay ’s 1979 convictions were related to selling a controlled substance. Consequently , we f ind no m erit
to Clay ’s claim that the circuit court erred when it denied his m otion to expunge all three of his 1979 convictions.
III. Recusal ¶14. Clay ar g u e s t h at t he circuit judge should h ave r ecused f r om his aggravated-assault trial. Clay asserted that c laim in his Novem ber 9 , 2015 p eti t i o n f

o r w r i t of m andam

us

8seeking the circuit court’s ruling on his “m otion f or autom atic expunction.” Clay al s o asserted that Judge Johnson should have to recuse from consideration of the e xpungement
motion

. On J a n u a r y 1 2 , 2016, the s uprem e c ourt entered an o rder dism issing Clay ’s

m andam us petition because the circuit court had r uled on the expungem ent m otion, and Clay had a ppealed. The suprem e court also stated that Clay “can raise the recusal i s s u e i n his appeal.” ¶15. It appears t hat Clay has m isinterpreted the suprem e court as t hough it has given him
perm ission to claim

that the circuit judge should have recused f rom the aggravated-assault trial. However, the suprem e court only held that Clay c ould raise h is claim that the circuit judge should h ave recused f r om hearing the expungem ent m otion. Clay has n ot r aised that issue on appeal. W e d o n ot interpret the suprem e c ourt’s order a s giving Clay perm ission to claim t hat the circuit judge should have recused f rom the aggravated-assault trial. That is a collateral attack on h is a ggravated-assault conviction, which w o u l d require a s uccessf ul application f

or leave t o f

i le a PCR m otion. B ecause Clay never obtained leave t o f ile a PCR

m otion on that basis, and the issue was never presented to the circuit c ourt, w e f ind that it is procedurally

barred. CONCLUSION ¶16. Because the chancery c ourt lacked subject-m atter jurisdiction, the chancery court did
not e rr when it dism i ssed Clay ’s petition f or writ of error coram nobis. A dditionally , the circuit court did not err when it denied Clay ’s petition to expunge his three 1979 convictions.

9Finally , the M ississippi Suprem e Court did not give Clay leave to claim that Judge Johnson

should have recused f

rom Clay ’s 1996 aggravated-assault trial. Instead, the s u prem e court
gave Clay perm ission to claim that J udge Johnson s hould have recused f r om hearing the

m otion to expunge his 1979 convictions. Accordingly , we af f irm the chancery court’s and the circuit court’s judgm ents. ¶17. THE JUDGMENTS O F THE WILKINSON COUNTY CHANCERY COURT AND THE WILKINSON COUNTY CIRCUIT COURT A RE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WILKINSON COUNTY. LEE, C.J., BARNES, ISHEE, C ARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. GRIFFIS, P.J., AND WILSON, J. , CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

1 0