        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CP-00354-COA

WENDELL DUNCAN A/K/A WENDELL AVERY                                         APPELLANT
DUNCAN

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         12/14/2015
TRIAL JUDGE:                              HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   WENDELL DUNCAN (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: KAYLYN HAVRILLA MCCLINTON
NATURE OF THE CASE:                       CIVIL - POSTCONVICTION RELIEF
DISPOSITION:                              AFFIRMED - 08/15/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND CARLTON, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    Wendell Duncan appeals the dismissal of his fifth motion for postconviction relief

(PCR) by the Washington County Circuit Court. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    In 1994, Duncan was convicted of conspiracy to commit burglary of a business and

burglary of a business. He was sentenced as a habitual offender under Mississippi Code

Annotated section 99-19-83 (Rev. 2007) to serve five years for the conspiracy conviction and

seven years for the burglary conviction in the custody of the Mississippi Department of

Corrections (MDOC). The sentences were ordered to run consecutively for a total of twelve
years.

¶3.      In 1995, Duncan was convicted of armed robbery. Duncan was indicted as a habitual

offender for two prior convictions—shooting into an occupied dwelling and aggravated

assault. However, he was not sentenced as a habitual offender for the armed-robbery

conviction because the circuit judge found that the State failed to prove Duncan’s habitual-

offender status. Instead, Duncan was sentenced as a nonhabitual offender to thirty years in

the custody of the MDOC, with the sentence ordered to run consecutively to the previously

imposed sentence as a habitual offender of twelve years for the burglary and conspiracy

convictions.

¶4.      Duncan filed his first PCR motion in 1996, which was dismissed by the circuit court.

The Mississippi Supreme Court affirmed the circuit court’s judgment in 1998 in an

unpublished opinion in docket number 96-CA-01017-SCT. In 2005, Duncan filed numerous

motions and other documents in both the circuit court and the supreme court. The motions

were denied, and Duncan was sanctioned by the supreme court for frivolous filings and

barred from filing any further documents until he had paid the sanctions. In 2008, Duncan

filed a motion in the circuit court to vacate his convictions and sentences, which the circuit

court treated as Duncan’s second PCR motion and dismissed as time-barred and successive-

writ barred. This Court affirmed the trial court’s dismissal in Duncan v. State, 28 So. 3d 665,

667 (¶7) (Miss. Ct. App. 2009).

¶5.      In 2011, the supreme court denied Duncan’s motion for leave to proceed in the circuit

court, noting that Duncan had failed to file a direct appeal of his convictions and sentences.



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Duncan filed a motion in the circuit court to correct his sentence, which the circuit court

treated as Duncan’s third PCR motion and dismissed as successive-writ barred. This Court

affirmed the circuit court’s dismissal in Duncan v. State, 100 So. 3d 996, 999 (¶13) (Miss.

Ct. App. 2012). Duncan filed a fourth PCR motion, which was again dismissed by the circuit

court. This Court again affirmed the circuit court’s dismissal in Duncan v. State, 170 So. 3d

579, 582 (¶11) (Miss. Ct. App. 2014), finding that the PCR motion was both time-barred and

successive-writ barred.

¶6.    In November 2015, Duncan filed a fifth PCR motion in the circuit court, alleging an

illegal sentence and ineffective assistance of counsel for the conspiracy and burglary

convictions. The motion was dismissed as both time-barred and successive-writ barred.

Duncan now appeals the dismissal of his fifth PCR motion.

                                STANDARD OF REVIEW

¶7.    The circuit court’s dismissal of a PCR motion will not be reversed unless the appellate

court finds the circuit court’s decision was clearly erroneous. Stokes v. State, 199 So. 3d 745,

748 (¶7) (Miss. Ct. App. 2016). We review issues of law, however, under a de novo

standard. Id. “Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) states: ‘If it

plainly appears from the face of the motion, any annexed exhibits and the prior proceedings

in the case that the movant is not entitled to any relief, the judge may make an order for its

dismissal and cause the petitioner to be notified.’” Stokes, 199 So. 3d at 748 (¶7). “This

Court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate

a claim procedurally alive substantially showing the denial of a state or federal right.”



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Dickens v. State, 119 So. 3d 1141, 1143-44 (¶6) (Miss. Ct. App. 2013) (citation and internal

quotation marks omitted).

                                        DISCUSSION

¶8.    Mississippi’s Uniform Post-Conviction Collateral Relief Act (UPCCRA) provides

a movant with three years to file a PCR motion, and failure to do so within the three years

is a procedural bar. Franklin v. State, 203 So. 3d 9, 10 (¶5) (Miss. Ct. App. 2016) (citing

Blount v. State, 126 So. 3d 927, 930-31 (¶12) (Miss. Ct. App. 2013)); see also Miss. Code

Ann. § 99-39-5(2) (Rev. 2015). In the instant case, Duncan’s PCR motion was filed on

November 17, 2015—nearly twenty-one years after his conviction on November 30, 1994.

Because Duncan filed his PCR motion more than three years after the entry of his judgment

of conviction, his motion is time-barred.

¶9.    In addition to the time bar, “[u]nder the UPCCRA, any order denying or dismissing

a PCR motion is a bar to a second or successive PCR motion.” Stokes, 199 So. 3d at 749 (¶9)

(citing Miss. Code Ann. § 99-39-23(6) (Rev. 2015)). This is Duncan’s fifth PCR motion, and

as such, it is barred as a successive writ.

¶10.   As Duncan correctly asserts, errors that violate a fundamental constitutional right are

excepted from the procedural bars. Carter v. State, 203 So. 3d 730, 731 (¶7) (Miss. Ct. App.

2016). The right to be free from an illegal sentence has specifically been held as one of the

fundamental-rights exceptions to the procedural bars. Id. However, “merely asserting a

constitutional-right violation is insufficient to overcome the procedural bars.” Fluker v.

State, 170 So. 3d 471, 475 (¶11) (Miss. 2015) (quoting Means v. State, 43 So. 3d 438, 442



                                              4
(¶12) (Miss. 2010)). Rather, “[t]here must at least appear to be some basis for the truth of

the claim before the procedural bar will be waived.” Id.

¶11.   In the instant case, Duncan asserts that his PCR motion is excepted from the

procedural bars, arguing that he served an illegal sentence for the burglary and conspiracy

convictions in violation of his fundamental constitutional rights. However, Duncan fails to

go beyond “merely asserting” that his sentence was illegal and thus violated his fundamental

constitutional rights. As this Court stated in Duncan, 170 So. 3d at 581 (¶9), “the sentence

Duncan complains of is technically over,” as Duncan completed serving it approximately ten

years ago. Thus, even assuming arguendo that his claim is excepted from the procedural

bars, the alleged defect could not be remedied, as the sentence he seeks relief from is over.

Nevertheless, Duncan has not made a showing sufficient to implicate the fundamental-rights

exception to the procedural bars. As such, this fifth PCR motion is time-barred and

successive-writ barred.

¶12.   Duncan’s PCR motion also alleges ineffective assistance of counsel. “The Mississippi

Supreme Court has consistently held that the UPCCRA’s procedural bars apply to PCR

claims based on ineffective assistance of counsel.” Stokes, 199 So. 3d at 749 (¶12) (citation

omitted). As such, Duncan’s PCR claim of ineffective assistance is also time-barred and

successive-writ barred.

¶13.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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