                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-CA-00985-SCT
CLARENCE PETERSON a/k/a ELECTRIC HEAD
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                               08/20/96
TRIAL JUDGE:                                    HON. GRAY EVANS
COURT FROM WHICH APPEALED:                      SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         PRO SE
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL

                                                BY: DEWITT ALLRED, III
DISTRICT ATTORNEY:                              FRANK CARLTON
NATURE OF THE CASE:                             CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                    AFFIRMED - 11/6/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 12/1/97




     BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

     SMITH, JUSTICE, FOR THE COURT:




On June 10, 1991, Clarence Peterson was convicted in the Sunflower County Circuit Court for the
sale of cocaine. Peterson was sentenced as a habitual offender to a term of ten years, without the
possibility of parole, in the custody of the Mississippi Department of Corrections.

On August 2, 1996, Peterson filed a petition for post-conviction relief in the Sunflower County
Circuit Court. In his petition, Peterson alleged that the indictment on which he was arrested was
defective because it did not conclude with the words "against the peace and dignity of the State of
Mississippi." After conducting an evidentiary hearing, the trial court denied the petition. Peterson
now appeals to this Court from the denial of his petition.

                                               FACTS
On June 10, 1991, after entering a plea of guilty, Clarence Peterson was convicted by the Sunflower
County Circuit Court for the sale of cocaine. Peterson was subsequently sentenced by the trial court
as a habitual offender to a term of ten years, without the possibility of parole, in the custody of the
Mississippi Department of Corrections.

In October of 1991, Peterson filed a petition for post conviction relief in the Sunflower County
Circuit Court. In his petition, Peterson moved to have the habitual offender portion of his indictment
vacated. On October 31, 1991, the trial court denied relief to Peterson, and on appeal to the Supreme
Court, this Court affirmed the trial court's denial of post-conviction relief.

On August 2, 1996, Peterson filed a Motion for Relief Pursuant to the Mississippi Uniform Post-
Conviction Collateral Relief Act. In his motion, Peterson alleged that the sentence imposed on him
was in violation of his rights because the indictment on which he was arrested did not conclude with,
as required by Article 6, Section 169 of the Mississippi Constitution of 1890, "against the peace and
dignity of the state." Specifically, Peterson alleged that since the habitual offender portion of the
indictment followed the phrase "against the peace and dignity of the state," he should not have been
sentenced as a habitual offender. Additionally, Peterson made an ore tenus motion at the evidentiary
hearing to amend his petition to include a claim of ineffective assistance of counsel in that his
attorney failed to object to the habitual offender portion of the indictment, and the trial court granted
the motion to amend the petition.

On August 20, 1996, the trial court entered an order denying Peterson post-conviction relief. The
trial court found that "Defendant has previously filed a post conviction collateral relief motion which
has been denied, that his motion is time barred by the statute and that the defect, if any, was waived
by the failure of the Defendant to demur to the indictment and the entry of a guilty plea."

Aggrieved, Peterson now appeals to this Court, citing the following issue:

     WHETHER PETERSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO
     EFFECTIVE ASSISTANCE OF COUNSEL.

                                       DISCUSSION OF LAW

                                        PROCEDURAL BARS

In denying Peterson's Motion for Relief Pursuant to the Mississippi Uniform Post-Conviction
Collateral Relief Act, the trial court found that Peterson's motion was time barred and barred as a
successive writ. However, Peterson contends that his petition for post-conviction relief is not time
barred or barred as a successive writ because it falls within one of the statutory exceptions.

Miss. Code Ann. § 99-39-5(2) provides the time restrictions for the filing of a petition for post-
conviction relief as follows:

     A motion for relief under this chapter shall be made within three (3) years after the time in
     which the prisoner's direct appeal is ruled upon by the supreme court of Mississippi or, in case
     no appeal is taken, within three (3) years after the time for taking an appeal from the judgment
     of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after
     entry of the judgment of conviction.
Miss. Code Ann. § 99-39-5(2) (1994). In addition, Miss. Code Ann. § 99-39-5(2) provides the
following as statutory exceptions to the time bar: (1) an intervening decision which would have
adversely affected the outcome of the prisoner's conviction or sentence; (2) newly-discovered
evidence; and (3) expiration of the prisoner's sentence or unlawful revocation of prisoner's probation,
parole or conditional release. Miss. Code Ann. § 99-39-5(2) (1994). Peterson's current request for
post-conviction relief was filed over five years after his pleading guilty and being convicted and
sentenced for the sale of cocaine. Thus, Peterson's petition for post-conviction relief is time barred
unless it falls within one of the above exceptions.

Miss. Code Ann. § 99-39-23(6) provides that "[A]ny order dismissing the prisoner's motion or
otherwise denying relief under this chapter is a final judgment and shall be conclusive until reversed.
It shall be a bar to a second or successive motion under this chapter." Miss. Code Ann. § 99-39-23(6)
(1994). Also, "[t]he dismissal or denial of an application under this section is a final judgment and
shall be a bar to a second or successive application under this chapter." Miss. Code Ann. § 99-39-
27(9) (1994). Statutory exceptions to this successive writ bar are: (1) an application filed pursuant to
§ 99-19-57(2) which raises the issue of the prisoner's supervening insanity prior to the execution of a
sentence of death; (2) an intervening decision which would have adversely affected the outcome of
the prisoner's conviction or sentence; (3) newly-discovered evidence; and (4) expiration of the
prisoner's sentence or unlawful revocation of his probation, parole or conditional release. Miss. Code
Ann. § 99-39-23(6), -27(9) (1994). Peterson filed his first motion in October 1991 in which relief
was denied by the trial court and by this Court on appeal. Therefore, since this is Peterson's second
petition, it is barred as a successive writ unless one of the above exceptions apply.

However, Peterson contends that his second petition for post-conviction relief is not time barred or
barred as a successive writ because of an intervening decision that would have adversely affected the
outcome of his conviction or sentence. Peterson relies on this Court's recent decision in McNeal v.
State, 658 So. 2d 1345, 1350 (Miss. 1995), which held that the habitual offender portion on the
second page of an indictment was invalid because the mandatory phrase "against the peace and
dignity of the State of Mississippi" followed only the charging language of the indictment on the first
page, as the "intervening decision".

Peterson's reliance on the "intervening decision" exception is understandable given that his claim is
time barred and barred as a successive writ in the absence of this exception. However, Peterson's
assertion that McNeal is an intervening decision that would qualify for this exception is without
merit. This Court has held that an intervening decision exception "applies only to those decisions that
create new intervening rules, rights, or claims that did not exist at the time of the prisoner's
conviction or during the three (3) year period circumscribed by the statute of limitations." Patterson
v. State, 594 So. 2d 606, 608 (Miss. 1992) (emphasis in original). The inmate in Patterson relied
upon a decision which enforced the mandates of the pre-existing Mississippi criminal court rules. In
concluding that the decision relied on by Patterson was not an "intervening decision," this Court
stated that the alleged "intervening decision" "simply recognized and applied a pre-existing rule, a
rule that had been in existence for at least four years when Patterson entered his 1983 plea of guilty."
Id. at 608. Similarly, McNeal applied the pre-existing Mississippi Constitution as well as a pre-
existing rule of law. Moreover, McNeal reiterated this Court's previous holdings in Love v. State, 8
So. 465 (Miss. 1891), and Clingan v. State, 135 Miss. 621, 100 So. 185 (1924), regarding the
mandatory phrase provisions in the Mississippi Constitution of 1890.

Similar to Patterson, Peterson is seeking relief from his attorney's alleged ineffective assistance of
counsel for failing to request the trial court or this Court to enforce a constitutional provision and a
rule of law that was available to his attorney on the day he entered his guilty plea and throughout the
three (3) year statutory time limitation. Thus, McNeal is not an intervening decision that would lift
the procedural bars against Peterson and provide him relief under a claim of ineffective assistance of
counsel because McNeal did not create any "new intervening rules, rights, or claims that did not exist
at the time of the prisoner's conviction or during the three (3) year period circumscribed by the
statute of limitations." Patterson, 594 So. 2d at 608 (emphasis in original). As a result, Peterson's
petition is both time barred and barred as a successive writ.

Alternatively, Peterson's assigned issue of error fails on the merits.

     WHETHER PETERSON WAS DENIED HIS CONSTITUTIONAL RIGHT TO
     EFFECTIVE ASSISTANCE OF COUNSEL.

At Peterson's evidentiary hearing, Peterson made an ore tenus motion to include this claim of
ineffective assistance of counsel. Peterson now contends that he was unconstitutionally denied his
right to effective assistance of counsel when his trial attorney did not object to the habitual offender
portion of the indictment charging him as being in violation of Article 6, Section 169 of the
Mississippi Constitution of 1890 before trial, at trial, and on direct appeal. Peterson further claims
that his attorney's ineffectiveness resulted in prejudice against him for he has had to serve a
mandatory sentence which he otherwise would not have been made to serve.

In order for Peterson to prevail on his claim of ineffective assistance of counsel, he must satisfy the
two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by this
Court. Knight v. State, 577 So. 2d 392, 394 (Miss. 1991). The Strickland test requires a showing of
(1) whether counsel's overall performance was deficient and (2) whether the deficient performance, if
any, prejudiced the defense. Cole v. State , 666 So. 2d 767, 775 (Miss. 1995). This Court has also
held that "[t]he adequacy of counsel's performance, as to its deficiency and prejudicial effect, should
be measured by a 'totality of the circumstances.'" Taylor v. State, 682 So. 2d 359, 363 (Miss. 1996)
(quoting Cole, 666 So. 2d at 775). In addition, "[t]here is a strong but rebuttable presumption that
counsel's conduct falls within the wide range of reasonable professional assistance." Holland v. State,
656 So. 2d 1192, 1197 (Miss. 1995) (citing Carney v. State, 525 So. 2d 776, 780 (Miss. 1988);
Gilliard v. State, 462 So. 2d 710, 714 (Miss. 1985)).

Peterson alleges that his counsel's performance was deficient for counsel's failure to object to the
indictment under which Peterson was arrested as being defective because the habitual offender
portion did not conclude with the mandatory phrase "against the peace and dignity of the State of
Mississippi" as required by Article 6, Section 169 of the Mississippi Constitution of 1890. In McNeal
v. State, this Court held that where the habitual offender portion of an indictment follows the
mandatory phrase "against the peace and dignity of the State of Mississippi" and does not conclude
with such language, that portion of the indictment is fatally defective. McNeal v. State, 658 So. 2d
1345, 1350 (Miss. 1995). Thus, Peterson's counsel was deficient in not objecting to the habitual
offender portion of the indictment in which Peterson was arrested and sentenced as a habitual
offender.
However, in order to prevail on a claim of ineffective assistance of counsel, Peterson must also
satisfy the second prong of the Strickland test which provides that Peterson must show that counsel's
deficient performance prejudiced his defense. Cole, 666 So. 2d at 775. The burden of proof under
both prongs of the Strickland test rests with the defendant, Peterson. Taylor, 683 So. 2d at 363.
Peterson has failed to meet this second prong and show that his defense was prejudiced by his
counsel's deficient performance.

Peterson contends that as a result of his counsel's ineffective assistance he is being forced to serve a
mandatory sentence which he would not have had to serve had his attorney not been deficient.
Peterson further contends that it is unreasonable to just assume that had the attorney objected to the
defective habitual portion that the indictment would have been amended by the trial court. Peterson
asserts that the indictment could not have been amended by the trial court because amendment of the
indictment would amount to a change in substance and not mere form. As such, Peterson contends
that there absolutely exists no surety that the Grand Jury would have re-indicted Peterson as a
habitual offender.

However, this Court, in Brandau v. State, held that where a habitual offender portion of an
indictment follows the concluding language "against the peace and dignity of the State of Mississippi"
such "formal defect is curable by amendment." Brandau v. State, 662 So. 2d 1051, 1055 (Miss.
1995). Thus, Peterson can not say that his defense was prejudiced by his counsel's failure to object to
the habitual offender portion of the indictment because even if his counsel had objected, the
prosecutor could have easily had the indictment amended by the trial court, and Peterson would have
been convicted as a habitual offender anyway. Therefore, without showing any other prejudice,
Peterson can not satisfy the second prong of the Strickland analysis, and as a result, we hold that his
claim of ineffective assistance of counsel fails on the merits.

                                            CONCLUSION

We affirm the trial court's denial of post-conviction relief because (1) Peterson's petition is both time
barred and barred as a successive writ; and (2) Peterson's claim of ineffective assistance of counsel
additionally fails on the merits, for Peterson has failed to show that his defense was prejudiced by his
counsel's performance.

DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS
AND MILLS, JJ., CONCUR.
