                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 95-KP-01304-SCT
R. D. MOORE
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:                               11/30/95
TRIAL JUDGE:                                    HON. GRAY EVANS
COURT FROM WHICH APPEALED:                      SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         PRO SE
ATTORNEYS FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                                BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY                               FRANK CARLTON
NATURE OF THE CASE:                             CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                    AFFIRMED - 6/12/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 7/3/97




     BEFORE SULLIVAN, P.J., McRAE AND MILLS, JJ.

     McRAE, JUSTICE, FOR THE COURT:


R.D. Moore appeals from the denial of post-conviction relief in the Circuit Court of Sunflower
County. Moore alleges that he was improperly indicted in the circuit court as an habitual defender
and that he received ineffective assistance of counsel because his attorney failed to bring the improper
indictment to the attention of the circuit judge. Upon careful review, we will affirm the circuit judge's
denial of the motion to correct sentence.

                                                   I.

On May 7, 1993, the Sunflower County Grand Jury indicted Moore as an habitual offender for sale of
cocaine. At his arraignment, Moore pled not guilty and was appointed Alsee McDaniels as counsel.
Subsequently, however, Moore entered a plea of guilty to sale of cocaine as an habitual offender on
September 15, 1993. The circuit judge sentenced Moore to a ten-year prison term.
Moore filed a motion to correct sentence in the Circuit Court of Sunflower County on November 30,
1995, claiming that he should not have been sentenced as an habitual offender and asking that his
sentence be corrected. Moore's assertion that he was illegally sentenced as an habitual offender was
based on a decision of this Court, McNeal v. State, 658 So. 2d 1345 (Miss. 1995). The circuit judge
dismissed Moore's petition without a hearing on November 30, 1995. Moore now appeals from that
dismissal.

The basis for Moore's assignments of error lies within the indictment returned against him on May 7,
1993. Moore's indictment charged him with sale of cocaine as an habitual offender. The first page of
the indictment ended with "against the peace and dignity of the State of Mississippi." On a separate
page of the indictment were two paragraphs detailing two prior convictions against Moore for
burglary and the corresponding sentences. These two paragraphs served as the basis for Moore's
habitual offender status.

                                                   II.

Moore relies on the case of McNeal v. State, 658 So.2d 1345 (Miss. 1995) to seek vacation of his
habitual offender status and to make him eligible for parole. In McNeal, this Court was presented
with a portion of an indictment charging the defendant as an habitual offender, which was on a
separate page from the rest of the indictment. Id. at 1348-49. McNeal argued that his indictment
ended on the first page, which concluded with the words "against the peace and dignity of the state of
Mississippi," and that he could not be sentenced as an habitual offender because he was not properly
charged as such. Id. at 1349.

Justice Roberts, writing for this Court, found that even though the indictment contained the words
"against the peace and dignity of the State of Mississippi" and the defendant was on notice as to what
criminal charges were being brought against him, the habitual offender portion of the indictment still
came after those concluding words. Id. at 1350. Therefore, this Court reasoned, "§ 169 of the state
constitution was not complied with and that portion of the indictment charging McNeal as an habitual
offender was fatally defective." Id. We vacated McNeal's habitual offender status and allowed
McNeal to be eligible for parole; however, we kept his burglary sentence in place. Id.

The State argues that Moore is procedurally barred from making such a claim, because he failed to
demur or bring the defect to the attention of the trial judge. Brandau v. State, 662 So. 2d 1051,
1053 (Miss. 1995). Contrastingly, Moore argues that McNeal was an "intervening decision" which
would have actually adversely affected the outcome of his sentence. See Miss. Code Ann. § 99-39-5.
An intervening decision alone does not preclude a waiver under Miss. Code Ann. § 99-39-21, but
can only except the case from the effect of the three-year statute of limitations in § 99-39-5(2) and
the prohibition of second petitions in 99-39-27(9). Wiley v. State, 517 So. 2d 1373, 1377 (Miss.
1987), cert. denied, 486 U.S. 1038 (1988).

Moore first brought the issue of a faulty indictment brought before the trial court when he made the
motion to correct his sentence. A valid guilty plea, however, admits all elements of a formal criminal
charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a
defendant. Brooks v. State, 573 So. 2d 1350, 1352 (Miss. 1990). A plea of guilty does not waive (1)
the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential
element of a criminal offense, and a plea of guilty does not waive (2) subject matter jurisdiction.
Conerly v. State, 607 So. 2d 1153, 1156 (Miss. 1992). The deficiency appearing in the indictment
complained about by Moore is non-jurisdictional and may not be raised for the very first time in an
application for post-conviction relief or on direct appeal, absent a showing of cause and actual
prejudice. Brooks, 573 So. 2d at 1353. See Miss. Code Ann. § 99-39-21(1).

The waiver section of the Post-Conviction Relief Act defines "cause" as "those cases where the legal
foundation upon which the claim for relief is based could not have been discovered with reasonable
diligence at the time of trial or direct appeal." Miss. Code. Ann. § 99-39-21(4). "Actual prejudice" is
defined as "those errors which would have actually adversely affected the ultimate outcome of the
conviction or sentence." Id. at § 99-39-21(5). We particularly noted that the defendant in McNeal
was not prejudiced by the technical violation within the indictment, due to his awareness of the
charges and the indictment's compliance with Rule 2.05 of the Unif. Crim. R. Cir. Ct. Prac. McNeal,
658 So.2d at 1350. Although we ultimately found that the habitual offender portion of McNeal's
indictment was fatally defective, we did not address the question of waiver.

Moore's indictment meets the requirements of Unif. Crim. R. Cir Ct. Prac. Rule 2.05, to which
Moore admits. See Id. at 1349. Applying our reasoning in McNeal then, Moore cannot have been
prejudiced by the technical violation within the indictment, since he was aware of the charges against
him and the indictment complied with Rule 2.05. Moore's objection to the portion of the indictment
charging him as an habitual offender is therefore procedurally barred.

Alternatively, Moore argues that a procedural bar has no applicability here because the error is a
fundamental constitutional error. However, "the mere fact that a procedural requirement is located in
the Constitution does not necessarily elevate it to the status of a fundamental right." Brandau, 662
So. 2d at 1053. Since the defect in the indictment could have been cured by amendment, it is subject
to wavier for failure to demur. Id. at 1055. Because Moore failed to object to the defective
indictment prior to the motion for post-conviction relief, and because the defects in the indictment
were non-jurisdictional, the exception for fundamental constitutional error is not applicable.

                                                   III.

Moore also alleges that he received ineffective assistance of counsel because his attorney failed to
bring the faulty indictment to the attention of the circuit judge. The standard of review for ineffective
assistance of counsel is set out in Strickland v. Washington, 466 U.S. 688 (1984), which was
adopted by this Court in Gilliard v. State, 462 So. 2d 710, 714 (Miss. 1985). The test to be applied
is (1) whether counsel's overall performance was deficient and (2) whether or not the deficient
performance, if any, prejudiced the defense. Taylor v. State, 682 So. 2d 359, 363 (Miss. 1996); Cole
v. State, 666 So. 2d 767, 775 (Miss. 1995).

Moore failed to allege with the "specificity and detail" required that his counsel's performance was
deficient and that the deficient performance prejudiced the defense. Perkins v. State, 487 So. 2d 791,
793 (Miss. 1986). The facts Moore alleged in his proposed motion and the brief submitted in support
thereof were not supported by any affidavits other than his own. Therefore, Moore's complaint
concerning his lawyer effectiveness is without merit. Brooks v. State, 573 So. 2d 1350, 1354 (Miss.
1990).

Pursuant to Strickland, Moore's argument must also fail. As to the first prong, Moore asserts that the
failure of his counsel to object to or demur to the defective portion of the indictment constituted
deficient performance. Given this Court's position on technical errors within indictments at the time
of indictment, Moore's attorney would have made an argument that probably would have failed. See
Reining v. State, 606 So. 2d 1098, 1103 (Miss. 1992)(indictment sufficient to charge defendant with
crime if it reasonably provides the accused with actual notice and complies with Rule 2.05 of the
Unif. Crim. R. Cir. Ct. Prac.); Benson v. State, 551 So. 2d 188, 195 (Miss. 1989)(in habitual
offender portion of indictment, failure to give dates of prior convictions did not make indictment
fatally defective when other information in indictment afforded defendant access to dates). As the
objection probably would not have been well-taken, Moore's attorney cannot be held in error for
failing to object. Martin v. State, 609 So. 2d 435, 439 (Miss. 1992); Perkins, 487 So. 2d at 792.

Finding no cause to reverse the circuit court based on Moore's assignments of error, we affirm the
circuit court's denial of post-conviction relief.

LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

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