                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2014-CA-01710-SCT

BILLY RAY BRADLEY

v.

EARL P. (PAT) JORDAN, JR.

DATE OF JUDGMENT:                          11/12/2014
TRIAL JUDGE:                               HON. LESTER F. WILLIAMSON, JR.
TRIAL COURT ATTORNEYS:                     DONALD W. BOYKIN
                                           CHRISTOPHER MICHAEL FALGOUT
COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    DONALD W. BOYKIN
ATTORNEY FOR APPELLEE:                     CHRISTOPHER MICHAEL FALGOUT
NATURE OF THE CASE:                        CIVIL - LEGAL MALPRACTICE
DISPOSITION:                               AFFIRMED - 01/21/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Billy Ray Bradley waited until 2014 to file suit against his court-appointed counsel

in a 2004 proceeding. Bradley alleges negligence against his representative, Earl Jordan,

which resulted in his injury, i.e., wrongful incarceration. Jordan filed a motion for summary

judgment, alleging that the statute of limitations had run on any claims Bradley may have had

as to Jordan’s negligence or professional malpractice. The trial court entered judgment in

Jordan’s favor, finding that Bradley’s claims were barred by the statute of limitations.

Bradley timely appealed. Finding that Bradley’s claims are time-barred, we affirm the

judgment of the trial court.
               STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.        On November 19, 2003, Bradley was indicted as a habitual offender pursuant to

Mississippi Code Section 99-19-83,1 on the charge of possession of a firearm by a convicted

felon in violation of Mississippi Code Section 97-37-5 (2000). Bradley v. State, 934 So. 2d

1018, 1022 (Miss. Ct. App. 2005) (“Bradley I”). Jordan was appointed counsel for Bradley.

Bradley “informed Jordan he had not served a year on one of the sentences referenced in the

indictment.”2 However, Bradley was convicted and was sentenced on June 15, 2004, to a

term of life imprisonment, to be served in the custody of the Mississippi Department of

Corrections (MDOC). Id.

¶3.    On February 5, 2014, this Court granted Bradley leave to seek post-conviction relief

(PCR) in the Circuit Court of Lauderdale County on the issue of whether he had served one

year or more for a burglary conviction which was used to support the State’s allegation that

Bradley was a habitual offender, such that he could be sentenced to life imprisonment. The

trial court entered an order vacating Bradley’s sentence on April 30, 2014, finding that




       1
        This section requires the State to prove that Bradley had two previous felony
convictions for which he had been sentenced to serve and had served one year or more for
each conviction. See Miss. Code Ann. § 99-19-83 (Rev. 2015).
       2
        In his Motion for Post-Conviction Relief, Bradley alleged that he had served only
seventy-one days and that documents were available at the time of his trial and sentencing
from the Jackson County Circuit Clerk and the Jackson County Sheriff’s Department
showing he had served only seventy-one days. He argued that his trial counsel “failed to
investigate that matter after Bradley requested him to do so, and failed to raise a defense at
Bradley’s sentencing hearing.”

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Bradley had not served at least one year on his burglary conviction, and ordered his

immediate release from MDOC custody.

¶4.    On June 9, 2014, Bradley filed his complaint against Jordan, alleging that Jordan had

been negligent in his representation of Bradley by failing to investigate whether Bradley had

served one year or more on the two sentences used to support Bradley’s habitual-offender

status and in failing to raise this defense at his sentencing hearing.

¶5.    Jordan filed a motion for summary judgment, alleging that Bradley’s suit was time-

barred based on Bradley’s discovery of Jordan’s alleged negligence, which occurred more

than three years prior to Bradley’s filing suit. Jordan averred that Bradley specifically alleged

in his complaint that “[p]rior to Bradley being sentenced he informed Jordan that he had not

served a year on one of the sentences referenced in the indictment.”

¶6.    Based on Bradley’s own allegations in his complaint and his two suits alleging

ineffective assistance of counsel, Bradley had three years from the date he knew of his

attorney’s negligence to file suit. Because Bradley did not file this suit until June 9, 2014.

Bradley’s suit was time-barred.

¶7.    In response, Bradley argued that the statute of limitations could not have begun to run

until his request for PCR was granted and his sentence was vacated.

¶8.    After hearing argument on the motion, the trial court determined that Bradley’s claims

were barred by the statute of limitations and entered a judgment dismissing Jordan. Bradley

timely appealed, arguing that the statute of limitations had not run on his complaint.


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                                         ANALYSIS

¶9.    This Court applies a de novo standard of review to questions regarding the statute of

limitations. Harris v. Darby, 17 So. 3d 1076, 1078 (Miss. 2009). This Court also applies a

de novo standard of review for grants of summary judgment. Id. The three-year statute of

limitations found in Mississippi Code Section 15-1-49 applies to actions for legal

malpractice. Bennett v. Hill-Boren, P.C., 52 So. 3d 364, 369 (Miss. 2011) (citing Channel

v. Loyacono, 954 So. 2d 415, 420 (Miss. 2007)). In Smith v. Sneed, 638 So. 2d 1252 (Miss.

1994), this Court adopted the discovery rule for legal malpractice actions, holding that the

statute of limitations would begin to run at the time the client discovered or through the use

of reasonable diligence should have discovered his counsel’s negligence. Smith, 638 So. 2d

at 1258.

¶10.   Bradley admits that, at the time of his sentencing, on June 15, 2004, he not only knew

that he had not served a full year on one of his convictions, but he had informed Jordan of

this fact. In his direct appeal and in a federal suit, Bradley argued that Jordan was ineffective

because he had failed to verify that Bradley was incarcerated for more than one year on one

of his prior convictions. Bradley I, 934 So. 2d at 1026; Bradley II, 2006 WL 2805218, at *1.

Bradley consistently has alleged that Jordan failed to investigate Bradley’s claim that he had

not served one year for one of his convictions by obtaining public records which were readily

available and that Jordan failed to raise this as a defense at his sentencing hearing. Bradley




                                               4
should have filed his suit for negligence on or before June 15, 2007. Therefore, we find that

Bradley’s claims are time-barred.

¶11.      Bradley also argues that this Court should apply the ruling in Heck v. Humphrey, 512

U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and find that the statute of limitations

does not begin to run in criminal legal malpractice cases until post-conviction relief has been

granted. Heck alleged that the defendants had violated his constitutional rights by

deliberately destroying exculpatory evidence in order to convict him. Id. at 484. The Supreme

Court held that, “in order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, a [Section] 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order, declared invalid

by a state tribunal authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus. . . .” Heck, 512 U.S. at 486-87.

¶12.      The Court of Appeals addressed this very issue in Hymes v. McIlwain, 856 So. 2d 416

(Miss. Ct. App. 2003), and this Court adopts the holding in that case. Hymes, like Bradley,

argued that Heck required a “finding that the statute of limitation[s] did not begin to run on

his claims until his petition for post-conviction relief was granted in May 2000.” Hymes, 856

So. 2d at 418. The Court of Appeals disagreed, finding that the case was not a Section 1983

case, nor was it a malicious prosecution case, as was presented in Heck. Hymes, 856 So. 2d

at 418.


                                               5
       Controlling authority in the present suit is not Heck but standard legal
       malpractice jurisprudence. The period of limitation in such a suit begins to run
       as of the date the client learns, or through reasonable diligence should have
       learned of his counsel’s negligence. Smith v. Sneed, 638 So. 2d 1252, 1253
       (Miss. 1994). This was the ground upon which the trial court found the suit
       untimely. Hymes was not required by the operative cause of action for
       professional malpractice to prove that the effects of his counsel’s alleged
       negligence had been finally set aside. The limitation period was therefore not
       awaiting final resolution of the criminal matter before it would begin.

       Hymes had reason to know his attorneys acted negligently for quite some time
       before filing suit against them. Ineffective assistance of counsel was the basis
       for vacating the sentence. The petition for post-conviction relief was filed in
       1995, although it was not ultimately successful until 2000. At the very latest,
       the statute of limitations began to run in 1995 when it became apparent Hymes
       knew of his attorneys’ deficient performance. The filing of this civil suit
       comes too late.

Hymes, 856 So. 2d at 419.

¶13.   This case is analogous to Hymes. Bradley had reason to know his attorney had acted

negligently when he was sentenced as a habitual offender, although he had not served a year

in prison for one of his convictions. As previously stated, Bradley admitted in his Complaint

that, at the time of his sentencing, on June 15, 2004, he informed his court-appointed attorney

that he had not served a full year on one of his convictions. Based on Bradley’s own

admissions, the statute of limitations began to run from the date of his sentencing hearing,

June 15, 2004. As such, this suit is time-barred.

                                      CONCLUSION

¶14.   Bradley’s suit is time-barred by the applicable statute of limitations. Therefore, we

affirm the judgment of the Circuit Court of Lauderdale County.


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¶15.   AFFIRMED.

    DICKINSON, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR.
KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., AND KING, J. MAXWELL, J., NOT PARTICIPATING.

       KITCHENS, JUSTICE, DISSENTING:

¶16.   The majority affirms the judgment of the Lauderdale County Circuit Court granting

summary judgment to Earl Jordan. Because a genuine issue of material fact exists regarding

the point at which Billy Ray Bradley discovered, or by reasonable diligence should have

discovered, his counsel’s negligence, I respectfully dissent.

¶17.   The majority correctly applies Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129

L. Ed. 2d 383 (1994), and Hymes v. McIlwain, 856 So. 2d 416 (Miss. Ct. App. 2003). In

Heck, the United States Supreme Court, answering the question “whether a state prisoner

may challenge the constitutionality of his conviction in a suit for damages under 42 U.S.C.

§ 1983,” analogized Section 1983 claims to common-law malicious prosecution claims,

because both “permit[] damages for confinement imposed pursuant to legal process.” Heck,

512 U.S. at 478, 484. The Supreme Court held that “a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.” Id. at 487-88.

¶18.   In Hymes, the Mississippi Court of Appeals rejected Hymes’s argument that his legal

malpractice claim against his lawyer was “not time-barred as the statute of limitation on such


                                              7
claim did not begin to run until his conviction was vacated.” Hymes, 856 So. 2d at 418. In

1991, Hymes was sentenced to thirty-five years in prison after having been convicted of

possession of marijuana with intent to sell and possession of a firearm by a convicted felon.

Id. at 417. Hymes sought post-conviction relief on the basis of ineffective assistance of

counsel in 1995. Id. Post-conviction relief was “eventually granted and Hymes’[s] conviction

was vacated in May 2000.” Id. Hymes then filed a legal malpractice lawsuit against “the

three attorneys who represented him in the 1991 criminal trial,” but the attorneys’ motion for

summary judgment was granted on the basis that “the suit was time-barred by the expiration

of the three-year statute of limitations.” Id. at 418.

¶19.   The Court of Appeals noted Hymes’s reliance on Heck: “the Heck [C]ourt held that

a section 1983 claim which has the effect of casting aspersions upon the legality of either

conviction or confinement if successful is not cognizable until the conviction upon which the

claim is based has been legally voided.” Id. (citing Heck, 512 U.S. at 486-87). According to

the Court of Appeals, “Hymes urges that Heck requires a finding that the statute of

limitations did not begin to run on his claims until his petition for post-conviction relief was

granted in May 2000.” Id. The Court of Appeals opined that, “[t]he problem with analogizing

Heck to the present litigation is that this is neither a section 1983 action against governmental

actors nor is it akin to a malicious prosecution suit.” Id. “All that Heck provides relevant here

is that were this a suit akin to malicious prosecution against State actors, the setting aside of




                                               8
the underlying conviction would be a prerequisite for the bringing of a damage suit.” Id. at

419.

¶20.   As in Hymes, Bradley relies on Heck to argue that the statute of limitations on a legal

malpractice claim does not begin to run until such time as the “conviction upon which the

claim is based has been legally voided.” Hymes, 856 So. 2d at 418 (citing Heck, 512 U.S.

at 486-87). I agree with the majority that “[t]his case is analogous to Hymes” and that Heck

does not stand for the proposition that the statute of limitations on a legal malpractice claim

runs when the plaintiff’s conviction is overturned. Maj. Op. ¶ 13. But I disagree with the

majority’s finding that summary judgment properly was granted in this case, and with the

majority’s pronouncement that “Bradley had reason to know his attorney had acted

negligently when he was sentenced as a habitual offender, although he had not served a year

in prison for one of his convictions,” and, therefore, “the statute of limitations began to run

from the date of the sentencing hearing, June 15, 2004.” Maj. Op. ¶ 13.

¶21.   Mississippi Rule of Civil Procedure 56(c) provides, in pertinent part, that:

       The judgment sought shall be rendered forthwith if the pleadings, depositions,
       answers to interrogatories and admissions on file, together with the affidavits,
       if any, show that there is no genuine issue as to any material fact and that the
       moving party is entitled to a judgment as a matter of law.

M.R.C.P. 56(c).

¶22.   This Court considered a case in which Albert Ray Smith sued his court-appointed

lawyer for legal malpractice, claiming that his lawyer had been “negligent in failing to obtain

a copy of the victim’s autopsy report before advising him to enter a guilty plea to the charge

                                              9
of manslaughter.” Smith v. Sneed, 638 So. 2d 1252, 1253 (Miss. 1994). Smith, having been

indicted for murder, pled guilty to manslaughter on July 10, 1979. Id. The lawyer had

requested an autopsy report but was informed that “no autopsy report was in the file and that

the district attorney’s office did not know anything about an autopsy report.” Id. “Despite

lacking a copy of the autopsy, Sneed advised Smith to plead guilty to the reduced charge of

manslaughter which he did in fact do . . . .” Id. Smith was sentenced to twenty years’

imprisonment. Id.

¶23.   On August 1, 1980, Smith had a conversation with Constable Bobby King of Pontotoc

County in which King informed him that the widow of the victim “hoped Smith would be

moved to Parchman before he discovered the results of the . . . autopsy report.” Id. Through

new counsel, on January 12, 1982, Smith obtained a copy of the autopsy report, which

“revealed that the victim . . . had died of natural causes and not necessarily from the gunshot

wounds allegedly inflicted by Smith . . . .” Id. at 1254. Smith’s September 8, 1982, Petition

for Writ of Error Coram Nobis was granted on October 26, 1982, and a new trial was

ordered. Id. Smith, on November 8, 1982, was released from prison and executed a release

against “all claims and causes of action against all defense counsel (including Sneed), all

state’s attorneys, all law enforcement officers and all prosecuting witnesses in consideration

for a dismissal of the manslaughter charge against him.” Id.

¶24.   Smith filed suit against his first court-appointed lawyer on June 1, 1988, “alleging that

Sneed was negligent in advising him to plead guilty to manslaughter before obtaining a copy


                                              10
of the victim’s autopsy report.” Id. The Circuit Court of Pontotoc County entered summary

judgment in favor of Sneed, finding that the statute of limitations had begun running at the

time of Smith’s guilty plea in 1979. Id. At the time, a six-year statute of limitations was in

effect for legal malpractice actions. Id. (citing Steven v. Lake, 615 So. 2d 1177, 1181 (Miss.

1993)). Smith appealed, claiming that the limitations period began to run the date he was

released from prison, November 8, 1982, or, at the earliest, on June 1, 1982, the date on

which he obtained a copy of the exculpatory autopsy report. Id. Sneed claimed that the

limitations period commenced on the date Smith pled guilty to manslaughter, July 10, 1979,

or on July 13, 1979, the date on which Smith was sentenced. Id. At the latest, argued Sneed,

the limitations period began to run when Smith was informed of the existence of a potentially

exculpatory autopsy report, on August 1, 1980. Id.

¶25.   As the majority recognizes, we held that “the statute of limitations in a legal

malpractice action properly begins to run on the date the client learns or through the exercise

of reasonable diligence should learn of the negligence of his lawyer.” Id. at 1253. This Court,

however, reversed and remanded the grant of summary judgment, holding that “[q]uestions

of material fact exist related to the application of this standard.” Id. Specifically, this Court

held that “whether King, a layman, recounted the contents of the autopsy report in a manner

sufficient to put Smith on notice that his attorney had been negligent was a fact question for

jury determination.” Id. at 1258. As a result, “the grant of summary judgment was

premature.” Id.


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¶26.   In the present case, Bradley was found guilty on June 15, 2004, by a Lauderdale

County jury of possession of a firearm by a felon, and was sentenced that same day to life

imprisonment pursuant to Mississippi Code Section 99-19-83 (2000). Bradley argued on

direct appeal,3 inter alia, that “an investigation of the bed registers of the MDOC would

prove that he did not serve a year in MDOC custody as a result of his 1980 burglary

conviction.” Bradley v. State (Bradley I), 934 So. 2d 1018, 1026 (Miss. Ct. App. 2005). The

Court of Appeals, in its opinion of December 13, 2005, held that Bradley’s argument was

unsupported by the record: “These allegations against his attorney are unsupported by

evidence, affidavits, or witnesses, and, therefore, are insufficient to sustain his claim for

ineffective assistance of counsel.” Id. (citing Harris v. State, 822 So. 2d 1129, 1132 (Miss.

Ct. App. 2002)).

¶27.   Bradley further argued on direct appeal that “his sentence was improper because he

was actually ineligible to receive a life sentence” under Mississippi Code Section 99-19-83

(2000), “which provides that any person who has been convicted of a felony who has twice

previously been convicted of any felony and sentenced to and served a term of one year or

more shall be sentenced to life imprisonment if one of the previous felonies was a crime of

violence.” Bradley I, 934 So. 2d at 1028. The Court of Appeals rejected Bradley’s claim:

       Bradley’s argument that he was ineligible is incorrect. The record reflects that
       prior to the conviction sub judice, Bradley was convicted of two felonies, one


       3
         Bradley was represented on direct appeal by the Office of Indigent Appeals. Bradley
v. State, 934 So. 2d 1018, 1021 (Miss. Ct. App. 2005).

                                             12
       of which was aggravated assault. The record also reflects that Bradley was
       sentenced to serve more than one year for each felony, and that Bradley served
       more than one year for each felony.

Id.

¶28.   Bradley then filed a complaint against Jordan pursuant to 42 U.S.C. § 1983 in the

United States District Court for the Southern District of Mississippi, Eastern Division.

According to that court’s judgment of September 25, 2006, Bradley had claimed, inter alia,

that “he was denied effective assistance of counsel by public defender Jordan’s poor

representation during his trial” and that records provided by an MDOC official “led to his

status as a ‘habitual offender’ for sentencing purposes.” Further, Bradley requested that “his

life sentence as a habitual offender be ‘reversed and remanded’ for sentencing ‘as a non-

habitual criminal.’” The district court held that Bradley’s “claim for release from custody is

habeas in nature and, thus, not properly pursued under 42 U.S.C. § 1983.” Further, the

district court ruled that Bradley’s claims for monetary damages were barred because “[t]he

plaintiff has failed to demonstrate that his conviction and/or sentence has been invalidated

in order to overcome the bar to this suit established by Heck v. Humphrey[, 512 U.S. 512

(1994)].”

¶29.   Bradley filed a Motion for Post-Conviction Relief on February 12, 2014, arguing

ineffective assistance of trial and appellate counsel:

       Most importantly, for one of the felonies serving as the basis for his habitual
       offender indictment under Sec. 99-19-83 (1980 Jackson County, Mississippi
       conviction), Bradley served only seventy-one (71) days . . . , not the requisite
       one year or more. His trial counsel failed to investigate that matter after

                                             13
       Bradley requested him [to] do so, and failed to raise a defense at Bradley’s
       sentencing hearing. Documents were available at the time of Bradley’s trial
       from the Jackson County Circuit Clerk and Jackson County Sheriff showing
       that Bradley had in fact served only seventy-one (71) days on the 1980
       conviction, having posted an appeal bond after his conviction. Bradley was
       never incarcerated on that conviction after he posted bond. . . .

On February 6, 2014, a panel of this Court granted Bradley leave to seek post-conviction

relief in the Circuit Court of Lauderdale County on the issue of whether Bradley had served

one year or more for the 1980 Jackson County burglary conviction. According to Bradley’s

complaint in the present legal malpractice case, “[o]n April 30, 2014[,] the Lauderdale

County Circuit Court entered its Order Vacating Sentence by which Bradley’s aforesaid life

sentence was vacated.” Bradley since has been released from prison.

¶30.   As in Smith, “[q]uestions of material fact exist” relating to whether Bradley knew “or

through the exercise of reasonable diligence should [have known] of the negligence of his

lawyer” as of the date of sentencing, June 15, 2004. Smith, 638 So. 2d at 1253. In Smith,

whether the constable, a lay person, adequately had informed Smith regarding the contents

of the exculpatory autopsy report “in a manner sufficient to put Smith on notice that his

attorney had been negligent was a fact question for jury determination.” Id. at 1258. Here,

a jury question exists regarding whether Bradley, a lay criminal defendant, knew or through

the exercise of reasonable diligence should have known of his lawyer’s negligence in failing

to investigate the underlying crimes used by the State to support Bradley’s status as an

habitual offender.



                                             14
¶31.   Both the Mississippi Court of Appeals and the United States District Court for the

Southern District of Mississippi rejected Bradley’s claims. It was not until February 6, 2015,

that this Court granted leave to Bradley to pursue his post-conviction claims, and it was not

until April 30, 2014, that his sentence was vacated. While I agree with the majority that no

bright-line rule exists that the statute of limitations does not begin to run until a conviction

has been overturned, as in Smith, a jury ought to decide the fact question of the point at

which lay criminal defendants knew or should by reasonable diligence have known of their

lawyers’ negligence. In deciding Smith, this Court quoted a Texas commentator: “‘[i]t is

unrealistic to expect a layman to perceive an injury at the time of the negligent act or

omission of his attorney.’” Smith, 638 So. 2d at 1257 (quoting Willis v. Maverick, 760 S.W.

2d 642, 645 (Tex. 1988) (quoting Ward, Legal Malpractice in Texas, 19 S. Tex. L.J. 587, 613

(1978))).

¶32.   A genuine issue of material fact exists regarding the point at which Billy Ray Bradley

discovered, or by reasonable diligence should have discovered, his counsel’s negligence.

Because I would reverse the grant of summary judgment to Jordan by the Lauderdale County

Circuit Court, I respectfully dissent.

       WALLER, C.J., AND KING, J., JOIN THIS OPINION.




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