         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CP-01208-COA

BOBBY C. SANDERS JR. A/K/A BOBBY C.                                          APPELLANT
SANDERS A/K/A BOBBY SANDERS

v.

STATE OF MISSISSIPPI                                                           APPELLEE


DATE OF JUDGMENT:                          08/11/2014
TRIAL JUDGE:                               HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                 MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    BOBBY C. SANDERS JR. (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DISMISSED MOTION FOR POST-
                                           CONVICTION RELIEF
DISPOSITION:                               AFFIRMED: 07/28/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       LEE, C.J., FOR THE COURT:

                                PROCEDURAL HISTORY

¶1.    On February 27, 2002, Bobby C. Sanders Jr. pleaded guilty to armed robbery. He was

sentenced to forty years, with five years suspended and thirty-five years to serve in the

custody of the Mississippi Department of Corrections.

¶2.    On August 8, 2014, Sanders filed a motion entitled “petition for writ of habeas corpus

[and] motion to vacate conviction and sentence.”           Treating this as a petition for

postconviction relief (PCR), the trial court dismissed Sanders’s petition finding it was time-
barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp. 2014). The trial

court also found no exceptions to the time-bar existed.

¶3.    Sanders appeals, asserting the time-bar was inapplicable, and the trial court should

have conducted an evidentiary hearing.

                                  STANDARD OF REVIEW

¶4.    When reviewing a trial court’s denial or dismissal of a PCR motion, we will only

disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s

legal conclusions under a de novo standard of review. Hughes v. State, 106 So. 3d 836, 838

(¶4) (Miss. Ct. App. 2012).

                                         DISCUSSION

       I.      TIME-BAR EXCEPTION

¶5.    Sanders contends the three-year time-bar in section 99-39-5 is inapplicable because

of newly discovered evidence. See Miss. Code Ann. § 99-39-5(2)(a)(i). Sanders’s evidence

supporting this claim is an affidavit by Gerome Moore. Moore committed the armed robbery

with Sanders and another man, Elias Gunn. In this affidavit, dated February 25, 2010, Moore

contended Sanders was not present during the armed robbery. This Court affirmed Moore’s

armed-robbery conviction in Moore v. State, 858 So. 2d 190, 196 (¶18) (Miss. Ct. App.

2003). In Moore, we noted that Moore gave two statements and wrote a letter to the district

attorney prior to trial in which he admitted his and Sanders’s participation in the armed

robbery. Id. at 192-93 (¶¶5-6). Additionally, during Moore’s trial, Moore and Gunn testified

under oath that Sanders was the one who actually shot the victim during the armed robbery.



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Id. at 195 (¶15).

¶6.    We have stated:

       In order to warrant the granting of a new trial on the ground of newly
       discovered evidence, it must appear that the evidence (1) will probably change
       the result if a new trial is granted, (2) has been discovered since the trial, (3)
       could not have been discovered before the trial by the exercise of due
       diligence, (4) is material to the issue, and (5) is not merely cumulative, or
       impeaching.

Johnson v. State, 39 So. 3d 963, 966 (¶11) (Miss. Ct. App. 2010) (citations omitted). In this

instance, Sanders has failed to meet these requirements, especially the first requirement.

Sanders cannot show that this affidavit from Moore would change the result if a new trial

was granted. Any testimony from Moore would be impeached by his sworn testimony at his

own trial as well as his three pretrial statements. As this Court stated in Johnson, “[the

defendant’s] sworn testimony in which he admitted that he was guilty of the murder of [the

victim] negates his current claim that there is newly[]discovered evidence that proves his

innocence.” Id. at 966 (¶9); see also Massey v. State, 131 So. 3d 1213, 1219 (¶27) (Miss. Ct.

App. 2013).

¶7.    Sanders also contends that a fundamental right was affected; thus, the time-bar does

not apply. See Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010) (“[E]rrors affecting

fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-

Conviction Collateral Relief Act.]”). We find this exception inapplicable to Sanders’s case.

¶8.    This issue is without merit.

       II.    EVIDENTIARY HEARING

¶9.    Sanders also contends the trial court should have conducted an evidentiary hearing.

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However, since we have found no exception to the time-bar, we cannot find that the trial

court abused its discretion in failing to conduct an evidentiary hearing. This issue is without

merit.

¶10. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

     IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL,
FAIR AND JAMES, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.




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