        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CP-00007-COA

HENRY GIBBS, JR. A/K/A HENRY GIBBS                                         APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         11/30/2016
TRIAL JUDGE:                              HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   HENRY GIBBS JR. (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                              AFFIRMED: 01/09/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

       FAIR, J., FOR THE COURT:

¶1.    Henry Gibbs pled guilty to armed robbery. The court sentenced him to thirteen years

in the custody of the Mississippi Department of Corrections, with eight years to serve

followed by five years’ post-release supervision. Gibbs filed a petition for post-conviction

relief, which the court dismissed. Because Gibbs’s claims are not within the purview of the

Mississippi Uniform Post-Conviction Collateral Relief Act, we affirm the circuit court’s

dismissal.

                               STANDARD OF REVIEW

¶2.    The circuit court may summarily dismiss a PCR motion without an evidentiary hearing

“[i]f 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.” Miss. Code Ann.

§ 99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial

showing of the denial of a state or federal right and (2) show that the claim is procedurally

alive. Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999).

¶3.    Our review of the summary dismissal of a PCR motion, a question of law, is de novo.

Id.

                                       DISCUSSION

¶4.    Mississippi Code Annotated section 99-39-5(1) (Rev. 2015) provides the grounds for

available relief under a PCR motion:

       (1) Any person sentenced by a court of record of the State of Mississippi,
       including a person currently incarcerated, civilly committed, on parole or
       probation or subject to sex offender registration for the period of the
       registration or for the first five (5) years of the registration, whichever is the
       shorter period, may file a motion to vacate, set aside or correct the judgment
       or sentence, a motion to request forensic DNA testing of biological evidence,
       or a motion for an out-of-time appeal if the person claims:

              (a) That the conviction or the sentence was imposed in violation
              of the Constitution of the United States or the Constitution or
              laws of Mississippi;

              (b) That the trial court was without jurisdiction to impose
              sentence;

              (c) That the statute under which the conviction and/or sentence
              was obtained is unconstitutional;

              (d) That the sentence exceeds the maximum authorized by law;

              (e) That there exists evidence of material facts, not previously
              presented and heard, that requires vacation of the conviction or

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              sentence in the interest of justice;

              (f) That there exists biological evidence secured in relation to
              the investigation or prosecution attendant to the petitioner’s
              conviction not tested, or, if previously tested, that can be
              subjected to additional DNA testing, that would provide a
              reasonable likelihood of more probative results, and that testing
              would demonstrate by reasonable probability that the petitioner
              would not have been convicted or would have received a lesser
              sentence if favorable results had been obtained through such
              forensic DNA testing at the time of the original prosecution.

              (g) That his plea was made involuntarily;

              (h) That his sentence has expired; his probation, parole or
              conditional release unlawfully revoked; or he is otherwise
              unlawfully held in custody;

              (i) That he is entitled to an out-of-time appeal; or

              (j) That the conviction or sentence is otherwise subject to
              collateral attack upon any grounds of alleged error heretofore
              available under any common law, statutory or other writ,
              motion, petition, proceeding or remedy.

¶5.    In his PCR motion, Gibbs claimed that (1) he did not match the description given by

the victim; (2) the photo lineup used was suggestive; (3) he was forced to either go to trial

or enter a guilty plea; (4) the State took too long to get an extradition warrant; and (5) his

conviction was predetermined. None of Gibbs’s claims are grounds for relief under section

99-39-5, and therefore his motion should be dismissed. Accordingly, we affirm the circuit

court’s judgment.

¶6.    AFFIRMED.

       LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON,

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GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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