          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CP-00103-COA

KIRBY SHAVERS                                                               APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          11/23/2015
TRIAL JUDGE:                               HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    KIRBY SHAVERS (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BILLY L. GORE
NATURE OF THE CASE:                        CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DISMISSED MOTION FOR
                                           POSTCONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 12/06/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Kirby Shavers filed a motion for postconviction relief (PCR) in the Rankin County

Circuit Court alleging that he received an illegal sentence and ineffective assistance of

counsel. The trial court dismissed Shavers’s PCR motion as time-barred and successive-writ

barred. Shavers filed a motion for reconsideration, which the trial court denied. This appeal

followed. Finding no error, we affirm the trial court’s summary dismissal of Shavers’s PCR

motion.

                                          FACTS

¶2.    On August 4, 2008, Shavers pleaded guilty in the Rankin County Circuit Court to
rape, kidnapping, burglary of a dwelling, grand larceny, and aggravated assault. The trial

court sentenced Shavers to seventeen years for rape, fifteen years for kidnapping, twenty-five

years for burglary, five years for grand larceny, and twenty years for aggravated assault. The

trial court ordered the rape and burglary sentences to run concurrently, and ordered the

remaining sentences to run consecutively to each other and to the sentences for rape and

burglary, resulting in a sentence of sixty-five years in the custody of the Mississippi

Department of Corrections (MDOC).

¶3.      In 2011, Shavers filed a PCR motion raising “questions concerning double jeopardy,

the legality of his sentence, and the permissibility of his multi-count indictment.” Shavers

v. State, 94 So. 3d 362, 363 (¶4) (Miss. Ct. App. 2012). The trial court dismissed Shavers’s

PCR motion after determining that he was not entitled to relief. Shavers then appealed the

dismissal. On appeal, this Court addressed whether Shavers’s sentence was excessive, and

found:

         [I]t is clear from the plea colloquy [that] Shavers was aware of the maximum
         and minimum sentences for each crime. The trial court acknowledged the
         effect of these sentences, which meant Shavers, who was approximately fifty
         years old at the time of the plea hearing, would spend the rest of his life in
         prison. However, the trial court stated it had imposed the sentences in light of
         the nature and severity of Shavers’s crimes and his prior criminal history.
         Each sentence Shavers received was within the statutory limits.

Id. at (¶6). This Court also held that Shavers’s appeal lacked merit, and accordingly affirmed

the trial court’s dismissal of Shavers’s PCR motion. Id. at 364 (¶8).

¶4.      On November 13, 2015, Shavers filed a petition for a writ of habeas corpus, which

the trial court treated as a PCR motion. The record reflects that the trial court reviewed the



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transcript of Shavers’s guilty-plea and sentencing hearings conducted on August 4, 2008, and

August 11, 2008, respectively, as well as Shavers’s criminal file. The trial court then entered

an order dismissing Shavers’s PCR motion as both time-barred and barred as a successive

writ. The trial court held that it “plainly appears from the face of the [PCR motion] that [the]

petitioner is not entitled to any relief and [this court] further finds that the [PCR motion]

should also be dismissed pursuant to [Mississippi Code Annotated section] 99-39-11(2)

[(Rev. 2015)].”

¶5.    Shavers filed a motion for reconsideration, which the trial court denied. This appeal

followed. On appeal, Shavers claims he received ineffective assistance of counsel. Shavers

argues that his counsel rejected every request he made concerning the case, including his

request to focus on the lack of DNA evidence, and lack of medical records regarding the

victim’s injuries. Additionally, Shavers claims that his counsel led him to believe that if he

accepted a plea deal, the court would use a life-expectancy chart during sentencing, which

would allow Shavers to receive a lesser sentence. Finally, Shavers argues that his sixty-five-

year sentence is excessive because it was greater than his remaining life expectancy. Shavers

reasons that the sentence is an illegal violation of his fundamental rights.

                                STANDARD OF REVIEW

¶6.    When reviewing a trial court’s summary dismissal of a PCR motion, this Court

employs a clearly-erroneous standard of review. Jones v. State, 174 So. 3d 902, 905 (¶8)

(Miss. Ct. App. 2015). However, when questions of law are raised, we employ a de novo

standard of review. Id. Section 99-39-11(2) provides: “If it plainly appears from the face



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of the motion, any annexed exhibits and the prior proceedings in the case that the movant is

not entitled to any relief, the judge may make an order for its dismissal and cause the

petitioner to be notified.”

¶7.    Shavers bears the burden of showing by a preponderance of the evidence he is entitled

to postconviction relief. Roach v. State, 116 So. 3d 126, 131 (¶15) (Miss. 2013); Miss. Code

Ann. § 99-39-23(7) (Rev. 2015). Additionally, Shavers “bears the burden of proving by a

preponderance of the evidence that his [PCR] claims are not barred as successive writs.” See

Williams v. State, 110 So. 3d 840, 843 (¶13) (Miss. Ct. App. 2013). We affirm dismissals

or denials of PCR motions when the movant fails to demonstrate “a claim procedurally alive

substantially showing the denial of a state or federal right.” Borden v. State, 122 So. 3d 818,

821 (¶7) (Miss. Ct. App. 2013).

                                        DISCUSSION

¶8.     The record reflects that Shavers pleaded guilty to rape, kidnapping, burglary of a

dwelling, grand larceny, and aggravated assault on August 4, 2008. Shavers filed this PCR

motion before us on November 13, 2015, more than seven years after entering his pleas.

Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that in the case of

guilty plea, “[a] motion for relief under this article shall be made . . . within three (3) years

after entry of the judgment of conviction.” As a result, Shavers’s PCR motion is clearly

untimely and barred by the three-year statute of limitations of the Mississippi Uniform

Postconviction Collateral Relief Act (UPCCRA).

¶9.    However, we acknowledge that the UPCCRA has provided certain exceptions from



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this three-year statute of limitations in cases where the petitioner can demonstrate the

following:

       (a)(i) That there has been an intervening decision of the Supreme Court of
       either the State of Mississippi or the United States which would have actually
       adversely affected the outcome of his conviction or sentence or that he has
       evidence, not reasonably discoverable at the time of trial, which is of such
       nature that it would be practically conclusive that had such been introduced at
       trial it would have caused a different result in the conviction or sentence; or

         (ii) That, even if the petitioner pled guilty or nolo contendere, or confessed
       or admitted to a crime, there exists biological evidence 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.

       (b) Likewise excepted are those cases in which the petitioner claims that his
       sentence has expired or his probation, parole or conditional release has been
       unlawfully revoked. Likewise excepted are filings for post-conviction relief
       in capital cases which shall be made within one (1) year after conviction.

Miss. Code Ann. § 99-39-5(2). We additionally recognize that errors affecting a defendant’s

fundamental constitutional rights also constitute exceptions to this time-bar. Blount v. State,

126 So. 3d 927, 931 (¶13) (Miss. Ct. App. 2013). Although Shavers’s PCR motion is clearly

time-barred, Shavers asserts that his counsel’s assistance was ineffective and he received an

illegal sentence, all of which violated his fundamental constitutional rights.

¶10.   Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) also bars successive

PCR motions:

       The order as provided in subsection (5) of this section or any order dismissing
       the petitioner’s motion or otherwise denying relief under this article is a final
       judgment and shall be conclusive until reversed. It shall be a bar to a second

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       or successive motion under this article.

¶11.   The petitioner “bears the burden of proving by a preponderance of the evidence that

his claims are not barred as successive writs.” Williams, 110 So. 3d at 843 (¶13); Miss. Code

Ann. § 99-39-23(7). As stated, Shavers filed a PCR motion in 2011 asserting that he

received an illegal sentence. This Court ultimately held that “[e]ach sentence Shavers

received was within the statutory limits,” and affirmed the trial court’s dismissal of Shavers’s

PCR motion. Shavers, 94 So. 3d at 363 (¶6). In his current PCR motion, filed in November

2015, Shavers again claims that he received an illegal sentence. Upon review, we find that

Shavers’s PCR motion fails to assert any of the exceptions provided by section 99-39-23(6)

relieving him from the successive-writ bar. Furthermore, we find no reason to set aside the

previous finding of this Court that Shavers’s sentences were within the statutory limits. Id.;

see also Foster v. State, 148 So. 3d 1012, 1016 (¶12) (Miss. 2014) (citing Grayer v. State,

120 So. 3d 964, 969 (¶16) (Miss. 2013) (“A sentence is not illegal unless it exceeds the

maximum statutory penalty for the crime.”). Accordingly, we find Shavers’s claim of an

illegal sentence procedurally barred as a successive writ.

¶12.   The Mississippi Supreme Court has held that claims of ineffective assistance of

counsel are subject to the procedural bars of the UPCCRA. Salter v. State, 64 So. 3d 514,

518 (¶14) (Miss. Ct. App. 2010) (citing Kirk v. State, 798 So. 2d 345, 346 (¶6) (Miss. 2000));

see also Avery v. State, 179 So. 3d 1182, 1190 (¶16) (Miss. Ct. App. 2015) (“The supreme

court has not yet held that effective assistance of counsel is a fundamental constitutional right

that may overcome procedural bars in noncapital cases.”). We acknowledge that



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       [t]hough it is conceivable that under the facts of a particular case, a lawyer’s
       performance was so deficient, and so prejudicial to the defendant that the
       defendant’s fundamental constitutional rights were violated, our supreme court
       has never held that merely raising a claim of ineffective assistance of counsel
       is sufficient to surmount the procedural bar.

Williams, 110 So. 3d at 844 (¶21) (citing Smith v. State, 922 So. 2d 43, 47 (¶9) (Miss. Ct.

App. 2006)). Accordingly, this Court must review Shavers’s ineffective-assistance-of-

counsel claim to determine whether it is sufficient to invoke the fundamental-rights

exception. As previously stated, “[t]he burden is on the PCR movant to show he . . . is

entitled to relief by a preponderance of the evidence.” Smith v. State, 129 So. 3d 243, 245

(¶5) (Miss. Ct. App. 2013).

¶13.   The supreme court has explained that in order to prevail on a claim of ineffective

assistance of counsel, a petitioner “must demonstrate two things: (1) that his counsel’s

representation fell below an objective standard of reasonableness; and (2) that but for

counsel’s errors, there is a reasonable probability that the outcome of the proceeding would

have been different.” Avery, 179 So. 3d at 1188 (¶13) (internal quotation marks omitted)

(citing Hannah v. State, 943 So. 2d 20, 24 (¶6) (Miss. 2006)); see also Strickland v.

Washington, 466 U.S. 668, 687-88 (1984).

¶14.   In Avery, 179 So. 3d at 1188 (¶13), this Court recognized that with regard to guilty

pleas, a petitioner “must show that there is a reasonable probability that, but for counsel’s

errors, [he] would not have pleaded guilty, would have insisted on going to trial, and the

outcome would have been different.” Furthermore, “a defendant must plead claims of

ineffective assistance of counsel with specificity, and the claim must be supported by



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affidavits other than his own.” Id. at 1188-89 (¶13). “When a movant fails to attach any

supporting affidavits and relies solely on his own sworn motion, his ineffective-assistance

claim must fail.” Id. at 1189 (¶13).

¶15.   Shavers claims that he was not appointed counsel until he had spent eight months in

jail. In support of his claim of ineffective assistance, Shavers asserts that his counsel rejected

every request concerning the case as well as the lack of evidence against Shavers—namely,

lack of DNA evidence and lack of medical records regarding injuries—and that his counsel

led him to believe that if he accepted a plea deal, the court would use a life-expectancy chart,

allowing Shavers to receive a lesser sentence.

¶16.   Upon review of Shavers’s claims, we find that the record contains no evidence or

affidavits in support of Shavers’s claim that he was not appointed counsel until he had spent

eight months in jail. The record also contains no evidence or affidavits in support of

Shavers’s claim that his counsel led him to believe he would receive a lesser sentence if he

accepted the plea deal. See Avery, 179 So. 3d at 1188 (¶13)

¶17.   Regarding his assertion that his counsel failed to argue that a lack of DNA evidence

or medical records existed to prove Shavers’s guilt, we find the record contains no

documents, evidentiary support, or affidavits supporting these statements. In his appellate

brief, Shavers simply states that if he had received effective assistance from his counsel,

“[t]he DNA establishes that count one[, rape,] . . . would be highly questionable since

Shavers’s DNA was not a match, as well as count five[, aggravated assault,] and whether [the

victim’s] jaw was actually broke[n].” Shavers claims that “counsel allowed that this was a



                                                8
lost cause that unless the State released such information the jury would believe he was

capable because of count one,” which we can only interpret as meaning that his counsel

advised Shavers that going to trial and using any alleged DNA evidence would not prove his

innocence.

¶18.   Contrary to Shavers’s assertion that DNA evidence could clear him of any rape

charges, the record before us contains the transcript from the plea hearing, wherein the State

informed the trial court that the State possessed DNA evidence from a rape kit performed on

the victim. The State provided on the record that the “DNA would say that it was in fact Mr.

Shavers who deposited that semen sample.” The State also provided: “At the time of his

arrest, the pants [that] Mr. Shavers was wearing . . . were submitted to the State Crime Lab,

and the victim’s DNA came back, a sample of her DNA came back there in the clothes . . .

he was wearing.” When the trial court asked Shavers if he disagreed with any of the facts

presented, Shavers responded, “No, sir, your Honor.”

¶19.   Moreover, the record reflects that Shavers submitted his plea to the trial court under

oath wherein he acknowledged that he understood the meaning and effect of his guilty plea,

as well as the offenses to which he pleaded guilty. Additionally, at his plea hearing, Shavers

swore under oath that his defense counsel had advised him of the nature of the offense.

Shavers also affirmed that he and his defense counsel discussed the elements of the crimes

charged against Shavers as well as any facts Shavers believed might be necessary for any

possible defenses. Shavers stated under oath that he was satisfied with his defense counsel’s

service.



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¶20.   Accordingly, we find that Shavers has not sufficiently alleged that his counsel’s

performance fell below an objective standard of reasonableness. Shavers thus failed to prove

the first part of the Strickland analysis. We also find that Shavers failed to demonstrate a

reasonable probability that the outcome of the proceeding would have been different if his

defense counsel had submitted DNA evidence or medical records. See Avery, 179 So. 3d at

1188 (¶13).

¶21.   After reviewing the record, we find that Shavers’s claims of ineffective assistance of

counsel lack sufficient evidentiary support. Shavers provides only his own assertions to

support his claims. Id. at 1188-89 (¶13). We therefore affirm the trial court’s summary

dismissal of Shavers’s PCR motion as time-barred and successive-writ barred.

¶22. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




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