        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CP-00029-COA

PATRICK FLUKER A/K/A PATRICK DANTRE                                       APPELLANT
FLUKER A/K/A PATRICK D. FLUKER

v.

STATE OF MISSISSIPPI                                                        APPELLEE


DATE OF JUDGMENT:                         12/17/2013
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   PATRICK FLUKER (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                  MOTION FOR POST-CONVICTION RELIEF
                                          DISMISSED
DISPOSITION:                              AFFIRMED - 03/08/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.

      BARNES, J., FOR THE COURT:

¶1.   Patrick Fluker, appearing pro se, appeals the Forrest County Circuit Court’s summary

dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.   In June 2005, Fluker was indicted for armed robbery and a capias was issued. The

capias was executed on November 14, 2006. On February 13, 2007, Fluker pleaded guilty

to armed robbery and was sentenced to twenty years in the custody of the Mississippi

Department of Corrections (MDOC) – with fifteen years to serve and five years of post-
release supervision; this sentence was ordered to run consecutively to another sentence for

armed robbery.1 In March 2013, Fluker filed a “Petition for Writ of Habeas Corpus and

Motion to Vacate Conviction and Sentence,” which the trial court treated as a PCR motion.

Fluker claims his indictment was defective and “manufactured” by the district attorney in

violation of the Constitution, and his capias was not timely executed. On December 17,

2013, the trial court summarily dismissed the PCR motion as a successive writ under

Mississippi Code Annotated section 99-39-23(6) (Rev. 2015), and found no statutory

exceptions applied.2 Fluker timely appealed.

                               STANDARD OF REVIEW

¶3.    This Court will not reverse a trial court’s dismissal of a PCR motion absent a finding

the trial court’s decision was clearly erroneous. Madden v. State, 75 So. 3d 1130, 1131 (¶6)

(Miss. Ct. App. 2011) (citation omitted). Issues of law are reviewed de novo. Id. Further,

this Court will affirm the summary dismissal of a PCR motion if the movant has failed to

demonstrate “a claim procedurally alive substantially showing the denial of a state or federal


       1
          Fluker was indicted for a previous armed-robbery charge in November 2002 and
pleaded guilty to the charge on December 12, 2003. He was sentenced to fifteen years in
the custody of the MDOC, with three years to serve and twelve years suspended. Shortly
after his release from prison on this charge (to begin post-release supervision), he was
arrested and charged with armed robbery in the instant case.
       2
         Fluker has filed three prior PCR appeals before this Court, but only one, Fluker v.
State, 17 So. 3d 181 (Miss. Ct. App. 2009), relates to the guilty plea currently at issue. The
other two appeals relate to the armed-robbery charge from his December 17, 2003 guilty
plea. See Fluker v. State, 2013-CP-01635-COA, 2015 WL 5797691 (Miss. Ct. App. Oct.
6, 2015) (affirming trial court’s September 17, 2013 dismissal of PCR motion relating to his
December 2003 guilty plea); Fluker v. State, 170 So. 3d 517 (Miss. Ct. App. 2014)
(affirming trial court’s summary dismissal of July 25, 2012 PCR motion on revocation of
his original sentence stemming from his December 2003 guilty plea).

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right . . . .” Wilkerson v. State, 89 So. 3d 610, 614 (¶7) (Miss. Ct. App. 2011) (citation

omitted).

                                         ANALYSIS

¶4.    Fluker raises two arguments – that his indictment was defective because it was not

stamped “filed,” and his capias was untimely executed. We agree with the trial court that

Fluker’s PCR motion is barred as a successive writ. It is also time-barred.

¶5.    Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order

denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann.

§ 99-39-23(6). Further, a PCR motion challenging a guilty plea must be filed within three

years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015).

This PCR motion is Fluker’s second relating to his June 2005 indictment. Fluker contends

that these issues were not brought up in his first PCR motion; thus, his motion is not barred.

See Fluker, 17 So. 3d at 182 (¶2) (issues Fluker raised in his previous PCR motion included

misunderstanding minimum sentence and ineffective assistance of counsel). However, any

order dismissing a movant’s motion bars a second or successive motion under section 99-39-

23(6), unless an exception applies. Here, none do. Moreover, this motion was filed over six

years after he pleaded guilty to this charge; thus, it is time-barred.

¶6.    Fluker claims his motion should be excepted from any procedural bar under Rowland

v. State, 42 So. 3d 503 (Miss. 2010). Rowland held that “errors affecting fundamental

constitutional rights are excepted from the procedural bars of the UPCCRA.” Id. at 506 (¶9).

Fluker argues that he has a fundamental right to be free from an unlawful sentence; yet he



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presents no evidence that his sentence was unlawful. He has merely fashioned a different

argument – that of an illegal sentence – in an attempt to overcome the procedural bar. This

argument is without merit.

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

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES
AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.




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