        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-01609-COA

DAVID SAMUEL-RAMOS FELICIANO A/K/A                                         APPELLANT
DAVID FELICIANO A/K/A DAVID SAMUEL
FELICIANO

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         10/08/2015
TRIAL JUDGE:                              HON. LISA P. DODSON
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT,
                                          SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  OLIVER E. DIAZ JR.
                                          DAVID NEIL MCCARTY
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: BARBARA BYRD
                                              JASON L. DAVIS
NATURE OF THE CASE:                       CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                  DENIED MOTION FOR POSTCONVICTION
                                          RELIEF AS A SUCCESSIVE WRIT
DISPOSITION:                              AFFIRMED - 02/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    David Samuel-Ramos Feliciano was indicted as a habitual offender and pleaded guilty

to one count of felony fleeing the scene of an accident. Because he was a habitual offender,

he could have been sentenced to the maximum penalty of twenty years; however, the Circuit

Court of the Second Judicial District of Harrison County sentenced Feliciano to seventeen

and one-half years to serve in the custody of the Mississippi Department of Corrections
(“MDOC”). The circuit court reduced the sentence based on a joint recommendation made

by the State and defense counsel. Feliciano filed a motion to vacate, set aside, and correct

his sentence under the Uniform Post-Conviction Collateral Relief Act (“UPCCRA”) and was

denied relief. Feliciano then filed a second motion under the UPCCRA, which the circuit

court denied because the motion was barred as a successive writ. Feliciano now appeals, and

we find that the circuit court did not err in denying Feliciano’s successive writ. Thus, we

affirm.

                                            FACTS

¶2.       On September 26, 2012, at approximately 11:15 p.m., Feliciano was driving his

friend’s truck when he pulled out in front of traffic and collided with a motorcyclist, who

died shortly thereafter. Feliciano left the scene and hid at a friend’s house, before his friends

convinced him to seek medical treatment. His friend called the police, and Feliciano turned

himself in. He was later indicted for felony leaving the scene of the accident, and was

indicted as a habitual offender due to several past felony convictions.

¶3.       On November 8, 2013, Feliciano pleaded guilty, and the circuit court adequately

performed the required plea colloquy before accepting Feliciano’s plea. Feliciano told the

circuit court that he fled the scene because he was in shock, but later admitted that he was

out on bond for another charge at the time of the collision. The circuit court specifically

asked Feliciano if he ever had “any blow to [his] head, loss of consciousness, loss of

memory, or any other serious injury that in [his] opinion would cause [him] not to fully

understand what [he was] doing.” Feliciano answered, “No, ma’am.”



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¶4.    As part of Felicano’s plea agreement, the State recommended that he serve seventeen

years and six months, day-for-day, in the custody of the MDOC. The circuit court accepted

the recommendation.

¶5.    On August 8, 2014, Feliciano filed a motion to vacate, set aside, and correct his

sentence, “pursuant to Mississippi Code Sections 99-39-1, et seq., known as the

[UPCCRA].” The circuit court denied the motion, finding it did not comply with the

statutory requirements of the UPCCRA, and alternatively, that it was without merit.

Feliciano did not appeal the ruling.

¶6.    Approximately one year later, Feliciano filed his second postconviction-relief (“PCR”)

motion claiming that new medical evidence was discovered, that his plea was not voluntarily

made, and that he received ineffective assistance of counsel. Again, the circuit court denied

the motion and held that it was procedurally barred under the UPCCRA as a successive writ,

and alternatively, that it, too, was without merit. Feliciano appeals the denial of his second

motion.

                                       DISCUSSION

¶7.    Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) applies to successive

writs. Section 99-39-23(6) provides that a prisoner who raises an issue that the circuit court

addresses in a final judgment with specific findings of facts and conclusions of law cannot

raise the issue again. “Any motion filed after an entry of the final judgment and asserting the

same issue is procedurally barred as a secondary or successive writ.” Parham v. State, 174

So. 3d 880, 883 (¶11) (Miss. Ct. App. 2015).



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¶8.    In Feliciano’s first PCR motion, he argued that new medical evidence was discovered

that negated the intent element for his crime. He submitted the report of a doctor who

asserted that Feliciano experienced the medical occurrence of “fight or flee” on the night of

the accident. No evidence was submitted to establish the doctor as an expert, and his

findings were based on a manual for at-home medical references. Furthermore, the doctor’s

report did not discuss anything related to Feliciano’s competency or mental capacity at the

time he entered his guilty plea. The circuit court found that not only was Feliciano’s motion

not in compliance with the UPCCRA, but it also failed on the merits because there was no

new medical evidence that would allow relief under the UPCCRA.

¶9.    Feliciano’s second PCR motion again alleged that new medical evidence was

discovered, this time specifically referencing an incident that occurred when he was fourteen

years old and was struck by a van. He argued that the incident affected his memory and

cognitive abilities, and he supported his argument by showing that he had to enroll in special-

education classes after the van struck him. The circuit court again found that this was not

newly discovered evidence, since Feliciano had known of this injury for approximately

twenty years, and told the circuit court during his plea colloquy that he did not have any

injuries that would impair his ability to competently enter his plea.

¶10.   Lastly, Feliciano argued that he received ineffective assistance of counsel because his

attorney did not request that a mental evaluation be conducted. Errors affecting fundamental

rights are excepted from the procedural bars of the UPCCRA. However, “the mere assertion

of a constitutional right violation” does not engage the exception. To prevail on a claim of



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ineffective assistance of counsel, a defendant must show: (1) his counsel’s performance was

deficient; and (2) the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). We decline to discuss the merits of this argument in depth, because we

agree with the circuit court’s finding that there was no “indication that Feliciano behaved in

a manner that should have caused the attorney to recognize any problem.” There were no

grounds known to defense counsel that would require him to move for a mental evaluation;

therefore, his failure to move for such an evaluation cannot be considered deficient. The

ineffective-assistance-of-counsel claim is without merit, and thus does not propel Feliciano

over the procedural bar to his successive writ.

¶11.   The circuit court conducted a thorough review and detailed analysis of Feliciano’s

first PCR motion, and did so again with his second. Though his first PCR motion was not

in the particularized format required under the UPCCRA, Feliciano specifically requested

relief under the UPCCRA, and the circuit court adjudicated the motion on the merits and in

accordance with the UPCCRA. Therefore, we find no error, and we affirm.

¶12. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT, DENYING THE MOTION FOR
POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.

     LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE
AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




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