         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2015-CP-00032-COA

JEFFERY WALTON A/K/A JEFF WALTON                                              APPELLANT
A/K/A JEFFERY S. WALTON

v.

STATE OF MISSISSIPPI                                                            APPELLEE


DATE OF JUDGMENT:                           11/17/2014
TRIAL JUDGE:                                HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                  RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     JEFFERY WALTON (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                          MICHAEL GUEST
NATURE OF THE CASE:                         CRIMINAL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DISMISSED MOTION FOR
                                            POSTCONVICTION RELIEF AS TIME-
                                            BARRED
DISPOSITION:                                AFFIRMED - 04/19/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       ISHEE, J., FOR THE COURT:

¶1.    In October 2014, Jeffery Walton filed a motion for postconviction relief (PCR) in the

Rankin County Circuit Court contesting his 2004 conviction of forcible rape. Walton had

pleaded guilty to the forcible-rape charge following a plea bargain with the State that resulted

in the State’s nolle prosequi of two additional charges against Walton. In Walton’s PCR

motion, he asserted, among other claims, that newly discovered evidence showed that his

fundamental rights had been violated due to a technicality relating to his indictment. He
further argued that because his fundamental rights had allegedly been violated, his PCR

motion was excepted from the statutory three-year time-bar. The circuit court disagreed, and

dismissed the motion as time-barred. Aggrieved, Walton appeals. Finding no error, we

affirm.

                                 STATEMENT OF FACTS

¶2.       On August 26, 2004, Walton, masked and armed with a knife, broke into a home in

Rankin County, Mississippi. He tied up the female inhabitant, held a knife to her throat, and

raped her. Muddy footprints were discovered by authorities immediately after the incident

outside of the victim’s home. The footprints led from the victim’s home to Walton’s nearby

home. DNA evidence found on the victim’s chest was tested and matched Walton despite

Walton’s prior contentions that he had nothing to do with the attack.

¶3.       Walton was soon indicted for kidnaping, forcible rape, and sexual battery. Walton

pleaded guilty to forcible rape in exchange for a nolle prosequi of the kidnaping and sexual-

battery charges. After a hearing on the matter, the circuit court accepted Walton’s guilty plea

and sentenced him to forty years, with thirty-two years to serve, eight years suspended, and

five years of postrelease supervision, all in the custody of the Mississippi Department of

Corrections.

¶4.       In October 2014, ten years after pleading guilty, Walton filed a PCR motion

challenging his conviction. He claimed that he had recently discovered that a temporary

foreman had signed his indictment, thereby rendering the indictment invalid. He also

claimed that he had received ineffective assistance of counsel for his counsel’s failure to



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provide him with a speedy trial. Walton asserted that his recent discovery regarding his

indictment constituted newly discovered evidence and directly affected his fundamental

rights. This, he claimed, excepted his PCR motion from the three-year statutory bar. The

circuit court disagreed, and dismissed the motion as time-barred. Walton now appeals.

                                         DISCUSSION

¶5.    We review a circuit court’s dismissal of a PCR motion under a clearly-erroneous

standard. Moore v. State, 986 So. 2d 928, 932 (¶13) (Miss. 2008). However, questions of

law are reviewed de novo. Lambert v. State, 941 So. 2d 804, 807 (¶14) (Miss. 2006).

¶6.    Mississippi Code Annotated section 99-39-5 (Rev. 2015) governs PCR motions. The

statute provides that a prisoner has three years to request postconviction relief. After that

time, only certain cases are excepted from the procedural bar. Exceptions to the three-year

statute of limitations are as follows:

       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 [the movant’s] conviction or sentence or that [the
       movant] 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 [t]hat, 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 [movant] 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. Likewise excepted are those cases in which the [movant]
       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.


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Miss. Code Ann. § 99-39-5(2)(a)-(b).

¶7.    Here, Walton asserts that his PCR motion is not subject to the time-bar because his

fundamental rights were violated. He asserts that newly discovered evidence and evidence

of ineffective assistance of counsel support his claim. Specifically, Walton points to his

indictment, which was signed by a temporary foreman of the grand jury. Without addressing

the legality of a temporary foreman signing an indictment, Walton’s claim that this is newly

discovered evidence fails on its face.

¶8.    We have previously defined newly discovered evidence as evidence that “could not

have been discovered by the exercise of due diligence at the time of the trial, as well as being

almost certainly conclusive that it would cause a different result.” Garlotte v. State, 915 So.

2d 460, 464 (¶13) (Miss. Ct. App. 2005). The indictment was signed in 2004 and was

available for Walton to review from the time it was issued until the present. Walton was

privy to this information prior to his guilty-plea hearing and cannot, therefore, claim that this

is newly discovered evidence. Furthermore, when Walton entered a guilty plea, he waived

all nonjurisdictional defects related to his indictment. See Clark v. State, 54 So. 3d 304, 308

(¶9) (Miss. Ct. App. 2011). Accordingly, his contentions are both time-barred and lack merit.

¶9.    Walton’s argument regarding ineffective assistance of counsel relates to his claim that

his counsel should have filed a motion to dismiss the case for the State’s alleged failure to

provide Walton with a speedy trial. However, we have clearly stated that ineffective-

assistance-of-counsel claims do not meet the fundamental-rights exception to the three-year

time-bar for PCR motions unless they concern “(1) the right against double jeopardy; (2) the



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right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4)

the right not to be subject to ex post facto laws.” Salter v. State, 184 So. 3d 944, 950 (¶22)

(Miss. Ct. App. 2015) (citing Boyd v. State, 155 So. 3d 914, 918 (¶13) (Miss. Ct. App.

2014)). Thus, Walton’s PCR motion is not excepted from the time-bar, and the circuit court

properly dismissed it.

¶10. 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, FAIR, JAMES, WILSON
AND GREENLEE, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




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