        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CP-00088-COA

CURTIS DAVIS, JR.                                                           APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          10/18/2012
TRIAL JUDGE:                               HON. C.E. MORGAN III
COURT FROM WHICH APPEALED:                 MONTGOMERY COUNTY CIRCUIT
                                           COURT
ATTORNEY FOR APPELLANT:                    CURTIS DAVIS JR. (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BILLY L. GORE
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   MOTION FOR POST-CONVICTION RELIEF
                                           DENIED
DISPOSITION:                               AFFIRMED - 04/28/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       ROBERTS, J., FOR THE COURT:

¶1.    Curtis Davis Jr. appeals the denial of his second post-conviction-relief (PCR) motion,

seeking relief based on newly discovered DNA evidence. We agree with the trial court’s

finding that Davis’s motion is barred as a successive writ and affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Davis was indicted for the capital murder of his father-in-law, William McCuiston,

and for possession of a firearm by a convicted felon. On August 31, 2010, Davis pled guilty

to manslaughter and possession of a firearm by a convicted felon. He was sentenced to
twenty years and ten years, respectively, with the sentences to run consecutively.

¶3.    On May 24, 2011, Davis’s counsel filed a PCR motion in the Montgomery County

Circuit Court, asserting that Davis’s conviction and sentences should be vacated based on

newly discovered DNA evidence. The DNA evidence was retrieved from swabs taken from

a gun, phone, shoe, and various other objects found at the crime scene. The test results

excluded Davis as a contributor to the samples. Davis argued he would have chosen to go

to trial based on the lack of DNA evidence had he known the results prior to his plea, since

the State had no other evidence linking him to the crime. He also argued his cousin, Betty

Young, committed the murder, as evidenced by her knowledge of the gun’s location after the

murder and her financial motive.

¶4.    The trial court denied the motion, finding Davis’s arguments either had been waived

or were without merit. First, the trial court noted that on August 5, 2010, prior to his plea,

Davis had moved to compel the DNA test results. His motion argued that the State had

violated discovery rules by failing to provide him with the results.1 Crime lab records show

the results became available on August 27, 2010, four days before Davis entered his plea.

The trial court found that because the results were available prior to his plea, they were not

newly discovered evidence. The trial court further found there was no evidence the State

suppressed the test results, and all arguments contained in the motion to compel were waived

by Davis’s plea. As the trial court found, when Davis pled guilty, “he waived his positions

       1
        See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[S]uppression by the prosecution
of evidence favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.”).

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raised in his [m]otions to [s]uppress [his confession] and [c]ompel” the DNA results. The

trial court likewise found Davis’s “allegations against Betty Young do not constitute newly

discovered evidence and were waived by the pleas.”

¶5.    Notwithstanding, the trial court examined the DNA test results and found no merit to

Davis’s claim that the results would have materially affected his plea. The swabs taken from

the phone revealed the victim’s DNA, which the trial court noted was “not unusual

considering the homicide took place in [the victim’s] home.” The other swabs produced no

DNA results. The DNA results did not exclude Davis as the perpetrator. They only excluded

him as a contributor to the samples. The trial court found that the absence of DNA evidence

did not exonerate Davis, and that while “there is no forensic evidence linking [Davis] with

the crime, there are his confession and statements in the plea colloquy that do.” Davis’s PCR

motion was denied on June 8, 2011. No appeal was taken of the trial court’s decision.

¶6.    On October 10, 2012, Davis filed a pro se petition entitled “Writ of Mandamus,”

which the trial court treated as a PCR motion. Davis again argued he was entitled to relief

based on his discovery of the DNA test results after his plea. He argued the DNA test results

were newly discovered evidence, his counsel was ineffective for failing to advise him that

he could wait on the DNA test results before pleading guilty, and his confession was coerced.

On October 19, 2012, the trial court denied the motion as successive-writ barred. Davis filed

a motion to reconsider, which was also denied.

¶7.    Davis appeals, raising the following issues: (1) the trial court erred in denying his

PCR motion when there was newly discovered exculpatory evidence; (2) the trial court erred



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in finding his PCR motion successive-writ barred; (3) his attorney was ineffective for failing

to advise him of his right to wait on the DNA results; and (4) his due-process rights were

violated because the State failed to disclose the DNA test results. We find no error and

affirm.

                                 STANDARD OF REVIEW

¶8.       The decision to deny a PCR motion will not be disturbed unless clearly erroneous.

Rowland v. State, 42 So. 3d 503, 506 (¶8) (Miss. 2010). Questions of law are reviewed de

novo. Id.

                                         ANALYSIS

¶9.       Davis’s second PCR motion was summarily denied as a successive writ. Mississippi

Code Annotated section 99-39-23(6) (Supp. 2014) provides that an order dismissing or

denying a PCR motion acts as a bar to a successive PCR motion. Several exceptions exist

to the successive-writ bar, including claims of newly discovered evidence under section 99-

39-23(6) and “errors affecting fundamental constitutional rights[.]” Smith v. State, 149 So.

3d 1027, 1031-32 (¶¶8-11) (Miss. 2014) (quoting Rowland, 42 So. 3d at 507 (¶12)) (holding

that constitutional claims are excepted from the successive-writ bar and the common-law

doctrine of res judicata). It is undisputed that Davis’s second PCR was a successive writ.

Thus, we must determine whether Davis has shown any exceptions to the procedural bar.

          1.    Newly Discovered Evidence

¶10.      Davis first argues he is entitled to relief based on the newly discovered DNA

evidence. Davis argues he learned of the DNA test results after his plea, and the results



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would have changed the outcome of his conviction. He asserts he would not have pled guilty

had he known the results excluded him as a contributor to swab samples taken from the crime

scene, since the State had no other evidence against him.

¶11.   Newly discovered evidence is “evidence, not reasonably discoverable at the time of

trial, which is of such nature that it would be practically conclusive that, if it had been

introduced at trial, it would have caused a different result in the conviction or sentence.”

Miss. Code Ann. § 99-39-23(6).2 In order to provide an exception to the procedural bar,

“[t]he evidence must be both newly discovered and material to the outcome of [the

defendant’s] convictions.” McCoy v. State, 111 So. 3d 673, 676 (¶8) (Miss. Ct. App. 2012).

However, “when a defendant pleads guilty, he is admitting that he committed the offense.

Therefore, by definition, a plea of guilty negates any notion that there is some undiscovered

evidence which could prove his innocence.” Bell v. State, 2 So. 3d 747, 750 (¶10) (Miss. Ct.

App. 2009) (quoting Jenkins v. State, 986 So. 2d 1031, 1034 (¶12) (Miss. Ct. App. 2008)).

¶12.   As the trial court found when it denied Davis’s first PCR motion, the DNA results do

not qualify as newly discovered evidence, and they are not material to the outcome of Davis’s

conviction. The DNA test results were available four days prior to Davis’s plea. Davis has

not shown that the results were not available to him, or that the State suppressed the results.

       2
         In his brief, Davis asserts he is entitled to relief under Mississippi Code Annotated
section 99-39-5(2)(a)(i)-(ii) (Supp. 2014). Subsection (i) provides an exception to the three-
year time-bar applied to PCR motions for claims of newly discovered evidence. Subsection
(ii) provides an exception to the time-bar where the results of new or additional DNA testing
would have favorably affected the defendant’s conviction or sentence had the results been
available at the time. Neither applies here. Davis’s motion was not time-barred, and he does
not assert a need for new or additional DNA testing. We will examine Davis’s argument
under the exception set out in section 99-39-23(6).

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Further, the results do not provide exculpatory information. Davis argues the test results are

exculpatory because, without any DNA evidence, the State had no proof that he committed

the murder. However, this is not true.

¶13.   Regardless of the absence of DNA evidence, the State had evidence of Davis’s guilt

because Davis confessed to law enforcement that he killed McCuiston. His confession to

Montgomery County Sheriff Jerry Nix is as follows:

       Sheriff Nix: Okay, when you went inside. Where did you go to?

       Davis:        Uh, he keep his weapon in his closet. I went back there and got
                     it.

       Sheriff Nix: Okay.

       Davis:        ‘Cause I knew– I knew he just whatn’t gone [sic] let me talk to
                     him.

       Sheriff Nix: Okay.

       Davis:        Uh, when he came in, I went in the corner. I knew he was gone
                     go [sic] get it.

       Sheriff Nix: Okay.

       Davis:        Uh, I put it down. He always have been a hot head. When he
                     saw it.

       Sheriff Nix: So when –

       Davis:        When – when he tried to grab it, I went at it, and I got him first.

       Sheriff Nix: You went ahead and had the gun, so you said.

       Davis:        Yes, sir. I had–

       Sheriff Nix: You had it in the kitchen. When he come in the door, what
                    happened?

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       Davis:        Uh, that’s as far as he went. He couldn’t go – I think when he
                     saw me, I kind of scared him.

       Sheriff Nix: And then what’d you do?

       Davis:        I shot him.

       Sheriff Nix: That’s when you shot him – when he come in the door – come
                    to the kitchen there.

       Davis:        Yes, sir.

       Sheriff Nix: How many times did you shoot him?

       Davis:        Twice.

       Sheriff Nix: Okay. Was he trying to get away from you when you shot him,
                    or was he standing there looking at you, or –

       Davis:        He was looking at me. I think I initially scared him. He wasn’t
                     expecting it. Maybe find his wife at the door. Uh, but I shot
                     him. When I shot him twice, he fell facing the uh – [h]e fell in
                     – I call it the living room.

¶14.   Further, by pleading guilty, Davis nullified any assertion that he could somehow later

prove his innocence through undiscovered evidence. See Bell, 2 So. 3d at 750 (¶12). During

his plea colloquy, the State provided a factual basis for his guilt, which Davis admitted was

true. His plea colloquy reads as follows:

       BY THE COURT: I will hear from the State on the factual basis of each
                     charge.

       [STATE]:               . . . [T]he State would show in a trial of this matter as to
                              Count One, the Defendant is pleading to the lesser
                              included of manslaughter. The State would show that
                              this Defendant did kill a human being, that being Mr.
                              William McCuiston without malice and in the heat of
                              passion by the use of a dangerous weapon, that being a
                              .30-30 rifle. As to Count Two, the State would show –

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                              both of these took place on December 1st, 2009, Your
                              Honor. Show that this Defendant did possess a .30-30
                              Marlin rifle after he had been convicted of statutory rape
                              in Oktibbeha County in 2008, where he received a 20
                              year suspended sentences. . . . [Davis] confessed to the
                              killing in that he shot him at his home, and this was tape
                              recorded after giving a Mirandized statement.

       BY THE COURT: You have heard what the State intends to prove in the
                     event this matter would go to court. Did you do those
                     thing?

       [DAVIS]:               Yes, Your Honor.

       BY THE COURT: Are you pleading guilty to each charge because you are,
                     in fact, guilty of them?

       [DAVIS]:               Yes, Your Honor.

Davis also admitted under oath during his plea colloquy that his plea was voluntary and of

his own free will. We give “a strong presumption of validity” to statements made under oath.

Loden v. State, 43 So. 3d 365, 396 (¶57) (Miss. 2010).

¶15.   Davis has not shown a claim of newly discovered evidence such that he can overcome

the successive-writ procedural bar. The DNA evidence was not newly discovered or material

to Davis’s plea, and, regardless, Davis negated any claims of innocence when he entered his

plea. This issue is without merit.

       2.      Ineffective Assistance of Counsel

¶16.   Davis argues his counsel was ineffective by failing to advise him that he could wait

for the DNA test results before pleading guilty. He also asserts that his counsel coerced him

into pleading guilty, telling him that if he did not plead, he could be sentenced to death or life

without parole.


                                                8
¶17.   To prevail on a claim of ineffective assistance of counsel, a petitioner must show: (1)

his counsel’s performance was deficient, and (2) the deficiency was prejudicial. Strickland

v. Washington, 466 U.S. 668, 687 (1984). In order for his claim to be excepted from the

successive-writ bar, Davis must show his counsel committed an error affecting his

fundamental constitutional rights. See Smith, 149 So. 3d at 1031-32 (¶10). “It is conceivable

that under the facts of a particular case, [an appellate court] might find that a lawyer’s

performance was so deficient, and so prejudicial to the defendant, that the defendant’s

fundamental constitutional rights were violated.” Bevill v. State, 669 So. 2d 14, 17 (Miss.

1996). “However, . . . merely raising a claim of ineffective assistance of counsel is

[in]sufficient to surmount the procedural bar.” Id.

¶18.   Davis’s argument that his counsel coerced him into pleading guilty without waiting

on the DNA test results is without merit. Davis was indicted for capital murder and

possession of a weapon by a felon. On August 23, 2010, Davis was offered a staggered plea

bargain. It stated that Davis could plead guilty to the lesser charge of manslaughter and

possession of a firearm by a felon, if he entered his plea prior to the hearing on his motion

to suppress his confession, which was scheduled for August 31, 2010. If he accepted the plea

prior to the hearing, he would be sentenced to a total of thirty years. However, if the plea

was not accepted before the hearing, the State would pursue a life sentence without the

possibility of parole. Davis chose to plead and accept the lesser sentence, and he has sworn

his plea was voluntary.

¶19.   Davis has provided no evidence his attorney gave him erroneous advice. Mere



                                              9
assertions in a PCR petitioner’s brief are insufficient to support a claim of ineffective

assistance of counsel. Clark v. State, 54 So. 3d 304, 308 (¶13) (Miss. Ct. App. 2011) (citing

Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995)). Davis’s unsupported claims are

insufficient to prove his counsel was ineffective.

¶20.   Davis has not shown ineffectiveness on behalf of his counsel and has not overcome

the procedural bar. This issue is without merit.

       3.     Brady Violation

¶21.   Lastly, Davis argues the State illegally suppressed the DNA test results, which were

favorable to his defense.

¶22.   In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held

that “the suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” To establish a Brady violation,

the defendant must show: “(1) the evidence at issue is favorable to the accused, either

because it is exculpatory, or because it is impeaching; (2) the State suppressed the evidence,

either willfully or inadvertently; and (3) prejudice ensued.” Skinner v. Switzer, 562 U.S. 521

(2011) (citation and internal quotation marks omitted).

¶23.   On August 5, 2010, Davis moved to compel the DNA test results. Crime lab records

show the DNA results became available on August 27, 2010, four days prior to Davis’s plea.

There is no evidence that the test results were not available to Davis, or that the State

suppressed the test results. And even if there was, Davis has failed to show the evidence



                                              10
“was favorable to his defense or that the outcome of the proceedings would have been

different had he been shown the . . . evidence.” Rustin v. State, 138 So. 3d 270, 274 (¶12)

(Miss. Ct. App. 2014). The DNA test results only excluded Davis as a contributor to the

samples taken and were not exculpatory. Further, as the trial court found, when Davis

entered his plea, he waived the arguments in his motion to compel the test results.

¶24.   Davis has not shown a Brady violation, and he has not overcome the successive-writ

procedural bar. This issue is without merit.

¶25. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO MONTGOMERY COUNTY.

    LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAXWELL AND FAIR, JJ.,
CONCUR. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN
PART WITHOUT SEPARATE WRITTEN OPINION.




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