           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                   NO. 2014-CP-00523-COA

WILLIAM DWAYNE SALTER A/K/A WILLIAM                                            APPELLANT
SALTER

v.

STATE OF MISSISSIPPI                                                             APPELLEE


DATE OF JUDGMENT:                             04/15/2014
TRIAL JUDGE:                                  HON. DALE HARKEY
COURT FROM WHICH APPEALED:                    GEORGE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       WILLIAM DWAYNE SALTER (PRO SE)
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: LAURA HOGAN TEDDER
NATURE OF THE CASE:                           CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                      DISMISSED PETITION FOR POST-
                                              CONVICTION RELIEF
DISPOSITION:                                  AFFIRMED - 06/02/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

          BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.

          JAMES, J., FOR THE COURT:

¶1.       William Dwayne Salter (pro se) filed a third petition for post-conviction relief (PCR)

with the Circuit Court of George County. The trial court dismissed Salter’s petition. We

affirm.

                          FACTS AND PROCEDURAL HISTORY

¶2.       On April 16, 2001, Salter pled guilty to burglary, armed robbery, and kidnapping.

Salter was sentenced to six thirty-year concurrent sentences on four counts of kidnapping and

two counts of armed robbery, and a seven-year consecutive sentence for burglary, all to be
served in the custody of the Mississippi Department of Corrections.

¶3.    At the plea hearing, Salter was represented by Fred Dobbins, who is now deceased.

The trial court questioned Salter and determined that he understood the constitutional rights

he was waiving by pleading guilty, that he understood the maximum and minimum sentences

he could receive, and that he had not been promised anything or coerced into pleading guilty.

Salter v. State, 876 So. 2d 412, 414 (¶3) (Miss. Ct. App. 2003).

¶4.    Following Salter’s conviction, he retained a new attorney, Robert Knockel, for the

purpose of seeking PCR. On April 15, 2002, Salter filed a PCR petition contending that (1)

the kidnapping was merely incidental to the commission of the armed robbery and not a

separate and distinct crime; (2) he was denied effective assistance of counsel at his

sentencing, because he and his mother were willing to testify regarding his mental health and

provide mitigating evidence before sentencing; and (3) the trial court failed to make sure he

had full knowledge of the critical elements of the charges against him. Id. at 413-14, 415-16

(¶¶1, 10). The trial court denied relief and this Court affirmed. Id. at 417 (¶15). We found

that Salter failed to show that his counsel’s performance was deficient or that he was

prejudiced, as required by the test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

Salter, 876 So. 2d at 416 (¶12).

¶5.    On April 3, 2009, Salter, pro se, filed a second PCR petition. He contended that his

guilty plea was involuntary and that his trial counsel was ineffective because both his trial

attorney and the trial court misinformed him about his eligibility for parole and earned-time

release. Salter v. State, 64 So. 3d 514, 517 (¶6) (Miss. Ct. App. 2010). Salter claimed he



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would have opted to proceed to trial instead of pleading guilty had he been informed that he

was not eligible for parole and earned-time release. Id. The trial court dismissed the petition

as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp. 2014).

Salter, 64 So. 3d at 515 (¶1).

¶6.    On appeal, Salter argued that the newly-discovered-evidence exception to the

procedural bar was applicable because he spent approximately eight years in prison thinking

he would become eligible for parole and earned time after his tenth year. Id. at 516 (¶13).

He claimed he was first informed that he was not eligible for parole and earned time during

the eighth year of his sentence when he began asking questions about what he thought was

an upcoming parole hearing. Id. Salter also argued that his claims of ineffective assistance

of counsel and an involuntary guilty plea invoked the fundamental-right exception to the

procedural bars. Id. at 517-18 (¶14).

¶7.    As to Salter’s newly-discovered-evidence argument, we held: “The concept of newly

discovered evidence does not embrace a prisoner's untimely realization that legal errors

occurred at his trial. Accordingly, we have held that a prisoner's failure to understand the law

until conducting research into his case does not constitute newly discovered evidence.” Id.

at 517 (¶13) (quoting Pickle v. State, 942 So. 2d 243, 246 (¶12) (Miss. Ct. App. 2006)). As

to Salter’s fundamental-right argument, we found that “[t]he supreme court has held that

claims of ineffective assistance of counsel and involuntary guilty pleas are indeed subject to

the procedural bars.” Id. at 518 (¶14) (citing Kirk v. State, 798 So. 2d 345, 346 (¶6) (Miss.

2000)). Accordingly, we found that Salter’s petition was procedurally barred as a successive



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writ under section 99-39-23(6) and time-barred under Mississippi Code Annotated section

99-39-5(2) (Supp. 2014). Salter, 64 So. 3d at 517-18 (¶¶12, 15).

¶8.    On December 10, 2012, Salter filed a third PCR petition. Salter contended that his

trial counsel and PCR attorney were ineffective. Salter argued that the intervening decision

of Martinez v. Ryan, 132 S. Ct. 1309 (2012), served as an exception to the procedural bars.

The trial court concluded that Martinez would not adversely affect either Salter’s conviction

or sentence. The trial court denied the petition and found that it was barred as a successive

writ under section 99-39-23(6) and barred by res judicata.

¶9.    We find that Salter’s petition is time-barred and successive-writ barred, and no

exception is applicable to overcome the procedural bars; thus, we affirm. Although not

necessary to our decision because the time-bar and successive-writ bar are dispositive, we

note that the petition is also barred by res judicata.

                                STANDARD OF REVIEW

¶10.   A trial court's dismissal of a PCR petition will not be reversed absent a finding that

the trial court's decision was clearly erroneous. Wilson v. State, 76 So. 3d 733, 735 (¶9)

(Miss. Ct. App. 2011). However, when issues of law are raised, the proper standard of

review is de novo. Id. The trial court may summarily dismiss a PCR petition where it plainly

appears from the face of the petition, any annexed exhibits, and the prior proceedings in the

case that the petitioner is not entitled to any relief. Miss. Code Ann. § 99-39-11(2) (Supp.

2014). This Court will affirm the summary dismissal of a PCR petition if the petitioner fails

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



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federal right. White v. State, 59 So. 3d 633, 635 (¶4) (Miss. Ct. App. 2011).

                                        DISCUSSION

¶11.   Salter argues that the trial court erred by (1) failing to accept Martinez as an

intervening decision as described in section 99-39-5(2)(a)(i) and section 99-39-23(6); (2)

applying the res judicata doctrine to his ineffective-assistance claim; and (3) failing to accept

the “previously acknowledged ineffective-assistance claim [regarding] the trial counsel,

sentencing court[,] and paid attorney who filed the first [PCR petition,] meeting the two

prong test of Strickland v. Washington.” Finding no error, we affirm the trial court’s

judgment.

       I.     Whether the intervening-decision exception applies to the
              procedural bars.

¶12.   Under section 99-39-5(2), a PCR petition challenging a guilty plea must be filed

within three years of the entry of the judgment of conviction. An exception to the time-bar

found in section 99-39-5(2) provides:

       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[.]

Miss. Code Ann. § 99-39-5(2)(a)(i).

¶13.   It is settled that “a state may attach reasonable time limitations to the assertion of

federal constitutional rights.” Austin v. State, 863 So. 2d 59, 62 (¶7) (Miss. Ct. App. 2003);

see also Cole v. State, 608 So. 2d 1313, 1319-20 (Miss. 1992). “Our case law has repeatedly



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held that once a prisoner's claims are time[-]barred, they must fall into one of the enumerated

exceptions to remain viable.” Austin, 863 So. 2d at 61 (¶6) (citing Patterson v. State, 594 So.

2d 606, 608 (Miss. 1992)).

¶14.   Moreover, section 99-39-23(b) provides in part that “[t]he 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 or successive motion under this article." The petitioner “bears

the burden of proving by a preponderance of the evidence that his claims are not barred as

successive writs." Williams v. State, 110 So. 3d 840, 843 (¶13) (Miss. Ct. App. 2013). The

enumerated exceptions to the successive-writ bar stated in section 99-39-23(6) are as follows:

       Likewise excepted from this prohibition are those cases in which the petitioner
       can demonstrate either 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, if it
       had been introduced at trial, it would have caused a different result in the
       conviction or sentence.

¶15.   Salter argues that Martinez, 132 S. Ct. 1309, serves as an intervening decision by the

United States Supreme Court that actually adversely affects the outcome of his conviction

or sentence and serves as a basis for finding an exception to the time-bar and successive-writ

bar. In Martinez, the Supreme Court decided the narrow issue of "whether a federal habeas

court may excuse a procedural default of an ineffective-assistance claim when the claim was

not properly presented in state court due to an attorney's errors in an initial-review collateral

proceeding." Id. at 1313. The petitioner in Martinez was convicted under Arizona law,

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which requires claims of ineffective assistance to be raised in state collateral proceedings

rather than on direct appeal. Id. On appeal, the petitioner's attorney failed to raise ineffective

assistance of trial counsel in the initial collateral proceedings. Id. The petitioner, represented

by a different attorney, filed a second notice of post-conviction relief. Id. at 1314. The state

court dismissed the ineffective-assistance claim because it was not raised in the first

proceeding. Id. The petitioner's request for federal habeas relief was denied based on the

state procedural bar and the decision rendered in Coleman v. Thompson, 501 U.S. 722,

753-754 (1991), which held that an attorney's errors in post-conviction proceedings do not

establish cause for a default. Martinez, 132 S. Ct. at 1315.

¶16.   However, the Supreme Court held: “Where, under state law, claims of ineffective

assistance of trial counsel must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.” Id. at 1320.

¶17.   Various state appellate courts have addressed the holding in Martinez in the context

of state procedural bars in PCR proceedings. For example, in Kelly v. State, 745 S.E.2d 377,

377 (S.C. 2013), the South Carolina court concluded: “Like other states, we hereby recognize

that the holding in Martinez is limited to federal habeas corpus review and is not applicable

to state post-conviction relief actions.” See also Escareno-Meraz, 307 P.3d 1013, 1014

(Ariz. Ct. 2013) (concluding that "Martinez does not alter established Arizona law" that a

defendant is not entitled to effective assistance of counsel in PCR proceedings); Gore v.



                                                7
State, 91 So. 3d 769, 778 (Fla. 2012) ("It appears that Martinez is directed toward federal

habeas proceedings and is designed and intended to address issues that arise in that

context."); Martin v. State, 386 S.W.3d 179, 185-86 (Mo. Ct. App. 2012) ("Martinez speaks

only to federal habeas corpus procedure and does not establish a constitutional right to the

effective assistance of post-conviction counsel."); State v. Hessler, 850 N.W.2d 777, 786

(Neb. 2014) (“Martinez did not recognize a constitutional right to effective assistance of

postconviction counsel. Based upon principles of equity, it expanded only the types of cause

permitting a federal habeas court to excuse a procedural default in a federal habeas

proceeding. Nothing in Martinez prevents state courts from enforcing procedural defaults

in accordance with state law.”); Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super.

Ct. 2013) ("While Martinez represents a significant development in federal habeas corpus

law, it is of no moment with respect to the way Pennsylvania courts apply the plain language

of the time-bar set forth in [Pennsylvania’s post-conviction act].").

¶18.   We agree that the holding in Martinez is limited to the federal habeas corpus

proceedings and does not apply to state post-conviction proceedings. Consequently, Salter's

petition is time-barred under section 99-39-23(6) and procedurally barred as a successive writ

under section 99-39-27(9).

       II.    Whether a fundamental-right exception applies to the procedural
              bars.

¶19.   Salter again argues that his fundamental rights have been violated because his trial

counsel and PCR counsel were ineffective. Errors affecting fundamental constitutional rights

are excepted from procedural bars. Evans v. State, 115 So. 3d 879, 881 (¶3) (Miss. Ct. App.


                                              8
2013). However, merely raising a claim of ineffective assistance of counsel is not enough

by itself to overcome the procedural bar. Bevill v. State, 669 So. 2d 14, 17 (Miss. 1996).

¶20.   Notably, Salter misstates this Court’s opinion in his previous appeal. Salter claims

that this Court “acknowledged” the ineffectiveness of his trial counsel and PCR counsel. To

the contrary, this Court stated that, “[h]ad Salter raised this issue in his first petition for

post-conviction collateral relief, it appears that he would have been entitled to an evidentiary

hearing.” Salter, 64 So. 3d at 517 (¶11). This Court did not acknowledge that Salter’s

counsel was ineffective, as Salter suggests, because the merits of his ineffective-assistance

claim were not before the Court due to the time-bar and successive-writ bar.

¶21.   Where a petitioner asserts a fundamental right, the courts must address the merits of

the PCR petition regardless of procedural bars. Id. at 518 (¶14). “However, the supreme

court has held that claims of ineffective assistance of counsel and involuntary guilty pleas

are indeed subject to the procedural bars.” Id. (citing Kirk v. State, 798 So. 2d 345, 346 (¶6)

(Miss. 2000)).

¶22.   The supreme court has not held that an ineffective-assistance-of-counsel claim

invokes a "fundamental right" that circumvents all procedural bars that apply to PCR

petitions. Riley v. State, 150 So. 3d 138, 140 (¶8) (Miss. Ct. App. 2014). In Mississippi,

since Rowland, only four types of "fundamental rights" have been expressly found to survive

PCR procedural bars: (1) the right against double jeopardy; (2) the 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. Boyd v. State, 155 So. 3d 914, 918 (¶13) (Miss. Ct. App. 2014).



                                               9
Therefore, no fundamental-right exception applies to overcome the procedural bars, and we

must conclude that Salter’s third PCR petition was correctly dismissed by the trial court.

¶23.   Salter also argues that his PCR counsel was deficient for failing to raise a theory of

ineffective assistance regarding his trial counsel allegedly misinforming him about his

eligibility for parole in his first PCR petition. However, the Mississippi Supreme Court has

not recognized a general right to the assistance of PCR counsel in every criminal case.

Grayson v. State, 118 So. 3d 118, 126 (¶14) (Miss. 2013). Moreover, a PCR petitioner must

allege facts pointing toward counsel's deficient performance with "specificity and detail."

Kinney v. State, 737 So. 2d 1038, 1041 (¶8) (Miss. Ct. App. 1999) (citing Cole v. State, 666

So. 2d 767, 777 (Miss. 1995)). Here, Salter has simply alleged that his PCR counsel failed

to raise a theory of ineffective assistance without providing any factual basis for this

allegation with specificity and detail. In PCR cases, "where a party offers only his affidavit,

then his ineffective assistance of counsel claim is without merit" Brooks v. State, 89 So. 3d

626, 628 (¶6) (Miss. Ct. App. 2011) (quoting Vielee v. State, 653 So. 2d 920, 922 (Miss.

1995)). Salter failed to produce his own affidavit, or any affidavit for that matter, in support

of his ineffective-assistance claim regarding his PCR counsel. The only affidavits in the

record pertain to the assistance of his trial counsel. Thus, this issue is without merit.

       III.   Whether res judicata bars Salter’s third PCR petition.

¶24.   Although it is not necessary for us to reach this issue because the time-bar and

successive-writ bar are dispositive, we agree with the trial court that Salter’s claims are also

barred by res judicata. “Essentially, an appellant is granted one bite at the apple when



                                              10
requesting post-conviction relief.” Dobbs v. State, 18 So. 3d 295, 298 (¶9) (Miss. Ct. App.

2009). “A person who requests post-conviction relief is obligated to place before the court

all claims known to him and/or of which he should have had knowledge.” Rochell v. State,

913 So. 2d 993, 994 (¶6) (Miss. Ct. App. 2005) (citing Smith v. State, 648 So. 2d 63, 66

(Miss. 1994)). The failure to do so results in a loss of his claims for a second or successive

petition. Id. Indeed, “the supreme court has held that the principle of res judicata applies in

the context of PCR [petitions].” Riley, 150 So. 3d at 140 (¶8) (citing Jones v. State, 119 So.

3d 323, 326 (¶9) (Miss. 2013)). Res judicata prevents the litigation of claims that "were

made or should have been made" during previous litigation. Id. (citing Hill v. Carroll Cnty.,

17 So. 3d 1081, 1084 (¶8) (Miss. 2009)).

¶25.   In Smith v. State, 149 So. 3d 1027, 1032 (¶13) (Miss. 2014), the Court determined that

“claims of constitutional dimensions are . . . excepted from common-law res judicata.”

However, no claims of constitutional dimensions are applicable in this case to except Salter’s

claims from common-law res judicata. Therefore, we agree with the trial court that this

petition is also barred by res judicata. Salter’s third petition raises the identical issues of

ineffective assistance of counsel that were raised in his second petition. Nothing prevented

Salter from inquiring about his eligibility for parole within three years of his conviction and

bringing his additional theory of ineffective assistance when he filed first PCR petition,

especially since he argued a different theory of ineffective assistance in that petition. As

such, Salter’s third petition is also barred by res judicata because the issues he raises in this

appeal could have and should have been raised in his first PCR petition.



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¶26. THE JUDGMENT OF THE GEORGE COUNTY CIRCUIT COURT
DISMISSING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.

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




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