Devonta Pipkin a/k/a Devonta O. Pipkin a/k/a Devonta Orlando Pipkin v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-00517-COA

DEVONTA PIPKIN A/K/A DEVONTA O. PIPKIN APPELLANT
A/K/A DEVONTA ORLANDO PIPKIN

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/14/2021
TRIAL JUDGE: HON. SMITH MURPHEY
COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: IMHOTEP ALKEBU-LAN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALLISON KAY HARTMAN
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 05/24/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Devonta Pipkin appeals the circuit court’s denial of his second motion for post-

conviction collateral relief (PCR). Finding no error in the circuit court’s ruling, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Pipkin was charged with one count of conspiracy to commit armed robbery, one count

of burglary of an inhabited building, and one count of capital murder. Pipkin’s trial attorney

Anthony Farese filed a request to enter into plea negotiations on December 13, 2013. On

June 16, 2014, Farese petitioned to enter a plea of guilty to one count of first-degree murder

with deliberate design in exchange for a recommendation by the State that the court remand
the counts for armed robbery and burglary and, also, reduce the capital murder charge to that

of first-degree murder. Pipkin’s plea and sentencing hearing was held on that same day. The

trial court concluded that Pipkin gave his plea freely and voluntarily and was well advised

by his trial attorney. Afterward, Pipkin pled guilty to first-degree murder and on June 19,

2014, was sentenced to life imprisonment without eligibility for parole.

¶3. On June 19, 2017, Pipkin filed his first PCR motion, challenging his conviction on the

grounds of ineffective assistance of counsel, an involuntary plea, insufficient evidence, and

new evidence establishing his innocence. The circuit court denied Pipkin’s PCR motion.

Pipkin appealed and this Court affirmed the circuit court’s denial. Pipkin v. State, 296 So.

3d 90, 91 (¶1) (Miss. Ct. App. 2019), cert. denied, 293 So. 3d 832 (Miss. 2020).

¶4. On December 31, 2020, Pipkin filed his second PCR motion (at issue here) alleging

that he was “actually and factually innocent.” Pipkin presented four affidavits as newly

discovered evidence from his co-defendants, swearing that Pipkin was not involved in the

crime. The circuit court found, however, that the newly-discovered-evidence exception did

not apply to Pipkin because (1) Pipkin pled guilty, and the affidavits did not negate his plea;

(2) Pipkin did not establish that these affidavits were unavailable to him at the time that he

entered his guilty plea; and (3) Pipkin’s own admission led to Pipkin’s conviction and not

that of his co-defendants. On April 9, 2021, the circuit court denied Pipkin’s second PCR

motion as without merit, time-barred, and successive. Pipkin appeals.

STANDARD OF REVIEW

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¶5. When reviewing a circuit court’s order denying a PCR motion, we “will not disturb

the trial court’s factual findings unless they are found to be clearly erroneous . . . .” Lambert

v. State, 941 So. 2d 804, 807 (¶14) (Miss. 2006) (quoting Brown v. State, 731 So. 2d 595,

598 (¶6) (Miss. 1999)). We review questions of law de novo. Id.

ANALYSIS

¶6. A PCR motion must be brought within three years of the conviction. Miss. Code Ann.

§ 99-39-5(2) (Rev. 2020) (“[I]n case of a guilty plea, within three (3) years after entry of the

judgment of conviction.”). Pipkin pled guilty to first-degree murder on June 16, 2014. He

filed his second PCR motion on December 31, 2020, which was more than three years after

his conviction. Thus, we find that Pipkin’s second PCR motion was, on its face, properly

denied as untimely. Id.

¶7. A court’s dismissal or denial of a PCR motion is “a final judgment and shall be

conclusive until reversed. It shall be a bar to a second or successive motion under this

article.” Miss. Code Ann. § 99-39-23(6) (Rev. 2020). Pipkin filed his first PCR motion in

June 2017 and filed his second PCR motion in December 2020. We also find that on its face,

Pipkin’s second PCR motion is barred as successive. Id.

¶8. We further address and reject Pipkin’s contention that because he raised a claim of

“actual innocence” for the first time, his second PCR motion is not barred as successive.

Pipkin alleged in his first PCR motion that he suffered ineffective assistance of counsel by

his counsel’s failure to investigate the factual charges of his indictment. He alleged that but

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for his counsel’s ineffective assistance, he would not have pled guilty because he was

innocent. He further alleged that because he was innocent,“[h]is subsequent plea of guilty

and life sentence was a miscarriage of justice.” Pipkin then maintained in his second PCR

motion, without alleging ineffective assistance of counsel, that because he was “actually and

factually innocent,” he had a fundamental constitutional right to have his sentence vacated.

We find that Pipkin raised substantially the same issues in his first PCR motion as he did in

his second motion, albeit repackaged. See Dever v. State, 210 So. 3d 977, 982 (¶19) (Miss.

Ct. App. 2017).

The circuit court properly denied Pipkin’s PCR motion.

¶9. Pipkin asserts that the circuit court erred when it “dismissed” his second PCR motion.

“If it plainly appears from the face of the motion, any annexed exhibits and the prior

proceedings in the case that the movant is not entitled to any relief, the judge may make an

order for its dismissal.” Miss. Code Ann. § 99-39-11(2) (Rev. 2020). The circuit court

dismissed Pipkin’s second PCR motion as both time-barred and successive and denied the

relief requested due to lack of merit. We find the circuit court’s order was proper, and none

of the following procedural-bar exceptions apply:

(1) an intervening decision of either the United States Supreme Court or the
Supreme Court of the State of Mississippi; (2) new evidence not reasonably
discoverable at trial; or (3) an expired sentence or an unlawful revocation of
parole, probation, or conditional release.

Britton v. State, 313 So. 3d 1056, 1059-60 (¶11) (Miss. Ct. App. 2021). Also excepted are

“errors affecting fundamental constitutional rights.” Rowland v. State, 42 So. 3d 503, 506

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(¶9) (Miss. 2010).

¶10. Pipkin asserts that his second PCR motion was not procedurally barred because he

attached four affidavits from his co-defendants as “newly discovered evidence.” He

contends that he was actually and factually innocent, which he also argues is an error

affecting his constitutional rights. We disagree. Considering the “actual innocence”

doctrine, as well as our analyses in Trotter and Henderson, we conclude for the reasons given

below that Pipkin failed to substantially show he possessed newly discovered evidence

sufficient to overcome his procedural bars. Henderson v. State, 170 So. 3d 547, 554 (¶22)

(Miss. Ct. App. 2014); Trotter v. State, 907 So. 2d 397, 401-02 (¶¶12-13) (Miss. Ct. App.

2005).

A. Newly Discovered Evidence

¶11. Our newly-discovered-evidence exception provides that a movant may demonstrate

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.” Miss. Code Ann. § 99-39-23(6).

Likewise,

[w]here newly discovered evidence is alleged in a habeas application, evidence
which could not reasonably have been presented to the state trier of facts, the
federal court must grant an evidentiary hearing. Of course, such evidence
must bear upon the constitutionality of the application’s detention; the
existence merely of newly discovered evidence relevant to the guilt of a state
prisoner is not a ground for relief on habeas corpus.

Herrera v. Collins, 506 U.S. 390, 400 (1993).

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¶12. To constitute newly discovered evidence, the movant “must show that (1) the new

evidence was discovered after the trial; (2) it could not by due diligence have been

discovered before trial; (3) it is material to the issue and not merely cumulative or

impeaching; and (4) it would probably produce a different result or verdict in the new trial.”

Brown v. State, 306 So. 3d 719, 744 (¶96) (Miss. 2020); see Wilkerson v. State, 307 So. 3d

1231, 1239 (¶18) (Miss. Ct. App. 2020); Porter v. State, 281 So. 3d 935, 939 (¶17) (Miss.

Ct. App. 2019); Russell v. State, 73 So. 3d 542, 545 (¶9) (Miss. Ct. App. 2011).

¶13. Attached to Pipkin’s second PCR motion are four affidavits from his co-defendants

Quinn McNeal, Nicholas Sledge, Kristie Farrow, and Lashuandra McNeal, described as

newly discovered evidence. Each affidavit gave one line attesting to Pipkin’s lack of

participation in the death of Emanuel Gomez. Kristie’s and Lashuandra’s affidavits state,

“I did not conspire with Devonta Pipkin, nor do I have personal knowledge that Devonta

Pipkin participated in the events that [led] to the death of Emmanuel Gomez.” Nicholas’ and

Quinn’s affidavits1 swear that Pipkin “did not conspire or participate in the events that [led]

to the death of Emanuel Gomez.”

¶14. These statements do not constitute newly discovered evidence that were not available

to Pipkin at the trial, or in Pipkin’s case, the plea hearing. The affidavits, although provided

to Pipkin after his plea hearing, were statements that could have been discovered through due

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Nicholas Sledge’s affidavit and an unsworn statement by Quinn McNeal were
attached to Pipkin’s first PCR motion, meaning these statements have previously been
addressed and considered.

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diligence before the plea hearing. According to the record, the State filed a response to

Pipkin’s motion for discovery which indicated that the co-defendant’s statements were

provided to Pipkin’s attorney during discovery and would have been subject to cross-

examination. To corroborate this fact, the record also reflects that Pipkin’s attorney, in a

motion to sever parties (i.e., co-defendants), stated that he obtained copies of the defendants’

recorded statements from the Senatobia Police Department. Nothing in the record, however,

indicates that these witnesses were not available to him. The record also does not show that

the co-defendants could not have testified to Pipkin’s innocence at the time of the plea

hearing. Johnson v. State, 110 So. 3d 353, 355 (¶7) (Miss. Ct. App. 2013) (finding that the

statement from Johnson’s brother was not newly discovered evidence even though his brother

stated that he was the guilty party).

¶15. The statements given by Pipkin’s co-defendants are also suspicious and impeachable

statements that would not warrant a new trial. Indeed, “[r]ecanted testimony is exceedingly

unreliable, and is regarded with suspicion . . . .” Russell v. State, 849 So. 2d 95, 107 (¶15)

(Miss. 2003) (internal quotation marks omitted). Our Supreme Court has described recanted

testimony as “perjury.” Bradley v. State, 214 So. 2d 815, 817 (Miss. 1968). In another case,

a witness named Pannell “gave a statement to police during the investigation” and then later

“executed an affidavit ‘to provide information as to [the defendant] Marlon Howell’s

innocence.’” Howell v. State, 163 So. 3d 240, 248-49 (¶¶14, 16) (Miss. 2014). Our Supreme

Court held that the trial court did not err by finding Pannell’s affidavit unreliable. Id. at 248

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(¶12). The same outcome occurred in another case where two witnesses recanted trial

testimony after the completion of the trial. Russell, 849 So. 2d at 106-07 (¶¶13-14). Our

Supreme Court found that the “recanted testimony [did] not entitle a defendant to a new

trial.” Id. at 107 (¶15).

¶16. At the plea hearing, the State presented portions of the co-defendant’s statements

given during the police investigation. One of the co-defendants, Kristie, stated that she rode

in the car with Pipkin, Quinn, and Nicholas to Gomez’s house on the day of his murder.

Kristie also stated, according to the State, that Pipkin, Quinn, and Nicholas possessed

weapons and that their plan was to “hit a lick.” Additionally, Quinn and Nicholas in their

police interviews, corroborated Kristie’s account. Pipkin also affirmed these facts at the

hearing. When the trial court asked Pipkin if he disputed any of the facts or needed to clarify

any point, Pipkin answered in the negative. It is of no consequence that Kristie, Quinn, and

Nicholas are now, in their affidavits, recanting their statements by asserting that Pipkin was

not involved in the events that led to the crime. Without additional evidence to corroborate

Pipkin’s story, and relying, in part, on Howell and Russell, the affidavits were merely

impeachable.

¶17. Given that Pipkin has failed to meet all of the prongs of the newly-discovered-

evidence standard, we find that Pipkin has not substantially shown that the PCR ruling

violated a statutory right.

B. Actual Innocence

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¶18. We now determine whether the circuit court’s order denying relief violated Pipkin’s

state or federal constitutional rights. Pipkin asserts that because he was actually and factually

innocent, his sentence is a fundamental constitutional error and a miscarriage of justice.

However, successful actual-innocence claims “are extremely rare.” Trotter, 907 So. 2d at

402 (¶13) (citing Schulp v. Delo, 513 U.S. 298, 321 (1995)). This is partly due to the fact

that actual innocence claims are a “gateway for federal habeas review of a procedurally

defaulted claim of constitutional error.” McQuiggin v. Perkins, 569 U.S. 383, 393 (2013)

(quoting House v. Bell, 547 U.S. 518, 537-38 (2006)). It is principled in equity to “ensure

that individuals are not imprisoned in violation of the Constitution—not to correct errors of

fact.” Herrera, 506 U.S. at 400. Moreover, the standard applied to actual innocence claims

is whether “in light of all the evidence, it is more likely than not that no reasonable juror

would have convicted him”; the petitioner must not only show that he has newly discovered

evidence that proves his innocence, but also that he has a constitutional claim for review on

the merits. Adams v. State, 954 So. 2d 1051, 1054 (¶12) (Miss. Ct. App. 2007); see Herrera,

506 U.S. at 401 (“Few rulings would be more disruptive . . . than to provide for federal

habeas review of freestanding claims of actual innocence.”).

¶19. Pipkin did not assert in his second PCR motion a constitutional claim in addition to

his assertion that he was actually innocent. Rather, Pipkin asserted that the actual innocence

doctrine itself is a fundamental constitutional error worthy of exception. We disagree. Sneed

v. State, 85 So. 3d 298, 300 (¶10) (Miss. Ct. App. 2012). See Howard v. State, 945 So. 2d

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326, 369 (¶95) (Miss. 2006); Trotter, 907 So. 2d at 401 (¶12); Bousley v. United States, 523

U.S. 614 (1998). Conversely, Pipkin claims on appeal that he suffered ineffective assistance

of counsel; however, Pipkin did not allege ineffective assistance of counsel in his second

PCR motion. As the question was not properly raised before this Court, we find Pipkin’s

ineffective assistance of counsel claim procedurally barred.

¶20. Notwithstanding the procedural bar, we will address Pipkin’s claim of ineffective

assistance of counsel. “In the context of a guilty plea, the defendant must prove, by a

preponderance of the evidence, that but for the ineffective assistance of counsel, he would

not have pled guilty and insisted on a trial.” Pleas v. State, 766 So. 2d 41, 43 (¶7) (Miss. Ct.

App. 2000). “[A] strong but rebuttable presumption exists that a counsel’s conduct falls

within the wide range of reasonable professional assistance.” Williams v. State, 228 So. 3d

949, 952 (¶13) (Miss. Ct. App. 2017). Pipkin asserts that had his trial attorney properly

investigated his co-defendants, he would have known that they were not implicating him in

the crimes and would not have pled guilty. Again, the record reflects that Pipkin’s trial

attorney received the co-defendant’s witness statements and determined that they would

confuse the jury rather than prove Pipkin’s innocence. Pipkin also at all times knew whether

or not he was innocent. It is of no fault of his trial attorneys that the co-defendants have

changed their story years later, after his conviction. Given that the statements only address

the events that led to Gomez’s death, Pipkin has not shown that he would have insisted on

a trial but for his allegedly ineffective assistance of counsel.

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CONCLUSION

¶21. We hold that Pipkin has not shown that he has a procedurally viable claim or that an

exception to the procedural bars exists; therefore, Pipkin’s second PCR motion was properly

denied. For these reasons, we affirm the circuit court’s order.

¶22. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, McDONALD, McCARTY,
SMITH AND EMFINGER, JJ., CONCUR. WILSON, P.J., AND LAWRENCE, J.,
CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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