David Nichols v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-CP-01292-COA

DAVID NICHOLS A/K/A DAVID SYDNEY APPELLANT
NICHOLS A/K/A DAVID SIDNEY NICHOLS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/22/2017
TRIAL JUDGE: HON. JAMES MCCLURE III
COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DAVID NICHOLS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KATY TAYLOR GERBER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED: 11/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., FAIR AND WILSON, JJ.

FAIR, J., FOR THE COURT:

¶1. In 2004, David Nichols pleaded guilty to two counts of murder and was sentenced to

serve two life sentences in the custody of the Mississippi Department of Corrections. Three

years later, he filed his first motion for post-conviction relief (PCR), which was denied. He

appealed, and the denial was affirmed in Nichols v. State, 994 So. 2d 236 (Miss. Ct. App.

2008). In 2011, he filed a second unsuccessful PCR motion. Nichols v. State, 120 So. 3d

433 (Miss. Ct. App. 2013).

¶2. Nichols filed a third PCR motion in 2016, which was denied and is now the subject

of this appeal. Finding no error, we affirm.
FACTS

¶3. Nichols styled his third action as a motion for recusal/change of venue because he

alleged wrongdoing by the State and because the judge assigned to rule on his motion was

an assistant district attorney when Nichols was prosecuted. Nichols further claimed that false

evidence was used to obtain a conviction, that his guilty plea was involuntarily entered, and

that his counsel was ineffective. He also requested an evidentiary hearing.

¶4. As the assigned judge stated in his recusal order, he “did not participate in the

prosecution, conviction[,] or sentencing of [Nichols] in any way or capacity during his

employment with the Office of the District Attorney.” Nor was he the original trial judge,

though he had dismissed Nichols’s second PCR as successive and time-barred. In any event,

he recused himself in this case “out of an abundance of caution and in order to avoid any

appearance of impropriety[.]” After the case was reassigned, the replacement circuit judge

dismissed Nichols’s motion—treating it as a third PCR motion—without an evidentiary

hearing.

STANDARD OF REVIEW

¶5. A circuit court may summarily dismiss a PCR motion without an evidentiary hearing

“[i]f 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 . . . .” Miss. Code Ann.

§ 99-39-11(2) (Rev. 2015). And “this [C]ourt will affirm the summary dismissal of a PCR

motion [unless the appellant shows] a claim is procedurally alive substantially showing the

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denial of a state or federal right.” Pinkney v. State, 192 So. 3d 337, 341-42 (¶13) (Miss. Ct.

App. 2015) (internal quotation marks omitted).

¶6. Our review of the summary dismissal of a PCR motion, a question of law, is de novo.

Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999).

DISCUSSION

¶7. At the outset, we note that this is Nichols’s third PCR motion. Under the Uniform

Post-Conviction Collateral Relief Act (UPCCRA), the dismissal of a PCR motion is a final

judgment and acts as a bar to a second, or successive, motion. Miss. Code Ann.

§ 99-39-23(6) (Rev. 2015). “Essentially, [a movant] is granted one bite at the apple when

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

2009).

¶8. Since successive motions are not allowed, “[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.” Salter v. State, 184 So. 3d 944, 951 (¶24) (Miss. Ct. App.

2015). “The failure to do so results in a loss of his claims for a second or successive

petition.” Id. Nichols’s third PCR motion raises many of the same issues as his first.1

Because the issues in Nichols’s third PCR motion could have been raised in his first (or

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In his first PCR motion, Nichols claimed that: “(1) no factual basis for his plea was
established; (2) his counsel was ineffective; (3) the trial court erred in failing to conduct an
evidentiary hearing; and (4) the cumulative errors require reversal.” Nichols, 994 So. 2d at
237 (¶2).

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second) PCR motion, the circuit judge properly treated the third PCR motion as a successive

writ.

¶9. The UPCCRA also states that, in the instance of a guilty plea, a PCR motion shall be

made within three years after the entry of the judgment of conviction. Miss. Code Ann.

§ 99-39-5(2). Nichols filed his third PCR motion on October 18, 2016—approximately

twelve and a half years after he pleaded guilty on April 14, 2004. So his motion is also time-

barred.

¶10. We acknowledge that “errors affecting fundamental constitutional rights are excepted

from the procedural bars.” See Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010).

“Only four fundamental-rights exceptions have been expressly found to survive 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.” Carter v. State, 203 So. 3d 730, 731 (¶7) (Miss. Ct. App. 2016) (internal quotation

marks omitted). The Mississippi Supreme Court has clarified that “merely asserting a

constitutional-right violation is insufficient to overcome the procedural bars.” Fluker v.

State, 170 So. 3d 471, 475 (¶11) (Miss. 2015). Additionally, “there must at least appear to

be some basis for the truth of the claim of a fundamental-constitutional-rights violation.”

Evans v. State, 115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013) (internal quotation marks

omitted). Nichols’s claims do not implicate any fundamental-constitutional-rights violations.

¶11. Finally, although Nichols has attached several new documents to his appellant’s brief,

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these documents were not presented to the circuit court during the post-conviction

proceedings. For that reason, this Court does not consider them. See Hampton v. State, 148

So. 3d 1038, 1042 (¶11) (Miss. Ct. App. 2013).

¶12. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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