Andrew Jamison a/k/a Andrew L. Jamison v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CP-01338-COA

ANDREW JAMISON A/K/A ANDREW L. APPELLANT
JAMISON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/20/2020
TRIAL JUDGE: HON. SMITH MURPHEY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ANDREW JAMISON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAUREN GABRIELLE CANTRELL
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 02/01/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., GREENLEE AND SMITH, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Andrew Jamison, appearing pro se, appeals the summary dismissal of his petition for

post-conviction relief (PCR), in which he argued that revocation of his post-release

supervision and recommitment to incarceration was improper and that issues regarding his

initial conviction of attempted armed robbery mandated reversal of that conviction. Finding

no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In January 2005, a DeSoto County grand jury indicted Jamison for one count of

attempted armed robbery of a Holiday Inn Express in Southaven, Mississippi, and one count
of possession of a stolen firearm. After a two-day trial, a jury found Jamison guilty of both

counts. On January 18, 2006, the circuit court sentenced Jamison to ten years for the

attempted robbery conviction, with three years to serve and seven years of post-release

supervision, and five years to serve consecutively for possession of a stolen firearm, all in

the custody of the Mississippi Department of Corrections (MDOC).

¶3. Jamison did not attempt to appeal his conviction until approximately ten months after

trial, when on September 11, 2006, he filed in the Mississippi Supreme Court a pro se notice

of appeal with a motion for an out-of-time appeal. The supreme court remanded Jamison’s

request to the DeSoto County Circuit Court. On November 30, 2006, the circuit court

denied Jamison’s request, finding that he failed to show his appeal was not timely perfected

through no fault of his own. The circuit court noted Jamison failed to submit any affidavits

or other evidence in support of his motion. In his motion, Jamison stated that at his

sentencing hearing in January 2006 his defense counsel had informed the judge that he was

going to assist Jamison in his appeal. However, a copy of this transcript is in the record, and

as the circuit court noted, Jamison’s counsel had made no such statement. In fact, the judge

informed Jamison that he had a right to appeal and that his trial counsel was not responsible

for his appeal unless they agreed to the contrary. The judge also informed Jamison that he

could hire an attorney or make a proper application for a public defender, but Jamison did

neither. Jamison did not appeal the denial of his request for an out-of-time appeal.1

1
About two years later, Jamison filed a motion for “Judicial Review” with the
Mississippi Supreme Court. In April 2009, the supreme court dismissed Jamison’s motion,
finding it was procedurally barred as a successive motion.

2
¶4. In June 2012, while on post-release supervision, Jamison was arrested for burglary

of a check-cashing business in Shelby County, Tennessee, and a firearm was found in his

possession. A federal grand jury indicted Jamison for being a felon in possession of a

firearm, and the burglary charge was abandoned.2 A warrant was issued for Jamison’s

arrest, and ultimately he was sentenced to approximately seven years for the federal crimes.

In August 2013, a field officer filed an MDOC affidavit in the DeSoto County Circuit Court

requesting revocation of Jamison’s post-release supervision ordered in January 2006 due to

the check-cashing crime.

¶5. While in federal custody, in March 2016 Jamison filed in the Mississippi Supreme

Court a motion entitled “Appeal from Circuit Court Order,” seeking permission to file a

PCR motion in the circuit court. He claimed he had “newly discovered evidence”

demonstrating his “actual innocence.” The supreme court denied his motion, treating it as

one for post-conviction relief and finding the motion was barred by the three-year statute of

limitations.

¶6. After Jamison’s release from federal custody in 2019, he was served with an

outstanding DeSoto County warrant and extradited to Mississippi. On August 13, 2019,

Jamison personally appeared before the circuit court, represented by counsel, for a

revocation hearing. Jamison admitted to violating the terms of his post-release supervision

by possessing the firearm that formed the basis for his federal charges. The circuit court thus

2
Jamison was ultimately convicted of being a felon in possession of ammunition and
attempted robbery affecting commerce. Jamison v. King, No. 3:20-CV20-SA-JMV, 2020
WL 3490060, at *2 (N.D. Miss. June 26, 2020).

3
revoked his remaining two years of post-release supervision and recommitted him in the

custody of the MDOC.

¶7. In October 2019, Jamison again requested permission from the Mississippi Supreme

Court to file a PCR motion. The supreme court dismissed the motion without prejudice to

being pursued in the circuit court, citing Mississippi Code Annotated section 99-39-7 (Rev.

2015), which provides that PCR motions shall be filed in the circuit court unless the

petitioner’s conviction and sentence have been appealed to the supreme court and affirmed

or dismissed. The court noted that Jamison had unsuccessfully petitioned the circuit court

and supreme court for an out-of-time appeal, and thus he had never appealed his conviction

or sentence. Therefore, he could pursue his PCR claims in the circuit court without seeking

the supreme court’s permission.

¶8. Accordingly, Jamison filed with the circuit court the PCR motion leading to this

appeal, as well as various related documents, contending unlawful revocation of his post-

release supervision and recommitment, ineffective assistance of counsel for failure to file

a direct appeal,3 and insufficient evidence for his 2005 attempted armed-robbery conviction.

On November 20, 2020, in a detailed eight-page order, the circuit court dismissed Jamison’s

PCR motion, finding his claims were without merit.

STANDARD OF REVIEW

¶9. In reviewing the trial court’s denial or dismissal of a PCR motion, the appellate court

will reverse the judgment only if the “factual findings are clearly erroneous.” Berry v. State,

3
Jamison’s defense counsel passed away in 2018.

4
230 So. 3d 360, 362 (¶3) (Miss. Ct. App. 2017) (internal quotation mark omitted).

Questions of law, however, are reviewed de novo. Id.

ANALYSIS

¶10. We shall begin with a discussion of the issue properly before this Court—revocation

of Jamison’s post-release supervision—and then discuss the issues regarding his initial

conviction and denial of his request to file an out-of-time appeal.

I. Revocation of Post-Release Supervision

¶11. Jamison claims his post-release supervision was improperly revoked. He contends

the August 2013 MDOC affidavit filed by a field officer in the circuit court was a “sham.”

The affidavit stated that Jamison violated two conditions of his post-release supervision

(laws and firearms)4: (1) on June 23, 2012, Jamison was found at Top Dollar Check

Advance in Shelby County, Tennessee, with a Colt .32 revolver in his backpack; and (2) on

November 29, 2012, a federal indictment formally charged Jamison with possession of a

firearm by a felon, and he was taken into custody on December 4, 2012. Jamison claims that

the burglary charge and the federal firearm charge were dismissed in September 2013;

therefore, there was no factual basis for the revocation. Jamison also argues he was not

afforded due process during his revocation proceedings because the circuit court failed to

conduct a preliminary hearing within seventy-two hours of his arrest.

¶12. “Under Mississippi law, probation may be revoked upon a showing that the defendant

4
The affidavit contended Jamison violated, respectively, post-release supervision
conditions (1) (“Defendant shall hereafter commit no offense against the laws of this or any
state of the United States, or of the United States.”) and (10) (“[Defendant shall] [n]ot own
or carry with him/her any weapons.”).

5
more likely than not violated the terms of probation.” Gray v. State, 269 So. 3d 331, 337

(¶21) (Miss. Ct. App. 2018) (quoting Smith v. State, 196 So. 3d 986, 996 (¶31) (Miss. Ct.

App. 2015)). However, the “mere arrest of a probationer is not a violation of probation.”

Brown v. State, 864 So. 2d 1058, 1060 (¶9) (Miss. Ct. App. 2004) (citing Moore v. State,

587 So. 2d 1193, 1194 (Miss. 1991)).

¶13. At the revocation hearing, the State explained it could show Jamison was arrested in

June 2012 for possession of a Colt .32 revolver in Shelby County at a check advance

business and subsequently pleaded guilty to the charge. Jamison responded by admitting

that he was in possession of the firearm as alleged by the State and that he understood the

events that caused his post-release supervision to be revoked. Further, Jamison denied there

was anything presented by the State that he would dispute or that needed clarification.

¶14. Jamison now argues that the basis of the MDOC’s affidavit is invalid, and thus his

post-release supervision was improperly revoked. He accurately claims the November 29,

2012 indictment and December 4, 2012 arrest were based upon the June 23, 2012 check-

cashing crime, but now he contends Shelby County’s burglary-of-a-building charge and the

federal possession-of-a-firearm charge were both dismissed.5 Moreover, he states that he

did not plead guilty to the federal indictment charge, as stated in the revocation transcript,

5
An MDOC violation report form dated July 11, 2013, attached to the MDOC
affidavit details the charges resulting from the June 23, 2012 check-cashing crime. Jamison
was initially arrested and charged with burglary and possession of a firearm by a felon. On
September 18, 2012, the burglary charge was abandoned by writ of nolle prosequi. On
November 29, 2012, Jamison was indicted by a federal grand jury for possession of a
firearm by a felon. A superseding indictment was subsequently entered charging Jamison
with two counts: possession of a firearm by a felon and attempt to obstruct commerce by
robbery.

6
but “was found guilty by [a] jury on the federal indictment.”

¶15. Jamison is correct that the state burglary charge was abandoned. However, the

revocation was not based upon the burglary charge. The revocation was based upon his

being a felon in possession of a firearm. While it appears Jamison was ultimately convicted

by a jury of being a felon in possession of ammunition and not a firearm, Jamison never

corrected the State at the revocation hearing after being afforded every opportunity by the

circuit court to respond otherwise. Further, possession of a firearm in and of itself was a

violation of condition number 10 of his post-release supervision, regardless of whether he

was ultimately convicted of this charge. “A probationer does not have to be convicted of

a crime to be in violation of his probation but, rather, probation may be revoked when it is

more likely than not that a violation has occurred.” McCalpin v. State, 166 So. 3d 24, 26-27

(¶7) (Miss. 2013). Therefore, as the circuit court noted, the ultimate disposition of new

criminal charges that form the basis of revocation is immaterial.

¶16. At the revocation hearing, Jamison admitted under oath to possessing a firearm on

June 23, 2012, which formed the basis of his federal charges. He also admitted to

understanding the terms of his post-release supervision. Jamison was ultimately convicted

of two crimes stemming from that date and was sentenced to serve nearly seven years in

federal prison. Accordingly, the circuit court had a sufficient basis to revoke his post-release

supervision.

¶17. Additionally, Jamison argues that his right to due process was violated because he

was denied a preliminary revocation hearing under Mississippi Code Annotated section 47-

7
7-37(3) (Supp. 2018). This statute provides that within seventy-two hours of an offender’s

arrest for an alleged probation violation, an informal preliminary hearing must be held to

determine “whether there is reasonable cause to believe the person has violated a condition

of probation.” Id. The circuit court found the issue procedurally barred under Mississippi

Code Annotated section 99-39-21(1) (Rev. 2015) because Jamison failed to raise the issue

prior to the final revocation hearing. See Jones v. State, 270 So. 3d 1055, 1058-59 (¶11)

(Miss. Ct. App. 2018) (Defendant “failed to raise this issue at his revocation hearing; thus,

the issue regarding a lack of a preliminary revocation hearing was waived.”). We agree.

¶18. Despite the procedural bar, Jamison’s argument is without merit. While a probationer

is constitutionally “entitled to both a preliminary and final revocation hearing” before

revocation of post-release supervision, “the failure to hold separate hearings is not

necessarily reversible error.” Friday v. State, 141 So. 3d 18, 22 (¶13) (Miss. Ct. App. 2014)

(quoting Riely v. State, 562 So. 2d 1206, 1210 (Miss. 1990); Presley v. State, 48 So. 3d 526,

530 (¶14) (Miss. 2010)). The probationer “must show that prejudice resulted from the

failure to hold a separate preliminary [revocation] hearing.” Id. at 22 (¶13) (citing Presley,

48 So. 3d at 530 (¶14)). If no prejudice is found, and a formal revocation hearing was held

that met the minimum due-process requirements,6 then the failure to hold a preliminary

6
The minimum due-process requirements for a final revocation hearing are:

(a) written notice of the claimed violations of [probation or] parole; (b)
disclosure to the [probationer or] parolee of evidence against him; (c)
opportunity to be heard in person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional

8
hearing is harmless error. Jones, 270 So. 3d at 1059 (¶11) (quoting Friday, 141 So. 3d at

22 (¶13)).

¶19. Jamison fails to show any prejudice resulted from the failure to hold a preliminary

hearing, and the transcript shows all minimum due-process requirements were met. The

circuit court’s order states Jamison was served with written notice of the claimed violations

and evidence five days prior to the August 2019 hearing. At the hearing, the State presented

the evidence against him, and Jamison had the opportunity to challenge this evidence but did

not. In fact, Jamison specifically stated he was waiving his rights to contest the violations

under Mississippi Rule of Criminal Procedure 27.3(e) and voluntarily stipulating to the

violations. Finally, the circuit court judge who presided over the hearing entered an order

describing the reasons for the revocation. All due process safeguards were given to Jamison

at his revocation hearing, and Jamison was not prejudiced; therefore, the lack of a

preliminary revocation hearing was harmless.

II. Ineffective Assistance of Counsel

¶20. Jamison claims his retained trial counsel was ineffective for failing to appeal his 2005

conviction. The State contends that not only is his claim without merit, but it is procedurally

barred as untimely and successive, as held by the circuit court. However, certain errors

affecting fundamental rights are excepted from the procedural bars of post-conviction relief.

parole board, members of which need not be judicial officers or lawyers; and
(f) a written statement by the factfinders as to the evidence relied on and
reasons for revoking [probation or] parole.

Riely, 562 So. 2d at 1210.

9
Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010). A claim of ineffective assistance

of counsel may be excepted from procedural bar, but only in exceptional or extraordinary

circumstances. McDonald v. State, 307 So. 3d 497, 500 (¶7) (Miss. Ct. App. 2020) (citing

Conley v. State, No. 2011-M-01006, 2020 WL 949240, at *1 (Miss. Feb. 26, 2020) (order));

Chapman v. State, 167 So. 3d 1170, 1174 (¶12) (Miss. 2015). Yet “the mere assertion of

a constitutional right violation does not trigger the exception.” Wilson v. State, 294 So. 3d

101, 104 (¶8) (Miss. Ct. App. 2020) (quoting Evans v. State, 115 So. 3d 879, 881 (¶3) (Miss.

Ct. App. 2013)).

¶21. To succeed on the merits of an ineffective-assistance-of-counsel claim, the defendant

must prove (1) “counsel’s performance was deficient,” and (2) “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Lovett v. State, 270 So. 3d 133, 135 (¶5) (Miss. Ct. App. 2018)

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “[T]here is a strong

rebuttable presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Wash v. State, 218 So. 3d 764, 767 (¶6) (Miss. Ct. App. 2017)

(internal quotation mark omitted).

¶22. Jamison claims he was “abandoned” by his trial counsel after sentencing, which

resulted in his direct appeal not being filed.7 Jamison contends that at the January 2006

sentencing hearing, his counsel stated he was going to file his appeal, but the transcript

7
Jamison also made these arguments in his motion for an out-of-time appeal, which
the circuit court denied.

10
belies this assertion. Instead, defense counsel asked the judge under Osborn v. State8 to

advise Jamison of his appeal rights (specifically, that he had thirty days from the entry of the

sentencing order to file his appeal). The circuit court judge did so, and Jamison

acknowledged the right. Then the following exchange occurred:

[THE COURT]: I don’t know what your understanding is with [defense
counsel], but do you understand that as a general rule
that’s not [defense counsel]’s obligation unless y’all
have agreed to the contrary? Do you understand that?

[DEFENDANT]: Yes, sir.

[THE COURT]: That means you need to hire your own lawyer to file an
appeal if you wish to appeal, or if you cannot afford a
lawyer, you need to make the proper application for a
public defender. Do you understand that?

[DEFENDANT]: Yes, sir.

[THE COURT]: Do you have any questions in that regard?

[DEFENDANT]: No, sir.

The above colloquy shows there is no merit to Jamison’s argument that he was “abandoned”

by his defense counsel; there is no indication his counsel agreed to file his appeal or that

Jamison asked his attorney to file an appeal. See Howard v. State, 785 So. 2d 297, 300 (¶7)

(Miss. Ct. App. 2001) (The defendant’s deficiency-of-counsel argument failed when there

was no evidence to support the conclusion that the defense counsel had contracted and

8
In Osborn v. State, 695 So. 2d 570, 573 (Miss. 1997), the Mississippi Supreme
Court quoted Wright v. State, 577 So. 2d 387, 390 (Miss. 1991), urging “trial courts to
advise criminal defendants of their rights concerning appeal on the record at the time of
sentencing and to solicit a decision in that regard.” However, the supreme court found in
Osborn’s case that the trial court’s failure to elicit a decision from the defendant was not
reversible error. Id.

11
obligated himself to pursue the defendant’s appeal.). Jamison provides no evidence to show

his counsel’s performance was deficient. Moreover, one year later, the circuit court denied

Jamison’s motion to file an out-of-time appeal, where he made the same arguments

regarding his trial counsel. The circuit court found he failed to show he was denied his right

to appeal through no fault of his own. Further, Jamison could have appealed this

determination but did not. Accordingly, his ineffective-assistance-of-counsel claim is

without merit, as is his assertion that he is entitled to out-of-time appeal.

III. Procedural Bars

¶23. The circuit court noted that Jamison’s arguments related to his original conviction and

sentence were separate from the revocation issue and found them procedurally barred from

consideration as both time-barred and successive. A defendant must file a PCR motion

within three years after the judgment of conviction is entered. Miss. Code Ann. § 99-39-

5(2) (Rev. 2015). Additionally, any order denying or dismissing a PCR motion bars a

second or successive motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). The movant

must bear “the burden of proving by a preponderance of the evidence that his claims are not

barred as successive writs.” Jenkins v. State, 325 So. 3d 1195, 1198 (¶8) (Miss. Ct. App.

2021).

¶24. Because Jamison did not file a direct appeal, he had three years from his judgment

of conviction, or January 2009, to file a motion for post-conviction relief. His current filing

is well past the statute of limitations. Further, Jamison has filed at least two other PCR

motions with the circuit court and the supreme court. Jamison himself states in his brief that

12
for the past several years he “has unsuccessfully pursued every avenue open to him in an

effort to obtain a decision on the merits of his appeal and to prove his conviction was

unlawful.”

¶25. In the circuit court’s November 30, 2006 order, Jamison’s motion for an out-of-time

appeal was denied, and he did not appeal this ruling. The circuit court explained that

Jamison’s arguments regarding his original conviction and sentence “are nothing more than

a request for reconsideration of [the trial court’s] prior ruling.” We agree. Jamison attempts

to overcome the procedural bar by arguing his claims are excepted under section 99-39-5(2)

because they involve “newly discovered evidence” about his 2005 conviction—that there

was another witness at the hotel on the night Jamison committed the attempted robbery who

will prove he did not commit an overt act of robbery. However, Jamison does not offer any

proof beyond his own statements to further this claim, and thus he fails to demonstrate his

arguments should be excepted. Accordingly, the circuit court did not err in finding

Jamison’s arguments related to his 2005 conviction are procedurally barred.

IV. Sufficiency of the Evidence

¶26. Jamison argues there was insufficient evidence for his initial conviction of attempted

armed robbery in 2005. He claims there was no overt act indicating he intended to rob the

hotel, and no statement from the victim/hotel clerk. Additionally, Jamison contends the trial

court erred in allowing expert testimony about fingerprints found on the firearm in his

possession.

¶27. Claims regarding sufficiency of the evidence and expert testimony are typically raised

13
on direct appeal and not in post-conviction actions. Mississippi Code Annotated section 99-

39-3(2) (Rev. 2020) provides that direct appeals are “the principal means of reviewing all

criminal convictions and sentences.” Post-conviction proceedings “provide prisoners with

a procedure . . . to review those . . . issues or errors which in practical reality could not be

or should not have been raised at trial or on direct appeal.” Id. Jamison should have raised

these issues on direct appeal, but as discussed, Jamison did not file a direct appeal, and he

did not appeal the denial of his request to file an out-of-time appeal. Further, these issues

are not grounds for post-conviction relief as found in section 99-39-5(1). The evidence

Jamison provides is not new, and the expert-witness issue was not previously raised.

Moreover, there is no trial transcript included in the record; Jamison relies upon a post-trial

hearing transcript to support his expert-witness argument.

Conclusion

¶28. For the foregoing reasons, the circuit court did not err in dismissing Jamison’s PCR

motion.

¶29. AFFIRMED.

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

14