Ace Joe Mallard a/k/a Ace J. Mallard v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CP-01155-COA

ACE JOE MALLARD A/K/A ACE J. MALLARD APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/21/2023
TRIAL JUDGE: HON. CLAIBORNE McDONALD
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ACE JOE MALLARD (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: CASEY BONNER FARMER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 10/29/2024
MOTION FOR REHEARING FILED:

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

SMITH, J., FOR THE COURT:

¶1. On February 24, 2023, Ace Joe Mallard filed his second motion seeking post-

conviction collateral relief (PCR) from his December 3, 2020 conviction and sentence for

second-degree murder. Finding that Mallard’s PCR motion was barred as successive and

failed to meet any statutory exceptions, the Lamar County Circuit Court entered an order

denying Mallard’s second PCR motion. Because we find no error, we affirm the circuit

court’s order.

FACTS

¶2. “On November 18, 2020, Mallard pled guilty to the charge of second-degree murder.”

Mallard v. State, 362 So. 3d 88, 90 (¶5) (Miss. Ct. App. 2023). During the plea proceedings,
Mallard acknowledged his understanding that he was entering an open plea “in which the

State made no recommendation as to his sentence.” Id. Following the entry of Mallard’s

guilty plea and a subsequent sentencing hearing, the circuit court entered an order on

December 3, 2020, sentencing Mallard to serve forty years in the custody of the Mississippi

Department of Corrections without eligibility for parole. Id. at (¶¶5-7).

¶3. On May 11, 2021, Mallard filed his first PCR motion. Id. at (¶8). He asserted that

his statutory right to a speedy trial had been violated and that the sentence provided in the

order of conviction conflicted with the sentence reflected in the sentencing-hearing

transcript. Id. After an evidentiary hearing on Mallard’s claims, the circuit court denied

Mallard’s PCR motion. Id. at 91 (¶12). On appeal, this Court addressed the merits of

Mallard’s claims and affirmed the circuit court’s order denying Mallard’s PCR motion. Id.

at 93 (¶21).

¶4. On February 24, 2023, Mallard filed his second PCR motion. He first contended that

his guilty plea was involuntary because the prosecution had failed to prove a factual basis for

the charge. Mallard next alleged that his trial attorney had improperly induced him to plead

guilty. Finally, Mallard reasserted his claim that the sentence provided in the order of

conviction conflicted with the sentence reflected in the sentencing-hearing transcript. The

circuit court found that Mallard’s present PCR motion was barred as successive, failed to

meet any exceptions to the statutory bar, and alternatively failed on the merits. The circuit

court therefore denied Mallard’s instant PCR motion. Aggrieved, Mallard appeals.

STANDARD OF REVIEW

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¶5. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will only

disturb the circuit court’s decision if it is clearly erroneous; however, we review the circuit

court’s legal conclusions under a de novo standard of review.” Mallard, 362 So. 3d at 91

(¶13) (quoting Tingle v. State, 285 So. 3d 708, 710 (¶8) (Miss. Ct. App. 2019)).

DISCUSSION

¶6. As discussed, Mallard’s present appeal arises from the circuit court’s order denying

his second PCR motion. The Uniform Post-Conviction Collateral Relief Act (UPCCRA)

“bars PCR motions from this Court’s review if the movant has filed a previous PCR motion.”

Hughes v. State, 360 So. 3d 657, 660 (¶9) (Miss. Ct. App. 2023) (quoting Porter v. State, 281

So. 3d 935, 938 (¶12) (Miss. Ct. App. 2019)); accord Miss. Code Ann. § 99-39-23(6) (Rev.

2020). As the PCR movant, Mallard “bears the burden of proving by a preponderance of the

evidence that his claim is not . . . barred as a successive writ.” Mangum v. State, 333 So. 3d

634, 638 (¶16) (Miss. Ct. App. 2022) (quoting O’Neal v. State, 281 So. 3d 274, 278 (¶13)

(Miss. Ct. App. 2019)).

¶7. In his attempt to circumvent the successive-motions bar, Mallard asserts that the

fundamental-rights exception applies to his claims and that he has newly discovered evidence

that would have changed the outcome of any trial proceedings. The Mississippi Supreme

Court recently held, however, that the fundamental-rights exception no longer applies to

overcome the UPCCRA’s statutory bars. Howell v. State, 358 So. 3d 613, 615-16 (¶¶8, 12)

(Miss. 2023). Thus, Mallard’s argument that the fundamental-rights exception prevents his

claims from being statutorily barred must fail.

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¶8. Included among the UPCCRA’s exceptions to the successive-motions bar is the

exception for newly discovered evidence. This exception applies when a movant

demonstrates “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). With regard to this exception, Mallard contends in his appellate brief that his trial

attorney improperly induced him to plead guilty to second-degree murder by telling him that

“there was no evidence in the discovery that supported” his claim of self-defense. Mallard

contends, though, that while reviewing the discovery in his case for the first time after his

conviction, he discovered a photograph of a knife in a kitchen sink. According to Mallard,

the knife constitutes proof of his self-defense theory.

¶9. Despite Mallard’s claims, the photograph of the knife does not qualify as newly

discovered evidence under section 99-39-23(6). First, as Mallard himself admits, the

photograph was available during discovery, and he failed to show that through “the exercise

of due diligence,” the evidence “could not have been discovered” before he entered his guilty

plea. Malone v. State, 379 So. 3d 388, 396 (¶17) (Miss. Ct. App. 2024) (discussing the proof

a movant must provide to prevail on a claim of newly discovered evidence). Moreover, as

the State points out, “the knife alone does not prove [Mallard’s] self-defense claim.” As a

result, the evidence showing the knife in the kitchen sink fails to constitute “practically

conclusive [evidence] that, if it had been introduced at trial, . . . would have caused a

different result in the conviction or sentence.” Miss. Code Ann. § 99-39-23(6). We therefore

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conclude that the UPCCRA’s exception for newly discovered evidence fails to apply to

Mallard’s claim.

¶10. In addition to his allegation that his trial attorney improperly induced his guilty plea,

Mallard renews the other two arguments made in his second PCR motion. These arguments

include claims that his guilty plea was involuntary because the State failed to prove a factual

basis for second-degree murder and that the sentence from his order of conviction conflicted

with the sentence reflected in the sentencing-hearing transcript. Not only does Mallard fail

to prove by a preponderance of the evidence that a recognized exception to the successive-

motions bar applies to these claims, but the record clearly reflects that he previously raised

the issue of the alleged sentencing conflict in his first PCR motion.

¶11. On appeal from the circuit court’s order denying Mallard’s first PCR motion, we

considered the merits of Mallard’s argument regarding the alleged conflict between his order

of conviction and sentencing-hearing transcript and found that “overwhelming” record

evidence supported the circuit court’s decision to deny Mallard’s claim. Mallard, 362 So.

3d at 93 (¶20). Because Mallard’s current PCR motion is successive and because he either

has failed to prove that an exception to the statutory bar applies or has requested relief on

grounds already denied by this Court, we find no error in the circuit court’s order denying

Mallard’s second PCR motion.

¶12. In affirming the circuit court’s order denying Mallard’s current PCR motion as

successive, we acknowledge that Mallard has asserted additional issues on appeal that he

failed to raise before the circuit court. Our caselaw is well settled that this Court will “not

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entertain arguments made for the first time on appeal[,] as the case must be decided on the

facts contained in the record and not on assertions in the briefs.” Smith v. State, 385 So. 3d

879, 883 (¶10) (Miss. Ct. App. 2024) (quoting Mitchell v. Miss. Dep’t of Emp. Sec., 348 So.

3d 1030, 1034 (¶13) (Miss. Ct. App. 2022)). As a result, we decline to further address the

issues that Mallard raises for the first time on appeal.

CONCLUSION

¶13. Upon review, we find no error. We therefore affirm the circuit court’s order denying

Mallard’s second PCR motion as successive.

¶14. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., LAWRENCE, McCARTY
AND EMFINGER, JJ., CONCUR. WESTBROOKS, J., CONCURS IN RESULT
ONLY WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., CONCURS
IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
WEDDLE, J., NOT PARTICIPATING.

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