Allery Hopson a/k/a Allery Deljun Hopson a/k/a Allery D. Hopson v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-00861-COA

ALLERY HOPSON A/K/A ALLERY DELJUN APPELLANT
HOPSON A/K/A ALLERY D. HOPSON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/29/2019
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ALLERY HOPSON (PRO SE)
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
ASHLEY LAUREN SULSER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 06/30/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., WESTBROOKS AND LAWRENCE, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Appearing pro se, Allery D. Hopson appeals from the Union County Circuit Court’s

dismissal of his motion for post-conviction collateral relief (PCR). After a review of the

record, we affirm.

FACTS & PROCEDURAL HISTORY

¶2. On October 13, 2006, a Union County grand jury indicted Hopson for two counts of

robbery with a deadly weapon in violation of Mississippi Code Annotated section 97-3-79

(Rev. 2006) for the robbery of Michael and Heather Whittington. Prior to his indictment,

Hopson absconded; authorities issued a fugitive-from-justice warrant and ultimately
apprehended Hopson from the Shelby County Sheriff’s Office in Tennessee, where he had

been arrested for unrelated charges.

¶3. A September 17, 2014 order from the Union County Circuit Court reflects that

Hopson pled guilty to both counts of robbery as listed in his indictment. The court ordered

Hopson to serve thirty years in the custody of the Mississippi Department of Corrections

(MDOC) for each count, with five years suspended and five years of post-release supervision

for each respective sentence. On August 13, 2018, Hopson filed a PCR motion in the Union

County Circuit Court. Without holding a hearing, the court dismissed Hopson’s motion as

procedurally barred. From that dismissal, Hopson now appeals.

STANDARD OF REVIEW

¶4. We will not reverse a trial court’s dismissal of a PCR motion absent a finding that the

decision was clearly erroneous. McLaurin v. State, 114 So. 3d 811, 813 (¶4) (Miss. Ct. App.

2013) (citing Holloway v. State, 31 So. 3d 656, 657 (¶5) (Miss. Ct. App. 2010)). Where

issues of law are raised, we apply a de novo review. Rice v. State, 910 So. 2d 1163, 1164-65

(¶4) (Miss. Ct. App. 2005) (citing Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).

¶5. Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) provides, “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 and cause the petitioner to be notified.” On appeal, we will affirm the trial court’s

summary dismissal “if the movant fails to demonstrate a claim procedurally alive

substantially showing the denial of a state or federal right.” Dickens v. State, 119 So. 3d

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1141, 1143-44 (¶6) (Miss. Ct. App. 2013) (quoting Robinson v. State, 19 So. 3d 140, 142 (¶6)

(Miss. Ct. App. 2009)).

DISCUSSION

¶6. In the case of a guilty plea, a claim under Mississippi’s Uniform Post-Conviction

Collateral Relief Act (UPCCRA) must be raised within the three-year period following the

entry of the judgment of conviction, or it is barred. Miss. Code Ann. § 99-39-5(2) (Rev.

2015). Hopson filed the current PCR motion nearly four years after the entry of his guilty

plea and conviction for robbery; he acknowledges that his claims are untimely and would

ordinarily be time-barred. However, Hopson correct asserts that “[e]rrors affecting

fundamental constitutional rights are excepted from the procedural bars[.]” Rowland v. State,

42 So. 3d 503, 506 (¶9) (Miss. 2010). Hopson argues that the circuit court erred by

dismissing his PCR motion without reviewing its claims—all of which allege violations of

fundamental rights.

¶7. “[F]our 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.” Green v. State, 235 So. 3d 1438, 1441 (¶9) (Miss. Ct. App. 2017) (quoting

Salter v. State, 184 So. 3d 944, 950 (¶22) (Miss. Ct. App. 2015)). A review of the record

reveals that Hopson’s motion “fails to include any of the instances in which his case would

have been exempted from the three-year statute of limitations.” Campbell v. State, 194 So.

3d 204, 208 (¶15) (Miss. Ct. App. 2016) (citing Singleton v. State, 840 So. 2d 815, 818 (¶8)

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(Miss. Ct. App. 2003)).

I. Ineffective Assistance of Counsel

¶8. First, Hopson claims that he received ineffective assistance of counsel. Hopson

argues that his plea counsel abandoned his “required duty of loyalty to his client” and that

he “acted with reckless disregard for [Hopson’s] best interest” by failing to “uphold his duty

to make reasonable investigations or make a reasonable decision that makes particular

investigations unnecessary” and “allow[ing] [Hopson] to plea to an indictment that was

abandon[ed], as well as an illegal extradition.”

¶9. We note that “ineffective assistance of counsel [claims] are not [ordinarily] excepted

from the time-bar, even though these claims involve fundamental constitutional rights.” Goul

v. State, 223 So. 3d 813, 815 (¶6) (Miss. Ct. App. 2017) (citing Jones v. State, 174 So. 3d

902, 907 (¶12) (Miss. Ct. App. 2015)). However, in instances involving “extraordinary

circumstances,” claims for ineffective assistance of counsel are also excepted from the

procedural bars outlined in the UPCCRA. See Chapman v. State, 167 So. 3d 1170, 1174

(¶12) (Miss. 2015). Here, Hopson presents no such circumstances.

¶10. Procedural bar notwithstanding, Hopson provides no evidence to support his claim,

only the assertion stated in his briefs. “It is an appellant’s duty to justify his arguments of

error with a proper record, which does not include mere assertions in his brief, or the trial

court will be considered correct.” Bias v. State, 245 So. 3d 534, 538 (¶13) (Miss. Ct. App.

2017) (quoting Bass v. State, 888 So. 2d 1187, 1190 (¶14) (Miss. Ct. App. 2004)). Therefore,

we find this issue to be barred and without merit.

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II. Indictment

¶11. Hopson also submits that his original indictment for the robbery charges was resolved

by nolle prosequi. Hopson argues that the State failed to “re-indict” him following the nolle

prosequi and pursued his conviction under an invalid warrant in violation of his due process

rights.

¶12. Although, Hopson raises a facially colorable claim: “‘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) (quoting Stovall v. State, 873 So. 2d

1056, 1058 (¶7) (Miss. Ct. App. 2004)). Again, Hopson offers no evidence to support this

claim,1 and the “‘mere assertion of [a] constitutional right violation’ does not trigger the

exception.” Id. (citing Wicker v. State, 16 So. 3d 706, 708 (¶5) (Miss. Ct. App. 2009)). In the

absence of evidence to substantiate Hopson’s claim, we find this issue to be without merit.

III. Due Process

¶13. Finally, Hopson argues that he was denied due process when the authorities failed to

grant him an extradition hearing before his transfer from Shelby County, Tennessee, to Union

County, Mississippi. Hopson avers that he was entitled to a hearing pursuant to the Interstate

Agreement on Detainers (IAD) and that the counties’ non-compliance warranted dismissal

of his charges with prejudice. However, Mississippi is not a party to the IAD; therefore, its

provisions are rendered immaterial here and this claim fails. Gardner v. State, 57 So. 3d 688

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Hopson does cite to a document reflecting the disposition of the fugitive from justice
warrant, which was resolved by nolle prosequi on September 2, 2008, in Shelby County; the
document does not reflect any status or disposition related to Hopson’s robbery case.

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(Miss. Ct. App. 2011); Smothers v. State, 741 So. 2d 205, 206 (¶6) (Miss. 1999).

CONCLUSION

¶14. Hopson admittedly filed the current PCR motion outside of the parameters allowed

by the UPCCRA. Hopson claims that the issues raised in the motion should be excepted

from procedural bars, but he fails to provide evidence in support of his contentions.

Accordingly, and for the reasons stated above, we affirm the circuit court’s dismissal of

Hopson’s PCR motion.

¶15. AFFIRMED.

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

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