McLamb v. State
| Docket Number: | 2007-CP-00496-COA Linked Case(s): 2007-CP-00496-SCT ; 2007-CP-00496-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-29-2008 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Time bar - Successive writ - Sanction - Section 47-5-138(3) Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Judge(s) Concurring Separately: King, C.J., specially concurs with separate written opinion Procedural History: Dismissal; PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 11-15-2006 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: POST-CONVICTION RELIEF DISMISSED Case Number: 2006-305-R |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JAMES ODELL MCLAMB |
JAMES ODELL MCLAMB (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Time bar - Successive writ - Sanction - Section 47-5-138(3) |
| Summary of the Facts: | Incident to his 1981 conviction for armed robbery and his sentence as a habitual offender, James McLamb filed a pro se Emergency Motion for State Habeas Corpus. The circuit court treated McLamb’s motion as a petition for post-conviction collateral relief and dismissed McLamb’s motion for lack of jurisdiction. McLamb appeals. |
| Summary of Opinion Analysis: | McLamb argues that the court erred when it dismissed his motion. McLamb’s petition is time-barred. McLamb’s time to raise this issue expired in 1985. Moreover, nothing would have prevented McLamb from arguing the merits of his appeal, as the habitual offender statutes predated the conviction for which he was sentenced as a habitual offender. McLamb claimed he could not be found to be a habitual offender incident to convictions from 1965 and 1970 because the habitual offender act was not written into law until 1977. McLamb suggested that his sentence as a section 99-19-81 habitual offender was improper pursuant to the constitutional prohibition against ex post facto laws. McLamb’s argument is also barred pursuant to the prohibition against successive writs. He is also barred because he failed to obtain the Mississippi Supreme Court’s permission before he filed his petition. There is a three-part test involved in determining whether a case brought in forma pauperis should be dismissed as frivolous: whether it has a realistic chance of success; whether it presents an arguably sound basis in fact and law; and whether the proponent can prove any set of facts that would warrant relief. McLamb’s motion never had a realistic chance of success. It was time-barred, barred as a successive writ, barred because he failed to seek the requisite permission to file, and it was filed in the wrong court. Not only that, McLamb failed to present an arguably sound basis for his argument in fact or law. Although McLamb has no earned time subject to sanction under section 47-5-138(3), he should be aware of potential outcomes in the event that he considers filing additional actions in the future. |
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