Avara v. State
| Docket Number: | 2006-CP-00813-COA Linked Case(s): 2006-CP-00813-COA ; 2006-CT-00813-SCT ; 2006-CT-00813-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-25-2007 Opinion Author: CARLTON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Time bar - Successive writ Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: PCR; Dismissal Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 04-18-2006 Appealed from: PIKE COUNTY CIRCUIT COURT Judge: Mike Smith Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED Case Number: 99-169-KB |
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| Party Name: | Attorney Name: | |||
| Appellant: | JAMES HERMAN AVARA |
JAMES HERMAN AVARA (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS |
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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 |
| Summary of the Facts: | James Avara was convicted of murder and sentenced to life. Avara filed a petition for an out-of-time appeal which was denied. Six years later, Avara filed a motion for records and transcripts seeking post-conviction relief which was dismissed. Avara appeals. |
| Summary of Opinion Analysis: | Avara was convicted and sentenced in May 1999. He filed his motion for post-conviction relief on March 21, 2006, nearly seven years after his conviction. Avara argues that the circuit court should have considered his appeal in light of newly discovered evidence which was not reasonably discoverable at the time of his trial in 1999. The evidence Avara claims to be newly discovered is an evidence submission form for the Mississippi Crime Laboratory listing the victim as Mamie Avara and the offense as suicide. The same form, however, names the suspect as James Avara. The medical examiner, whom Avara credits for gathering the information in the form, testified at Avara’s trial, and Avara’s attorney cross-examined him. Therefore, Avara’s claim of newly discovered evidence would not have caused a different result in conviction or at sentencing. Avara also argues that his attorney’s failure to obtain the autopsy report or to present it to the jury during trial constituted ineffective assistance of counsel. Avara’s claim of ineffective assistance of counsel does not fall within any of the exceptions to the three-year statute of limitations for post-conviction relief. His motion for post-conviction relief was time-barred and was a successive writ. |
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