Gray v. State


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Docket Number: 2009-CP-00986-COA

Court of Appeals: Opinion Link
Opinion Date: 05-11-2010
Opinion Author: Lee, P.J.
Holding: Affirmed.

Additional Case Information: Topic: Post-conviction relief - Time bar - Recusal of judge - Newly discovered evidence - Voluntariness of plea - Section 99-39-9(2) - Ineffective assistance of counsel - Section 99-19-81
Judge(s) Concurring: King, C.J., Myers, P.J., Griffis, Barnes, Ishee, Roberts and Maxwell, JJ.
Non Participating Judge(s): Carlton, J.
Concurs in Result Only: Irving, J.
Procedural History: PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 05-27-2009
Appealed from: SIMPSON COUNTY CIRCUIT COURT
Judge: Robert G. Evans
Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED
Case Number: 9081 & 7741

Note: Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down.

  Party Name: Attorney Name:  
Appellant: Robert L. Gray




ROBERT L. GRAY (PRO SE)



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND  

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Topic: Post-conviction relief - Time bar - Recusal of judge - Newly discovered evidence - Voluntariness of plea - Section 99-39-9(2) - Ineffective assistance of counsel - Section 99-19-81

Summary of the Facts: Robert Gray pled guilty to armed robbery. He was sentenced as a habitual offender to serve twenty-five years without eligibility for parole or probation. He filed a motion for post-conviction relief and a motion for recusal as the judge was the district attorney at the time Gray pleaded guilty to two counts of forgery. The judge denied both motions, and Gray appeals.

Summary of Opinion Analysis: The judgment of conviction and sentence was entered October 5, 1995. Gray’s motion for post-conviction relief was filed on April 7, 2009. Gray’s motion for post-conviction relief is clearly time-barred. Gray argues that the trial judge should have recused because he was the district attorney at the time Gray pleaded guilty in 1988 to two counts of forgery. The fact that the judge prosecuted Gray in 1988, without more, does not overcome the presumption of impartiality or require recusal. Gray also argues that newly discovered evidence could have affected his habitual offender status. Gray now presents an affidavit from a witness stating that he was never contacted by the State about one of Gray’s forgery convictions. However, the witness does not claim that the forgery never occurred. This evidence is irrelevant. Gray argues that his guilty plea was involuntary. However, Gray’s focus is on his 1988 forgery guilty pleas. Pursuant to section 99-39-9(2), a prisoner cannot attack two judgments in one motion for post-conviction relief. Gray argues that his trial counsel was ineffective, because his trial counsel should have investigated the prior convictions used for habitual-offender status. However, the prior convictions were sufficient to meet the requirements of section 99-19-81.


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