Russell v. State
| Docket Number: | 2010-CP-00870-COA Linked Case(s): 2010-CP-00870-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-07-2011 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Validity of search warrant - Newly discovered evidence - Frivolous motion Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee and Roberts, JJ. Non Participating Judge(s): Russell, J. Concurs in Result Only: Carlton, J. Without Separate Written Opinion Procedural History: Dismissal; PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 05-12-2010 Appealed from: Wayne County Circuit Court Judge: Robert Bailey Disposition: Motion for Post-Conviction Relief Dismissed Case Number: CV-2010-117-B |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Fredrick Russell |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS | ||
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 - Validity of search warrant - Newly discovered evidence - Frivolous motion |
| Summary of the Facts: | Fredrick Russell pled guilty to intent to distribute marijuana and was sentenced to eight years’ imprisonment. He filed a motion for post-conviction relief which was denied. The denial was affirmed on appeal. He filed another motion for post-conviction relief between the submission of the first motion and the appellate decision. The circuit court dismissed this motion with prejudice. Russell appeals. |
| Summary of Opinion Analysis: | A voluntary guilty plea waives a movant’s constitutional right to challenge the validity of the search or seizure. So Russell is procedurally barred from arguing that a discrepancy in the affidavit in support of the search warrant was newly discovered evidence. In addition, the inconsistency, by itself, shows neither a knowing or reckless disregard for the truth. Thus, his present motion is barred as a successive writ. Russell also argues the circuit judge abused his discretion by deeming his second motion frivolous. When determining the frivolousness of a case brought in forma pauperis, courts must ask does the complaint have a realistic chance of success; does it present an arguably sound basis in fact and law; and can the complainant prove any set of facts that would warrant relief. Russell entered a voluntary guilty plea, which waived his right to challenge the search warrant. This is Russell’s second PCR motion. And aside from the waiver and procedural bar, his present PCR motion offers nothing more than conclusory allegations framed as newly discovered evidence. Because his subsequent attack had no realistic chance of success, was not premised upon an arguably sound basis in fact and law, and sets forth no facts that would warrant relief, the circuit court did not abuse its discretion in deeming the PCR motion frivolous. |
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