Duncan v. State


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Docket Number: 2011-CP-00354-COA
Linked Case(s): 2011-CP-00354-COA ; 2011-CT-00354-SCT

Court of Appeals: Opinion Link
Opinion Date: 05-15-2012
Opinion Author: Carlton, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Time bar - Successive writ
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ.
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 02-08-2011
Appealed from: Washington County Circuit Court
Judge: W. Ashley Hines
Disposition: DISMISSED MOTION FOR POST-CONVICTION RELIEF
Case Number: 2005-24

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Wendell Duncan a/k/a Wendell Avery Duncan




PRO SE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT  

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Topic: Post-conviction relief - Time bar - Successive writ

Summary of the Facts: In 1994, Wendall Duncan was convicted of conspiracy and burglary of a business. He was sentenced as a habitual offender to five years for the conspiracy count and seven years for the burglary-of-a-business count. Duncan failed to file a direct appeal of the conviction. Duncan was convicted of armed robbery in March 1995. The circuit judge sentenced Duncan as a non-habitual offender to thirty years. Duncan filed his first motion for post-conviction relief challenging his conspiracy and burglary-of-a-business convictions in early 1996. The court dismissed his motion, and the Mississippi Supreme Court affirmed. Beginning in early 2005, Duncan began filing numerous motions and other documents with both the trial court and the Supreme Court. At one point, the Supreme Court sanctioned Duncan for frivolous filings, barring Duncan from filing anything in the Supreme Court until he has paid the sanctions already imposed. In 2008, Duncan filed a motion to vacate his convictions and sentences. The trial court dismissed Duncan's motion for relief, which the court treated as a motion for PCR, as time-barred and successive-writ barred. The Court of Appeals affirmed. In 2011, the Mississippi Supreme Court dismissed Duncan's motion for leave to proceed in the trial court. Nonetheless, Duncan filed a motion to correct sentence in the circuit court, which the circuit judge treated as a motion for PCR. The circuit judge dismissed Duncan's motion, and Duncan appeals.

Summary of Opinion Analysis: Duncan argues that his twelve-year sentence as a habitual offender for conspiracy and burglary of a business was unlawful. Duncan’s third motion for PCR, where he seeks to vacate the same convictions and sentence as in his two previous motions for PCR, constitutes a procedurally-barred successive writ. In addition, it is time barred.


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