287 So.3d 258
Miss. Ct. App.2019Background
- In 1997 Kennedy was indicted for capital murder; in 1998 he pleaded guilty to the lesser offense of murder and received a life sentence after the State recommended life and agreed to remand other charges.
- Kennedy filed prior post-conviction-relief (PCR) motions in 1998 and 2001; a 2002 order denied relief. He filed a third PCR motion on December 16, 2013.
- The circuit court signed an order denying the 2013 PCR on August 29, 2014, but the order was not docketed/entered until October 13, 2015; Kennedy pursued mandamus and motions seeking to reopen appeal time and sanctions in the Mississippi Supreme Court.
- The circuit court denied the 2013 PCR as without merit; the Court of Appeals was instructed by the Mississippi Supreme Court to address the merits of Kennedy’s December 2013 PCR.
- The court analyzed procedural bars under Mississippi’s Uniform Post-Conviction Collateral Relief Act (UPCCRA): the three-year time bar for PCR after a guilty plea and the successive-writ bar, and whether Kennedy established any statutory or fundamental-right exceptions.
- The court concluded Kennedy’s 2013 PCR was time-barred and successive-writ barred, and that he failed to overcome those bars with competent evidence on ineffective assistance, involuntary plea (parole misinformation), recanted testimony/actual innocence, or vagueness of sentencing statutes.
Issues
| Issue | Plaintiff's Argument (Kennedy) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Timeliness / successive-writ bars | 2013 PCR is timely because circuit court delayed entry of denial and equitable relief/reopening warranted | UPCCRA three-year time limit and successive-writ bar apply; procedural requirements not met | Denied — PCR was filed >3 years after conviction and was successive; Kennedy failed to prove an exception |
| Ineffective assistance / involuntary plea (parole misinformation) | Counsel promised parole/assured lesser punishment; plea was coerced/involuntary | Plea petition and plea colloquy show Kennedy was informed and swore he was not promised parole; allegations unsupported by proper affidavits | Denied — conclusory/self-affidavit evidence insufficient; plea was knowing, voluntary, and intelligent |
| Recanted testimony / actual innocence (Sutton affidavit) | Sutton later swore Kennedy was not at scene; this is newly discovered/recanted evidence warranting hearing | Sutton’s affidavit post-dates plea; Kennedy admitted guilt at plea; newly discovered-evidence rule typically inapplicable after guilty plea | Denied — plea admission negates newly discovered-evidence claim; prerequisites not met |
| Statutes void for vagueness / illegal sentence (parole eligibility) | Sections governing murder and parole were vague; led to reasonable belief he was parole-eligible | Statutory language plainly foreclosed parole eligibility for life sentences as applied; 2013 legislative change is not a judicial "intervening decision" | Denied — statutes are unambiguous as applied; no intervening-court decision shown to overcome procedural bars |
Key Cases Cited
- Ware v. State, 258 So. 3d 315 (Miss. Ct. App. 2018) (standard of review for denial of PCR)
- Hughes v. State, 106 So. 3d 836 (Miss. Ct. App. 2012) (standard for appellate review of PCR)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance-of-counsel test)
- Rowland v. State, 42 So. 3d 503 (Miss. 2010) (procedural bars inapplicable to certain fundamental constitutional errors)
- Johnson v. State, 39 So. 3d 963 (Miss. Ct. App. 2010) (newly discovered-evidence rule and effect of guilty pleas)
- Wilcher v. State, 863 So. 2d 719 (Miss. 2003) (requirement that affidavits be sworn/notarized to support PCR claims)
- Moore v. State, 248 So. 3d 845 (Miss. Ct. App. 2017) (parole misinformation standards in plea context)