Patrick Dantre Fluker v. State of Mississippi , 270 So. 3d 15 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-CP-00734-COA
PATRICK DANTRE FLUKER A/K/A PATRICK APPELLANT
D. FLUKER A/K/A PATRICK FLUKER
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/12/2017
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PATRICK DANTRE FLUKER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 07/17/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. In 2007, Patrick Fluker pled guilty to armed robbery. The circuit court sentenced him
to twenty years in the custody of the Mississippi Department of Corrections, with five years
suspended and fifteen years to serve, and ordered the sentence to run consecutively to a
sentence that Fluker was serving on a 2003 armed robbery conviction. Fluker has since filed
at least four motions for post-conviction relief (PCR) related to his 2007 conviction. All of
his motions have been denied, and the denials have been affirmed when appealed. See
Fluker v. State, 17 So. 3d 181 (Miss. Ct. App. 2009); Fluker v. State, 191 So. 3d 127 (Miss.
Ct. App. 2016), cert. denied, 203 So. 3d 600 (Miss. 2016); see also Fluker v. State, 200 So.
3d 1148 (Miss. Ct. App. 2016) (affirming the dismissal of Fluker’s complaint seeking parole
eligibility on his 2007 conviction), cert. denied, 214 So. 3d 1058 (Miss. 2017); Fluker v.
State, 2 So. 3d 717 (Miss. Ct. App. 2008) (affirming the denial of PCR on Fluker’s 2003
conviction); Fluker v. State, 170 So. 3d 517 (Miss. Ct. App. 2014) (same), aff’d, 170 So. 3d
471 (Miss. 2015) (same); Fluker v. State, 210 So. 3d 1062 (Miss. Ct. App. 2015) (same),
cert. denied, 202 So. 3d 209 (Miss. 2016). In the PCR motion that is the subject of this
appeal, Fluker alleges that (1) he was denied a speedy trial; (2) his plea was involuntary; (3)
he was denied the effective assistance of counsel; and (4) the circuit court lacked “subject
matter jurisdiction” because “the State repealed its boundaries.”1 He also alleges that his
motion is not subject to the procedural bars of the Uniform Post-Conviction Collateral Relief
Act (UPCCRA) because his claims involve “fundamental constitutional rights.” The circuit
court denied Fluker’s motion as procedurally barred. Fluker then appealed.
¶2. We affirm. This is at least the fourth PCR motion that Fluker has filed related to his
2007 conviction. The UPCCRA bars such successive motions. Miss. Code Ann. § 99-39-
23(6) (Rev. 2015) (providing that an order denying a PCR motion “shall be conclusive until
reversed” and “shall be a bar to a second or successive [PCR] motion”). In addition, Fluker
filed the motion ten years after he pled guilty. Therefore, the motion is also untimely. Miss.
1
This Court has held “that Mississippi still possesse[d] sovereign state power” and
that our courts still had jurisdiction notwithstanding the boundary repeal that Fluker alleges.
Carlock v. Carlock, 743 So. 2d 424, 425 (¶¶3-5) (Miss. Ct. App. 1999). Congress has the
unquestioned power to set state boundaries, which remained in effect at all times. See United
States v. Louisiana, 363 U.S. 1, 35 (1960).
2
Code Ann. § 99-39-5(2) (Rev. 2015) (providing that a PCR motion must be filed within three
years after a judgment of conviction entered on a guilty plea). None of the issues raised in
Fluker’s motion involve “fundamental rights” that are excepted from the UPCCRA’s
procedural bars. See Green v. State, 235 So. 3d 1438, 1440 (¶9) (Miss. Ct. App. 2018)
(listing “fundamental rights” that are excepted from the Act’s procedural bars). A petitioner
cannot avoid the Act’s procedural bars simply by asserting that “fundamental rights” are at
stake when, as in this case, there is no evidence to support such a claim. We made the same
point when we affirmed the denial of one of Fluker’s prior PCR motions two years ago.
Fluker, 191 So. 3d at 129 (¶6). For these reasons, we affirm the circuit court’s order denying
Fluker’s PCR motion.
¶3. We also conclude that Fluker’s motion and appeal are frivolous because his claims
had no hope of success and no basis in fact or law. See Dock v. State, 802 So. 2d 1051, 1056
(¶11) (Miss. 2001). Clearly, Fluker’s motion is procedurally barred, and he fails to identify
any arguable exception to the procedural bars. Moreover, Fluker unsuccessfully litigated
claims alleging an involuntary plea and ineffective assistance in at least one prior PCR
motion. See Fluker, 17 So. 3d at 182 (¶2). Finally, our Supreme Court has long held that a
defendant waives his right to a speedy trial by pleading guilty. Anderson v. State, 577 So.
2d 390, 391-92 (Miss. 1991). Because his motion and appeal are frivolous, Fluker shall
forfeit earned time pursuant to Mississippi Code Annotated section 47-5-138(3) (Rev. 2015).
See Dock, 802 So. 2d at 1056 (¶11) (“Sections 47-5-138(3)(a) and (b) are fully applicable
3
against pro se litigants who seek post-conviction relief.”); McLamb v. State, 974 So. 2d 935,
939 (¶17) (Miss. Ct. App. 2008) (“The circuit court did not sanction [the petitioner] pursuant
to section 47-5-138(3), but the statute does not limit such a finding to the trial court.”). This
opinion shall be sent to the Department of Corrections, and the Department shall forfeit
earned time as provided in section 47-5-138(b).2
¶4. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
2
This action is also deemed frivolous for purposes of Mississippi Code Annotated
section 47-5-76 (Rev. 2015), which governs in forma pauperis filings by inmates.
4