Barron Borden v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-CP-00558-COA

BARRON BORDEN A/K/A BARRON LECOUR APPELLANT
BORDEN A/K/A BAM

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/01/2014
TRIAL JUDGE: HON. DALE HARKEY
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: BARRON BORDEN (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DISMISSED
DISPOSITION: AFFIRMED - 09/29/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

BARNES, J., FOR THE COURT:

¶1. Barron Borden, Eddie Pugh, and Torenda Whitmore were indicted for the capital

murder of Kelsey McCoy, with the underlying felony of kidnapping; aggravated assault of

Rahman Mogilles; and third-degree arson of Mogilles’s vehicle. On October 8, 2008,

Borden and Pugh were convicted in the United States District Court for the District of

Southern Mississippi of the following federal offenses: (1) conspiring to commit

kidnapping; (2) kidnapping and aiding and abetting the kidnapping of McCoy; (3)

kidnapping and the aiding and abetting of the kidnapping of Mogilles; (4) felon in possession
of a firearm; and (5) possession of a firearm in connection with a crime of violence. See

United States v. Pugh, No. 1:08-CR-00130-WJG-RHW, 2009 WL 2928757, at *1 (S.D.

Miss. Sept. 11, 2009). Both Borden and Pugh were sentenced to life imprisonment, plus five

years.1

¶2. On January 6, 2011, Borden entered a guilty plea in the Jackson County Circuit Court

to capital murder and an Alford plea to third-degree arson.2 He was sentenced on January 14,

2011, to life imprisonment without parole for capital murder and to three years imprisonment

for arson, with the sentences to run concurrently. Borden’s Mississippi convictions were to

run consecutively to his federal sentences.

¶3. Borden filed a motion for post-conviction relief (PCR) on January 24, 2012, which

asserted that (1) his counsel’s performance was ineffective; (2) his plea was not voluntarily,

knowingly, and intelligently given; (3) he was legally innocent; and (4) there was no factual

basis to support his guilty plea and Alford plea. The circuit court denied the PCR motion,

and on appeal, this Court affirmed the judgment. Borden v. State, 122 So. 3d 818, 825 (¶29)

(Miss. Ct. App. 2013).

¶4. Borden filed a Request for Relief from Judgment Under Rule 60(b)(b), on February

1
After a jury trial in Jackson County Circuit Court, Pugh was convicted of capital
murder, aggravated assault, and third-degree arson, for which he received consecutive
sentences of life for capital murder, twenty years for aggravated assault, and three years for
third-degree arson. This Court affirmed these convictions in Pugh v. State, 101 So. 3d 682
(Miss. Ct. App. 2012).
2
In North Carolina v. Alford, 400 U.S. 25, 37 (1970), the Supreme Court ruled that
a defendant may plead guilty, without admitting to the actual guilt of the charged crime, in
order to avoid conviction and a potentially harsher sentence at trial.

2
14, 2014, claiming he was subjected to double jeopardy, as he was convicted for the same

crime in both federal and state jurisdictions, and his counsel was ineffective for failing to

raise this issue. Treating the request as a PCR motion, the circuit court dismissed it as a

successive writ on April 1, 2014.

¶5. Finding that the issues raised by Borden on appeal have no merit, we affirm the circuit

court’s dismissal of Borden’s motion.

DISCUSSION

¶6. Borden argues that the circuit judge erred in dismissing his PCR motion as a

successive writ. A circuit court’s dismissal or denial of a PCR motion is reviewed for abuse

of discretion. Hughes v. State, 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012). A circuit

court “may summarily dismiss a PCR motion where ‘it plainly appears from the face of the

motion, any annexed exhibits and the prior proceedings in the case that the movant is not

entitled to any relief.’” Id. at 838-39 (quoting Miss. Code Ann. § 99-39-11(2) (Supp. 2010)).

“We will only reverse if the [circuit] court’s decision is clearly erroneous.” Id. at 838 (citing

Crosby v. State, 16 So. 3d 74, 77 (¶5) (Miss. Ct. App. 2009)). Questions of law are reviewed

de novo. Id. (citing Williams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004)).

¶7. Mississippi Code Annotated section 99-39-23(6) (Supp. 2014) states that an order

“dismissing the petitioner’s motion or otherwise denying relief . . . is a final judgment and

shall be conclusive until reversed. It shall be a bar to a second or successive motion under

this article.” Borden does not dispute on appeal that his PCR motion is a successive writ.

However, he contends that his state convictions for capital murder while in the commission

3
of kidnapping and arson subjected him to double jeopardy, a fundamental right that excepts

his claims from any procedural bars. See Rowland v. State, 42 So. 3d 503, 507-508 (¶¶12,

14) (Miss. 2010) (holding fundamental rights, such as double jeopardy, “are excepted from

the procedural bars of the [Uniform Post-Conviction Collateral Relief Act]”).3 His reasoning

is that he already had been convicted in federal court for the same offenses.

¶8. We find no merit to Borden’s claim that his Mississippi convictions subjected him to

double jeopardy. The Mississippi Supreme Court has held that the “principles of dual

sovereignty will not bar a subsequent state prosecution following a federal conviction.”

Evans v. State, 725 So. 2d 613, 659 (¶172) (Miss. 1997).

The Dual Sovereignty doctrine recognizes that more than one offense results
where a single criminal act violates the laws of more than one State or a State
and the Federal Government. When such is the case, the defendant is not
subjected to double jeopardy in successive prosecutions by the separate
sovereigns for the same criminal act.

Brown v. State, 731 So. 2d 595, 600 (¶12) (Miss. 1999) (citing Heath v. Alabama, 474 U.S.

82, 86 (1985)). Therefore, “a defendant can be prosecuted in both sovereigns for the same

criminal act emanating from a common nucleus of facts, without running afoul of double

jeopardy.” Maston v. State, 802 So. 2d 186, 188 (¶10) (Miss. Ct. App. 2001).

3
Borden’s motion is also subject to the three-year time-bar. See Miss. Code Ann. §
99-39-5(2) (Supp. 2014) (“A motion for relief under this article shall be made. . . . in [the]
case of a guilty plea, within three (3) years after entry of the judgment of conviction.”). We
acknowledge that the reason for the delay appeared to be because Borden was awaiting the
outcome of his first appeal to this Court before filing his motion for relief. (The mandate
was issued on February 11, 2014, and Borden filed his request for relief on February 14,
2014.) Regardless, this procedural bar is governed by the same analysis as the successive-
writ bar.

4
¶9. While the acts committed by Borden arose from of the same set of facts and

circumstances, they constitute violations of the laws of two separate sovereigns. Therefore,

there was no violation of Borden’s fundamental right against double jeopardy.

¶10. Borden’s remaining claim is that counsel was ineffective for failing to “raise the

double[-]jeopardy defense.” As we have found Borden’s double-jeopardy claim to be

without merit, we decline to address this issue on appeal. See Fair v. State, 102 So. 3d 1165,

1168 n.3 (Miss. Ct. App. 2012) (declining to address argument that “counsel rendered

ineffective assistance by advising [defendant] to plead guilty to a multi-count indictment that

subjected him to double jeopardy,” as there was no merit to underlying claim of double

jeopardy).

¶11. Accordingly, we find that the circuit court did not err in dismissing Borden’s PCR

motion.

¶12. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL,
FAIR, JAMES AND WILSON, JJ., CONCUR.

5