King v. Thigpen
| Decision Date | 14 December 1983 |
| Docket Number | No. 53027,53027 |
| Citation | 441 So.2d 1365 |
| Parties | Mack Arthur KING v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections, et al. |
| Court | Mississippi Supreme Court |
Wilbur O. Colom, Colom, Mitchell & Colom, Columbus, James E. Rocap, III, Washington, D.C., for appellant.
Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellees.
ON APPLICATION FOR LEAVE TO FILE A PETITION FOR WRIT OF ERROR CORAM NOBIS 1
EN BANC.
On December 4-5, 1980, Mack Arthur King was tried, convicted and sentenced to suffer death in the manner provided by law in the Circuit Court of Lowndes County, Mississippi. On October 27, 1982, the Supreme Court of Mississippi affirmed the conviction and sentence. King v. State, 421 So.2d 1009 (Miss.1982). On December 1, 1982, the Supreme Court of Mississippi denied petitioner's petition for rehearing. On January 31, 1983, petitioner's family filed in the United States Supreme Court a petition for a writ of certiorari to the Supreme Court of Mississippi. On May 2, 1983, that petition was denied. Petitioner's execution date was scheduled for July 13, 1983, but was stayed pending disposition of this application for leave to file a petition for writ of error coram nobis in the Circuit Court of Lowndes County, Mississippi.
King's application for leave to file a petition for writ of error coram nobis asserts that it should be granted for the following reasons:
A.
THE FAILURE TO INSTRUCT THE JURY THAT IT COULD IMPOSE A LIFE
OUTWEIGHED THE MITIGATING CIRCUMSTANCES
VIOLATED PETITIONER'S
CONSTITUTIONAL RIGHTS.
This proposition was presented in part by appellant's proposition three of appellant's brief on direct appeal to this Court from his conviction and sentence and the Court found no merit to the contention as presented. Thereafter, his petition for rehearing was denied.
To the extent that said issue was presented on direct appeal and ruled on by this Court after consideration on the merits, it may not be relitigated again on this petition for writ of error coram nobis. Wheat v. Thigpen, 431 So.2d 486 (Miss.1983).
Further, to the extent that his present contention was not alleged as error and briefed on direct appeal, the issue may not now be raised for the first time on this petition for writ of error coram nobis as it is procedurally barred. Wheat, supra.
B.
THE SENTENCING INSTRUCTION IMPERMISSIBLY SUBJECTED
PETITIONER TO A MANDATORY IMPOSITION OF THE DEATH PENALTY.
This proposition may not now be raised on petition for error coram nobis for the same reasons stated in Section A above.
C.
CIRCUMSTANCES--WERE STILL SUFFICIENT TO IMPOSE THE DEATH PENALTY.
This proposition may not now be raised on petition for writ of error coram nobis for the same reasons stated in Section A above.
D.
THE SENTENCING INSTRUCTION IMPERMISSIBLY SHIFTED THE BURDEN
TO THE PETITIONER TO PROVE THAT THE DEATH PENALTY
SHOULD NOT BE IMPOSED.
This proposition may not now be raised on petition for writ of error coram nobis for the same reasons stated in Section A above.
ATROCIOUS OR CRUEL" AGGRAVATING CIRCUMSTANCE
VIOLATED PETITIONER'S CONSTITUTIONAL RIGHTS.
This proposition was not presented on direct appeal. Therefore, it is now procedurally barred and may not be raised for the first time on this petition for writ of error coram nobis. Wheat, supra.
The petitioner did not raise this proposition on his direct appeal. Therefore, it is now procedurally barred from being raised for the first time on this petition for writ of error coram nobis.
G.
THE FAILURE TO TRANSCRIBE CLOSING ARGUMENTS OF COUNSEL AT
THE SENTENCING PHASE VIOLATED PETITIONER'S
CONSTITUTIONAL AND STATUTORY RIGHTS.
The petitioner did not raise this proposition on his direct appeal. He is now procedurally barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.
H.
THE PROSECUTOR'S INFLAMMATORY EXHORTATIONS AT SENTENCING
WERE CONSTITUTIONALLY IMPERMISSIBLE.
The petitioner did not raise this proposition on direct appeal. He is procedurally barred from raising it now for the first time on this petition for writ of error coram nobis. Wheat, supra.
THE FAILURE TO REQUIRE THE JURY TO FIND THAT PETITIONER
VIOLATES PETITIONER'S CONSTITUTIONAL RIGHTS.
This proposition was not raised on direct appeal. It is therefore procedurally barred from being raised for the first time on this petition for writ of error coram nobis. Wheat, supra.
J.
USE OF THE "COURSE OF A FELONY" AGGRAVATING CIRCUMSTANCE
VIOLATED PETITIONER'S CONSTITUTIONAL RIGHTS.
This proposition was not raised on direct appeal. Petitioner is now barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.
K.
THE MISSISSIPPI SUPREME COURT'S REVIEW WAS
UNCONSTITUTIONALLY DEFICIENT BECAUSE THE COURT
COMPARED PETITIONER'S CASE ONLY TO OTHER
CASES WHERE THE DEATH PENALTY
HAD BEEN IMPOSED.
The petitioner failed to raise this proposition on direct appeal. He is now procedurally barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.
L.
THE PROSECUTOR'S USE OF HIS PREEMPTORY CHALLENGES TO STRIKE
ALL POTENTIAL BLACK JURORS WAS PART OF A
SYSTEMATIC, REGULAR PRACTICE RESULTING
IN EFFECTIVE EXCLUSION OF
BLACKS FROM PETIT JURIES.
The petitioner failed to raise this proposition on direct appeal. He is now procedurally barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.
M.
THE RACIALLY DISCRIMINATORY ADMINISTRATION OF THE DEATH
PENALTY IN MISSISSIPPI VIOLATES PETITIONER'S
RIGHTS ON THE EIGHTH AND FOURTEENTH AMENDMENTS.
The petitioner failed to raise this proposition on direct appeal. He is now procedurally barred from raising it for the first time on this petition for writ of error coram nobis. Wheat, supra.
N.
PETITIONER WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL.
The petitioner has asserted fourteen points (A through N) on which he relies in support of his claim of ineffective assistance of counsel at trial. Collectively, the allegations contained assertions of facts and factual conclusions which are unsupported by affidavits except the affidavits of Mack Arthur King and counsel which were made on information and belief except as to those things shown by the record. This does not comply with Rule 38 of the Supreme Court Rules of Mississippi. Riley v. State, 254 Miss. 487, 182 So.2d 397 (1966).
In the case of Willie Albert Smith v. State of Mississippi (Petition for writ of error coram nobis), 434 So.2d 212 (Miss.1983), after restating the substantive test to be employed in analyzing an ineffective assistance counsel claim, to-wit: (A) Whether counsel was reasonably likely to render effective assistance; and (B) Whether counsel in fact rendered effective assistance, we reiterated that a petitioner shoulders the burden of showing that in fact such assistance was not rendered and that a defendant was actually prejudiced by such failure. See Callahan v. State, 426 So.2d 801 (Miss.1983). We also recognized that the failure to assign the lack of effective assistance of counsel at trial would not constitute a procedural bar to subsequently raising the question either on appeal or in post-conviction relief proceedings such as this.
In Smith, supra, it was stated:
If, after affirmance on direct appeal, a defendant wishes to pursue a claim of ineffective assistance of counsel, he may file an appropriate post-conviction proceeding raising this question. See Read, slip opinion at 19. 2 We held that, assuming that the petitioner's claim stated a prima facie case, he would then be entitled to an evidentiary hearing at the trial court on this question. We also specifically held that "a petitioner desiring such a hearing must tender two tickets at the door: (a) a pleading complying with Rule 38, Mississippi Supreme Court Rules, and (b) a pleading stating facts which, if proved, would entitle petitioner to relief."
In other words, one seeking to maintain the claim of ineffective assistance of counsel must comply with procedures set forth in Rule 38 of the Mississippi Supreme Court Rules and must state with specificity facts which, if proved at a hearing by clear and convincing evidence, would satisfy the substantive requirements which we set forth in Callahan. Stated differently, he must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different. Petitioner Smith has failed to comply with these requirements. He has pointed to several instances of alleged examples of ineffective counsel, but he has failed to allege with specificity that such "shortcomings" were not the result of trial tactics or strategy but were indeed indicia of the fact that petitioner Smith was denied effective assistance of counsel. Likewise, he has not specifically alleged that he was actually prejudiced by such purported ineffectiveness. Under our rule set out in the Callahan case, a petitioner must allege and prove that but for the specific alleged facts set out in his petition, the result of the trial would have been different.
These requirements, although somewhat technical, are matters of substance and are vitally important both for this Court and for a lower cour...
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Hill, In re
...relief, will seldom, if ever, be procedurally barred. Read v. State, 430 So.2d 832, 837-842 (Miss.1983); King v. Thigpen, 441 So.2d 1365, 1368-1369 (Miss.1983); Smith v. State, 434 So.2d 212, 218-220 (Miss.1983); Mason v. State, 429 So.2d 569, 572 The issue before us today is whether Hill s......
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Wiley v. Puckett
...bar rule." Hill, 887 F.2d at 518.19 The rule was announced in Wheat v. Thigpen, 431 So.2d 486 (Miss.1983), and followed in King v. Thigpen, 441 So.2d 1365 (Miss.1983); Evans v. State, 441 So.2d 520 (Miss.1983); cert. denied, 467 U.S. 1264, 104 S.Ct. 3558, 82 L.Ed.2d 860 (1984); Smith v. Sta......
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King v. State, 2005-DP-00419-SCT.
...County but later ordered that court to conduct a hearing regarding King's claim of ineffective assistance of counsel. See King v. Thigpen, 441 So.2d 1365 (Miss.1983); King v. Thigpen, 446 So.2d 600 (Miss.1984). The circuit court conducted a hearing on the matter and found that counsel had r......
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Pruett v. Thigpen, 54000
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