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KENNETH W. WHEAT v. MORRIS THIGPEN

MAY 11, 1983

KENNETH W. WHEAT
v.
MORRIS THIGPEN, COMMISSIONER, MISS. DEPARTMENT OF CORRECTIONS, EDDIE LUCAS, WARDEN, MISSISSIPPI STATE PENITENTIARY, IN THEIR OFFICIAL CAPACITY AND THEIR SUCCESSORS IN OFFICE; AND THE STATE OF MISSISSIPPI



BEFORE THE COURT EN BANC

BOWLING, JUSTICE, FOR THE COURT:

Appellant filed his Motion for Leave to File Petition for Writ of Error Coram Nobis. At the same time, he filed a Motion for a Stay of Execution pending consideration of said motion. One of his attorneys, Robert E. Morin, Esquire, of Atlanta, Georgia, filed a motion for Leave to Appeal Pro Hoc Vise under the provisions of Mississippi Supreme Court Rule 27.

The motion of Attorney Robert E. Morin is granted.

 The Motion for Stay of Execution of appellant is denied because of the following opinion and order on his Motion for Leave to File Petition for Writ of Error Coram Nobis.

 A number of claims are propounded in appellant's Motion

 for Leave to File a Petition for Writ of Error Coram Nobis, a copy of the proposed petition is attached to appellant's motion. We shall hereinafter consider each claim separately.

 CLAIM A.

 THE TRIAL COURT FAILED TO MAKE AN ADEQUATE

 INQUIRY INTO PETITIONER'S COMPETENCE AT THE

 TIME OF TRIAL.

 This claim was presented as an alleged trial error in the appellant's original appeal to this Court and a final disposition was made thereof. See Wheat v. State, 420 So. 2d 229 (Miss. 1982). The opinion, based on the entire record before the Court, fully discussed the proceedinqs had in the lower court and the opinion fully explained the Court's decision on the question involved in Claim A. It should be noted that appellant did not file a Petition for Rehearing of the Court's opinion and final decision within fifteen days after said final order, as permitted by Mississippi Supreme Court Rule 14. We therefore hold that all matters propounded in Petitioner's Claim A were decided on direct appeal to this Court and are therefore barred from re-litigation as requested by appellant. This decision is completely in conformity with the record in the cause and this Court's final opinion. Edwards v. Thigpen, decided March 23, 1983, and not yet reported; Callahan v. State, 426 So. 2d 801 (Miss. 1983); Wainwright v. Sykes, 433 U. S. 72, 53 L.Ed.2d 594, 97 S. Ct. 2497 (1977); Henry v. Wainwright, 686 F.2d 311 (5th Cir. 1982); Engle v. Isaac, 50 U.S. L. W. 4376 (April 5, 1982).

 Appellant contends in his motion that he is presenting "new" evidence on appellant's prior mental condition that was unknown by his attorneys at the trial. The motion filed by appellant's court-appointed attorneys during the course of the trial for the death of Mrs. Mayer recited that, in addition to other reasons, the motion for mental examination was being filed "because of the past medical history of the defendant." [supp. Rec. V. I, p. 471 Furthermore, the affidavit of Earl B. Stegall and John F. Hester, court-appointed trial attorneys for appellant, which affidavit is attached to the brief of appellees herein, states that the office of the district attorney had made the medical records of appellant available to them. Their use was refused by appellant.

 A reading of the opinion Wheat v. State, supra, shows that this fact was taken into consideration in the final decision, from which a petition for rehearing was not requested. As set out in the opinion in Wheat v. State, supra, the trial court ordered a mental examination of appellant pursuant to the allegations of the

 motion containing the above quoted language. As stated in this Court's opinion, appellant refused to have the examination after receiving a life sentence from the jury.

 CLAIM B.

 COMPETENCE AT TRIAL AND ...


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