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MACK ARTHUR KING v. MORRIS THIGPEN

DECEMBER 14, 1983

MACK ARTHUR KING
v.
MORRIS THIGPEN, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, ET AL.



ON APPLICATION FOR LEAVE TO FILE A PETITION FOR WRIT OF ERROR CORAM NOBIS *fn1

EN BANC.

WALKER, PRESIDING JUSTICE, FOR THE COURT:

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 certorari 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 SENTENCE EVEN IF THE AGGRAVATING CIRCUMSTANCES 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.

 THE SENTENCING INSTRUCTION IMPERMISSIBLY FAILED TO INSURE THAT, IF THE DEATH SENTENCE WERE IMPOSED, IT WOULD BE IMPOSED BY A JURY THAT HAD DECIDED THAT THE AGGRAVATING CIRCUMSTANCES - WHEN DISCOUNTED BY THE MITIGATING 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 ...


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