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IN RE: ROBERT C. GILLIARD, JR. v. STATE OF MISSISSIPPI

FEBRUARY 22, 1984

IN RE: ROBERT C. GILLIARD, JR.
v.
STATE OF MISSISSIPPI



EN BANC.

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Petitioner, Robert C. Gilliard, Jr., was indicted in the Circuit Court of the Second Judicial District, Jones County, Mississippi, during the September 1981 Term, for the capital murder of Grady Chance during the commission of an armed robbery at the Best Chance Package Store in Laurel, Mississippi.

Gilliard entered a plea of guilty to the charge and the trial proceeded on the sentencing phase. After hearing the

 evidence, receiving the instructions from the court, and argument of counsel, the jury found Gilliard guilty and sentenced him to death.

 The judgment of the lower court was appealed to the Mississippi Supreme Court and was affirmed. Gilliard v. State, 428 So. 2d 576 (Miss. 1983). Gilliard did not file a petition for rehearing.

 A petition for a writ of certiorari to the Supreme Court of Mississippi was filed in the United States Supreme Court and denied on October 3, 1983. Application for Leave to File Petition for Writ of Error Coram Nobis was filed in this Court November 7, 1983, setting out twenty-nine (29) grounds for relief, and was responded to by the State on November 28, 1983. We address each of, the grounds for relief hereinafter.

 Section A.

 I.

 The Court Erred in Overruling Petitioner's Motion for Change of Venue.

 On direct appeal to the Mississippi Supreme Court, the petitioner assigned as error that the lower court erred in overruling his motion for change of venue. The lower court received evidence on the question, and it was thoroughly presented there. On appeal to this Court, it was completely considered and addressed. Gilliard v. State, supra, at 578-79.

 However, the petitioner now contends that the motion should have been granted and that denial of the motion was of constitutional magnitude and that petitioner was denied a fair trial in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States, citing Anderson v. State, 92 Miss. 656, 46 So. 65 (1908), Eddins v. State, 110 Miss. 780, 70 So. 898 (1916); and Bond v. State, 128 Miss. 792, 91 So. 461 (1922).

 The question now before this Court is whether or not, under state procedure and law, petitioner may raise the question and attack the judgment on federal constitutional grounds. In Minor v. Lucas, 697 F.2d 697 (5th Cir. 1983), Minor neglected to frame in state court the constitutional claims found in his federal habeas petition. The Fifth Circuit commented as follows:

 It is far from certain, however, that Holloway [261 So. 2d 799 (Miss. 1972)] and Auman [285 So. 2d 146 Miss. 1973)] stand for the proposition that the

 petitioner is barred from presently raising his federal constitutional claims in the Mississippi courts. The statement quoted above from Holloway was made at the close of the opinion after the court had specifically found that the petitioner's federal constitutional claim was meritless. In Auman, the petitioner did not frame any of the issues he raised in his writ as federal constitutional claims, but rather framed his contentions as they apparently had been litigated in his direct criminal appeal.

 Furthermore, there seems to be ample Mississippi precedent that the writ of error coram nobis is available to attack collaterally a judgment of conviction on federal constitutional grounds. See, e.g., King v. Cook, 287 F. Supp. 269, 272 (N.D. Miss. 1968) (purpose of Mississippi's writ of error coram nobis is to provide meaningful and effective procedure for protection of constitutional rights of those convicted of crime); Nelson v. Tullos, 323 So. 2d 539, 543 (Miss. 1975) (relief for a defendant who claims to have been convicted as a result of a deprivation of his constitutional rights is by a writ of error coram nobis).

 We decline to resolve this question presented by the parties, but rather leave it to the state courts to determine whether petitioner's federal constitutional claims will be entertained by way of a writ of error coram nobis. [697 F.2d at 698-99].

 In Callahan v. State, 426 So. 2d 801 (Miss. 1983), quoting from In re Broom's Petition, 251 Miss. 25, 168 So. 2d 44 (1964), we said:

 We first address the petition for writ of error coram nobis by recognizing a basic premise in this jurisdiction that such post-conviction petitions are limited in nature. Justice Ethridge, in case of In re Broom's Petition, 251 Miss. 25, 168 So. 2d 44 (1964), set forth the circumstances in which a writ for error coram nobis would lie. His opinion states:

 The general scope of a petition for writ of error coram nobis, or motion in the nature thereof, is to bring before a court a judgment previously rendered by it, for the purpose of review or modification. There must be some error of fact and not of law affecting substantially the validity and regularity of the

 proceedings, which was not brought into issue at the trial. Such motion or petition is an extraordinary and residual remedy to correct or vacate a Judgment on facts or grounds not appearing on the face of the record, not available by appeal or otherwise, and not discovered until after rendition of the judgment of conviction, valid on its face, but defective by reason of facts outside the record, which deprived accused without fault on his part of the constitutional right to a fair trial. [Emphasis added]. [251 Miss. at 32-33, 168 So. 2d at 48].

 With this background in mind, our Court has since ruled that the writ of error coram nobis will not be allowed to relitigate questions of law or fact already decided by this Court. Auman v. State, 285 So. 2d 146 (Miss. 1973). Moreover, "a defendant in a criminal trial may not deliberately hold back matters known to him at the time of his trial until after the affirmance of his conviction and then, for the first time, use them to ...


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