SULLIVAN, JUSTICE, FOR THE COURT:
ON APPELLANT'S CONSOLIDATED MOTION TO VACATE, OR SET ASIDE JUDGMENT AND SENTENCE
James E. Billiot has applied for leave to file a consolidated motion to vacate, or set aside, judgment and sentence in his capital murder conviction. Billiot v. State, 454 So.2d 445 (Miss. 1984).
Billiot, in the course of a robbery, bludgeoned to death Wallace Croll, Jr. Billiot was convicted of capital
murder and his appeal to this Court was affirmed. Billiot sought and was denied a writ of certiorari by the Supreme Court of the United States on March 25, 1985. Billiot v. Mississippi, ___ U.S. ___, 84 L.Ed.2d 369, 105 S. Ct. 1232 (1985).
Now before us is Billiot's application for post conviction relief pursuant to Mississippi Code Annotated 99-39-1 et. seq., and assigns the following as grounds:
A. Petitioner was denied the effective assistance of counsel at the sentencing phase of his capital trial;
B. Prosecutorial misconduct during argument violated the petitioner's right to a fundamentally fair trial and a non-arbitrary sentencing proceeding pursuant to the Mississippi Constitution and the United States Constitution;
C. Petitioner is presently insane. Because the Eighth amendment prohibits the execution of an insane person, petitioner's execution should be stayed;
D. The use, by the prosecution, during rebuttal at the guilt phase of the bifurcated trial, of statements made by a defendant during a court-ordered psychiatric examination limited to the issue of competence to stand trial, to rebut the defense of insanity, in the absence of the psychiatrist advising the defendant of his right to remain silent, violated that defendant's Fifth and Fourteenth Amendment rights, violates Miranda v. Arizona, 384 U.S. 436 (1966), and raises an important question left open in Estelle v. Smith, 451 U.S. 454 (1981);
E. The use, as an "aggravating circumstance" , of the fact that a murder was committed in the course of the commission of a felony, in order to justify the imposition of a sentence of death, violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution when the so-called "aggravating circumstance" itself is a necessary element of the underlying crime of capital murder;
F. The finding by the jury of the "especially heinous, atrocious and cruel" aggravating circumstances violated the Eighth and Fourteenth Amendments to the United States Constitution;
G. The statute and instruction at the sentencing phase shifted the burden of proof to the petitioner and contained no standards for weighing, in violation of the Eighth and Fourteenth Amendments to the United States Constitution;
H. The trial court's denial of petitioner's motion for a change of venue unconstitutionally abridged his right to a trial by an impartial jury, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article III, Section 26 of the Mississippi Constitution;
I. The Mississippi Supreme Court misunderstood the psychological testimony in enunciating its decision relative to a "majority report" and "minority report" ;
J. The petitioner was unconstitutionally subjected to double jeopardy for the underlying felony of robbery in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article III Section 22 of the Mississippi Constitution;
K. The verdict of the jury finding petitioner guilty of capital murder was against the great weight of the evidence because the state failed to prove the underlying felony of robbery;
L. The death qualification of the jury denied petitioner an impartial jury from a cross-section of the community in violation of the Sixth and Eighth and Fourteenth Amendments to the United States Constitution and Article III Section 26 of the Mississippi Constitution.
Petitioner admits, and this Court finds, that Issues D, E, F, G, H, I, J, K, and L have already been raised and litigated. They may not be relitigated by way of post-conviction relief as they are res judicata. Callahan v. State, 426 So.2d 801 (Miss. 1983), cert. den. 461 U.S. 943, 77 L.Ed.2d 1300, 103 S. Ct. 2118 (1984); Leatherwood v. State, 473 So.2d 964 (Miss. 1985); Wilcher v. ...