ON MOTION TO VACATE JUDGMENT AND SENTENCE
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Petitioner Donald William Dufour was convicted in the Circuit Court for the First Judicial District of Hinds County, Mississippi, of capital murder, and was sentenced to suffer the death penalty. On April 11, 1983, he filed a motion for new trial raising twenty-one (21) grounds for relief, which motion was subsequently denied. Petitioner appealed to the Mississippi Supreme Court, which unanimously affirmed the conviction and sentence on June 6, 1984, and a petition for rehearing was denied July 25, 1984. The facts of the case are stated in Dufour v. State, 453 So.2d 337 (Miss. 1984).
Petitioner filed with the United States Supreme Court a petition for writ of certiorari to the Mississippi Supreme Court, which was denied February 19, 1985. Dufour v. Mississippi, ___ U.S. ___, 84 L.Ed.2d 368, ___ S. Ct. ___
(1985). Petition for rehearing was denied by the United States Supreme Court April 1, 1985.
On June 17, 1985, the petitioner filed a Motion to Vacate Judgment and Sentence, pursuant to Mississippi Code Annotated 99-39-1, et seq. (Supp. 1984). Petitioner seeks relief under the Mississippi Uniform Post-Conviction Collateral Relief Act, but claims that the procedural bar provision of the act did not apply to him since it was not in effect at the time of petitioner's 1983 trial. We hold that petitioner's contention that the waiver and procedural bar provisions of the act do not apply to his case is without merit. Actually, Mississippi Code 99-39-1, et seq. is largely a codification of the existing law. Leatherwood v. State, 473 So.2d 964 (Miss. 1984); Tokman v. State, 475 So. 2d 457 (Miss. 1985).
Petitioner was Deprived of His Right to Effective Assistance of Counsel.
(1) Failure to Investigate and Present Mitigation Witnesses.
Petitioner claims that defense counsel failed to investigate whether there were any potential witnesses who could have presented favorable testimony as to why he deserved to have his life spared. Petitioner's counsel, R. L. Houston, talked with petitioner's brothers in Florida on several occasions, although they state in their affidavits that they cannot recall speaking to the Jackson attorneys. They told Houston that they would not come to Jackson nor did they want to get involved in the trial of their brother's case. They refused to help petitioner at that time.
(2) Failure to Investigate, Obtain and Present Psychiatric or Psychological Evidence.
Petitioner claims that defense counsel failed to make application to the trial court for funds to conduct a psychological evaluation of petitioner for the purpose of determining whether mitigating circumstances existed. Further, that he had no expert assistance because counsel did not request it. However, petitioner was examined pursuant to a court order. The professionals were not people selected by the State, but by the trial court. Petitioner has failed to present facts which show there existed mitigating
circumstances of a psychological nature, which could have been presented by Dr. Stanley. It is not shown that such an examination would have produced the claimed results, nor has prejudice been shown.
(3) Trial Counsel's Failure to Request Instructions on Lesser - Included Offenses and Elements of the Primary Offense Charged.
Petitioner claims that his counsel was ineffective for not offering a complete instruction on, or objecting to the failure to instruct, on the elements of the underlying felony of robbery. The Court considered the question of whether or not a robbery was in fact committed, and found that the evidence fully supported the finding that robbery had been committed. Dufour v. State, 453 So.2d at 346.
(4) Failure to Object to Prosecutorial Misconduct.
Prosecutorial misconduct will be referred to hereinafter. Petitioner contends that his counsel failed to prevent persistent misconduct of the prosecutor throughout the trial and the sentencing. Appellee contends that the examples cited by petitioner are within the limits of proper conduct and argument and that there was no ...