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GENE COLEMAN v. STATE OF MISSISSIPPI

JANUARY 15, 1986

GENE COLEMAN
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, PRATHER AND ROBERTSON

PRATHER, JUSTICE, FOR THE COURT:

The question presented by this appeal is whether the petitioner is entitled to an evidentiary hearing on a habeas corpus petition. The petitioner alleges that his guilty plea was involuntary due to ineffective assistance of counsel and that he is subject to the application of an ex post facto law.

Gene Coleman, the appellant, pleaded guilty in the Circuit Court of the First Judicial District of Hinds County, Mississippi, in February, 1980 to a criminal charge of armed robbery was sentenced to a term of fifteen years imprisonment in the custody of the Mississippi Department of Corrections. In August, 1984, he filed a pro se petition for writ of habeas corpus in the Circuit Court of the First Judicial District of Hinds County, Mississippi, Honorable William F. Coleman, Circuit Judge, in which he claimed:

 (1) That the Mississippi Department of Corrections had, in response to an opinion of the Attorney General, changed its policy of awarding earned time in such a way as to deprive him of earned time to which he believed he was entitled, and

 (2) That his plea of guilty was involuntary, insofar as his attorney misadvised him of his potential to earn good time. Proceeding without a hearing, the Circuit Court denied the appellant's petition.

 The appellant appeals the actions of the Circuit Court in denying his petition without an evidentiary hearing on the voluntariness of his guilty plea.

 I.

 According to Coleman's pleadings, his guilty plea was upon the advice of his attorney pursuant to a plea bargain agreement. Appellant claims that he relied on the advice of

 his attorney that he would be eligible for earned good time and would be subject to release after serving seven years of his sentence.

 At the time of his plea, the administrative policy of the Mississippi Department of Corrections was to allow good time to persons convicted of armed robbery as well as to prisoners convicted of most other crimes. This policy was in effect notwithstanding statutory provisions to the contrary. Miss. Code Ann. 47-5-139 (7)(1972) states:

 No inmate in any event shall have his sentence terminated by administrative earned time action until he is eligible for parole as provided in Title 47, Chapter 7, Mississippi Code of 1972.

 Yet Miss. Code Ann. 47-7-3 (d)(1972) states that no person convicted of robbery or attempted robbery on or after January 1, 1977 shall be eligible for parole.

 In view of these two statutes, and the administrative policy of the Mississippi Department of Corrections (MDC), the Attorney General of this State rendered an opinion which initiated a change in the administrative policy of the MDC to deny good time credit or armed robbery convictions. The revised policy was placed into effect on January 5, 1981.

 Coleman entered his guilty plea during a time when he allegedly was advised that good time credit would be afforded him on his sentence. The change of administrative policy, required that he serve a minimum of ten years term. Coleman contends this change subjects him to an ex post facto "law" and renders the advice and instruction of his attorney erroneous. He also alleged that his plea under such ...


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