ON APPLICATION FOR LEAVE TO FILE MOTION TO VACATE, OR SET ASIDE, JUDGMENT AND SENTENCE
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Petitioner Connie Ray Evans was indicted for the capital murder of Arun Pahwa on April 8, 1981, during an armed robbery of a convenience store in Jackson, Mississippi. He entered a guilty plea to the capital murder on October 12, 1981, and was tried on the issue of sentence and punishment. On October 13, 1981, a jury sentenced petitioner to death and a mandatory appeal to the Supreme Court of Mississippi
In a written opinion dated November 3, 1982, Evans v. State, 422 So. 2d 737 (Miss. 1982), the Supreme Court of Mississippi affirmed the sentence and petition for rehearing was denied December 15, 1982.
The United States Supreme Court denied certiorari on May 16, 1983, and denied a rehearing. Evans v. Mississippi, 461 U.S. 939, 103 S. Ct. 2111, 77 L.Ed.2d 314 (1983).
On July 1, 1983, petitioner filed an Application for Leave to File a Petition for Writ of Error Coram Nobis pursuant to Mississippi Code Annotated 99-35-145 (repealed April 17, 1984, Ch. 366, Miss. Laws 1984) with the Mississippi Supreme Court. On November 30, 1983, we rendered a written opinion denying the application and holding that the claims raised on direct appeal were res adjudicata and that others were procedurally barred. Evans v. State, 441 So. 2d 520 (Miss. 1983). Rehearing was denied on January 25, 1984. Petitioner sought a stay of execution pending review by the United States Supreme Court from the denial of coram nobis relief. The application was denied by the United States Supreme Court on June 25, 1984. Evans v. Mississippi, U.S. ___, 104 S. Ct. 3558, 82 L.Ed.2d 860 (1984).
On February 4, 1984, petitioner filed a petition for writ of habeas corpus in the United States District Court, Southern District of Mississippi [Evans v. Morris Thigpen, Commissioner, et al., Civil Action No. J84-0090 (L)]. The petition is presently pending in said court.
The present application before us was filed in this Court on July 12, 1985, and presents two claims, viz, ineffective assistance of trial counsel and prejudicial jury selection prohibited by Swain v. Alabama, 380 U.S. 202 (1965) and cases following Swain. Those claims were not raised in any proceeding prior to the present application. The respondent (State) contends that the petitioner has not adequately explained his failure to present such issues in a timely and diligent manner and that for procedural failure and substantive causes, the application should be dismissed.
PETITIONER'S PLEA OF GUILTY SHOULD BE VACATED BECAUSE IT WAS NOT KNOWINGLY AND INTELLIGENTLY MADE SINCE IT WAS THE PRODUCT OF INEFFECTIVE
ASSISTANCE OF COUNSEL UPON WHICH PETITIONER RELIED TO HIS MATERIAL DETRIMENT.
1. Petitioner was represented by trial counsel who had been in practice for only four (4) years at the time of petitioner's trial and had little real experience in capital cases. He served as lead counsel in petitioner's case.
2. Trial counsel filed a motion for appointment of a defense psychiatrist but failed to follow up. On the morning of the guilty plea, counsel relied on representations that there were no problems uncovered.
3. Counsel recommended to petitioner that he plead guilty on the basis of counsel's understanding of Coleman v. State, 378 So. 2d 640 (Miss. 1979). It was counsels understanding that the State's case would be limited at the penalty phase only to evidence relevant to the eight (8) enumerated statutory aggravating circumstances and that, on a guilty plea, he could exclude all evidence of the crime and of premeditation from the penalty hearing. Petitioner pled guilty in reliance upon counsel's legal advice.
4. Counsel's legal advice was below" the range of competence demanded of attorneys in criminal cases. "Counsel based his conclusion on a literal reading of Coleman, id., 378 So. 2d at 648, without regard either to the different procedural postures of that case or the clear language of Mississippi Code Annotated 99-19-101 (1), and that he was incompetent in assuming he could keep out information about the crime itself clearly relevant to sentence, such as evidence on the issue of premeditation under statute that allows" any matter that the court deems relevant to sentence. "
5. The advice given by counsel to petitioner, upon which petitioner relied in pleading guilty, was particularly in error in that counsel told petitioner evidence on the issue of premeditation could be excluded. Counsel's advice, upon which petitioner relied in pleading guilty, that such evidence could be excluded, was beneath the range of competence demanded of attorneys in criminal cases.
6. Counsel failed to ascertain whether petitioner understood the basis of the plea; failed to obtain the psychological report to ascertain petitioner's mental state or ability to intelligently waive his right to trial and failed to ascertain independently whether petitioner understood counsel's advice.
7. Petitioner's guilty plea was not a knowing and
intelligent waiver of his right to trial by jury, and was a result of ineffective assistance of counsel. Petitioner would not have entered a plea of guilty except for counsel's erroneous advice and petitioner relied upon counsel's advice in deciding to plead guilty resulting in the loss of his rights to trial by jury and ...