APPLICATION FOR LEAVE TO PROCEED IN TRIAL COURT ON MOTION TO SET ASIDE CONVICTION AND SENTENCE
SULLIVAN, JUSTICE, FOR THE COURT:
Willie Albert Smith now comes before this Court and files his application for leave to proceed in the trial court pursuant to Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated, 99-39-1 to 99-39-29 (Supp. 1985). He alleges that the prosecutor intentionally exercised the state's peremptory challenges to exclude black potential jurors on the basis of race and that the state failed to produce to Smith's counsel exculpatory information that was requested, and that was the subject of a court order.
Smith has had a long history before this Court. He was indicted and tried in the Circuit Court of the First Judicial District of Hinds County for the capital murder of Shirley Roberts. On July 30, 1981, he was convicted
and sentenced to death. This conviction was affirmed on August 11, 1982. Smith v. State, 419 So. 2d 563 (Miss. 1982). Smith's petition for rehearing was denied on September 22, 1982, and the United States Supreme Court denied his petition for writ of certiorari. Smith v. Mississippi, 460 U.S. 1047, 103 S. Ct. 1449, 75 L.Ed.2d 803 (1983).
On June 1, 1983, this Court denied Smith's first petition for post-conviction relief. Smith v. State, 434 So. 2d 212 (Miss. 1983). The petition for rehearing on same was denied July 27, 1983. On August 1, 1983, Smith filed a petition for writ of habeas corpus in the United States District Court for the Southern District. This action is pending.
On January 31, 1984, Smith filed a second petition for writ of error coram nobis, with the essential allegation being that two of the state's witnesses committed perjury. This Court granted leave to file the petition in Hinds County Circuit Court. In Re Smith, 457 So. 2d 911 (Miss. 1984). The trial court denied the petition and Smith appealed. We affirmed the trial court. Smith v. State, 492 So. 2d 260 (Miss. 1986). Reference is made to the above opinions for a better understanding of the facts of this case.
SHOULD THE APPLICATION BE GRANTED CONCERNING THE ALLEGATION THAT THE PROSECUTOR UNCONSTITUTIONALLY EXCLUDED BLACKS FROM THE JURY?
It is undisputed that all twelve of the state's peremptory challenges were used to exclude blacks. The jury which decided the case was composed of two white females, three black females, and seven white males. Smith alleges that he now has proof that the prosecuting attorney, Ed Peters, has systematically excluded blacks from juries, thereby meeting his burden of proof required under Swain v. Alabama in order to rebut the presumption that the prosecutor properly used his peremptory challenges. Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L.Ed.2d 759 (1965). He also alleges that it demonstrates a violation of his constitutional guarantee to a trial drawn from a representative cross-section of the community. We do not pass judgment on the merits of these allegations since this claim is clearly barred by the post-conviction act under which Smith has applied for relief.
The relevant provisions of Mississippi Code Annotated, 99-39-21 (Supp. 1985), are as follows:
(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the State of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
(4) The term "cause" as used in this section shall be defined and limited to those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal.
(5) The term "actual prejudice" as used in this section shall be defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.
(6) The burden is upon the prisoner to allege in his motion such facts as are necessary to demonstrate that his claims are not procedurally barred under this section.
One of the purposes of the post-conviction act, stated in 99-39-3 (2), is as follows:
(2) Direct appeal shall be the principal means of reviewing all criminal convictions and sentences, and the purpose of this chapter is to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should
not have been raised at trial or on direct appeal.
We have consistently held that failure to raise an issue capable of resolution at trial or on direct appeal constitutes a waiver of that claim absent a showing of cause and actual prejudice. See, e.g., Billiot v. State, 478 So. 2d 1043, 1045 (Miss. 1985). Smith alleges that a July 15, 1983, newspaper article and a deposition of Ed Peters taken April 12, 1985, sufficiently prove his allegations. The article contains quotes attributed to Peters. The deposition was taken in a habeas corpus proceeding which is pending in federal court and which involves another petitioner. Edwards v. Thigpen, 595 F. Supp. 1271 (S.D. Miss. 1984). Smith contends that these two items show that Peters has unconstitutionally excluded blacks from juries, and that since the article and the deposition were not available when he was convicted, and when the conviction was affirmed, he has sufficiently overcome the procedural bars.
We do not even insinuate to pass judgment on the habeas corpus proceeding pending in federal court. The fact that this action may have produced material which could be used as evidence in an evidentiary hearing on Smith's allegations is immaterial to our present inquiry.
It was known to Smith at the time of the trial that the state had used all of its peremptory challenges to exclude blacks, yet no motion or objection concerning such was entered. The issue was not raised on appeal, nor was it raised in Smith's two subsequent petitions for writ of error coram nobis. The latter petition was not filed until after the newspaper article was published. Smith has not shown why he could not have discovered, with reasonable diligence, the "legal foundation upon which the claim for relief is based" . We do not view the article nor the deposition as sudden enlightenments to Smith or his counsel that he might have a claim such as this.
These same allegations were made in Evans v. State, 485 So. 2d 276 (Miss. 1986), wherein this Court held that such a claim was barred.
Smith argues that the procedural bars of the post-conviction act should not apply to him since they were not in effect when he was convicted. We have recently held that such a contention is without merit. Dufour ...