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SAMUEL BICE JOHNSON v. STATE OF MISSISSIPPI

MAY 27, 1987

SAMUEL BICE JOHNSON
v.
STATE OF MISSISSIPPI



ON MOTION FOR POST-CONVICTION RELIEF

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Samuel Rice Johnson filed a petition for relief under our Mississippi Uniform Post-Conviction Relief Act (CRA), Miss. Code Ann. 99-39-1, et seq. We address only those assignments contemplated by the CRA for which we are authorized to review in a petition of this nature. For the reasons set forth, we deny his petition.

Following a trial held in the circuit court of Pike County on August 30-September 3, 1982, Samuel Bice Johnson was convicted of capital murder and sentenced to death. His conviction was affirmed by this Court on May 8, 1985, and his petition for rehearing was denied November 6, 1985; Johnson v. State, 477 So. 2d 196 (Miss. 1985). The United States Supreme Court denied his petition for certiorari, Johnson v. Mississippi, 106 S. Ct. 1958 (May 6, 1986), and subsequently denied his petition for rehearing, 106 S. Ct. 2930. (June 16, 1986)

 On August 4, 1986, he filed with this Court his petition for relief under our Mississippi Uniform Post- Conviction Relief Act (CRA), Miss. Code Ann. 99-39-1, et seq. His petition consists of 60 pages, supported by a brief of 85 pages, a supplemental motion to amend with supporting brief, and exhibits of several hundred pages. The petition contains 43 assignments, and the amendment to the petition adds another. *fn1

 The purpose of a CRA petition is set forth in Miss. Code Ann. 95-39-3 (2):

 (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.

 Miss. Code Ann. 99-39-21 reads in pertinent part:

 (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. [Emphasis added]

 (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.

 In a petition of this nature, we are also governed by Miss. Code Ann. 99-39-27 (5):

 (5) Unless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by such are not procedurally barred under section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application.

 Moreover, we do not consider on a petition of this nature issues raised and decided on the original appeal, even though theories for relief different from those urged at trial and on appeal are now asserted. Miss. Code Ann.

 99-39-21(2), (3). Dufour v. State, 483 So. 2d 307, 311 (Miss. 1985), (and cases cited therein).

 Within these circumscribed boundaries, we address the appropriate assignments in Johnson's petition.

 I.

 JOHNSON'S 1963 NEW YORK CONVICTION AS AN AGGRAVATING CIRCUMSTANCE.

 During the course of the sentencing phase of trial, the State introduced an authenticated copy of a judgment of conviction of Johnson of assault, second degree with intent to commit rape, first degree, rendered by the Monroe County court New York on April 9, 1963. This was offered as one of three aggravating circumstances to support the death penalty. (R.2171-2173). Johnson did not testify either at the guilt or sentencing phase of his trial.

 During the course of his argument, the district attorney recited this conviction as a basis for the jury to render a death penalty verdict. (R.2273)

 In his motion for a new trial and on appeal, Johnson objected to the introduction of the record of this conviction because it did not channel the jury's discretion by "clear and objective standards," and because it was too remote. (Appellant's Brief, pp. 29-31) We rejected both arguments. 477 So. 2d 218-219.

 In his petition for certiorari to the U.S. Supreme Court, no claim of error was made to the introduction of this record into evidence as an aggravating circumstance.

 In this petition, for the first time, Johnson argues that the 1963 conviction was invalid. Apparently, following or commensurate with its filing, Johnson's counsel also took steps to have this conviction vacated by the New York courts. This Court has been furnished with a copy of an order and slip opinion of the Court of Appeals of New York, dated March 24, 1987, in which that court did indeed reverse and vacate this 1963 conviction and dismiss the indictment.

 From the exhibits it appears that Johnson did not appeal his 1963 conviction and that he served a year in a New York correctional institution for this crime.

 Miss, Code Ann. 99-19-101 (5)(b) provides:

 (5) Aggravating circumstances shall be limited to ...


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