ANDERSON, JUSTICE, FOR THE COURT:
This case is before us on the application of Marion
Albert Pruett for entry of an order requiring that he be discharged from custody and that the State be barred from prosecuting him further on the charge of capital murder. The grounds of the motion are that Pruett was ordered released from custody by the United States District Court for the Northern District of Mississippi pursuant to his application there for writ of habeas corpus, unless the State retried Pruett within 120 days. Everyone agrees that the 120 day period expired on April 3, 1987, without Pruett having been put on trial again.
Pruett presented this claim to the Circuit Court of the First Judicial District of Hinds County which denied him relief and ordered that he stand trial once again on the charge of capital murder. His present application to this Court invokes a variety of procedural devices - writ of habeas corpus and/or writ of prohibition and/or writ of mandamus. In substance, Pruett is simply appealing the Circuit Court's refusal to hold that his retrial is precluded by violation of the 120 day time limitation imposed by the United States District Court for the Northern District of Mississippi.
Petitioner, Marion Albert Pruett, was indicted for the September 17, 1981, capital murder of Opal H. Lowe a/k/a Peggy Lowe by the Grand Jury of the Circuit Court of Hinds County, Mississippi, First Judicial District. Pruett's case was transferred to the Circuit Court of Lowndes County, Mississippi, where he was found guilty of capital murder and sentenced to death. This Court affirmed on February 23, 1983. Pruett v. State, 431 So.2d 1101 (Miss.1982). A petition for rehearing was denied on March 16, 1983. Pruett filed a petition for writ of certiorari which was denied on March 28, 1983. Pruett v. Mississippi, 464 U.S. 865, 104 S. Ct. 201, 78 L.Ed.2d 176 (1983).
Upon denial of certiorari, Pruett filed an application for leave to file a petition for writ of error coram nobis with this Court. On January 11, 1984, in a written opinion this Court denied the application. Pruett v. Thigpen, 444 So.2d 819 (Miss.1984).
Pruett then filed a petition for writ of habeas corpus with the United States District Court for the Northern District of Mississippi. On March 21, 1986, the District Court entered its memorandum opinion granting habeas relief for a guilt phase error and ordering the State to release petitioner from custody or retry him within 120 days.
Both the State and Pruett appealed this decision to the United States Court of Appeals for the Fifth Circuit. The Court of Appeals affirmed the judgment of the District Court on November 7, 1986, in an unpublished opinion. Pruett v. Thigpen, 805 F.2d 1032 (5th Cir.1986). A petition for writ of certiorari was taken from this ruling by the State. That petition was denied on April 28, 1987. Thigpen v. Pruett, 107 S. Ct. 1964, 95 L.Ed.2d 535 (1987).
On May 18, 1987, Pruett filed with the Circuit Court of Hinds County, Mississippi, a Motion to Dismiss Prosecution and Discharge from Custody. During a hearing on May 18, 1987, the Circuit Court set a trial date of July 13, 1987. Briefs were filed by both sides and oral argument was heard in June 16, 1987. The Circuit Court denied the motion after consideration of the briefs and hearing arguments. The petitioner also filed a Motion to Stay Further Proceedings Pending Interlocutory Review and Final Determination of Whether Mississippi May Retry the Defendant. The Court also denied this motion on June 16, 1987.
On June 18, 1987, petitioner, in an attempt to get the Circuit Court to reconsider its ruling of June 16, 1987, filed a Petition for Writ of Habeas Corpus or Other Appropriate Relief Barring Petitioner's Retrial. This petition was denied by the Circuit Court on June 18, 1987, "for the reasons expressed in th[e] court's ruling of June 16, 1987." The present proceedings before this Court have followed.
Pruett raises two questions in this emergency petition for remedial relief. First, that the trial court erred in holding that the state could retry him even though the State did not retry him within 120 days after the mandate of the Fifth Circuit went into effect and, second, that his federal plea agreement and the memorandum between himself and the federal government prohibit his retrial in Mississippi.
Pruett contends that since the state did not retry him within 120 days it has lost the right every to do so. Section 28 U.S.C. 2254 (a), states in part that a writ of habeas corpus may be filed on behalf of a "person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Where a defendant has sustained his right to be discharged in habeas, it is because
a court has determined some federal right has been denied, such as denial of counsel. Such a finding does not reflect on the determination of guilt or innocence, but reflects solely the fairness of his earlier criminal trial. The habeas corpus court, unlike an appellate court in a criminal case cannot grant a new trial in the criminal ...