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JAMES E. BILLIOT v. STATE OF MISSISSIPPI

NOVEMBER 25, 1987

JAMES E. BILLIOT
v.
STATE OF MISSISSIPPI



EN BANC.

SULLIVAN, JUSTICE, FOR THE COURT:

Petitioner James E. Billiot through counsel and pursuant to Mississippi Code Annotated, 99-19-57 (2)(a) (Supp. 1986), and the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated, 99-39-1, et seq. (Supp. 1986), applies for an order granting him leave to file a motion for post-conviction relief in the Circuit Court of the First Judicial District of Harrison County, Mississippi. Because we find Billiot's pleading to suggest with statutory and factual particularity that he may be legally insane and thus protected from execution, we remand this case to the Circuit Court of the First Judicial District of Harrison County for a hearing on the limited issue of Billiot's present sanity.

I.

 Billiot was convicted of capital murder and sentenced to death pursuant to a jury verdict in the Circuit Court of the First Judicial District of Harrison County, the Honorable J. Ruble Griffin, then Circuit Judge, presiding, following a change of venue from the Circuit Court of Hancock County. Both conviction and sentence, entered on December 2, 1982, were unsuccessfully appealed to this Court and the United States Supreme Court. Billiot v. State, 454 So.2d 445 (Miss. 1984); cert. denied, 469 U.S. 1230, 105

 S. Ct. 1232, 84 L.Ed.2d 369; rehearing denied, 470 U.S. 1089, 105 S. Ct. 1858, 85 L.Ed.2d 154 (1985).

 Billiot's first application for leave to file motion to vacate or set aside judgment and conviction was filed on June 17, 1985, with this Court. That motion and petition for rehearing were denied. Billiot v. State, 478 So.2d 1043 (Miss. 1985). The United States Supreme Court denied Billiot's petition for certiorari on March 31, 1986. Billiot v. Mississippi, ___ U.S. ___, 106 S. Ct. 1501, 89 L.Ed.2d 901 (1985). Thereafter, Billiot filed an application for writ of habeas corpus in the United States District Court for the Southern District of Mississippi. Billiot v. Thigpen, et al, No. 586-0549 (L) (S.D. Miss.). By order dated September 8, 1986, the Honorable Tom Lee, United States District Judge, ruled that the petition for writ of habeas corpus would be held in abeyance until the petitioner had exhausted his state remedy on the issue of his alleged present insanity and had presented the instant claim to this Court for consideration in light of the United States Supreme Court's decision in Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L.Ed.2d 335 (1986). In sum, the petition today was precipitated by the District Court's order and asserts that Billiot is presently insane and thus protected from execution by state and federal law.

 Mississippi Code Annotated, 99-19-57 (2)(a)(b), (Supp. 1986), provides that:

 (2)(a) If it is believed that a convict under sentence of death has become insane since the judgment of the court, the following shall be the exclusive procedural and substantive procedure. The convict, or a person acting as his next friend, or the commissioner of corrections may file an appropriate application seeking post conviction relief with the Mississippi Supreme Court. If it is found that the convict is insane, as defined in this subsection, the court shall suspend the execution of the sentence. The convict shall then be committed to the forensic unit of the Mississippi State Hospital at Whitfield. The order of commitment shall require that the convict be examined and a written report be furnished to the court at that time and every month thereafter stating whether there is a substantial probability that the convict will become sane under this subsection within the foreseeable future and whether progress is being made toward that goal.

 If at any time during such commitment the appropriate official at the state hospital shall consider the convict is sane under this subsection, such official shall promptly notify the court to that effect in writing, and place the convict in the custody of the commissioner of corrections. The court shall thereupon conduct a hearing on the sanity of the convict. The finding of the circuit court is a final order appealable under the terms and conditions of the Mississippi Uniform Post-Conviction Collateral Relief Act.

 (b) For the purposes of this subsection, a person shall be deemed insane if the court finds the convict does not have sufficient intelligence to understand the nature of the proceedings against him, what he was tried for, the purpose of his punishment, the impending fate which awaits him, and a sufficient understanding to know any fact which might exist which would make his punishment unjust or unlawful and the intelligence requisite to convey such information to his attorneys or the court. (Emphasis added).

 Ford v. Wainwright, supra, recognizes the Eighth Amendment's prohibition against the execution of one who is presently insane. ___ U.S. at ___, 106 S. Ct. at 2602, 91 L.Ed.2d at 346. Notably, the statute and federal case law differ primarily in the former's apparent requirement that the insanity be of a supervening quality, i.e., that the insanity have arisen after conviction. Admittedly, Ford expressly preserves the state's right to require "some high threshold showing on behalf of the prisoner . . . to control the number of non-meritorious or repetitive claims of insanity." U.S. at ___, 106 S. Ct. at 2606, 91 L.Ed.2d at 351. In our own state, we have required a petitioner in the posture of Billiot to show "to a reasonable probability" that he is insane, a condition which has arisen since conviction. Billiot v. State, 478 So.2d at 1045 (Miss. 1985). Clearly however, where the federal constitution guarantees a broader right than does a state statute, the statute must yield, casting great doubt on the continued viability of our rule requiring a showing that the insane condition is of a supervening quality. The potential conflict between the statute and federal case law is not our focus for purposes of the issue we now face for we today encounter the sole question of whether Billiot, within the pleading confines of the Uniform Post-Conviction Relief Act, has sufficiently

 posed allegations which, if proven, would entitle him to relief. In other words, has he alleged facts which require further inquiry in the expanded setting of an evidentiary hearing?

 As we have recently noted in another capital case, review of claims brought via formal post-conviction petition proceeds in a structural order whereby "[o]ur procedural posture is analogous to that when a defendant in a civil action moves to dismiss for failure to state a claim. See Rule 12 (b)(6), Miss. R. Civ. P.; Stanton & Associates, Inc. v. Bryant Construction Company, Inc., 464 So.2d 499, 504-06 (Miss. 1985). Functionally, Section 99-39-9 is substituted for the pleadings requirements of Rule 8 (a) and (e), Miss. R. Civ. P." Neal v. State, ___ So.2d ___ (No. DP-36, decided ...


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