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02/27/98 RUSSELL E. BOLER A/K/A RUSSELL BOLAR v.

RUSSELL E. BOLER A/K/A RUSSELL BOLAR
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT: 06/26/95 TRIAL JUDGE: HON. RICHARD WAYNE McKENZIE COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF DISPOSITION AFFIRMED - 2/26/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:

Before Prather, C.j., Smith And Waller, JJ.

The opinion of the court was delivered by: Waller, Justice, For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A

Russell Boler ("Boler") entered a plea of guilty to the charge of armed robbery and received a sentence of 20 years. Following commitment, Boler filed a motion under the Mississippi Post Conviction Collateral Relief Act, Miss. Code Ann. § 99-39-1 et seq. (1994), alleging that his guilty plea was involuntary, the result of unlawful coercion and ineffective assistance of counsel. The lower court, pursuant to Miss. Code Ann. § 99-39-11 (1994), dismissed Boler's claim without an evidentiary hearing. Boler filed timely notice of appeal, contending that he received ineffective assistance of counsel and that the guilty pleas were coerced.

A. BACKGROUND AND FACTS

The facts, as demonstrated by the record in this case, and the facts as alleged by Boler, agree only as to the various dates on which events occurred. At the plea hearing, Boler swore, under oath, that he was not coerced or threatened, that he didn't want a preliminary hearing, that his attorney and himself had conferred, and that he understood the charges against him.

Notwithstanding this however, Boler now contends that he was lying to the court because he was in fear for his personal safety or life. The intricate series of events alleged by Boler to have led to his coerced plea are as follows. Boler contends that while in the Forrest County Regional Jail ("F. C. R. J.") on an unrelated charge, he was used to set up a deputy of the F. C. R. J. for selling contraband to inmates. Allegedly, the "set up" was arranged through an intermediary, "Nurse Ruby". Because the deputy wasn't fired, Boler was allegedly removed for his own safety. Subsequently, Boler contends that Chief Detective Raymond Howell forced a confession and subsequent guilty plea for the armed robbery charge from him by continually threatening to put him back into F. C. R. J., where Boler was ostensibly in danger of great bodily harm from the other inmates, who knew of his treachery in the "set up".

Boler avers that, but for his fear of his personal safety, he would not have signed the confession nor lied to the lower court throughout the entire process. B. DISCUSSION

1. Boler has failed to allege facts sufficient to warrant an evidentiary hearing on the issue of whether he was coerced into making his guilty plea.

Miss. Code Ann. § 99-39-9(1) (1994) mandates the following requirements of every post conviction motion for collateral relief:

(c) A concise statement of the claims or grounds upon which the motion is based. (d) A separate statement of the specific facts which are within the personal knowledge of the prisoner and which shall be sworn to by the prisoner. (e) A specific statement of the facts which are not within the prisoner's personal knowledge. The motion shall state how or by whom said facts will be proven. Affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion. The affidavits of other persons and the copies of documents and records may be excused upon a showing, which shall be specifically detailed in the motion, of good cause why they cannot be obtained. This showing shall state what the prisoner has done to attempt to obtain the affidavits, records and documents, the production of which he requests the court to excuse.

In Myers v. State this Court analogized the procedural posture of an appeal from summary dismissal of a motion for post conviction relief to a civil Rule 12(b)(6) dismissal:

eview of claims brought via formal post-conviction petition proceeds in a structural order whereby "ur procedural posture is analogous to that when a defendant in a civil action moves to dismiss for failure to state a claim. Functionally, Section 99-39-9 is substituted for the pleadings requirements of Rule 8(a) and (e), Miss.R.Civ.P."

Myers v. State, 583 So. 2d 174, 175-6 (Miss. 1991)(internal citations omitted)(quoting Billicot v. State, 515 So.2d 1234, 1236 (Miss. 1987)

In short, this Court "adhere to the principle that a post- conviction collateral relief petition which meets basic pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Harveston v. State, 597 So. 2d 641, 643 (Miss. 1992)(internal citations omitted)(quoting Turner v State 590 So. 2d 871, 874 (Miss. 1991)); accord Taylor v. State, 682 So. 2d 359, 366 (Miss. 1996).

It must be noted, however, that while the analogy to a civil 12(b)6 motion is useful, the substituted pleading requirements of ยง 99-39- 9(1)(e) are not identical ...


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