MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Judiciary En Banc
By: Representative Watson
AN ACT TO AMEND SECTIONS 99-39-5 AND 99-39-23, MISSISSIPPI CODE OF 1972, TO REVISE FILING LIMITATIONS FOR POST-CONVICTION RELIEF IN CAPITAL CASES AND THE APPOINTMENT OF POST-CONVICTION COUNSEL; TO AMEND SECTION 99-39-103, MISSISSIPPI CODE OF 1972, TO REVISE THE PERSONNEL OF THE OFFICE OF POST-CONVICTION COUNSEL; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 99-39-5, Mississippi Code of 1972, is amended as follows:
99-39-5. (1) Any prisoner in custody under sentence of a court of record of the State of Mississippi who claims:
(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That his plea was made involuntarily;
(g) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(h) That he is entitled to an out-of-time appeal; or
(i) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy; may file a motion to vacate, set aside or correct the judgment or sentence, or for an out-of-time appeal.
(2) A motion for relief under this article shall be made within three (3) years after the time in which the prisoner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year upon judgment of death becoming final and a writ of certiorari to the United States Supreme Court having been denied of the time for filing such petition having expired.
(3) This motion is not a substitute for, nor does it affect, any remedy incident to the proceeding in the trial court, or direct review of the conviction or sentence.
(4) Proceedings under this article shall be subject to the provisions of Section 99-19-42.
SECTION 2. Section 99-39-23, Mississippi Code of 1972, is amended as follows:
99-39-23. (1) If an evidentiary hearing is required the judge may appoint counsel for a petitioner who qualifies for the appointment of counsel under Section 99-15-15, Mississippi Code of 1972.
(2) The hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation.
(3) The parties shall be entitled to subpoena witnesses and compel their attendance, including, but not being limited to, subpoenas duces tecum.
(4) The court may receive proof by affidavits, depositions, oral testimony or other evidence and may order the prisoner brought before it for the hearing.
(5) If the court finds in favor of the prisoner, it shall enter an appropriate order with respect to the conviction or sentence under attack, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.
(6) The order as provided in subsection (5) of this section or any order dismissing the prisoner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. Excepted from this prohibition is a motion filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's supervening insanity prior to the execution of a sentence of death. A dismissal or denial of a motion relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.
(7) No relief shall be granted under this article unless the prisoner proves by a preponderance of the evidence that he is entitled to such.
(8) Proceedings under this section shall be subject to the provisions of Section 99-19-42.
(9) In cases resulting in a sentence of death and upon a determination of indigence, appointment of post-conviction counsel shall be made by the Office of Capital Post-Conviction Counsel upon order entered by the Supreme Court promptly upon the judgment of death becoming final and a writ of certiorari to the United States Supreme Court having been denied or the time for filing such petition having expired. The order shall direct the trial court to immediately determine indigence and whether the inmate will accept counsel.
SECTION 3. Section 99-39-103, Mississippi Code of 1972, is amended as follows:
99-39-103. There is created the Mississippi Office of Capital Post-Conviction Counsel. This office shall consist of a minimum of three (3) and a maximum of five (5) attorneys, a minimum of one (1) and a maximum of three (3) investigators, one (1) fiscal officer and a minimum of one (1) and a maximum of two (2) secretary/paralegals. One (1) of the attorneys shall serve as director of the office. The director shall be appointed by the Chief Justice of the Supreme Court with the approval of a majority of the justices voting, for a term of four (4) years, or until a successor takes office. The remaining attorneys and other staff shall be appointed by the director of the office and shall serve at the will and pleasure of the director. The director and all other attorneys in the office shall either be active members of The Mississippi Bar, or, if a member in good standing of the bar of another jurisdiction, must apply to and secure admission to The Mississippi Bar within twelve (12) months of the commencement of the person's employment by the office. At least three (3) of the attorneys in the office shall meet all qualifications necessary to serve as post-conviction counsel for persons under a sentence of death. The director may be removed from office by the Chief Justice upon finding that the director is not qualified under law to serve as post-conviction counsel for persons under sentences of death, has failed to perform the duties of the office or has acted beyond the scope of the authority granted by law for the office.
SECTION 4. This act shall take effect and be in force from and after July 1, 2004.