Current through the 2021 Legislative Session
Section 99-39-27 - Application to Supreme Court for leave to proceed in trial court; grant of relief; dismissal or denial as res judicata(1) The application for leave to proceed in the trial court filed with the Supreme Court under Section 99-39-7 shall name the State of Mississippi as the respondent.(2) The application shall contain the original and two (2) executed copies of the motion proposed to be filed in the trial court together with such other supporting pleadings and documentation as the Supreme Court by rule may require.(3) The prisoner shall serve an executed copy of the application upon the Attorney General simultaneously with the filing of the application with the court.(4) The original motion, together with all files, records, transcripts and correspondence relating to the judgment under attack, shall promptly be examined by the court.(5) Unless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by those documents 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. The court may, in its discretion, require the Attorney General upon sufficient notice to respond to the application.(6) The court, upon satisfaction of the standards set forth in this article, is empowered to grant the application.(7) In granting the application the court, in its discretion, may: (a) Where sufficient facts exist from the face of the application, motion, exhibits, the prior record and the state's response, together with any exhibits submitted with those documents, or upon stipulation of the parties, grant or deny any or all relief requested in the attached motion.(b) Allow the filing of the motion in the trial court for further proceedings under Sections 99-39-13 through 99-39-23.(8) No application or relief shall be granted without the Attorney General being given at least five (5) days to respond.(9) The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article. Excepted from this prohibition is an application filed under Section 99-19-57(2), raising the issue of the offender's supervening mental illness before the execution of a sentence of death. A dismissal or denial of an application relating to mental illness under Section 99-19-57(2) shall be res judicata on the issue and shall likewise bar any second or successive applications 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 that 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, that is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise exempted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.(10) Proceedings under this section shall be subject to the provisions of Section 99-19-42.(11) Post-conviction proceedings in which the defendant is under sentence of death shall be governed by rules established by the Supreme Court as well as the provisions of this section.Laws, 1984, ch. 378, § 14; Laws, 1995, ch. 566, § 6; Laws, 2000, ch. 569, § 14; Laws, 2008, ch. 442, § 42, eff. 7/1/2008.