Irving v. State

For the Court:

ON APPLICATION FOR LEAVE TO FILE MOTION TO VACATE JUDGMENT AND DEATH SENTENCE

Irving was convicted of capital murder by the Circuit Court of Pontotoc County in 1976. He was the first defendant to be tried, convicted, and sentenced to death under the bifurcated procedure promulgated in Jackson v. State, 337 So.2d 1242 (Miss.1976). A unanimous decision of this Court affirmed both the guilt and sentencing phases of the trial. Irving v. State, 361 So.2d 1360 (Miss.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979).

On Petition for Writ of Habeas Corpus, a Federal District Court vacated Irving’s death sentence because it was of the opinion his counsel had discouraged Irving from testifying in the sentencing phase of trial to protect a co-defendant his attorney was also representing. This violated Irving’s fundamental right to testify in his own behalf. See Irving v. Hargett, 518 F.Supp. 1127 (N.D.Miss.1981).

Resentencing proceedings were instituted and Irving was again sentenced to death. This Court upheld the conviction and petition for rehearing was denied. See Irving v. State, 441 So.2d 846 (Miss.1983), cert. denied, 470 U.S. 1059, 105 S.Ct. 1774, 84 L.Ed.2d 834 (1985), rehearing denied, 471 U.S. 1095, 105 S.Ct. 2170, 85 L.Ed.2d 527 (1985).

The facts presented in this application have been stated in prior opinions and need not be repeated. The relief presently sought is pursuant to Miss.Code Ann., § 99-39-1, et seq. (Supp.1984), the Mississippi Uniform Post-Conviction Collateral Relief Act. All points now urged for relief relate either to the initial determination of guilt or to the second sentencing trial.

According to our review and study all points now presented have either been disposed of by prior adjudication making them res judicata; or, the points were not raised at trial or in prior appeals and are now procedurally barred. Moreover, many are now before us unsupported by legal authority.

It is our opinion the present application is an attempt to revive previously litigated issues by framing questions differently, or, to present those which should have been raised during previous trials.

The Application for Leave to File Motion to Vacate Judgment and Death Sentence is denied.

APPLICATION DENIED.

WALKER and ROY NOBLE LEE, PJJ., and DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.

HAWKINS and ROBERTSON, JJ., not participating.