Miss. R. App. P. 22

(a) Filing of Applications. Applications for post-conviction collateral relief in

criminal cases are governed by Miss. Code Ann. § 99-39-1, et seq. (Suppl. 1994) and this

Rule 22. If any application fails to comply substantially with the statute, the clerk of the

Supreme Court shall give written notice of the default, apprising the party of the nature of

the deficiency. If the deficiencies are not corrected within thirty days, the application may

be dismissed. Successive applications for post-conviction relief which do not clearly

demonstrate an exception to the successive writ bar of Miss. Code Ann. § 99-39-27(9) may

subject the filer to sanctions.

(b) Post-conviction issues raised on direct appeal. Issues which may be raised in

post-conviction proceedings may also be raised on direct appeal if such issues are based on

facts fully apparent from the record. Where the appellant is represented by counsel who did

not represent the appellant at trial, the failure to raise such issues on direct appeal shall

constitute a waiver barring consideration of the issues in post-conviction proceedings.

(c) Post-conviction Proceedings Filed by Persons Under Sentence of Death.

Proceedings on post-conviction applications and motions filed by persons under sentence of

death shall be governed by this rule. This sub-part (c) shall apply only to such proceedings

filed by persons under sentence of death.

(1) Representation by counsel.

(i) The petitioner shall be represented by qualified counsel

unless the petitioner has elected to proceed pro se, and the convicting

court finds, after a hearing on the record, that the petitioner's election

is informed and voluntary.

(ii) Where a petitioner is sentenced to death the Supreme Court

shall, immediately after the announcement of the decision on direct

appeal, order that the convicting court determine whether the

petitioner is indigent and, if so, whether the petitioner desires

appointment of counsel for the purpose of post-conviction

proceedings. Such order shall be forwarded to the convicting court

and the Office of Capital Post-Conviction Counsel upon entry. The

Office of Capital Post-Conviction Counsel shall advise the convicting

court of the attorney selected to represent the petitioner pursuant to

Section 99-39-23 and these rules.

(iii) Should it be determined upon hearing in the convicting

court that the petitioner has retained qualified private counsel, the

attorney selected by the Office of Capital Post-Conviction Counsel

shall take no further action and shall be discharged. Should it be

determined that the petitioner elects to proceed pro se, the attorney

selected by the Office of Post Conviction Counsel shall continue to

serve, but only as counselor and advisor to the petitioner.

(2) Proceedings pro se.

(i) The petitioner shall be allowed to proceed pro se only upon

findings of the convicting court that the petitioner has made an

informed and voluntary election to so proceed under the provisions of

subpart (1)(i) above. Such an election shall be deemed informed and

voluntary only when the petitioner has been advised of the complexity

of post-conviction proceedings and the limitations upon issues which

may be raised. The court shall advise the petitioner that:

the stringent filing and other deadlines attendant to post-conviction proceedings will not be relaxed for pro se

litigants,

ignorance of the law or procedures will not be accepted as an

excuse for failure to proceed in accordance with law,

grounds for post-conviction relief, including intervening

decisions, are often technical and require knowledge of and

skill in the law,

investigation, including discovery and the gathering of

evidence can be best pursued by counsel, and incarceration

of the petitioner will not be accepted as an excuse for failure

to conduct such investigation and gather such evidence,

the court will not relax or disregard the rules of evidence,

procedure, or courtroom protocol for the pro se petitioner,

and without legal counsel the petitioner's ability to proceed

effectively will be hampered, and

a decision to proceed pro se in post-conviction matters

usually increases the likelihood of an outcome unfavorable

to the petitioner.

(ii)In the event that expenses for litigation are allowed a post-conviction petitioner, they shall be disbursed through the attorney

serving as advisor and counselor.

(iii) When the petitioner is proceeding pro se, access to trial and

appellate files, prosecution and law enforcement files and the delivery

of discovery materials shall be upon such conditions and subject to

such restrictions as the conviction court may deem necessary to

preserve the integrity and security of the files and materials.

(iv) When the petitioner is proceeding pro se, and the application

for leave to file a motion for post-conviction relief is denied, or if the

application is granted, relief is denied in the convicting court and such

denial is affirmed in the Supreme Court, the attorney appointed as

advisor and counselor shall seek appointment of federal habeas

corpus counsel in accordance with the provisions of subpart (9)

below.

(3) Compensation of appointed counsel and expenses of litigation.

Compensation for attorneys appointed under this section and

expenses of litigation shall be governed by Miss. Code Ann. § 99-15-

18. Prior to the approval of expenses for litigation, the petitioner

shall present to the convicting court, with notice to the Attorney

General and an opportunity for the Attorney General to be heard, a

request estimating the amount of such expenses as will be necessary

and appropriate in the matter, and the court will determine and allow

such expenses as are justified upon hearing of the request for

expenses. In requesting such expenses, the petitioner shall make a

preliminary showing that such expenses are necessary to the

presentation of his case and that they relate to positions which may

reasonably be expected to be beneficial. To the extent that the court

may find that the disclosure of identity of experts or other factual

matters may hinder a fair preparation of the petitioner's case, the

disclosure thereof may be presented in camera without disclosure to

the State. All orders initially allowing litigation expenses shall be

subject to review and reconsideration from time to time as the court

may find necessary, and payment under such order will be approved

only upon the submission of specific detailed invoices and review by

the court. Should the court find that such invoices contain

information which if disclosed to the State would unfairly disclose

information detrimental to the petitioner's fair presentation of his

case, the court shall consider those portions in camera without

disclosure to the State.

(4) Further matters preliminary to proceedings in the Supreme Court

(i) An application for post-conviction relief shall not be filed

until proceedings on rehearing of the affirmance of the conviction and

sentence are final. However, not later than sixty (60) days following

the appointment of post-conviction counsel, or the determination that

the petitioner is represented by qualified private counsel, or elects to

proceed pro se, counsel or the pro se petitioner shall examine the

record and preliminarily investigate the case and shall file with this

Court a statement that having done so, counsel or the pro se petitioner

either finds no issues with potential post-conviction merit or finds that

there are issues which are believed to be meritorious. In the event

that counsel or the pro se petitioner files a statement indicating that

post-conviction review is deemed to be meritorious and that counsel

or the pro se petitioner intends to file an application for post-conviction review, execution of the sentence shall be stayed until

disposition of post-conviction proceedings.

(ii) Upon appointment of counsel, or the determination that the

petitioner is represented by private counsel the petitioner's prior trial

and appellate counsel shall make available to the petitioner's post-conviction counsel their complete files relating to the conviction and

sentence. The State, to the extent allowed by law, shall make

available to post-conviction counsel the complete files of all law

enforcement and prosecutorial agencies involved in the investigation

of the crimes committed and the prosecution of the petitioner. If the

State has a reasonable belief that allowing inspection of any portion

of the files by post-conviction counsel for the petitioner would not be

in the interest of justice, the State may submit for inspection by the

convicting court those portions of the files so identified. If upon

examination of the files, the court finds that such portions of the files

could not assist the capital petitioner in investigating, preparing, or

presenting a motion for post-conviction relief, the court in its

discretion may allow the State to withhold that portion of the files.

Discovery and compulsory process may be allowed the petitioner

from and after the appointment of post-conviction counsel or the

determination that the petitioner is represented by private counselor

or is proceeding pro se, but only upon motion indicating the purpose

of such discovery and that such discovery is not frivolous and is

likely to be helpful in the investigation, preparation or presentation of

specific issues which the petitioner in good faith believes to be in

question and proper for post-conviction relief, and order entered in

the sound discretion of the court. Upon determination that the

petitioner has elected to proceed pro se, such files and discovery shall

be made available as provided in subsection (2)(iii) above.

(5) Proceedings in the Supreme Court on Application for Leave to Seek Relief in

the Convicting Court.

(i) An application for leave to file a motion for post-conviction

relief shall be filed in the Supreme Court not later than one hundred

eighty (180) days after counsel is appointed or sixty (60) days

following denial of rehearing on the direct appeal of the conviction

and sentence, whichever is later. An application which is filed after

such date is presumed untimely unless the petitioner establishes good

cause by showing particularized justifying circumstances. Absent

extraordinary circumstances, a petitioner may not establish good

cause for untimely filing of an application filed later than ninety-one

(91) days after the filing due date hereunder. The failure to file an

application within the time allowed hereunder constitutes a waiver of

all grounds for relief, excepting from such waiver only those matters

which are excepting from res judicata or successive writ bar identified

in section 99-39-27(9).

(ii) The State shall file a response to the application for leave to

file a motion for post-conviction relief not later than thirty (30) days

following the date the State receives notice of filing of the

application. The State may request additional time upon

particularized justifying circumstances. The petitioner may file a

rebuttal to the State's response within fifteen (15) days following the

date the petitioner receives notice of filing of the response. The

petitioner may request additional time for rebuttal upon particularized

justifying circumstances.

(6) Proceedings in the Convicting Court

In the event that the application is granted, the Supreme Court shall issue

such scheduling orders as it deems appropriate and shall during proceedings in the

convicting court monitor such proceedings in order to assure compliance with

filing and decision periods established in this section or by order. Such

scheduling orders shall require (1) the filing of the motion for post-conviction

relief within thirty (30) days following the entry of the order, and, if an evidentiary

hearing is to be granted, such hearing to be conducted not more than one hundred

eighty (180) days following the filing of the motion for post-conviction relief.

The scheduling order shall, in any event, require disposition of all proceedings in

the convicting court within two hundred seventy (270) days following the filing

of the motion for post-conviction relief. The preparation of the transcript and

record of proceedings shall take precedence over all other duties of the court

reporter assigned to the post-conviction proceedings in the convicting court, and

in any event, such record shall be transcribed within thirty (30) days following the

conclusion of such proceedings unless additional time shall be allowed by the

Supreme Court.

(7) To the extent that the procedures set out in this rule may conflict with any

other rule of procedure or practice, the procedures set out herein shall control in

post-conviction proceedings on behalf of petitioners under a sentence of death.

(8) Appeals from the judgments entered under this rule shall proceed as in other

appeals from post-conviction decisions of the convicting courts and in accordance

with rules established by the Supreme Court.

(9) If after an application for leave to file a motion for post-conviction relief is

filed, the petitioner is denied post-conviction relief in this Court, or is denied such

relief in the convicting court after grant of an application for leave to file for post-conviction relief in the convicting court and the Supreme Court affirms such

denial by the trial court, an attorney, whether appointed under this section or

privately retained, shall not later than fifteen (15) days after such denial becomes

final in the Supreme Court, move to be appointed as counsel in federal habeas

review under 21 U.S.C. Section 848(q) or equivalent provision or, if necessary,

move for the appointment of other counsel under 21 U.S.C. Section 848(q) or

equivalent provision.

(d) Standards and Qualifications for Attorneys Appointed to Represent Those

Under Sentence of Death in Post-conviction Proceedings. At least one (1) attorney

representing those under a sentence of death seeking post-conviction relief shall have

primary responsibility for and personally appear at proceedings, and shall,

(1) Be admitted to practice law in Mississippi, being a member in good standing

of the Bar for at least five years immediately preceding the appointment, or

admitted pro hac vice pursuant to order entered under M.R.A.P. 46 and being a

member in good standing of that attorney’s home jurisdiction for a like period

immediately preceding the appointment,

(2) Be admitted to practice in the federal courts of Mississippi and before the

United States Court of Appeals for the Fifth Circuit, or, in the case of attorneys

appearing pro hac vice, admitted to the federal district courts and the circuit court

of appeals having jurisdiction in their home areas,

(3) Have practiced for three years, in federal or state court, in at least one of the

following areas:

(a) criminal trials or direct appeals before a court of record, and/or

(b) post-conviction or habeas proceedings.

(4) Have not previously represented the capital petitioner in the case either in the

trial court or in the direct appeal, unless the petitioner and counsel expressly

request continued representation and waive all potential issues that are foreclosed

by continued representation,

(5) Have substantial knowledge and understanding of the relevant state and federal

law, both procedural and substantive, governing capital cases, including

completion of the requisite educational training enumerated in subsection (e), and

(6) Have otherwise demonstrated the necessary proficiency and commitment to

zealous advocacy which exemplify the quality of representation appropriate to

capital cases.

Provided, however, that with the approval of the trial court, an attorney may be appointed

who does not meet the stated qualifications in (1) - (3) upon a showing that the attorney’s

experience, stature and record in a different type of practice (e.g., civil litigation, academic

work, or work for a court or prosecutor) enable the trial court to conclude that the attorney

has extensive experience in complex cases substantially equivalent to that of a qualified

attorney.

(e) Education and training of attorneys appointed or retained to represent those

under sentence of death in post-conviction proceedings. Effective July 31, 2000, an

attorney serving as post-conviction counsel in a case wherein the petitioner is under a

sentence of death shall have within one year prior to his appointment or employment

successfully completed twelve hours training or educational programs in the area of capital

defense through a program accredited by the Mississippi Commission on Continuing Legal

Education or by the American Bar Association.