Petition for Writ of Certiorari — Bullock v. Mississippi

Supreme Count, U8.

FILED

911688 may 1.42002

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

+

JOSEPH WAYNE BULLOCK,

Petitioner,

versus

STATE OF MISSISSIPPI, |

Respondent.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of Mississippi

¢

PETITION FOR WRIT OF CERTIORARI

wa

MICHAEL ADELMAN, ESQUIRE

Counsel of Record

ADELMAN & STEEN, L.L.P.

Post Office Box 368

224 Second Avenue

Hattiesburg, MS 39403-0368

(601) 544-8291; (601) 544-1421 (FAX)

MS Bar No. 1153

Counsel for Petitioner,

Joseph Wayne Bullock

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Whether Petitioner’s sentence to life imprison-

ment without possibility of parole as a habitual offender

constitutes a violation of the ex post facto clause?

ii

PARTIES TO THE PROCEEDING

In addition to Petitioner, Joseph Wayne Bullock, the

other parties below included his co-defendant, Thomas

Jerome Bullock, now deceased, and the State of Missis-

sippi, Respondent and Appellee below.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED................0se0eeeteee i

PARTIES TO THE PROCEEDING .................. i

Fa ree Pre iii

TABLE OF AUTHORITIES................4. ceed iv

OPINIONS BELOW.............0.20s0s00: Seer 1

JURIBOECTION ....-csccscecccccsecseessef, pexhoaes 1

CONSTITUTIONAL PROVISION......... Miciecate 1

STATEMENT OF THE CASE AND FACTS .......-. 2

REASONS FOR GRANTING THE WRIT } Spader 5

EEE c6440escucdeendcees eden’ ee 12

iv

TABLE OF AUTHORITIES

Page

CASEs:

California Department of Corrections v. Morales, 514

U.S. 499, 131 L.Ed.2d 588, 115 S.Ct. 1597 (1995) ...8, 9

Collins v. Youngblood, 497 U.S. 37, 111 L.Ed.2d 30,

See PO GED ba ckéncvncknhesdcwsae cas 6, 7, 8

Garner v. Jones, 529 U.S. 244, 146 L.Ed.2d 236, 120

SG SE NL ro dend ncenh evinces s Phudbnaedene 8, 10

Ivy v. State, 731 So.2d 601 (Miss. 1999)............... 3

Joseph Wayne Bullock v. State of Mississippi, Missis-

sippi Supreme Court, No. 2001-M-01695............ 1

Lindsey v. Washington, 301 U.S. 397, 81 L.Ed. 1182,

oP We Ee en kic dens apscaceedda sue ccs 11, 12

Luckett v. State, 582 So.2d 428 (Miss. 1991)........... 3

Miller v. Florida, 482 U.S. 423, 96 L.Ed.2d 351,107. -

ice 7. Rr 11, 12

Perkins v. Cabanna, 794 F.2d 168 (5th Cir. 1986),

cert. den., 479 U.S. 936, 107 S.Ct. 414, 93 L.Ed.2d

Pe CE dd cdaweckcivnaiseds eee 7

Rust v. Sullivan, 500 U.S. 173, 114 L.Ed.2d 233, 111

xe. 7. Sore aoa eas 6

Washington Airport's Authority v. Citizens for Abate-

ment of AirCraft Noise, Inc., 501 U.S. 252, 115

L.Ed.2d 236, 111 S.Ct. 2298 (1991) ... ............. 6

Weaver v. Graham, 450 U.S. 24, 67 L.Ed.2d 17, 101

ee Se MES bd vd eedesakbolacusneteee ce 11, 12

Vv

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTION:

wa CO, OO8 EO ives ckccccsc toutes 2

STATUTES:

om Sr 6 OI has os soe 1

MISS. CODE of 1972, as amended:

§ 47-5-139....... STEEP PO Te eT eT ee ero t 13

DPS a ivcsacisndenscivel. eee 13

Bt MTP PO ee rena S28 9 11

DF i es isdeceshiawieaea eee 13

OIE oo oiccstcdreaeee eee eee 12

DB PRE bbs dersicscsrdietee ee 4.3,7

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PETITION FOR WRIT OF CERTIORARI

Joseph Wayne Bullock, the Petitioner in the above-

captioned case, respectfully prays that a Writ of Cer-

horari issue to review the opinion and order of the Mis-

Sissippi Supreme Court entered on March 22, 2002.

>

OPINIONS BELOW

The Order of the Mississippi Supreme Court was

filed on March 22, 2002, and captioned Joseph Wayne

Bullock v. State of Mississippi, Mississippi Supreme

Court, No. 2001-M-01695. A copy of the Mississippi

Supreme Court’s Order appears herein at Appendix 1

The Order was signed by Chuck Easley, Justice of the

Mississippi Supreme Court.

JURISDICTION

The Order sought to be reviewed is the Order ren-

dered by the Mississippi Supreme Court on March 22,

2002. The jurisdiction of the Court is invoked pursuant to

28 U.S.C. § 1254(1).

o—

CONSTITUTIONAL PROVISION

The constitutional provision involved in this case is

as follows:

Article I, Section 10 provides that “No State shall

. . pass any Bill of Attainder, ex post facto Law.”

+

STATEMENT OF THE CASE AND FACTS

A. Procedural History

Petitioner, Joseph Wayne Bullock, was found guilty

of Kidnaping and sentenced as a habitual offender in the

Circuit Court of Jackson County, Mississippi. The guilty

verdict was returned by the jury on February 4, 1987, and

a sentencing hearing was held on February 5, 1987. Bull-

ock was sentenced to life imprisonment without the pos-

sibility of parole as a habitual offender (App. 4-5).

Bullock's judgment of conviction and sentence were

affirmed by the Supreme Court of Mississippi on Septem-

ber 13, 1989, in an opinion not designated for publication,

No. 07-58581 (App. 6-7). Following his conviction or affir-

mance on appeal, Petitioner, along with his co-defendant,

Thomas Jerome Bullock, now deceased, filed numerous

petitions for post-conviction relief. Those motions were

consistently denied by the Mississippi Supreme Court.

See Mississippi Supreme Court Case, No. 90-M-277, a

series of decisions rendered on April 8, 1992 (App. 8-9),

Order of Mississippi Supreme Court, No. 1999-M-01613,

dated April 21, 2000 (App. 10-11), Order of Mississippi

Supreme Court No. 2000-M-01276, dated March 11, 2002

(App. 12-13).

Petitioner filed Application for Post-Conviction

Relief or, in the alternative, Motion to Correct Judgment

Eo a

and Sentence in the Circuit Court on October 30, 2001.2

None of Mr. Bullock’s earlier petitions had addressed the

issue of whether or not his sentence as a habitual!

offender constituted an ex post facto violation. In his Octo-

ber, 2001 Application, Mr. Bullock raised the limited, but

precise, issue as to whether or not his sentence to life

imprisonment without the possibility of parole as a habit-

ual offender constitutes an ex post facto violation. That

was the only issue before the Mississippi Supreme Court

and it remains the only issue before this Honorable

Court. The Mississippi Supreme Court denied Bullock's

application for post-conviction relief in an order filed

March 22, 2002 (App. 1).2 Bullock seeks a Writ of Cer-

tiorari to review that Order.

B. Statement of the Facts

The facts necessary to Petitioner’s Application for

Post-Conviction Collateral Relief, as well as his present

Petition for Certiorari are limited. They are also undis-

puted. Those facts include Petitioner’s conviction and

sentence as a habitual offender. The Indictment alleged

1 Mississippi Uniform Post-Conviction Collateral Relie!

Act, Section 99-39-1, et seq., Mississippi Code of 1972, as

amended.

? The Mississippi Supreme Court did not raise an\

procedural bars in its Order dismissing Mr. Bullock's

application. Under Mississippi cases, errors effecting

fundamental constitutional rights are excepted from procedural!

bars such as the three (3) year limitation period (Sectior

99-39-5(2)) and the bar against filing successive petitions

(Section 99-39-23)(6)). Luckett v. State, 582 So.2d 428, 430 (Miss

1991); Ivy v. State, 731 So.2d 601 (Miss. 1999).

that Petitioner had been convicted of the following

offenses:

1) Rape, 1973, in the Circuit Court of

George County, Mississippi, with a sentence of

three (3) years in the custody of the Mississippi

State Penitentiary;

2) Grand Larceny, 1972, in the Circuit

Court of George County, Mississippi, with a sen-

tence of three (3) years in the Mississippi State

Penitentiary; and

3) Grand Larceny, 1979, in the Circuit

Court of George County, Mississippi, with a sen-

tence of three (3) years in the Mississippi

Department of Corrections (App. 2-3).

For the purposes of this Petition, as well as the

underlying Petition, Mr. Bullock does not challenge the

evidentiary basis used by the State in introducing and

proving the above convictions. Again, the only issue is

the ex post facto issue.

Petitioner was sentenced as a habitual offender under

Sections 99-19-81 and 99-19-83 of the Mississippi Code of

1972, as amended. These provisions came into effect on

January 1, 1977. However, two (2) of the above prior

convictions on which the State relied in order to sentence

the Petitioner as a habitual offender occurred prior to the

enactment of Sections 99-19-81 and 99-19-83.

ad

REASONS FOR GRANTING THE WRIT

Petitioner was sentenced under both of Mississippi's

habitual offender statutes, Sections 99-19-81 and 99-19-83

of the Mississippi Code of 1972, as amended (App. 4-5).

Section 99-19-81 provides as follows:

“Every person convicted in this state of a felony

who shall have been convicted twice previously

of any felony or federal crime upon charges

separately brought and arising out of separate

incidents at different times and who shall have

been sentenced to separate terms of one (1) year

or more in any state and/or federal penal insti-

tution, whether in this state or elsewhere, shall

be sentenced to the maximum term of imprison-

ment prescribed for such felony, and such sen-

tence shall not be reduced or suspended nor

shall such person be eligible for parole or proba-

tion.”

Section 99-19-83 provides as follows:

“Every person convicted in this state of a felony

who shall have been convicted twice previously

of any felony or federal crime upon charges

separately brought and arising out of separate

incidents at different times and who shall have

been sentenced to and served separate terms of

one (1) year or more in any state and/or federal

penal institution, whether in this state or else-

where, and where any one (1) of such felonies

shall have been a crime of violence shall be

sentenced to life imprisonment, and such sen-

tence shall not be reduced or suspended nor

shall such person be eligible for parole or proba-

tion.”

Neither of the above statutes needs to be abrogated

in order to grant Petitioner relief in this case. While

neither statute limits prior convictions to the effective

date of the statute or thereafter, by granting Petitioner

relief and finding that his sentence constituted an ex post

facto violation because of the consideration of his 1972

and 1973 convictions, the above statutes will remain fully

in effect, but limited to convictions as of January 1, 1977,

or thereafter. This result would be in keeping with the

longstanding doctrine of preserving a statute if it can be

given a constitutional interpretation. See Washington Air-

port’s Authority v. Citizens for Abatement of AirCraft Noise,

Inc., 501 U.S. 252, 115 L.Ed.2d 236, 111 S.Ct. 2298 (1991);

Rust v. Sullivan, 500 U.S. 173, 114 L.Ed.2d 233, 111 S.Ct.

1759 (1991).

This Honorable Court established its present test for

determining whether criminal enactments violate ex post

facto guarantees in Collins v. Youngblood, 497 U.S. 37, 111

L.Ed.2d 30, 110 S.Ct. 2715 (1990). Criticizing prior juris-

prudence which attempted to distinguish between “pro-

cedural” changes as opposed to changes effecting

“matters of substance,” the Court in Collins stated that

one or more of the following must be found in order for a

statute to constitute an ex post facto violation:

“a

. . . punish as a crime an act previously

committed, which was innocent when done;

. .. make more burdensome the punishment for

a crime, after its commission; . . . deprive one

charged with crime of any defense available

according to law at the time when the act was

committed.” (497 U.S. at 52).

By reaching back to crimes which Mr. Bullock com-

mitted prior to January, 1977, specifically crimes which

occurred in 1972 and 1973, the sentencing court in this

case has clearly made more burdensome the punishment

for those crimes after their commission.

—

This Honorable Court has not had occasion to con-

sider the ex post facto implications of the Mississippi

habitual offender statutes.

Prior to Collins v. Youngblood, the plaintiff in Perkins v.

Cabanna, 794 F.2d 168 (5th Cir. 1986), cert. den., 479 U.S.

936, 107 S.Ct. 414, 93 L.Ed.2d 366 (1986), challenged Sec-

tion 99-19-81 under the ex post facto clause. Mr. Perkins

asserted that the law impermissibly applies to convictions

that occurred prior to the enactment of the statute. The

Court of Appeals rejected Mr. Perkins’ argument. Without

citation of any cases, the Fifth Circuit held that the statute

does not punish or increase the punishment for past

offenses, but classifies felony recidivists in a different

category for punishment purposes because of their past

offenses. Perkins at 169. This Court denied certiorari.

Petitioner now submits that this is an opportune time

for the Court to grant certiorari, in order to determine

whether or not the use of crimes which were committed

prior to the enactment of the habitual offender statutes

constitutes an ex post facto violation. The semantics

employed by the Fifth Circuit in Perkins carry little, if any,

weight after Collins v: Youngblood. The use of Petitioner’s

1972 and 1973 convictions in this case made more burden-

some the punishment for those crimes after their commis-

sion. The 1972 and 1973 three (3) year sentences have

en

been converted into life sentences without eligibility for

parole.

Petitioner would further submit that the circum-

stances in this case are very different from those in which

the Court has found no ex post facto violations despite

enactment of new legislation or regulations which, on

their face, had some impact on the case in question,

specifically Collins v. Youngblood itself, California Depart-

ment of Corrections v. Morales, 514 U.S. 499, 131 L.Ed.2d

588, 115 S.Ct. 1597 (1995) and Garner v. Jones, 529 U.S. 244,

146 L.Ed.2d 236, 120 S.Ct. 1352 (2000).

_ In Collins v. Youngblood, supra, this Court found that

the new Texas statute which allowed reformation of a

jury verdict assessing an unauthorized punishment was

not an ex post facto violation. The Court found that the

statute, which had resulted in the deletion of a ten thou-

sand dollar ($10,000.00) fine, did not punish as a crime an

act previously committed which was innocent when

done, did not make more burdensome the punishment for

a crime after its commission, and did not deprive the

defendant of any defense available according to law at

the time the act was committed. The fact of the matter is -

that in Collins v. Youngblood the defendant’s punishment

had not been increased, but actually decreased.

Unlike Collins ». Youngblood, Mr. Bullock’s sentence

was increased as a result of the 1977 habitual offender

statutes.

In Morales, this Court held that a California statute

which allowed the California Board of Parole to defer

parole hearings for up to three (3) years for a prisoner

convicted of more than one (1) offense involving the

taking of a life, as applied to prisoners who committed

their crimes before the enactment of the statute, did not

constitute a violation of the ex post facto clause. In reject-

ing the ex post facto argument in Morales, the Court relied

on several factors: i.e., both before and after the 1981

amendment, California punished the offense of second-

degree murder with an indeterminent sentence of con-

finement in the state prison for a term of fifteen (15) years

to life; the amendment left unchanged the substantiative

formula for securing any reductions to this sentencing

range; the amendment had no effect on the standards for

fixing a prisoner’s initial date of eligibility for parole or

for determining his suitability for parole and setting his

release date.

The only change affected by the statute in question in

Morales was the frequency of mandated parole hearings,

changing the requirement that parole hearings be held

every year to once every three (3) years. In addition, the

amendment only applied to those prisoners who had

been convicted of “more than one offense which involves

the taking of a life.” Morales, 131 L.Ed.2d at 597. Thus, the

amendment applies only to a class of prisoners for whom

the likelihood of release on parole is quite remote. The

Court also focused on the fact that the Parole Board is not

required to defer parole hearings and is able to tailor “the

- frequency of subsequent suitability hearings to the partic-

ular circumstances of the individual prisoner.” Morales,

131 L.Ed.2d at 598.

These factors are startlingly different than the cir-

cumstances in this case where Mr. Bullock received a

sentence of life without parole, based not only on his

10

current kidnaping conviction, but also on his two (2)

pre-1977 convictions.

This Court’s decision in Garner v. Jones flows directly

out of Morales. In Garner, the Court reversed the Eleventh

Circuit and held that the Georgia Parole Board’s amend-

ment of its rule so as to lengthen the time between parole

reconsideration hearings from three (3) years to eight (8)

years did not violate the ex post facto clause. Again, the

Board retains discretion to shorten the interval, but

declined to do so in the particular case at hand where the

defendant had been sentenced to two (2) separate life

sentences for murder. The Court stated that the test to

determine whether or not there has been an ex post facto

violation is whether there is sufficient risk of increasing

the measure of punishment attached to the covered crime.

The Court concluded that given Mr. Garner’s criminal

history, it was difficult to see how the Board increased his

risk of serving a longer time when it was set at an eight

(8) year, not a three (3) year interval. The Court stated

that when the rule does not by its own term show a

significant risk, the defendant must demonstrate by evi-

dence drawn from the rule’s practical implementation by

the agency charged with exercising discretion, that its

retroactive application will result in a longer period of

incarceration than under the earlier rule. Finally, this

Court held that in Garner, the defendant did not meet that

burden.

Unlike the circumstances in Garner, here, the issue

goes beyond a significantly increased risk of greater pun-

ishment. Here, Defendant could not have received a life

sentence without parole if the sentencing court had not

implemented or used his 1972 and 1973 convictions. In

11

this case, the defendant’s punishment for his 1972 and

1973 convictions was, in fact, increased based on legisla-

tion which was enacted subsequent to those convictions.

Had Mr. Bullock not been sentenced as a habitual

offender, under the law existing at the time of his sen-

tence, he would have been eligible for parole consider-

ation after serving ten (10) years of his sentence. See

§ 47-7-3(1), Mississippi Code of 1972, as amended. Since

Mr. Bullock has served more than ten (10) years of his

sentence, if his status as a habitual offender is removed,

he would be immediately eligible for parole consider-

ation.

The use of Mr. Bullock’s pre-1977 convictions in this

case is comparable to the statutory changes found to be ex

post facto violations in Lindsey v. Washington, 301 U.S. 397,

81 L.Ed. 1182, 575 S.Ct. 797 (1937), Miller v. Florida, 482

U.S. 423, 96 L.Ed.2d 351, 107 S.Ct. 2446 (1987), and Weaver

v. Graham, 450 U.S. 24, 67 L.Ed.2d 17, 101 S.Ct. 960 (1981).

In Lindsey, after commission of the crime and defen-

dants’ conviction, the Florida statute regarding Grand

Larceny was changed from providing for a maximum

sentence of not more than fifteen (15) years for a manda-

tory fifteen (15) year sentence. Because this change made

more burdensome the punishment for a crime after its

commission, this Court found an ex post facto violation.

In Weaver, this Court found that a statute which

retroactively reduced the amount of “gain time” or “good

time” credits available to prisoners was a violation of the

ex post facto clause. Again, in Weaver, the actual parame-

ters of punishment were changed after commission of the

crime and the defendant’s initial sentence.

12

In Miller, a Florida statute which increased the sen-

tencing range for certain sexual offenses after the peti-

tioner’s conviction, but before his sentencing, was again

found to be a violation of the ex post facto clause.

Lindsey, Weaver and Miller are important, because in

each case there was a change which adversely effected

the defendant’s sentence resulting in an increase in that

sentence. Likewise, Mississippi’s habitual offender stat-

utes which went into effect on January 1, 1977, adversely

and effectively increased Joseph Bullock’s sentences for

his 1972 and 1973 convictions.

¢

CONCLUSION

Without inclusion of his 1972 and 1973 convictions,

Petitioner Bullock could not have received a life sentence

without the possibility of parele or pardon as a habitual

offender when he was sentenced in 1987.

In 1972, Mr. Bullock received a three (3) year sentence

for Grand Larceny. The maximum penalty was five (5)

years. See § 97-17-415 of the Mississippi Code of 1972, as

amended.

In 1973, Mr. Bullock received a three (3) year sentence

for Rape. A jury could have imposed a life sentence, but

Mr. Bullock was sentenced by the Court which had no

3 The provision of Section 97-17-41 in effect in 1972 is set

forth at Appendix 14.

13

authority to impose a life sentence. See § 97-3-65(2)* of

the Mississippi Code of 1972, as amended. Even if he had

received a life sentence, he would have been eligible for

parole after ten (10) years. See § 47-7-3.5 At that time, he

could not have received a sentence of life without the

possibility of parole. The present statute which prohibits

early release for an inmate who receives a life sentence or

is convicted of a sex crime did not go into effect until

June 30, 1995. See § 47-5-139.°

In 1972 and 1973, Mr. Bullock could not have

received a sentence without eligibility for parole for

either Grand Larceny or Rape.

Conversely, when Mr. Bullock was convicted of Kid-

naping in 1987, the jury was authorized and did, in fact,

sentence Mr. Bullock to a life sentence. But, without

inclusion of the 1972 and 1973 convictions, he could not

have received a sentence of life without the possibility of

parole. Again, Section 47-5-139 did not go into effect until

1995.

In this case, the inclusion of Mr. Bullock’s 1972 and

1973 convictions in his 1987 sentence made more burden-

some the punishment for his 1972 and 1973 crimes -

4 The provision of Section 97-3-65(2) in effect in 1973 is set

forth at Appendix 14-15. .

5 The provision of Section 47-7-3 in effect in 1972 and 1973

is set fort’ at Appendix 15-16.

6 Section 47-5-139, effective July 30, 1995, is set forth at

Appendix 15-16.

14

based on a statute that did not go into effect until Janu-

ary, 1977. This is indeed an ex post facto violation.

Respectfully submitted,

JOSEPH WAYNE BULLOCK,

Petitioner

MICHAEL ADELMAN, ESQUIRE

ADELMAN & STEEN, L.L.P.

Post Office Box 368

224 Second Avenue

Hattiesburg, MS 39403-0368

(601) 544-8291; (601) 544-1421 (FAX)

MS Bar No. 1153

Counsel for Petitioner,

Joseph Wayne Bullock

App. 1

Serial: 94605

IN THE SUPREME COURT OF MISSISSIPPI

No. 2001-M-01695

JOSEPH WAYNE BULLOCK

v.

STATE OF MISSISSIPPI

ORDER

(Filed Mar. 22, 2002)

This matter came before a panel of this Court consist-

ing of Smith, P.J., Waller and Easley, JJ., on the application

for leave to seek post-conviction relief filed by Bullock.

The panel finds that Bullock’s reliance on Bell v. State, 726

So.2d 93 (Miss. 1998) is misplaced and that the applica-

tion fails to present a substantial showing of the denial of

a state or federal right as required by Miss Code Ann.

§ 99-39-27(5).

IT IS THEREFORE ORDERED that the application for

leave to seek post-conviction relief is hereby denied.

SO ORDERED, this the 21st day of March, 2002.

/s/ Chuck Easley, J

CHUCK EASLEY, JUSTICE

App. 2

INDICTMENT Form 6 - A TRUE BILL

KIDNAPPING - HABITUAL OFFENDER

THE STATE OF

MISSISSIPPI

Jackson County

) In the Circuit Court in and for

) said County at the APRIL Term

) thereof, in the year of our Lord,

) 1986.

THE GRAND JURORS of the State of Mississippi,

taken from the body of the good and lawful Jurors of said

County, duly elected, empaneled, sworn and charged, at

the Term aforesaid of the Court aforesaid, to inquire in

and for the body of the County aforesaid, in the name

and by the authority of the State of Mississippi, upon

their oaths present: That JOSEPH WAYNE BULLOCK and

THOMAS JEROME BULLOCK late of the County

aforesaid, on the 8th day of February in the year of our

Lord 1986, in the County aforesaid, did unlawfully, wil-

fully and feloniously and without authority of law, forci-

bly seize, inveigle or kidnap and secretly confine Denise

Mumma, against her will and without the consent of the

said Denise Mumma,

(Continued to Page 2 and made a part hereof)

At a time when he, the said Joseph Wayne Bullock, had

previously been convicted of the following felonious

crimes, to-wit:

(1) In the Circuit Court of George County, Mississippi,

for the crime of Rape, and was sentenced on March 1,

1973, to serve a term of Three (3) Years in the Mississippi

State Penitentiary in Cause Number 1644;

(2) In the Circuit Court of George County, Mississippi,

for the crime of Grand Larceny, and was sentenced on

App. 3

May 29, 1972, to serve a term of Three (3) Years in the

Mississippi State Penitentiary in Cause Number 1627

(3) In the Circuit Court of George County, Mississipp:

for the crime of Grand Larceny, and was sentenced on

July 26, 1979, to serve a term of Three (3) Years in the

Mississippi Department of Corrections in Cause Number

1877,

In violation of Section 99-19-81 of the Mississippi Code of

1972-Annotated, as amended, and under which sectior

the State of Mississippi intends to seek the maximum

punishment for the crime of Kidnapping, which is LIFE in

the Mississippi Department of Corrections without

parole,

(Continued to Page 3 and made a part hereof)

/s/ [Illegible] /s/ Michael C. Moore

Foreman of the Grand District Attorney

Jury

App. 4

STATE OF MISSISSIPPI

VS. No. 86-10,191 “Jury Trial - Criminal Case”

THOMAS J. BULLOCK and

JOSEPH W. BULLOCK

Comes the District Attorney who prosecutes the

pleas for the State of Mississippi and comes Defendant,

who was brought before the Court, being accompanied

by their counsel, who having been arraigned in open

Court and in presence of counsel on a former day of this

Term of Court upon the indictment preferred against

them herein of “Kidnapping-Habitual offender” and hav-

ing plead NOT GUILTY to said charge and says that they

are ts NOT GUILTY. Thereupon came a jury composed of

Henrietta D. Swanzy and eleven other good and lawful

jurors of Jackson County, who were empaneled, accepted

by both the State and Defendant, who were duly sworn

according to law, and after hearing all of the evidence,

argument of counsel and received the instructions of the

Court, retired to consider their verdict, being in charge of

sworn officers of the law, and presently returned into

open Court and in the presence and hearing of Defendant

and his Counsel, the following verdict towit:

“We, the Jury, find the Defendants, Thomas J. Bullock and

Joseph W. Bullock, guilty as charged, and fix their pun-

ishment at life imprisonment.”

Thereupon said defendant was placed at the bar of

the Court for sentence and was asked by the Court if they

had anything to say why the sentence of the law shall not

be pronounced against them herein, and saying naught. It

is thereupon considered and ordered by the Court that

App. 5

said defendant Thomas J. Bullock and Joseph W. Bullock

for such their offense of Kidnapping-Habitual Offender

be and they are #s hereby sentenced te as Habitual Crimi-

nals, under Section 99-19-81 and 99-19-83 of the Missis-

sippi Code of 1972, to be imprisoned in the custody of the

Mississippi Department of Corrections to Life without

parole and such sentence shall not be reduced or sus-

pended, nor shall they be eligible for parole or probation.

date of sentence to commence from today, and that they

pay all costs accrued in that prosecution and that defen-

dant s are to be remanded into the custody of the Sheriff

until such time they may be transported to the Missis-

sippi Department of Corrections, Parchman, MS

Ordered this the 5th day of February A.D., 1987.

Darwin M. Maples

Circuit Court Judge

FILED

Sth Day of February, 1987

JOE W. MARTIN, JR., Clerk

By: /s/ Linda Lang D.C.

App. 6

IN THE SUPREME COURT OF MISSISSIPPI

NO. 07-58581

JOSEPH WAYNE BULLOCK and

THOMAS JEROME BULLOCK

wv

STATE OF MISSISSIPPI

NOT DESIGNATED FOR PUBLICATION

TRIAL JUDGE:

Darwin M. Maples

COURT FROM WHICH APPEALED:

Circuit Court, Jackson County

ATTORNEY FOR APPELLANTS:

Charles B. Bratt

P. O. Box 1557

Pascagoula, MS 39567

ATTORNEY FOR APPELLEE:

Mike Moore, Atty. Gen.

By: John R. Henry

P. O. Box 220

Jackson, MS 39205

NATURE OF CASE:

Criminal

DISPOSITION:

Affirm.

(Filed Sep. 13, 1989)

BEFORE ROY NOBLE LEE, C.J., ANDERSON and

BLASS, JJ.

———— ts—“—S

App. 7

BLASS, JUSTICE, FOR THE COURT:

Joseph Wayne Bullock and Thomas Jerome Bullock

were indicted for the crime of kidnapping - habitual

offender. They were tried by a jury on February 4, 1987,

and convicted. A sentencing hearing was held on Febru-

ary 5, 1987, in which both were sentenced to life

imprisonment without the possibility of pardon or parole.

After a review of the record and briefs in this case,

we find no merit under any error assigned on appeal and

affirm the conviction and sentence. See Burkett v. State,

484 So.2d 1046 (Miss. 1986); Smith v. State, 484 So.2d 364

(Miss. 1986); and Morea v. State, 329 So.2d 527 (Miss.

1976).

AFFIRMED.

ROY NOBLE LEE, C.J., HAWKINS and DAN LEE,

PJJ., PRATHER, ROBERTSON, SULLIVAN, and ANDER-

SON JJ., CONCUR. PITTMAN, J., NOT PARTICIPATING.

App. 8

Supreme Court of Mississippi

Linda Stone, Clerk

Third Floor Gartin Building

450 High Street

P.O. Box 249

Jackson, Mississippi 39205-0249

April 8, 1992

DEPUTY CLERKS TELEPHONE:

YVONNE BURNHAM 601/359-3694

KATHY GILLIS FAX:

601/359-2407

Joseph W. Bullock Thomas Jerome Bullock

#64048 #64947

Unit #23 Unit #28

Parchman, MS 38738 Parchman, MS 38738

This is to advise you that the Mississippi Supreme

Court rendered the following decisions on the 8th day of

April, 1992.

Supreme Court Case #90-M-277

In Re: Joseph W. Bullock and Thomas J. Bullock

Joseph W. Bullock’s Petition for Writ of Habeas

Corpus Filed February 13, 1992, Treated as a Motion

to Supplement the May 29, 1990, Joint Post-Convic-

tion Application and, as Such, Granted.

Application of Joseph Bullock and Thomas Bullock

for Post-Conviction Relief Denied as Being Pro-

cedurally Barred by the Doctrine of Res Judicata Pur-

suant to Miss. Code Ann. Section 99-39-21(3) (Supp.

1991).

Joseph Bullock’s Application for Leave to Proceed in

Trial Court With Motion to Correct Judgment Treated

Ip

ccs:

App. 9

as a Motion to Supplement the May 29, 1990, Joint

Post-Conviction Application and, as Such, Granted.

Motion of Joseph Bullock and Thomas Bullock for

Judgment on Application for Post-Conviction Relief

Filed May 29, 1991, Denied.

Motion of Joseph Bullock and Thomas Bullock to File

a Supplemental Brief and Attach to the Original Post-

Conviction Application Granted.

Thomas Bullock’s Petition for Writ of Habeas Corpus

Filed September 27, 1990, Dismissed Without Preju-

dice.

Thomas Bullock’s Petition for Writ of Habeas Corpus

Filed October 17, 1991, Treated as a Motion to Sup-

plement the May 29, 1990, Joint Post-Conviction

Application and, as Such, Granted.

Thomas Bullock’s Application to Proceed in the Trial

Court Treated as a Motion to Supplement the May 29,

1990, Joint Post-Conviction Application and, as Such,

Granted.

Linda Stone

Supreme Court Clerk

DA Frank Carlton

DA Dale Harkey

ref copy: Earl L. Koskela

App. 10

IN THE SUPREME COURT OF MISSISSIPPI

No. 1999-M-01613

JOSEPH W. BULLOCK Petitioner

v.

STATE OF MISSISSIPPI Respondent

ORDER

(Filed April 21, 2000)

This matter came before a panel of this Court consist-

ing of Banks, P.J., McRae and Waller, JJ., on the petition

for post-conviction relief filed by Joseph W. Bullock. Bull-

ock alleges that his constitutional rights have been vio-

lated based upon the prosecutor’s use of the “send a

message” arguments at his trial, other prosecutorial mis-

conduct during closing argument, lack of a complete trial

transcript on direct appeal, and ineffective assistance of

counsel at trial and on direct appeal. After due consider-

ation, the panel finds that Bullock’s petition is time

barred and barred as a successive writ. Miss. Code Ann.

§§ 99-39-5(2) and 99-39-27(9) (Supp. 1999). With the

exception of the “send a message” issue, all of Bullock’s

claims are also barred by the doctrine of res judicata, and

with the exception of his ineffective assistance of counsel

claim, they are procedurally barred as having been capa-

ble of determination on direct appeal. Miss. Code Ann.

§ 99-39-21(1) and (3) (1994). Moreover, the panel finds

that each of Bullock’s claims is without merit, and that

Bullock’s petition should therefore be denied.

IT IS THEREFORE ORDERED that the petition for

post-conviction relief filed by Joseph W. Bullock be and

the same is hereby denied.

App. 11

SO ORDERED, this the 20th day of April, 2000.

/s/ Fred L. Banks, Jr.

FRED L. BANKS, JR.,

PRESIDING JUSTICE

App. 12

Serial: 93478

IN THE SUPREME COURT OF MISSISSIPPI

No. 2000-M-01276

THOMAS J. BULLOCK AND

JOSEPH WAYNE BULLOCK

v.

STATE OF MISSISSIPPI

ORDER

(Filed March 11, 2002)

This matter came before a panel of this Court consist-

ing of Pittman, C.J., Cobb and Diaz, JJ., on the Petition for

a Writ of Habeas Corpus filed by Tl.omas J. Bullock and

the Motion to Substitute Party and Motion to Proceed In

Forma Pauperis filed by Joseph Wayne Bullock. Thomas J.

Bullock’s Petition asks for post-conviction relief. Thomas

J. Bullock died after filing his Petition in this Court. After

due consideration the panel finds that the Petition for a

Writ of Habeas Corpus should be dismissed as moot. See

Gollott v. State, 646 So.2d 1297 (Miss. 1994).

After Thomas’s death Joseph Wayne Bullock,

Thomas’s brother, filed a Motion to Substitute Party, ask-

ing that he be granted the post-conviction relief his late

brother requested in the Petition for a Writ of Habeas

Corpus. After due consideration the panel finds that the

Motion to Substitute Party is not well taken and should

be denied. The panel further finds that the Motion to

Proceed In Forma Pauperis filed by Joseph Wayne Bull-

ock should be dismissed as moot. |

App. 13

IT IS THEREFORE ORDERED that the Petition for a

Writ of Habeas Corpus filed by Thomas Bullock be and

the same is hereby dismissed as moot.

IT IS FURTHER ORDERED that the Motion to Substi-

tute Party filed by Joseph Wayne Bullock be and the same

is hereby denied.

IT IS FURTHER ORDERED that the Motion to Pro-

ceed In Forma Pauperis filed by Joseph Wayne Bullock be

and the same is hereby dismissed as moot.

SO ORDERED, this the 11th day of March, 2002.

/s/ Edwin Lloyd Pittman

| EDWIN LLOYD PITTMAN,

CHIEF JUSTICE

App. 14

§ 97-17-41. Larceny — grand larceny defined - penalty.

Every person who shall be convicted of taking and

carrying away, feloniously, the personal property of

another, of the value of one hundred dollars ($100.00) or

more, shall be guilty of grand larceny, and shall be

imprisoned in the penitentiary for a term not exceeding

five (5) years; or shall be fined not more than one thou-

sand dollars ($1,000.00), or both.

§ 97-3-65 Forcible rape.

a * >

(2) Every person who shall forcibly ravish any

female of the age of twelve (12) years or upward, or who

shall have been convicted of having carnal knowledge of

any female above the age of twelve (12) years without her

consent, by administering to her any substance or liquid

which shall preduce such stupor or such imbecility of

mind or weakneds pf body as to prevent effectual resis-

tance, upon convititen shall be imprisoned for life in the

state penitentiary if the jury by its verdict so prescribes;

and in cases where the jury fails to fix the penalty at life

imprisonment the court shall fix the penalty at imprison-

ment in the state penitentiary for any term as the court, in

its discretion, may determine.

(3) All earned time shall be forfeited by the inmate

in the event of escape and/or aiding and abetting an

escape. The commissioner may restore all or part of the

App. 15

earned time if the escapee returns to the institution vol-

untarily, without expense to the state, and without act of

violence while a fugitive from the facility.

(4) Any officer or employee who shall willfully vio-

late the provisions of this section and be convicted there-

for shall be removed from office or employment.

§ 47-7-3. Parole of prisoners; conditions.

Every prisoner who has been or may hereafter be

convicted of any offense against the state of Mississippi

and is confined in the execution of a judgment of such

conviction in the Mississippi State Penitentiary for a defi-

nite term or terms of one (1) year or over, or for the term

of his or her natural life, whose record of conduct shows

that such prisoner has observed the rules of the penitenti-

ary, and who has served not less than one-third (1/3) of

the total of such term or terms for which such prisoner

was sentenced, or, if sentenced to serve a term or terms of

thirty (30) years or more, or, if sentenced for the term of

the natural life of such prisoner, has served not less than

ten (10) years of such life sentence, may be released on

parole as hereinafter provided, except that:

(a) No prisoner whose record shows him to be

a confirmed and habitual criminal shall be eligi-

ble for parole;

(b) Any person who shall have been convicted

of a sex crime and is otherwise eligible for

parole shall not be released on parole until after

App. 16

_ he has been examined by a competent psychia-

trist selected by the state probation and parole

board and found to be of normal and sound

mind;

(c) No one shall be eligible for parole until

he shall have served one (1) year of his sentence;

(d) No person shall be eligible for parole

who shall on or after January 1, 1977, be con-

victed of robbery or attempted robbery through

the display of a firearm until he shall have

served ten (10) years if sentenced to a term or

terms of more than ten (10) years or if sentenced

for the term of the natural life of such person. If

such person is sentenced to a term or terms of

ten (10) years or less, then such person shall not

be eligible for parole.

§ 47-5-139. Certain inmates ineligible for earned time

allowance; commutation to be based on total term of

sentences; forfeiture of earned time in event of escape.

(1) An inmate shall not be eligible for the earned

time allowance if:

(a) The inmate was sentenced to life imprison-

ment; but an inmate, except an inmate sentenced

to life imprisonment for capital murder, who has

reached the age of sixty-five (65) or older and

who has served at least fifteen (15) years may

petition the sentencing court for conditional

release;

App. 17

(b) The inmate was convicted as a habitual

offender under Sections 99-19-81 through

99-19-87;

(c) The inmate has forfeited his earned time

allowance by order of the commissioner;

(d) The inmate was convicted of a sex crime; or

(e) The inmate has not served the mandatory

time required for parole eligibility for a convic-

tion of robbery or attempted robbery with a

deadly weapon.

(2) An offender under two (2) or more consecutive

sentences shall be allowed commutation based upon the

total term of the sentences.