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Simmons v. State1/29/2004
tiate are simply confusing and prone to error when read by a lay juror." Simmons later adds that S-11, "when viewed within the evidence adduced in trial, unfairly lessened the prosecutor's burden." The State argues that Simmons is raising the same issue here that he raised on direct appeal, and as such this issue is barred from consideration by res judicata. We agree with the State's argument and hold that the issue is barred due to res judicata.
. If Simmons is attempting to raise a new issue here, we hold that the attempt is further barred under Miss. Code Ann. 99-39-21(1), as this issue could have been raised on direct appeal but was not, and 99-39-21(3), which states that "the litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and prejudice."
. Simmons finally argues that in the direct appeal of his co-defendant, Timothy Milano, this Court was compelled to announce that the jury instruction at issue in Berry and Lester v. State, 744 So.2d 757 (Miss. 1999), and in this case should no longer be given, and the Court prospectively adopted a Pattern Jury Instruction from the Fifth Circuit. As stated in this Court's opinion in Simmons's direct appeal, S-11 is distinguishable from the instructions found in the other cases cited here. This Court in Milano did not reverse based on the instruction in question, but found that any error was harmless as other instructions provided that all elements of the offenses had to be proved before Milano could be found guilty. Milano v. State , 790 So.2d 179, 185 (Miss. 2001). We find that this issue is without merit.
CONCLUSION
. After thorough consideration we deny Simmons's Motion for Leave to Proceed in the Trial Court on a Petition for Post-Conviction Relief, as amended and supplemented.
. MOTION FOR LEAVE TO SEEK POST- CONVICTION RELIEF, DENIED.
PITTMAN, C.J., WALLER, P.J., COBB, EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
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