                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 95-CA-00439-SCT
RUSSELL E. BOLER a/k/a RUSSELL BOLAR
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                              06/26/95
TRIAL JUDGE:                                   HON. RICHARD WAYNE McKENZIE
COURT FROM WHICH APPEALED:                     FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: SCOTT STUART
DISTRICT ATTORNEY:                             E. LINDSAY CARTER
NATURE OF THE CASE:                            CIVIL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 2/26/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                4/8/98




     BEFORE PRATHER, C.J., SMITH AND WALLER, JJ.


     WALLER, JUSTICE, FOR THE COURT:


Russell Boler ("Boler") entered a plea of guilty to the charge of armed robbery and received a
sentence of 20 years. Following commitment, Boler filed a motion under the Mississippi Post
Conviction Collateral Relief Act, Miss. Code Ann. § 99-39-1 et seq. (1994), alleging that his guilty
plea was involuntary, the result of unlawful coercion and ineffective assistance of counsel. The lower
court, pursuant to Miss. Code Ann. § 99-39-11 (1994), dismissed Boler's claim without an
evidentiary hearing. Boler filed timely notice of appeal, contending that he received ineffective
assistance of counsel and that the guilty pleas were coerced.

                                 A. BACKGROUND AND FACTS

The facts, as demonstrated by the record in this case, and the facts as alleged by Boler, agree only as
to the various dates on which events occurred. At the plea hearing, Boler swore, under oath, that he
was not coerced or threatened, that he didn't want a preliminary hearing, that his attorney and himself
had conferred, and that he understood the charges against him.
Notwithstanding this however, Boler now contends that he was lying to the court because he was in
fear for his personal safety or life. The intricate series of events alleged by Boler to have led to his
coerced plea are as follows. Boler contends that while in the Forrest County Regional Jail ("F. C. R.
J.") on an unrelated charge, he was used to set up a deputy of the F. C. R. J. for selling contraband to
inmates. Allegedly, the "set up" was arranged through an intermediary, "Nurse Ruby". Because the
deputy wasn't fired, Boler was allegedly removed for his own safety. Subsequently, Boler contends
that Chief Detective Raymond Howell forced a confession and subsequent guilty plea for the armed
robbery charge from him by continually threatening to put him back into F. C. R. J., where Boler was
ostensibly in danger of great bodily harm from the other inmates, who knew of his treachery in the
"set up".

Boler avers that, but for his fear of his personal safety, he would not have signed the confession nor
lied to the lower court throughout the entire process.

                                          B. DISCUSSION


     1. Boler has failed to allege facts sufficient to warrant an evidentiary hearing on the issue
     of whether he was coerced into making his guilty plea.

Miss. Code Ann. § 99-39-9(1) (1994) mandates the following requirements of every post conviction
motion for collateral relief:

     ....

     (c) A concise statement of the claims or grounds upon which the motion is based.

     (d) A separate statement of the specific facts which are within the personal knowledge of the
     prisoner and which shall be sworn to by the prisoner.

     (e) A specific statement of the facts which are not within the prisoner's personal knowledge.
     The motion shall state how or by whom said facts will be proven. Affidavits of the witnesses
     who will testify and copies of documents or records that will be offered shall be attached to the
     motion. The affidavits of other persons and the copies of documents and records may be
     excused upon a showing, which shall be specifically detailed in the motion, of good cause why
     they cannot be obtained. This showing shall state what the prisoner has done to attempt to
     obtain the affidavits, records and documents, the production of which he requests the court to
     excuse.

In Myers v. State this Court analogized the procedural posture of an appeal from summary dismissal
of a motion for post conviction relief to a civil Rule 12(b)(6) dismissal:

     [R]eview of claims brought via formal post-conviction petition proceeds in a structural order
     whereby "[o]ur procedural posture is analogous to that when a defendant in a civil action moves
     to dismiss for failure to state a claim. Functionally, Section 99-39-9 is substituted for the
     pleadings requirements of Rule 8(a) and (e), Miss.R.Civ.P."

Myers v. State, 583 So. 2d 174, 175-6 (Miss. 1991)(internal citations omitted)(quoting Billicot v.
State, 515 So.2d 1234, 1236 (Miss. 1987)

In short, this Court "adhere[s] to the principle that a post-conviction collateral relief petition which
meets basic pleading requirements is sufficient to mandate an evidentiary hearing unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief." Harveston v. State, 597 So. 2d 641, 643 (Miss. 1992)(internal citations omitted)
(quoting Turner v State 590 So. 2d 871, 874 (Miss. 1991)); accord Taylor v. State, 682 So. 2d 359,
366 (Miss. 1996).

It must be noted, however, that while the analogy to a civil 12(b)6 motion is useful, the substituted
pleading requirements of § 99-39-9(1)(e) are not identical to the those of Rule 8, as this Court in
Neal v. State noted quite specifically:

     Notions of notice pleading have no place in post-conviction applications, the very name of
     which implies that there has been a final judgment of conviction. Respect for the integrity of the
     judicial process mandates that we require of such applicants a far more substantial and detailed
     threshold showing, far in excess of that we deem necessary in the case of a plaintiff in a civil
     action or, for that matter, in the case of the prosecution in a criminal indictment.

Neal v. State, 525 So. 2d 1279, 1280 (Miss. 1987)(emphasis added).

Section 99-39-9(1)(e) by its own terms requires that when the convict offers facts not within his own
knowledge, he must show "how or by whom said facts will be proven," and commands that "[a]
ffidavits of the witnesses who will testify and copies of documents or records that will be offered
shall be attached to the motion."

Thus, simply averring any set of facts which could conceivably, if proven true, entitle the convict to
relief is not enough to satisfy the pleading requirements of § 99-39-9(1)(e). Thus, unlike a Rule 8
complaint, a well-pleaded post conviction relief motion demonstrates not only a ground upon which
relief could be based, but also factual support for that ground as well, supported by the sworn word
of the prisoner and any supporting witnesses and documents. As the court in Neal noted, "[i]n this
context we understand Section 99-39-9 [to] suggest a regime of sworn, fact pleadings, based upon
personal knowledge." Neal, 525 So. 2d at 1280.

The statute does recognize the difficult position of the incarcerated litigant in obtaining such
supporting affidavits and consequently permits "[t]he affidavits of other persons and the copies of
documents and records may be excused upon a showing, which shall be specifically detailed in the
motion, of good cause why they cannot be obtained." Miss. Code Ann. § 99-39-9(1)(e) (1994)
(emphasis added). Finally, if the prisoner chooses to omit the supporting affidavits and or documents,
the convict must state what steps she took in attempting to obtain the material. Miss. Code Ann. §
99-39-9(1)(e). Furthermore, this Court has always maintained that an incarcerated litigant need not
fear being thrown out of court simply because of an inartfully worded motion, provided that the
substantive requirements of the law are present. Wilson v. State , 577 So.2d 394, 397 (Miss. 1991)
(citing, Moore v. Ruth, 556 So.2d 1059, 1061 (Miss. 1990)). Boler's motion however, is not merely
inartfully drafted, it is substantively deficient.

Boler does not include any affidavits supporting his version of events; but, more importantly, he
provides no reasons for why they are omitted. Nor does he aver what he attempted to do in order to
obtain these affidavits. Without these supporting items, the entire question is simply whether Boler
was lying at the plea hearing, or whether he is lying in his post conviction motion.

As this Court stated in Wright v. State, "where an affidavit is overwhelmingly belied by
unimpeachable documentary evidence in the record such as, for example, a transcript or written
statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a
sham no hearing is required." 577 So. 2d 387, 390 (Miss. 1991)(citing, Albertson v. T.J. Stevenson
& Co., 749 F.2d 223 (5th Cir. 1984)); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572 (2d
Cir. 1969)); see also King v. State, 679 So. 2d 208, 210-11 (Miss. 1996); Harris v. State, 578 So. 2d
617, 620 (Miss. 1991).

Here, Boler pled guilty to armed robbery after the standard plea colloquy by the court. The judge
specifically asked Boler whether he had been coerced into making his plea:

     Q. Has anyone threatened or promised you anything in order to get you plead [sic] guilty . . .

     A. No sir,

     ...

     Q. Are you entering this plea solely because you are guilty and for no other reason?

     A. Yes, Sir.

     Q. Do you know of any reason why this Court should not accept your plea of guilty?

     A. No, Sir.

Boler, however, contends that he was scared to tell the judge what had happened because:

     59. It is rumored in Forrest County that Judge Richard McKenzie, District Attorney Glenn
     White, and my Counsel Jeffrey Bradley are all related by way of marriages.

     60. The theory is that District Attorney Glenn White is married to Judge Richard McKenzie's
     daughter, and that Jeffrey Bradley is married to District Attorney Glenn Whites sister.

     61. Being of this "Theory," I was of the impression that if I made Judge McKenzie aware of the
     facts underlying and facilitating my guilty plea that Judge McKenzie would not believe me, and
     I would be subjected to Det. Howell's threats if I failed to plead guilty.

Despite Boler's "Theory", the only item impeaching the validity of the transcript in the present case is
Boler's own assertion that he lied throughout the entire proceeding. This Court has stated that when
the only support offered by a convict is his own affidavit, an evidentiary hearing is not required.
Marshall v. State, 680 So. 2d 794, 795 (Miss. 1996)(citing Campbell v. State, 611 So. 2d 209, 210
(Miss. 1992)).

Without supplementation, Boler's version of events is "overwhelmingly belied" by his sworn
testimony at the plea hearing in which he unequivocally stated that he had not been coerced into
entering his guilty plea. Furthermore, this Court notes that there were numerous times at which Boler
could have safely brought the alleged behavior of the various officials to the attention of both counsel
and judge without any rational fear of being returned to the Forrest County Jail. Indeed, the entire
raison d'être behind requiring a Boykin hearing is to expose unconstitutional coercion to the light of
judicial scrutiny.

In sum, Boler has failed to present facts sufficient to warrant an evidentiary hearing, as the lower
court correctly surmised.

     2. The joint representation of Boler and his co-defendant at the plea hearing reveals no
     actual conflict of interest.

The record before this Court is muddled as to the actual sequence of representation of Boler in this
matter. Initially, it appears that Boler was represented by Mr. Helfrich at his waiver of indictment,
wherein Mr. Helfrich's name appears written over Mr. Bradley's on the form. Boler maintains that
Mr. Bradley was his counsel of record, and does not even mention Mr. Helfrich.

The record is clear, however, that Mr. Bradley represented both Boler and his co-defendant, Aycock,
during the plea hearing:

     BY THE COURT: Russell Boler in 16, 958 to Armed Robbery represented by Mr. Helfrich,
     having been here on waiver of indictment.

     Do you have any objection to Mr. Bradley standing in?

     A. No, sir.

In order to demonstrate that counsel was ineffective due to joint representation, the defendant must
show that there has been an actual, as opposed to a speculative, conflict of interest. The "defendant
must establish that an actual conflict of interest adversely affected his lawyer's performance."
Stringer v. State, 485 So. 2d 274, 275 (Miss. 1986) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350
(1980)). "[A] potential for conflict or hypothetical or speculative conflicts will not suffice for
reversal. The conflict must be actual." Stringer, 485 So. 2d at 275 (emphasis added)(citing, Cuyler
v. Sullivan, 446 U.S. 335, 350 (1980); U.S. v. Alvarez, 580 F.2d 1251 (5th Cir. 1978)). See also,
Littlejohn v. State, 593 So. 2d 20, 23 (Miss. 1992); Smith v. State, 666 So. 2d 810, 812 (Miss.
1995); Sykes v. State, 624 So. 2d 500, 503 (Miss. 1993).

In Armstrong v. State, we explained that an actual conflict arising from joint representation occurs
when "the interests of the clients are in some manner antagonistic to one another, [and that] before
any lawyer is authorized to assume dual representation, ... [she] must first satisfy [herself] that there
is no objective reason why [she] cannot, despite such divergence of interests, faithfully represent
them both." Armstrong v. State, 573 So. 2d 1329, 1332 (Miss. 1990)(quoting Hartford Acc. &
Indem. Co. v. Foster, 528 So. 2d 255 (Miss. 1988)). Stated somewhat differently, "[a] lawyer can
represent two or more parties on the same side of a lawsuit if their interests are identical. Interests are
identical when the parties will receive a correspondingly equal benefit if they are successful, or a
correspondingly equal detriment if they lose." Littlejohn, 593 So. 2d at 26.

Here, Boler's interest was identical to Aycock's during the plea hearing. In particular, both Boler and
Aycock were pleading guilty to an armed robbery charge. Both stood to receive a stiff prison term,
and both had identical interests in being competently represented throughout the plea hearing.
Moreover, there is no allegation of any harm resulting from the conflict, i.e. that Mr. Bradley secured
a lesser sentence for Aycock by talking Boler into pleading guilty. Thus, there was no actual conflict
of interest in having Mr. Bradley represent them both for the purposes of the plea hearing in this case.
This Court would note, however, that the better practice is to have each defendant separately
represented, and that dual representation of criminal defendants is viewed with great suspicion in
general. See Armstrong v. State, 573 So. 2d 1329 (Miss. 1990).

     3. Boler's other contentions.

Boler also contends that counsel was ineffective in waiving his preliminary hearing, failing to consult
with him and failing to conduct any pre-trial investigation. These contentions are without merit.

First, Boler's contention that he did not consult with counsel is completely belied by the record and
his signed entry of guilty plea. Both reveal that Boler swore under oath that he had consulted with
counsel. As to the claim that counsel improperly waived his preliminary hearing, Boler must
overcome the strong presumption that counsel was within the wide range of acceptable professional
assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065 (1984); Chase v.
State, 699 So. 2d 521, 526 (Miss. 1997); Connell v. State, 691 So. 2d 1004, 1007 (Miss. 1997).
Boler must also show that the mistake or mistakes were so prejudicial as to convince this Court with
a reasonable degree of certainty that, but for counsel's mistakes, the outcome would have been
different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Chase, 699 So. 2d at 526-27; Connell,
691 So. 2d at 1007. Boler avers that had he known that the purpose of the preliminary hearing was
investigatory, he would not have waived it, but would have used the opportunity to inform the judge
that he was being coerced.

It is a strange contention indeed that Boler needed the benefit of a preliminary hearing before he
could tell anyone that he was being physically coerced into making a guilty plea. He was in open
court with both counsel and judge during the waiver and during the subsequent plea hearing. Despite
this, by his own account, he remained silent during the waiver, just as he did at his subsequent plea
hearing. It is hard to imagine how counsel could be ineffective for not sensing, despite Mr. Boler's
silence, that Boler was being coerced. This argument is without merit.

Finally, Boler contends that the trial court improperly did not inform Boler of the fact that the
minimum sentence for armed robbery under Miss. Code Ann. § 97-3-79 (1994) was 3 years, in
violation of U.R.C.C.C. 8.04. U.R.C.C.C. 8.04 requires, under certain circumstances, that the trial
court apprize the defendant of the minimum sentence. Vittitoe v. State, 556 So. 2d 1062, 1065 (Miss.
1990); U.R.C.C.C. 8.04(4)(b).

When the defendant has actual knowledge of the minimum, or it is clear beyond a reasonable doubt
that the defendant would have pled guilty regardless of knowing the minimum sentence, then the
failure of the trial court to inform the defendant of the statutory minimum is harmless error. Simpson
v. State, 678 So. 2d 712, 716 (Miss. 1996); Banana v. State, 635 So.2d 851, 854 (Miss. 1994). Here
Boler swore under oath that he had conferred with his attorney; and furthermore, Boler does not
convincingly aver that had he known the minimum he would have refused to plead guilty. This
assignment of error is without merit.
                                         C. CONCLUSION

Boler has not demonstrated that the lower court erroneously failed to grant an evidentiary hearing.
He submits no affidavit but his own attacking his plea as involuntary and offers no explanation as to
why such support is lacking. Furthermore, there was no actual conflict of interest in the joint
representation of Boler at the plea hearing, nor has Boler demonstrated that the trial court erred in
failing to inform him of the minimum sentence for robbery.

DENIAL OF POST CONVICTION RELIEF AFFIRMED.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE, ROBERTS, SMITH AND MILLS, JJ.,
CONCUR. SULLIVAN, P.J., CONCURS IN RESULT ONLY.
