1988); Miss. Code Ann § 97-3-65(2) (1972). While this is true, this Court stated in Stewart v. State, 466 So.2d 906 (Miss. 1985): The well-settled rule is that in a prosecution for rape, physical force on the part of the assailant or physical resistance on the part of the victim is not necessary if the proof shows beyond a reasonable doubt that the victim surrendered because of fear arising out of a reasonable apprehension of great bodily harm.
1996): [O]ne of the elements of rape is that it is done "without consent and by force," . . . . While this is true, this Court stated in Stewart v. State, 466 So.2d 906 (Miss. 1985): The well-settled rule is that in a prosecution for rape, physical force on the part of the assailant or physical resistance on the part of the victim is not necessary if the proof shows beyond a reasonable doubt that the victim surrendered because of fear arising out of a reasonable apprehension of great bodily harm.
In 1983, Stewart pleaded guilty in the Circuit Court of Coahoma County, Mississippi, to charges of rape and burglary of an inhabited dwelling at night while armed with a deadly weapon with the intent to commit rape. Stewart was also convicted of an additional charge of rape in the same court. Thereafter, Stewart was sentenced to a twenty-five-year term of imprisonment on the rape conviction, a consecutive twenty-year term of imprisonment on the burglary plea, and a concurrent twenty-five-year term of imprisonment on the rape plea. Stewart's conviction and sentence were affirmed on appeal by the Mississippi Supreme Court. See Stewart v. Mississippi, 466 So. 2d 906 (Miss. 1985). On June 1, 2007, Stewart filed the subject Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody ("Petition").
State Court Record ("S.C.R."), Cause No. 2005-CP-01403, Vol. 1, pp. 9-14. He is currently housed at the Carroll-Montgomery County Regional Correctional Facility in Vaiden, Mississippi. The conviction and sentence for rape was affirmed by the Mississippi Supreme Court on March 27, 1985. Stewart v. State, 466 So. 2d 906 (Miss. 1985). In the instant petition, Stewart does not challenge his convictions and sentences. Rather, he claims that he is being held beyond the expiration of his sentence.
The court imposed consecutive sentences of twenty years on the plea of guilty to burglary, and twenty-five years on the plea to rape — with these sentences to run concurrent to the sentences previously imposed. The Mississippi Supreme Court affirmed the conviction and sentence for rape March 27, 1985. Stewart v. State, 466 So. 2d 906 (Miss. 1985). The petitioner filed a "Petition for Writ of Habeas Corpus" in the Coahoma County Circuit Court arguing that he was being held beyond the expiration of his sentence.
However, the vaginal sexual intercourse occurred after the oral intercourse and, more importantly, was accompanied by threats of violence while Woodward had the pistol in his hand. There may be sufficient proof of rape despite a complete absence of bruises or lacerations on the victim's body. Stewart v. State, 466 So.2d 906, 908 (Miss. 1985). Stewart also states the following:
In this circumstance, we have held that there is no error requiring reversal. Stewart v. State, 466 So.2d 906, 910 (Miss. 1985); Gardner v. State, 455 So.2d 796 (Miss. 1984); Reddix v. State, 381 So.2d 999, 1007 (Miss.
As such, Stewart's appeal from his motion before the Coahoma County Circuit Court is procedurally barred as a second and subsequent filing under Mississippi Code Annotated section 99-39-23(6) (Supp. 2005). ¶ 7. One of Stewart's rape convictions and sentence was appealed to the Mississippi Supreme Court, which affirmed that conviction and sentence on March 27, 1985. Stewart v. State, 466 So.2d 906 (Miss. 1985). Under Mississippi Code Annotated section 99-39-27 (Supp. 2005), Stewart should have filed an application for leave to proceed in the trial court prior to filing for relief with the Coahoma County Circuit Court. There is no indication that this was done, and therefore Stewart should not have been allowed to proceed with his claims relating to that conviction and sentence.
Buckley v. State, 511 So.2d 1354, 1357 (Miss. 1987); Stewart v. State, 466 So.2d 906, 910 (Miss. 1985); Clanton v. State, 279 So.2d 599, 602 (Miss. 1973); Bridges v. State, 841 So.2d 1189 (¶ 11) (Miss.Ct.App. 2003).
1996): [O]ne of the elements of rape is that it is done "without consent and by force,". . . . While this is true, this Court stated in Stewart v. State, 466 So.2d 906 (Miss. 1985): The well-settled rule is that in a prosecution for rape, physical force on the part of the assailant or physical resistance on the part of the victim is not necessary if the proof shows beyond a reasonable doubt that the victim surrendered because of fear arising out of a reasonable apprehension of great bodily harm.