*1 IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-DR-00696-SCT
STEPHEN ELLIOT POWERS
v. STATE OF MISSISSIPPI
ON MOTION FOR REHEARING DATE OF JUDGMENT: 12/15/2000
TRIAL JUDGE: HON. RICHARD W. McKENZIE COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEYS FOR PETITIONER: OFFICE OF CAPITAL POST-CONVICTION
COUNSEL
BY: KRISSY CASEY NOBILE MARY JO WOODS SUE ANN WERRE BRANDON KYLE MALONE ATTORNEYS FOR RESPONDENT: OFFICE OF THE ATTORNEY GENERAL
BY: ASHLEY LAUREN SULSER LADONNA C. HOLLAND NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST
CONVICTION DISPOSITION: POST-CONVICTION RELIEF DENIED -
09/28/2023
MOTION FOR REHEARING FILED: 07/31/2023
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT: ¶1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted.
¶2. A jury sentenced Stephen Elliot Powers to death for the attempted rape and murder
of Elizabeth Lafferty.
Powers v. State (Powers I)
,
¶3.
In general, Powers argues that (1) he is mentally incompetent; (2) he was denied his
right to a fair, impartial jury; (3) trial counsel was ineffective during jury selection for not
challenging the prosecution’s peremptory strikes based on
Batson v. Kentucky
,
FACTS AND PROCEDURAL HISTORY
¶5. On the afternoon of June 13, 1998, Lafferty, Powers, and two other men cooked out
and drank beer at Lafferty’s home.
Powers I
,
¶6. Authorities arrested Powers.
Id.
He waived his rights under
Miranda v. Arizona
, 384
U.S. 436 (1966), and eventually led police to the murder weapon.
Powers I
,
¶7. A jury convicted Powers of capital murder with the underlying crime of attempted
rape and sentenced him to death.
Id.
at 23, 25. The Court affirmed,
id.
at 24, and later
denied post-conviction relief.
Powers II
,
¶8. Powers petitioned the United States District Court for the Southern District of
Mississippi for federal
habeas
relief. According to the district court, however, not all of his
federal
habeas
claims had been exhausted in state court—
i.e.
, they had not been “fairly
presented” here,
Fairchild v. Workman
,
¶9. As an abeyance motion and motion to amend were pending, Powers filed a successive post-conviction petition on January 4, 2022. Months later, the Court denied the abeyance motion and motion to amend without prejudice to Powers’s right to seek a stay of execution at the proper time. Corrected En Banc Order, Powers v. State , No. 2017-DR-00696-SCT, at **2–3 (Miss. June 21, 2022).
ANALYSIS
Leave [to proceed in the trial court] is granted only if the application, motion, exhibits, and prior record show that the claims are not procedurally barred and that they “present a substantial showing of the denial of a state or federal right.” Well-pleaded allegations are accepted as true.
In capital cases, non-procedurally barred claims are reviewed using
“‘heightened scrutiny’ under which all bona fide doubts are resolved in favor
of the accused.” “[W]hat may be harmless error in a case with less at stake
becomes reversible error when the penalty is death.”
Evans v. State
,
¶10. As stated in the above quotation, petitioners must show that their claims are unbarred. Miss. Code. Ann. § 99-39-21(6) ( Rev. 2020). In capital cases, post-conviction relief must be sought within one year after conviction. Miss. Code Ann. § 99-39-5(2)(b) (Rev. 2020). Successive writs are barred. Miss. Code Ann. §§ 99-39-23(6), -27(9) (Rev. 2020). The doctrine of res judicata applies “to all issues, both factual and legal, decided at trial and on direct appeal.” Miss. Code. Ann. § 99-39-21(3) (Rev. 2020).
¶11. Claims can be waived in two ways. First, claims that “were capable of determination at trial and/or on direct appeal” are waived. Miss. Code. Ann. § 99-39-21(1) (Rev. 2020). Second, “[t]he litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories . . . constitute[s] a waiver of all other state or federal legal theories which could have been raised under said factual issue.” Miss. Code. Ann. § 99-39-21(2) (Rev. 2020). In either case, the Court may grant relief from the waiver bars if cause and actual prejudice are shown. Miss. Code Ann. § 99-39-21(1)–(2) (Rev. 2020). Cause exists “where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal.” Miss. Code. Ann. § 99-39-21(4) (Rev. 2020). Actual prejudice is “limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.” Miss. Code. Ann. § 99-39-21(5) (Rev. 2020).
¶12. The bars and any exceptions apply to death-penalty petitioners.
See
Powers II
, 945
So. 2d at 395;
see also
En Banc Order,
Knox v. State
, No. 2014-DR-00849-SCT, at *2 (Miss.
Mar. 10, 2022) (“Knox must . . . demonstrate that his claims should be excepted from the
procedural bars.”). Because death-penalty petitioners are entitled to the effective assistance
of post-conviction counsel,
Grayson v. State
, 118 So. 3d 118, 126 (Miss. 2013) (citing
Jackson v. State
,
PART ONE: COMPETENCY
I. Whether the Court should address Powers’s claim based on
Dusky
v. United States
,
¶13. To be deemed competent to stand trial,
Dusky
requires a defendant to have the
“sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding . . . and . . . a rational as well as factual understanding of the proceedings
against him.”
Beasley v. State
,
Denial of Powers’s Abeyance Motion ¶14. Before filing the instant successive post-conviction petition, Powers moved to hold post-conviction proceedings in abeyance due to his alleged incompetency. That motion is incorporated by reference in his petition. With the motion, he attached supporting affidavits from Drs. Bhushan S. Agharkar and Robert H. Ouaou.
¶15. The Court denied the abeyance motion, reasoning as follows:
We are persuaded by the State’s argument that Powers has no right to competency in post-conviction proceedings. See Ryan v. Gonzales , 568 U.S. 57, 64-65,133 S. Ct. 696 , 702–03,184 L. Ed. 2d 528 (2013) (stating that the Sixth Amendment right to counsel does not imply a right to competence and holding that death-row inmates seeking federal habeas relief have no statutory right to stay proceedings when found incompetent). To be sure, Neal v. State ,687 So. 2d 1180 , 1183 (Miss. 1996) (citing Rumbaugh v. Procunier , 753 F.2d 395 (5th Cir. 1985)), said that defendants “must be competent at all stages of the criminal process,” including post-conviction proceedings. But Rumbaugh concerned competency to waive the right to collateral review of a conviction and sentence, not whether there is a constitutional or statutory right to *7 competency during post-conviction proceedings.753 F.2d at 398 ; Dickerson v. State , 291 So. 3d 344, 354–55 (Miss. 2020) (Coleman, J., specially concurring).
Corrected En Banc Order, Powers v. State , 2017-DR-00696-SCT, at * 1–2 (Miss. June 21, 2022).
¶16. In a separate written statement, Presiding Justice Kitchens, joined by Presiding Justice
King and Justice Ishee, objected to the order “in the strongest terms.” Corrected En Banc
Order,
Powers v. State
, 2017-DR-00696-SCT, at * 1–2 (Miss. June 21, 2022) (Kitchens, P.J.,
objecting to the order with separate written statement). Presiding Justice Kitchens wrote that
the right to competency in post-conviction proceedings has stood for more than two decades,
id.
at *1 (citing
Neal
,
¶17. Because
Ryan
concerned federal
habeas
proceedings, Presiding Justice Kitchens
distinguished it.
Id.
Federal
habeas
review, he wrote, is solely record based.
Id.
(quoting
Shinn v. Ramirez
, 142 S. Ct. 1718, 1732 (2022)). Conversely, state post-conviction
proceedings require fact-intensive investigation of matters outside the record.
Id.
at * 2–3.
Without a competent petitioner aiding that endeavor, post-conviction counsel “face an
impossible task.”
Id.
at * 3. The Court’s ruling was especially “confounding,” Presiding
*8
Justice Kitchens said, given that death-penalty petitioners are entitled to effective assistance
of post-conviction counsel.
Id.
(citing
Grayson
,
¶18. Presiding Justice Kitchens also stressed stare decisis and the Court’s adherence to
precedent unless the prior decision(s) was “‘pernicious,’ ‘impractical,’ or ‘mischievous in
. . . effect, and resulting in detriment to the public.’”
Id.
(internal quotation marks omitted)
(quoting
Caves v. Yarbrough
,
¶19. Presiding Justice Kitchens found that Powers showed compelling evidence of incompetence: While incarcerated, he has had multiple strokes; he has been diagnosed with a cerebral aneurysm; and he has been deemed “‘seriously cognitively impaired’ with ‘no signs of malingering’” by a physician. Id. at * 4. He also has mental deficits, including vascular dementia; lacks any memory of the crime; and is unable to discuss his case rationally with counsel. Id.
¶20. Going forward, Presiding Justice Kitchens said the Court’s ruling “will foster the deplorable outcome of a mentally incompetent post-conviction petitioner proceeding through *9 the justice system while completely incapable of communicating rationally with counsel.” Id.
Powers’s Rehearing Motion ¶21. Powers moves for rehearing. He argues that the Court erred by abolishing the longstanding right to mental competency in post-conviction proceedings. Without a competent petitioner, he argues, post-conviction proceedings’ reliability decreases, and the risk of wrongful execution increases. To the latter point, he contends that since 1973, at least 189 death-row inmates in twenty-seven states—including seven in Mississippi—have been exonerated. The seven in Mississippi, he adds, were all competent.
¶22. Powers contends a competent petitioner’s assistance is vital for two reasons. First, the petitioner has key insights. Having been at trial, he or she can help pinpoint prosecutorial misconduct or counsel’s ineffectiveness. The petitioner’s assistance is essential for finding missing evidence (including evidence of actual innocence) and creating a social history. Second, petitioners must have “an actual opportunity to challenge the lawfulness and justness of [their] death sentence.” That opportunity is lost, however, if they are incompetent.
Specifically, Powers argues six points. ¶23. First , he argues that “removing the right to mental competency in state post- conviction eviscerates the function, accuracy, and integrity of Mississippi’s capital post-conviction regime.” He stresses the importance of rational attorney-client communications. Without hours of extensive, probing attorney-client communications, he maintains, important post-conviction issues may never surface. The issues include:
• coerced confessions;
• post-arraignment use of jailhouse informers; • ineffective assistance of counsel at trial, sentencing, or on appeal; • excessive courtroom security;
• improper contacts between jurors and court officers or others during trial;
• prosecutorial suppression or misrepresentation of evidence; and, • in a capital case, the excessiveness of the penalty given the circumstances of the offense and background and status of the client. Though post-conviction counsel’s staffing and resources are helpful, Powers maintains they cannot aid situations (as here) in which only the petitioner possesses certain facts, yet lacks capacity to contribute meaningfully.
¶24. Powers highlights post-conviction counsel’s professional and ethical duties. American
Bar Association Guidelines require capital post-conviction counsel to “
know and fully
explain
to the client: . . . the practices, policies and concerns of the particular jurisdiction, the
judge and prosecuting authority . . . .”
Wilson v. State
,
¶25. In addition, Powers asserts that the Mississippi Uniform Post-Conviction Collateral Relief Act “embodies a right to mental competency.” Mississippi Code Section 99-39- 9(1)(d) (Rev. 2020) requires post-conviction motions to include “[a] separate statement of the specific facts which are within the personal knowledge of the petitioner and which shall be sworn to by the petitioner . . . .” Mississippi Code Section 99-39-9(3) (Rev. 2020) requires the motion to be “verified by the oath of the petitioner.” ¶26. Finally, Powers offers some historical context for why robust, accurate state post- conviction proceedings are crucial. Historically, he contends, there has been “a societal aversion to condemning individuals who cannot participate in their defenses, which stems not only from the moral imperative of upholding human dignity but also from the functional concern of protecting against false conviction.” He quotes from Sir Matthew Hale’s The History of the Pleas of the Crown and William Blackstone’s Commentaries . Though he concedes that Blackstone did not mention a right to competency in habeas proceedings, Powers maintains the procedural stages Blackstone did reference ( i.e. , arraignment, trial, judgment, and execution) signify that the right attaches and continues throughout the criminal process.
¶27. In more recent times, Powers writes “the primary safeguard against excessive punishment” was once executive clemency. From 1924 to 1966, he argues, Florida commuted nearly a quarter of its death sentences. From 1909 to 1954, North Carolina commuted more than a third. But by 1987 and 1988, only nine of the nearly six hundred death sentences in the United States were commuted.
¶28.
Second
, Powers argues that the Court misrelied on
Ryan
.
Ryan
concerned federal
habeas
proceedings under the Antiterrorism and Effective Death Penalty Act (AEDPA). 28
U.S.C. §§ 2241 to 2255 (Supp. III 1997). In those proceedings, federal
habeas
attorneys’
role is more passive because review is solely record based.
Ryan
,
¶29.
Third
, Powers argues that the right to competency ensures robust state post-conviction
proceedings—something the AEDPA evinces. State courts, he maintains, are “the primary
guardians of federal constitutional rights.” (citing
Engle v. Isaac
,
¶30.
Fourth
, Powers maintains
Ford v. Wainwright
,
¶31. Fifth , Powers disputes the State’s assertion that the successive post-conviction petition (featuring “fifteen affidavits, including five from experts, and several other records”) shows that current post-conviction counsel can litigate the case even if he is incompetent. Powers contends that current post-conviction counsel is “handicapped in pursuing an actual innocence claim.” In an affidavit, former Capital Post-Conviction Counsel Director Scott Johnson avers that Powers could once recall detailed information—including information about actual innocence. Now, Powers cannot recall the crime, the victim, or even the victim’s name. His inability is significant, Powers argues, given that no one witnessed the crime, no forensic evidence tied him to the crime, and the “scant evidence” is questionable. For one thing, nothing shows that Powers’s trial or post-conviction counsel knew about developed film from Lafferty’s camera or her diary. For another, “trial counsel failed to question witnesses about [Lafferty’s] boyfriend, that the backdoor was kicked in, or the appearance of a bloody handprint on [Lafferty’s] arm and a bloody footprint in the hallway.” *14 Still more, Powers maintains his purported confession is suspect because he was drunk at the time of his arrest.
¶32. Powers maintains that actual innocence is
always
grounds for relief. As shown in
Gill
v. State
, 962 So. 2d 552 (Miss. 2007), the Court has the inherent power to correct its
judgments. In 1961, the Court affirmed Clyde Kennard’s burglary conviction and sentence.
Kennard v. State
,
¶33. No matter his own guilt or innocence, Powers contends the implications here extend beyond his case. The right to competency ensures that post-conviction proceedings function as intended for all petitioners—not just him.
¶34.
Sixth
, Powers argues that “principles of stare decisis . . . should preclude abandonment
of the right to mental competency in post-conviction proceedings.” Powers first focuses on
*15
Neal
. The June 21, 2022 order recognized that
Neal
said “defendants ‘must be competent
at all stages of the criminal process,’ including post-conviction proceedings.” Corrected En
Banc Order,
Powers v. State
, No. 2017-DR-00696, at * 1 (Miss. June 21, 2022) (quoting
Neal
,
¶35. For Powers, then, petitioners’ right to competency in post-conviction proceedings flows from four places: (1) ethical obligations, (2) the Uniform Post Conviction Collateral Relief Act, (3) the federal habeas scheme, and (4) precedent.
¶36. The State opposes rehearing. Rehearing is unmerited, it argues, because Powers fails to show “law or fact . . . [that] the [C]ourt . . . overlooked or misapprehended.” M.R.A.P. 40(a). The State gives at least nine counterarguments.
¶37.
First
, broadly speaking, the State maintains that Powers has had full opportunity to
challenge his sentence: Trial is the “main event,”
Shoop v. Twyford
,
¶38.
Second
, putting aside disagreement about how
exoneration
is defined, the State
maintains prior exonerations of certain death-row inmates is irrelevant to competency. Three
of the Mississippi exonerations, it maintains, were based on newly discovered DNA
evidence; one concerned a violation under
Brady v. Maryland
,
¶40. Fourth , the State contends its “brief skim” of recent ineffective-assistance claims by death-row inmates shows that the claims were “primarily based on expert opinions that the petitioner has some mental disorder that the defense team allegedly did not detect.” Even if affidavits from collateral sources are needed, the Mississippi Office of Capital Post- Conviction Counsel’s two mitigation specialists and investigator are capable of locating and interviewing those sources if the petitioner is incompetent.
¶41. Fifth , the State disputes that a petitioner’s sworn statement of facts and verification are required. In Hutto v. State , for example, the Court denied the State’s motion to dismiss Hutto’s post-conviction application based on his failure to comply with those requirements. En Banc Order, Hutto v. State , No. 2017-DR-01207-SCT (Miss. Oct. 3, 2019).
¶42.
Sixth
, the State argues
Ryan
is instructive. The State concedes it “may be true” that,
unlike state post-conviction petitioners, federal
habeas
petitioners are bound by the record.
The State insists, however, that the distinction does not render
Ryan
irrelevant.
Ryan
said
that “counsel can generally provide effective representation to a
habeas
petitioner regardless
of the petitioner’s competence.”
Ryan
,
¶43.
Seventh
, the State maintains
Ford
is unsupportive. “If anything,” the State writes,
“
Ford
serves as a reason not to find a right to [post-conviction] competence because Powers
can litigate his competence after his execution date has been set.” (citing
Panetti v.
Quarterman
,
¶44.
Eighth
, the State asserts that Powers’s actual-innocence claim is barred regardless of
his competency.
See
En Banc Order,
Underwood v. State
, No. 2015-DR-01378-SCT, at *11
(Miss. Dec. 16, 2021) (“This Court has recognized that actual innocence is a recognized
exception to procedurally defaulted federal
habeas
claims.
Howard v. State
, 945 So. 2d
[326,] . . . 369 [(Miss. 2006)]. But, the post-conviction relief act does not provide an
exception to the procedural bars for a claim of actual innocence.”)
*19
¶45.
Ninth
, the State argues Powers’s defense of
Neal
fails, and as to stare decisis, the State
maintains “[i]ndefinitely staying a capital murderer’s lawful sentence of death because he has
allegedly become incompetent during proceedings he is not even entitled to (successive
[post-conviction] proceedings), where neither the constitution nor any statute conveys a right
to competence, is surely mischievous and detrimental to the public.” The State cites
Moffett
v. State
,
[a] motion for rehearing may be filed within 14 days after a decision is handed down on the merits of a case by the Supreme Court or the Court of Appeals. . . . . The motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain . . . .
M.R.A.P. 40(a) (emphasis added). The June 21, 2022 order was a ruling on two motions, not a merits opinion or decision. The applicable rule, then, is Rule 27(h), which governs reconsideration of rulings on motions. M.R.A.P. 27(h).
¶46. Even so, Powers’s proceeding under Rule 40(a) is not dispositive.
See
Order,
Hudson
v. Gavin
, No. 2014-TS-01049 (Miss. May 21, 2015) (treating a Rule 40 rehearing motion as
a Rule 27(h) motion and dismissing it as untimely); Order,
Germany v. Stowers
, No.
2013-M-00155-SCT, (Miss. Aug. 15, 2013) (denying a motion to strike a Rule 40 rehearing
motion because Rule 27(h)(3) allowed reconsideration); Order,
Thompson v. Cent. Indus.
,
No. 2007-M-01013-SCT (Miss. Aug. 24, 2007) (treating a Rule 40 rehearing motion as a
*20
Rule 27(h) motion and denying relief). “Substance is considered over form.”
Arnona v.
Smith
,
¶47. Substantively, of course, Powers seeks reconsideration of the June 21, 2022 order. Rule 27(h) provides, in part, that “[m]otions for reconsideration, vacation or modification of rulings of the Supreme Court . . . on motions are generally not allowed.” M.R.A.P. 27(h). However, Rule 27 contains eight exceptions. M.R.A.P. 27(h)(1)–(8). Applicable here, “within 14 days after a decision is handed down on the motion,” reconsideration may be sought “in extraordinary cases, by suspension of the rules for good cause shown under Rule 2(c).” M.R.A.P. 27(h)(8).
¶48. Powers fails to demonstrate good cause for suspending the rules and granting rehearing. The Court did not overlook Powers’s argument that Ryan is distinguishable. Presiding Justice Kitchens, joined by Presiding Justice King and Justice Ishee, argued that and highlighted the importance of state post-conviction proceedings. Corrected En Banc Order, Powers v. State , No. 2017-DR-00696-SCT, at *2 (Miss. June 21, 2022) (Kitchens, P.J., objecting to the order with separate written statement).
¶49. In
Ryan
, the Supreme Court held that neither 18 U.S.C. § 3599 nor 18 U.S.C. § 4241
requires suspension of federal
habeas
proceedings when state petitioners are found to be
incompetent.
Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner’s competence. Indeed, where a claim is “adjudicated on the merits in State court proceedings,” 28 U.S.C. § 2254(d) (2006 ed.), counsel should, in most circumstances, be able to identify whether the “adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” § 2254(d)(1), without any evidence outside the record. See Cullen v. Pinholster , 563 U.S. [170, 181–82,]131 S. Ct. 1388 , 1398,179 L. Ed. 2d 557 (2011) (“[R]eview under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. . . . . This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time— i.e. , the record before the state court”). Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.
Id. at 68 (alterations in original).
¶50. Though the Supreme Court held that incompetency does not require a stay, it recognized federal district courts’ discretionary authority to grant one and addressed the “outer limits” of that discretion. Id. at 74. A stay is generally unmerited, it said, if the petitioner’s exhausted claims are record based; however, a limited stay may be merited for claims that are “both unexhausted and not procedurally defaulted[.]” Id. at 76. Indefinite *22 stays are improper. Id. at 76. To that point, the Supreme Court emphasized the AEDPA’s purpose of reducing delays and promoting finality. Id. “At some point,” the Supreme Court said, “the State must be allowed to defend its judgment of conviction.” Id. The next two sentences are especially relevant here:
If a district court concludes that the petitioner’s claim could substantially benefit from the petitioner’s assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State’s attempts to defend its presumptively valid judgment.
Id. at 76–77. In other words, a hopelessly incompetent petitioner is not entitled to a stay even if the petitioner’s assistance could substantially benefit the claim. See id.
¶51. Faced with a similar issue as here, the Supreme Court of Arizona found
Ryan
instructive.
Fitzgerald v. Myers
,
¶52. The Supreme Court of Arizona held that the statutory right to appointed counsel does
not require that capital petitioners be competent.
Id.
at 447, 449. First, unlike other Arizona
statutes, the particular statute at issue there neither mentioned competence nor provided any
*23
right to effective counsel-client communication.
Id.
at 447. Second, the court rejected the
argument that American Bar Association Guidelines establish a statutory right to
competency. They are merely guides, it wrote; and “[s]ubject to constitutional constraints,”
only the legislature can enact substantive laws for criminal proceedings.
Id.
at 448. Third,
while conceding that state post-conviction proceedings “are not strictly ‘record based’” and
“might be aided by[] the petitioner’s competent input,” the court found
Ryan
instructive in
concluding that the statute does not “create or include ‘a “statutory right” to competence.’”
Fitzgerald
,
¶53. As for the rule requiring a declaration under penalty of perjury, the court said that that
rule neither mentioned nor required competency.
Id.
Even if a petitioner lacks competency
to sign the declaration, then his or her “attorney—acting as next friend—can sign for his
client, thus allowing the [PCR] petition to go forward.”
Id.
(alteration in original) (citing
Whitmore v. Arkansas
,
¶54. As in
Fitzgerald
,
Ryan
is instructive in the case
sub judice
. The June 21, 2022 order
left open the possibility of discretionary stays. Corrected En Banc Order,
Powers v. State
,
No. 2017-DR-00696-SCT, at *2 (Miss. June 21, 2022) (citing
Ryan
,
¶55. Contrary to Powers’s arguments, Neal relied on Rumbaugh to support that competence is required in post-conviction proceedings. Neal specifically said the following:
Neal correctly argues that a defendant must be competent at all stages of the
criminal process, “whether trial,
Gammage v. State
, 510 So. 2d 802
(Miss. 1987); appeal,
Tarrants v. State
, 231 So. 2d 493 (Miss. 1970);
post-conviction,
Rumbaugh v. Procunier
,
¶56. Powers fails to persuade with his citation of professional guidelines and ethical rules.
Those same duties, it seems, would have required a different result in
Ryan
, and as
Fitzgerald
pointed out, American Bar Association Guidelines are merely guides, not
substantive law.
¶57. As for Mississippi Code Sections 99-39-9(1)(d) and -9(3) (Rev. 2020), neither
establishes a right to competency. Mississippi Code Sections 99-39-9(1)(d)–(e) (Rev. 2020)
require post-conviction motions to include “[a] separate statement of the specific facts which
are within the personal knowledge of the petitioner and which shall be sworn to by the
petitioner” and “[a] specific statement of the facts which are not within the petitioner’s
personal knowledge.” Mississippi Code Section 99-39-9(3) (Rev. 2020) provides “[t]he
motion shall be verified by the oath of the petitioner.” In
Fitzgerald
, the Supreme Court of
Arizona said a provision similar to those statutes did not require competency.
Fitzgerald
,
II. Whether the Court should reconsider the denial of Powers’s
Ford v. Wainwright
,
¶58. After filing the abeyance motion, Powers moved to amend it “to stay his execution
because of his mental health deficits and other combined psychological shortfalls which have
diminished his rational understanding of the punishment imposed on him.” Specifically, he
*26
requested a hearing to determine if he satisfies
Ford
,
Panetti,
¶59. In its June 21, 2022 order, the Court denied Powers’s motion to amend “without prejudice to his right to seek a stay of execution at the proper time.” Corrected En Banc Order, Powers v. State , No. 2017-DR-00696-SCT, at *2–3 (Miss. June 21, 2022). ¶60. Powers concedes that, typically, a Ford motion is unripe at the present time; however, he argues that his case is atypical and that addressing his Ford claim now would expedite finality. The State, on the other hand, maintains the Ford claim can be litigated once an execution date is set. Reconsideration of Powers’s Ford claim is denied.
¶61. In
Tompkins v. Secretary, Department of Corrections
,
The reason the Ford claim was not ripe at the time of the first petition in Panetti is not that evidence of an existing or past fact had not been uncovered at that time. Instead, the reason it was unripe was that no Ford claim is ever ripe at the time of the first petition because the facts to be measured or proven—the mental state of the petitioner at the time of execution—do not and cannot exist when the execution is years away.
¶62.
Tompkins
and
Nooner
are consistent with the Supreme Court’s more recent opinion
in
Madison
. There, the Supreme Court returned the case to state court “for renewed
consideration of Madison’s competency (
assuming Alabama sets a new execution date
).”
Madison
,
PART TWO: IMPARTIAL JURY
¶63. Assistant district attorneys Charles Gray Burdick and Robert Helfrich were the primary prosecutors. Accompanying them were District Attorney Lindsay Carter and assistant district attorneys Rick Fortenberry and Vanessa Jones. Dan A. McIntosh III, a thirty-six-year trial veteran, represented Powers.
Voir Dire Proceedings ¶64. During voir dire, the following occurred with respect to Jurors Roger M. Bickford, Faye C. Eppling, Kevin Cuevas, William Russell, Murphy Bond—the five jurors at issue. ¶65. After the trial judge asked Juror Bickford if his church’s views on the death penalty would affect him, Prosecutor Helfrich disclosed that he and Juror Bickford “play golf together and that kind of stuff.” The judge asked Juror Bickford if that posed a problem, and Juror Bickford answered, “No, sir.” Later, when prospective jurors were questioned about any relationship with trial participants, Juror Bickford said, “I play golf with Bob.” ¶66. Later, Juror Eppling volunteered that she knew Prosecutor Burdick. Prosecutor Burdick was an associate professor, and Juror Eppling either had been or was at that time one of his students. “[Prosecutor Burdick] tells me that you’re an A student,” the judge remarked. When the judge first asked Juror Eppling if her student-teacher relationship with *28 Prosecutor Burdick would “have any bearing with [her] in the trial,” she answered, “Yes.” The judge replied that he “th[ought] [she] [had] answered the[] same questions . . . back in chambers.” He then twice asked if she could be fair and impartial: “Can you be fair and impartial? . . . . Could you listen to the testimony and receive the evidence and that coupled with the instructions of law arrive at a verdict that could be fair and impartial to both sides; could you do that?” Both times, she answered, “Yes.”
¶67. Moving on, the judge asked if any prospective juror knew Lafferty, her parents, or her brother, Todd. Juror Cuevas said he knew Lafferty, or “Mary Beth” as he called her. Twice, the judge asked Juror Cuevas if Lafferty was a close personal friend or an acquaintance. Both times, Juror Cuevas answered, “Acquaintance.” Juror Cuevas said nothing about that acquaintanceship would affect him at trial. He denied any knowledge about the alleged facts and affirmed that he could be fair and impartial.
¶68. The judge then turned to Juror Russell. Juror Russell said he knew Todd “real well.”
They had been high-school classmates. When asked if Todd was a personal friend or an
acquaintance, Juror Russell answered, “Personal friend.” Even so, Juror Russell said he
neither had spoken to Todd about the case nor knew any of the alleged facts. Juror Russell
affirmed that he had formed no opinion about the case and that he could be fair and impartial.
¶69. Continuing on, the judge read aloud a list of potential witnesses and asked prospective
jurors if they knew anyone on the list. Juror Bond knew two: Hattiesburg Police Department
(HPD) Chief Charlie Sims and Detective Robbie Suber. For nearly a year and a half, from
May 1997 to October 1998—during the time of Lafferty’s murder—Juror Bond had worked
*29
with HPD.
Powers I
,
¶71. The judge then asked if anyone had ever been forensic pathologist Dr. Steven Hayne’s or Dr. Michael West’s patient. Juror Cuevas disclosed that he had been Dr. West’s patient twelve years earlier but said that that would not affect him at trial.
¶72. Finally, the trial judge asked prospective jurors collectively:
Is there anything about your knowledge of, acquaintance with either the parties, the witnesses, attorneys, whether it is a matter of like or dislike or whether it arises from friendship, personal association, business association, fraternal affiliation, church membership or otherwise that would in any manner affect you in the trial of this case? If so, raise your hand. Anybody whatsoever?
. . . .
Going one by one or row by row. Is there anybody . . . who has heard anything at all about the alleged facts of this case whether it was at the time that it occurred or subsequently either by way of radio, television newspaper or whatever? . .
A few prospective jurors responded but not Jurors Bickford, Eppling, Cuevas, Russell, or Bond. And all prospective jurors affirmed that they would “accept and be governed by” the court’s instructions.”
¶73. The judge said the “sole purpose” of the questions he had asked (and that counsel would ask) was to “get a jury that will be fair and impartial to both sides.” “It’s possible,” he said, “that I may not have asked you a particular question necessary for you to speak up, but whether or not I have asked the appropriate question, at this time are there any among you who feel you cannot be fair and impartial to both sides in the trial of this case? If you will, raise your hand.” No one did.
¶74. At the end of jury selection, Powers had three unused peremptory challenges. Powers affirmed that he had had input in selecting the jury and that he was satisfied with the jury’s composition.
¶75. At some point before trial (when, exactly, is unclear), the judge administered the capital oath. That oath requires jurors to swear “to ‘well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and the law.’” ¶76. At both the guilt and sentencing phases, the jury was instructed, in part, to (a) “determine the facts and to determine them from the evidence produced in open court”; (b) “not be influenced by bias, sympathy, or prejudice”; and (c) reach a decision “only after an impartial consideration of the evidence.”
Powers II
*31
¶77. In
Powers II
,
¶78. Powers argued, in part, that the trial court “den[ied] the right to trial before an[] impartial jury.” As support, he offered an affidavit from Juror Charlotte Duckworth, the only African-American on the jury. “During [jury] deliberations,” she said, “[Juror Cuevas] mentioned that he was acquainted with [Lafferty]. He stated that she would deliver[] packages to him via UPS. He stated [Lafferty] was very nice and outgoing.” According to Powers, Juror Cuevas conveyed that information “after a question arose during the course of deliberation as to why so many people were at Ms. Lafferty’s home.” Powers first argued that “[a] juror’s interjection of unique personal experiences or knowledge into jury deliberations constitutes misconduct because it creates a risk that the juror acts as an expert witness not subject to examination in court.” Id. Second, he asserted that Juror Cuevas conveyed improper, nonrecord character evidence:
The information . . . regarding Ms. Lafferty’s employment and character was not a part of the evidence presented at trial yet it found its way into the jury room and into deliberations. Juror Cuevas had stated during voir dire that he was acquainted with Ms. Lafferty but did not provide any additional information. What should be noted is that Juror Cuveas did refer to Ms. Lafferty by a nickname “Mary Beth” rather than by “Elizabeth” which is the name used by the court in voir dire. The use of which tends to indicate more than a passing acquaintance especially given that Juror Cuveas was aware of her “outgoing” personality.
Powers thus requested an evidentiary hearing “to determine the extent of the extraneous
information and what effect th[e] information had on the jury during the course of
*32
deliberations.” The
Powers II
Court rejected his claim.
Powers claims that during the course of deliberations, [Juror] Cuevas made it known that he was personally acquainted with the victim because she had delivered packages to his door. Powers claims bias on the part of the juror because he purportedly told another juror that the victim had an outgoing personality. The record reflects, however, that [Juror] Cuevas stated during voir dire that he was an acquaintance of the victim, Elizabeth Lafferty. Powers cannot now claim surprise or any other prejudice to his defense.
Id.
I. Whether Powers was denied the right to trial by a fair, impartial jury.
¶79. The federal and Mississippi Constitutions guarantee the right to a fair trial by an
impartial jury.
Johnson v. State
,
¶80. Powers argues that he was denied that right and is entitled to post-conviction relief for four reasons. First, Juror Cuevas told the jury nonrecord character evidence about Lafferty. Second, the trial judge failed to ensure that the empaneled jury was impartial. Third, trial counsel was ineffective for failing to challenge Jurors Cuevas, Russell, Bickford, Eppling, and Bond for cause. Fourth, post-conviction counsel were ineffective for failing to properly investigate and present juror bias and trial counsel’s ineffectiveness regarding that issue.
¶81. Before reaching those arguments, Powers first asserts that the federal district court’s ruling in itself requires an evidentiary hearing.
A. Whether the federal district court’s ruling that Powers’s impartial- jury claims are “sufficiently meritorious to warrant consideration” requires an evidentiary hearing.
¶82. Powers’s argument centers on the federal district court’s finding that his claims
concerning Jurors Cuevas, Russell, Bickford, and Eppling were “sufficiently meritorious to
warrant consideration.” He reasons as follows. To merit a stay under
Rhines v. Weber
, the
unexhausted claims need only be “
potentially
meritorious.”
Rhines v. Weber
¶83. Powers maintains that the UPCCRA has a
prima facie
pleading standard. Mississippi
Code Section 99-39-27(5) (Rev. 2020) requires that “a substantial showing of the denial of
a state or federal right” be shown “from the face of the application, motion, exhibits and the
prior record.” “[F]rom the face,” he argues, means a “
prima facie
showing.”
Robertson v.
State
,
[a] prima facie claim must be stated by the defendant in his petition to the lower court in order to obtain an evidentiary hearing on the merits of an ineffective assistance of counsel issue.
We adhere to the principle that a post-conviction relief petition which meets basic pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt *34 that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
¶84. So by promoting a prima facie pleading standard and equating prima facie to “sufficiently meritorious,” Powers reasons that the federal district court already found that he has made the necessary showing to require an evidentiary hearing.
¶85. Were the Court now to deviate from the
prima facie
standard, he contends, the Court
would violate due process and lose the deference its findings are ordinarily afforded in
federal
habeas
proceedings. More than once, he maintains, the United States Court of
Appeals for the Fifth Circuit has found due-process problems in how we have applied an
evidentiary-hearing standard.
See
Wiley v. Epps
,
¶87. We hold that the federal district court’s “sufficiently meritorious” finding does not require an evidentiary hearing.
¶88. First,
Robertson
is inapplicable, and
Archer
stated the standard imprecisely.
Robertson
concerned a post-conviction petition filed
in the trial court
—not a post-conviction
application filed here.
¶89. “[A] substantial showing of the denial of a constitutional right” is what federal habeas petitioners seeking a certificate of appeal ability must show. Miller-El v. Cockrel , 537 U.S. 322, 327 (2003) (internal quotation marks omitted) (quoting 28 U.S.C. § 2253(c)(2)). That means “demonstrating that jurists of reason could disagree with the [federal] district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Id. (citing Slack v. McDaniels , 529 U.S. 473, 484 (2000)).
¶90. Second, whether to grant any form of post-conviction relief is a decision for the Court.
It
must examine “[the original motion, together with all files, records, transcripts and
*36
correspondence relating to the judgment under attack,” Miss. Code. Ann. § 99-39-27(4) (Rev.
2020), and find that the claims are unbarred and present a “substantial showing of the denial
of a state or federal right.” § 99-39-27(5);
see
Williams v. State
,
B. Whether Juror Cuevas’s giving nonrecord character evidence violated Powers’s right to a fair trial.
¶91. The presumption of jury impartiality can be overcome “by evidence that extrinsic
factual matter tainted the jury’s deliberations.”
United States v. O’Keefe
,
Juror Cuevas-Related Claim
¶92. Powers argues that by describing Lafferty’s character in a positive light during jury
deliberations, Juror Cuevas introduced highly prejudicial, nonrecord character evidence,
contradicted his assurances of impartiality, and broke his juror oath. As discussed already,
the
Powers II
Court held that the Juror Cuevas-related claim was barred and meritless.
Powers II
,
¶93. Under
Strickland
, counsel are ineffective when their “conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having
*37
produced a just result.”
Brown
,
¶95. Here, Powers argues that Juror Duckworth’s affidavit in
Powers II
was either newly
discovered evidence (and thus excepted from the bars under Mississippi Code Section 99-39-
5(2)(a)(i) (Rev. 2020))
or
post-conviction counsel were ineffective for failing to argue
that—
or
both. He faults post-conviction counsel’s ineffectiveness for what he deems the
Powers II
Court’s erroneous decision on the Juror Cuevas-related claim. Powers likens his
case to
Brake v. Speed
,
Bars
¶97. Powers argues his claim is unbarred for two reasons. First, he maintains waiver bars
of Sections 99-39-21(1) and (2) are inapplicable. Section 99-39-21(1) is inapplicable, he
argues, because the claim was incapable of determination at trial or on direct appeal—it is
based on facts (
i.e.
, Juror Duckworth’s affidavit) outside the direct-appeal record. Section
99-39-21(2), by contrast requires the factual issue(s) to have been litigated both at trial
and
on direct appeal. They were not here, he contends, because he first learned of Juror Cuevas’s
comments post-conviction. Second, he argues that Section 99-39-21(3)’s
res judicata
bar
is inapplicable because it requires the claim to have been “
decided
at trial
and
on direct
appeal.” Neither occurred here, he maintains, nor was the claim even capable of
determination at those stages. Still more, he argues “the common-law doctrine of
res
judicata
does not apply to post-conviction claims of constitutional dimensions.”
Fluker v.
State
,
¶98. If any bar applies, he argues that relief from the bar(s) is merited for five reasons: (1)
post-conviction counsel’s ineffectiveness; (2) the Court’s inherent power to overrule
erroneous precedent,
see
J.K. v. R.K.
,
¶99. In response, the State maintains the claim is waived, res judicata barred, and meritless. The State stresses that the Powers II Court held that the Juror Cuevas-related claim not only was barred but also was meritless, and the State contends impartial-jury claims are not a recognized fundamental-rights exception. Still more, the State denies any concession and maintains that a Rhines stay alone does not merit relief from the bars. ¶100. No relief is merited. Powers’s claim lacks any arguable basis to merit relief from the bars even if they applied. Juror Cuevas’s comment was not “qualitatively different from the evidence properly before the jury[.]” Brake , 605 So. 2d at 36 (“Where [a juror’s] extra-record facts affect an issue of importance in the case and are qualitatively different from the evidence properly before the jury, a new trial may be ordered.” (quoting Salter v. Watkins , 513 So. 2d 569, 571 (Miss. 1987))). Moreover, Powers does not present a substantial showing that post-conviction counsel were ineffective.
¶101. Addressing the bars first,
res judicata
has been applied to claims that were considered
and rejected in prior post-conviction proceedings.
Jordan v. State
,
¶102. The successive-writ bar also applies. See Fluker , 170 So. 3d at 475 (“[The common-law doctrine of res judicata does not apply to post-conviction claims of constitutional dimensions. Rather, res judicata concerns attendant to a successive motion for PCR are governed by the statutory successive-pleadings bar.” (citing Smith v. State , 149 So. 3d 1027, 1032 (Miss. 2014))).
¶103. In any event, no matter whether Powers’s claim meets a fundamental-rights exception,
his ineffective-assistance-of-post-conviction-counsel claim is unbarred.
See
Brown
, 306 So.
3d at 748 (citing
Grayson
,
¶104. As for Powers’s arguments that the bars are inapplicable based on the Rhines stay and the State’s purported concession, neither argument has merit. Powers effectively concedes that a Rhines stay alone does not except his claims from the bars. To support his concession argument, he cites page four of the State’s response opposing a prior motion. However, nothing on that page indicates a concession. The State simply argued that Powers’s assistance was unnecessary for current post-conviction counsel to argue his claims here—especially the impartial-jury claims.
¶105. Turning to the merits, the claim neither has any arguable basis nor does Powers present a substantial showing that post-conviction counsel were ineffective.
¶106. Juror Cuevas’s comment was not “qualitatively different from the evidence properly
before the jury.”
Brake
,
Q. What kind of relationship did you have with her? How would you characterize the relationship?
[Barnes]. A friendly one, a trustful one. Me and -- I met Beth during the time that I was mowing yards in her neighborhood and happened to come to her one day. I was sweating, and she just asked me did I want a cold glass of water, and she also offered me a beer.
Q. Would you characterize her as a open, friendly girl?
[Barnes]. Yeah. Beth was, I’d say, more of -- she was an open person. Q. She liked everybody?
[Barnes]. That the way she was with me. I mean, you know, we were real good friends. ¶107. As for whether Juror Cuevas’s referring to Lafferty as “Mary Beth” suggested that the two were more than mere acquaintances, Juror Duckworth’s affidavit does not offer support. Juror Duckworth’s affidavit said only that Lafferty “delivered packages to [Juror Cuevas] via UPS.” Even those brief interactions would have enabled Juror Cuevas to perceive (correctly, it appears) Lafferty as “very nice and outgoing.”
¶108. It follows, then, that post-conviction counsel were not ineffective. Their performance was not deficient. They clearly argued that the nonrecord employment and character evidence Juror Cuevas conveyed to the jury denied Powers the right to a fair trial by an impartial jury. They cited Juror Duckworth’s affidavit, in which she said that she disclosed Juror Cuevas’s comment nearly a year after the direct-appeal mandate had issued. In the post-conviction petition, they said that “Lafferty’s employment and character was not part of the evidence presented at trial yet it found its way into the jury room and into deliberations.”
¶109. As for Powers’s contention (echoed by the federal district court) that the Court in
Powers II
erred by applying the bar, the
Powers II
Court also held that the claim was
meritless.
Powers II
,
¶110. We hold that Powers’s Juror Cuevas-related claim neither has any arguable basis nor does he present a substantial showing that post-conviction counsel were ineffective.
C. Whether the trial judge failed to ensure that the empaneled jury could render an impartial verdict, or alternatively, whether trial *44 and post-conviction counsel were ineffective in failing to raise the issue.
¶111. Voir dire—the “process through which ‘a judge or lawyer’ examines ‘a prospective
juror’ to see if ‘the prospect is qualified and suitable to serve on a jury,’”
United States v.
Parker
,
¶112. Prospective jurors may be challenged either for cause or peremptorily. “[G]enerally
a juror who may be removed on a challenge for cause is one against whom a cause for
challenge exists that would likely [affect] his competency or his impartiality at trial.”
West
v. State
,
¶113. “One of the purposes of challenges, for cause and peremptory, is to eliminate jurors
who have expressed or implied prejudices . . . .”
Taylor v. State
,
¶115. Implied bias is “confined to a narrow range of cases.”
Brooks v. Dretke
, 418 F.3d
430, 433 (5th Cir. 2005). The Supreme Court disfavors imputing bias to jurors, and only
“extreme situations” justify doing so.
Solis v. Cockrel
,
¶117. Circuit courts of appeals are split on whether the implied-bias doctrine is clearly
established federal law.
Uranga v. Davis
,
¶118. In implied-bias cases, “[a] prospective juror’s assessment of her own ability to remain
impartial is irrelevant . . . .”
Mitchell
, 690 F.3d at 143 (citing
Torres
, 128 F.3d at 45);
Craaybeek v. Lumpkin
,
¶119. “It is the duty of the court to see that a competent, fair and impartial jury is
empaneled.”
Marshall Durbin, Inc. v. Tew
,
¶121. Because Powers’s ineffective-assistance claims here are “based on his trial counsel’s
failure to strike a biased juror, [he] must show that the juror was actually biased against him.”
Miller v. Webb
,
Impartial-Jury Claims ¶122. Powers asserts that Jurors Cuevas, Eppling, Russell, Bickford, and Bond were biased. He first argues that the trial judge failed to ensure impartiality by making no substantive inquiry into those jurors’ relationships to the parties. Second, he argues that trial counsel was ineffective for not striking them. Third, he argues that post-conviction counsel were ineffective for failing to ensure that he received a fair, impartial jury—specifically, they *49 neglected to investigate and to argue trial counsel’s ineffectiveness in failing to strike biased jurors. Finally, he asserts that cumulative error merits relief.
¶123. Powers begins with Jurors Cuevas, Russell, and Bickford. Juror Cuevas not only knew Lafferty and HPD Chief Sims, but also had been one of Dr. West’s patients. Juror Russell, too, knew HPD Chief Sims and was friends with Lafferty’s brother. Juror Bickford golfed with Prosecutor Helfrich. Yet neither the trial judge nor trial counsel questioned those jurors more in depth about the nature of those relationships. “[G]olf,” Powers writes, “entails spending hours together . . . in close proximity and relative isolation.” That Juror Bickford golfed with Prosecutor Helfrich and referred to him as “Bob,” then, suggests that the two were more than mere acquaintances. Powers then highlights Juror Eppling and Prosecutor Burdick’s student-teacher relationship. Because of that relationship, Powers argues Juror Eppling faced the same pressures as an employee of the prosecuting agency— i.e. , out of loyalty, fear of retribution, or embarrassment from contradicting an authority figure’s wishes, she felt more inclined to vote guilty.
¶124. Potential retribution, he maintains, is sufficient to presume prejudice.
See
Brooks
,
¶125. Citing Mississippi Code Section 37-3-2(12)(f) (Rev. 2019) (authorizing disciplinary action against licensed teachers who “engage[] in unethical conduct relating to an educator/student relationship”) and Ambach v. Norwick , 441 U.S. 68, 78–79 (1979) (recognizing teachers’ influence in a case addressing whether a state may impose a citizenship requirement for elementary and secondary school teachers), Powers contends Prosecutor Burdick, likewise, had power over Juror Eppling. Teachers’ power over students, he claims, is undeniable.
¶126. Powers argues that
Treesh v. Bagley
,
¶127. Powers maintains the closeness of Juror Eppling and Prosecutor Burdick’s relationship, plus Prosecutor Burdick’s “superiority,” “implicit leverage,” and “inherent influence” over her are shown by Prosecutor Burdick’s telling the trial judge “in chambers”—and off the record, apparently—about Eppling’s “A” grade. “Such [off-the- record] discussion,” Powers argues, “is violative of [his] constitutional right to a fair and impartial trial. . . .”
¶128. Powers also emphasizes Juror Eppling’s admission that she could not be fair and impartial. When the trial judge first asked if her student-teacher relationship with Prosecutor Burdick would have “any bearing with [her] in the trial of this case[,]” she answered, “Yes.” That admission, Powers argues, voids her subsequent assurances of fairness and impartiality, and it should have spurred more questioning. Yet trial counsel neither followed up nor moved to strike her.
¶129. As support, Powers points to
Brown v. State
,
¶131. The Sixth Circuit relied partly on
Hughes
in
Miller
.
Miller
,
¶132. And in
Virgil
, the Fifth Circuit held that trial counsel was ineffective for failing to
challenge two jurors.
¶133. Powers argues Virgil proves trial counsel’s ineffectiveness here. When prospective juror Downing, another of Prosecutor Burdick’s students, vaguely answered, “Not that I know[]” when asked if her student-teacher relationship with him would “have a bearing with [her] in the trial of this case[,]” trial counsel probed no further. When Juror Eppling admitted bias, trial counsel did nothing to clarify, confirm, or rehabilitate her admission. As in Virgil , then, Powers maintains, someone who expressed an inability to be fair and impartial sat on the jury. Juror Eppling’s unchallenged admission of bias coupled with the trial judge and Prosecutor Burdick’s off-the-record statements about her being an “A” student proves that he was denied an impartial jury.
¶134. Next, Powers turns to Juror Bond. From May 1997 to October 1998—during the time of Lafferty’s murder on or about June 13, 1998—Juror Bond worked with the Hattiesburg Police Department. Powers argues that Juror Bond’s employment with the “investigating, arresting, charging, and prosecuting agency” made him implicitly biased. Powers stresses the significance of when Juror Bond worked with the police— i.e. , before Lafferty’s murder, during the ensuing investigation, and after Powers’s arrest. That, Powers alleges, made Juror Bond the prosecution’s “star” juror. Of the seventy-two prospective jurors listed on the prosecution’s venire list, only Juror Bond has a star beside his name.
¶135. Powers likens Juror Bond’s situation to the facts in
United States v. Scott
, 854 F.2d
697 (5th Cir. 1988)—a case “on all fours,” he maintains—and
Bell v. Epps
, No. 3:04 cv 212-
8,
[The foreperson] consciously censored the information. He believed that it was his place, and not the place of the court or defense counsel, to determine whether his relations were a bar to jury service in this case. There is a strong inference that [he] wanted to serve on this jury and thought it unlikely that the court or defense counsel would permit him to do so.
[He] was hostile to what he correctly perceived to be the interests of the defense and the court. This in itself constitutes bias.
Id.
¶136. Scott , Powers argues, proves that law enforcement agencies that perform just some of the investigation qualify as a prosecuting agency, and, here, the police department did the full investigation. Still more, Juror Bond was not merely related to a Hattiesburg Police Department law-enforcement official—he was one. Had trial counsel challenged Juror Bond for cause, then, Powers insists that Juror Bond would have been excused.
¶137. Shifting to
Bell
, the federal district court denied death-row inmate Bell’s
habeas
petition, finding, in part, that he failed to show that any seated juror was biased. 2008 WL
2690311, at *1, *29, *100. Six jurors had ties to law enforcement: one’s brother-in-law “was
on the police force”; a second’s husband’s first cousin “was on the police force”; a third’s
husband had been a deputy sheriff four or five years before the murder; a fourth’s father had
been a deputy sheriff in another county years before the murder; a fifth’s brother and uncle
were “on the police force,” and she was first cousins with an investigator on the case; and
a sixth’s granddaughter was married to the sheriff’s nephew. The federal district court found
that counsel’s decision on whether to challenge those jurors was strategic and that Bell failed
to show that that decision “permeated his trial with unfairness.”
Id.
at *29 (citing
Teague
v. Scott
, 60 F.3d 1167, 1172 (5th Cir. 1995)). “[Bell] cannot establish bias merely by
demonstrating that a relationship existed between seated jurors and members of law
enforcement,” it said.
Id.
(citing
United States v. Crooks
,
¶138. Powers argues
Bell
is distinguishable in two ways. First, unlike
Bell
, the problem
here is not Juror Bond’s familial ties to the investigating agency—it is that Juror Bond
*56
himself had been a law-enforcement official with the investigating agency. Powers stresses
that his challenge to Juror Bond is based on Juror Bond’s employment with the prosecuting
agency at the time of the crime and afterwards. Juror Bond’s police department employment
and the time frame thereof, Powers insists, fits squarely with the first extreme situation that
Justice O’Connor said “would justify a finding of implied bias”: “a revelation that the juror
is an actual employee of the prosecuting agency.”
Smith
,
¶139. Finally, Powers invokes the cumulative-error doctrine, which “holds that individual
errors, which are not reversible in themselves, may combine with other errors to make up
reversible error, where the cumulative effect of all errors deprives the defendant of a
fundamentally fair trial.”
Ross
,
In response, the State argues that Powers’s claims lack merit for at least five reasons. ¶141. First , it argues, a good indication of the claims’ lack of merit is the fact that they have gone unraised until now. Powers replies that that argument only strengthens his stance: claims have gone unraised, he maintains, because of trial and post-conviction counsel’s ineffectiveness.
¶142.
Second
, the State contends the jurors at issue here disclosed their relationships and
swore that the relationships would not affect their ability to be fair and impartial. Such
assurances, combined with no evidence of bias, have supported a trial court’s finding that
jurors could be fair and impartial.
Patton
,
¶143. Even when a prospective juror has a preconceived opinion about the accused’s guilt
or innocence, he or she may serve on the jury if he or she “takes an oath that he or she can
be fair and impartial in fulfilling the duties of a juror and the trial court is satisfied by that
oath . . . .”
Jordan v. State
,
¶144.
Third
, the State contends that neither being a law-enforcement officer nor being
acquainted with a party merits removal for cause. The Court has said that “there is no reason
why an officer or an officer’s relative should not serve on a jury if otherwise qualified to
follow the law and the evidence,”
Patton
, 248 So. 3d at 768 (internal quotation marks
omitted) (quoting
Bell
,
¶145. Fourth , as to implied bias, the State maintains it is unclear if the Fifth Circuit recognizes the doctrine as clearly established federal law, and even it is, it is disfavored and justified only in extreme situations—which is not the case here.
¶146. The State maintains
Scott
and
Brooks
are the only cases in which the Fifth Circuit has
held that extreme situations merited implied bias. In contrast, the State cites seven cases in
which the Fifth Circuit declined to find implicit bias.
See
Craaybeek
,
¶147.
Craaybeek
in particular, the State argues, is relevant here. There, Craaybeek was
convicted of “aggravated assault by threat on a public servant” for shooting at law-
enforcement officers, including an officer with the Olney Police Department and Young
County Sheriff’s deputies.
Craaybeek
, 855 F. App’x at 943. The jury foreperson had
worked in law enforcement for twenty-six years, including “a year and a half or so with the
Young County Sheriff’s Office” that employed two of the prosecution’s witnesses/victims.
Id.
at 944. At the time of trial, he served as a reserve officer for the Olney Police Department
and knew eight of the prosecution’s nine witnesses/victims.
Id.
The Fifth Circuit held that
“th[o]se facts f[e]ll ‘outside the extreme genre of cases Justice O’Connor pointed to in her
concurring opinion in [
Phillips
].’”
Id.
at 947 (citing
Uranga
,
¶148. If implied bias was unjustified in
Craaybeek
, the State argues, then surely it is
unjustified here. Juror Bond fully disclosed that he worked in some unspecified capacity at
*61
the police department for only a year and a half, knew one witness for the state, and knew
nothing about the investigation or facts of the case. Powers replies that
Craaybeek
is
distinguishable because the juror there was not an actual employee of the prosecuting agency.
¶149. The State concedes that in
Taylor
,
¶150. The State thus concludes that “this Court has never held that it would find implied bias based on a juror’s disclosed relationship with anyone involved in the case unless the juror was challenged at trial and is a close relative of a prosecutor in the office trying the case.”
¶151.
Fifth
, the State, citing
Phillips
, 455 U.S. at 217, contends Powers received the
safeguards of juror impartiality—
voir dire
and protective instructions from the trial judge.
*62
Jurors were instructed “not be influenced by bias, sympathy, or prejudice[]” and to decide
the case “after an impartial consideration of the evidence.” They are presumed to have
followed those instructions.
Evans v. State
,
The Bars
¶152. Powers argues that his impartial-jury claims are neither waived nor
res judicata
, and
any bar is overcome because post-conviction counsel were ineffective for never raising trial
counsel’s ineffectiveness in failing to strike biased jurors. The State counters that the claims
could have been raised either at trial, direct appeal, or both and are thus waived.
¶153. Addressing the bars first, because the trial-judge and ineffective-assistance-of-trial-
counsel claims were “capable of determination at trial and/or on direct appeal,”
see
Miss.
Code. Ann. § 99-39-21(1), we hold that the waiver bar applies. Powers raised ineffective
assistance of trial counsel on direct appeal,
Powers I
,
¶154. Powers’s ineffective-assistance-of-post-conviction-counsel claim, however, is
unbarred.
Brown
,
¶155. On the merits, we note first that the trial-judge claim has no arguable basis. We agree
with the State. Because Powers had three unused peremptory strikes remaining when jury
selection ended, the trial judge cannot be faulted for failing to remove jurors.
Ambrose v.
State
,
¶156. Second, Jurors Cuevas, Russell, Bickford, Eppling, and Bond were neither actually nor implicitly biased; so Powers’s ineffective-assistance-of-trial-counsel claim has no arguable basis. It follows, then, that his ineffective-assistance-of-post-conviction-counsel claim is meritless.
¶157. The case
sub judice
is not one in which any juror expressed an inability to be
impartial.
Contra
Hughes
,
¶158. Taking each juror in turn, neither Juror Cuevas’s acquaintance with Lafferty, his
knowing Chief Sims, nor his having been Dr. West’s patient years earlier showed bias. “Mere acquaintance or even family relationships with parties or those related to parties is not
sufficient to require that a juror be excused for cause.”
Patton
,
¶159. The same goes for Juror Russell. He too affirmed that he could be impartial, and he
gave no response when the trial judge asked prospective jurors collectively if anything about
their relationship with any potential witness (or anything else) would affect them.
*65
¶160. Likewise with Juror Bickford, being golfing buddies with the one of the prosecutors
is not cause for disqualification if the juror’s responses to questions “negate any danger of
bias.”
Wise v. Commonwealth
,
¶161. What is more, the record shows that trial counsel was not oblivious to prospective jurors who were friends with Prosecutor Helfrich. In voir dire, prospective juror Kim Bradley disclosed that she had been friends with Prosecutor Helfrich for years and expressed doubt about her ability to be fair and impartial. Trial counsel later struck her.
¶162. As for Juror Eppling, it appears from the record she was not Prosecutor Burdick’s student. Juror Eppling’s and Prospective Juror Downing’s jury questionnaires show their *66 different educational attainment and employment status at the time of Powers’s trial. Juror Eppling’s jury questionnaire shows that she had an undergraduate degree and a masters degree in psychology and was a licensed professional counselor. Downing had an undergraduate degree and worked as a lab technician. She noted that she did not receive employment benefits because she worked “only part time while in graduate school.” ¶163. Downing was among the prospective jurors questioned individually in chambers. Juror Eppling was not. During that questioning, Prosecutor Burdick disclosed that he had taught Downing, and when the trial judge asked Downing if that would “have a bearing with [her] in the trial,” she answered, “Not that I know of.” Then, back in open court, the trial transcript records that Juror Eppling disclosed that she knew Prosecutor Burdick. The trial judge then asked, “You are one of his students or have been one of his student[s]? . . . [D]oes that have any bearing with you in the trial of this case?” After she answered, “Yes,” the trial judge remarked, “I think you answered these same questions for us back in chambers .” (Emphasis added.) He then twice asked if she could be fair and impartial; both times, she said, “Yes.”
¶164. That the person questioned in open court had answered the same questions “back in chambers” indicates that the open-court exchange was with Downing, not Juror Eppling. Accordingly, the student-teacher relationship is a nonissue because Downing did not sit on the jury.
¶165. Moreover, even if the transcript is correct and Juror Eppling had a student-teacher
relationship with Prosecutor Burdick, Powers’s argument still has no arguable basis. In
Treesh
, the Sixth Circuit held that a juror’s having taken a class taught by the prosecutor did
*67
not make that juror implicitly or actually biased.
Treesh
,
¶166. Powers emphasizes Juror Eppling’s initial affirmance that her relationship with Prosecutor Burdick would have bearing with her at trial. However, the voir dire examination did not end there. See Havard , 928 So. 2d at 781 (“Though juror Sylvester initially *68 commented that she did not think she could be fair because of her niece’s experience, the voir dire examination did not end there . . . .”). Powers’s reasoning forecloses clarification or rehabilitation. Here, right after indicating that her student-teacher relationship would have “bearing with [her] in the trial of th[e] case,” the trial judge asked, “Can you be fair and impartial?” She answered, “Yes.” Then the judge again asked, “Could you listen to the testimony and receive the evidence and that coupled with the instructions of law arrive at a verdict that could be fair and impartial to both sides; could you do that?” Again, she answered, “Yes.” Powers himself concedes that assurances of impartiality carry much weight.
¶167. We likewise hold that the claim related to Juror Bond,
i.e.
, his relationship to the
police department, has no arguable basis.
Scott
is distinguishable.
Scott
,
¶168. Key here is Juror Bond’s
prior
police department employment. Justice O’Connor said
“a revelation that the juror
is
an actual employee of the prosecuting agency” might justify a
finding of implied bias.
Phillips
,
¶169. Understandably, Powers emphasizes that Juror Bond worked with the police at the time of Lafferty’s murder. Yet Juror Bond said that he neither investigated nor knew anything about the alleged facts, and he gave no response when the trial judge asked prospective jurors if anything, including their relationship(s) with potential witnesses, would affect their ability to be fair and impartial.
¶170.
United States v. Mitchell
,
While it would have been the better practice to have excused juror Ray under the circumstances, we are unable to hold that the failure to do so was such an abuse of discretion as to warrant the reversal of Mitchell’s conviction. Neither personal knowledge by Ray of appellant’s case nor any prejudice by Ray was disclosed. Ray was not at the time of the trial a member of the police department. In any event, “the mere fact of membership on a police force is not presumptively a disqualification for service on a jury in a criminal trial.” If there was any other basis for probing into Ray’s objectivity, counsel did not seek to pursue it. To reverse a trial judge on these facts would severely limit the broad discretion that traditionally is accorded a district judge in this area. Id. at 379 (citations omitted).
¶171. Granted, it is unclear from Mitchell whether Ray was employed with the Memphis Police Department at the time of the crimes at issue there, but at the very least, he had previously been employed with an agency ( i.e. , the Memphis Police Department) that had some involvement in the case—otherwise, the Memphis Police Department lieutenant would not have testified. Id. at 378. Also, Ray was acquainted with the testifying lieutenant. Id. ¶172. Here, Juror Bond worked with the police department in some capacity at the time of Lafferty’s murder and knew two potential witnesses: Chief Sims and Detective Suber. Of the two, only Detective Suber testified. Because implicit bias applies only in extreme situations and given Juror Bond’s representations and lack of response to the trial judge’s questions regarding impartiality, no bias is shown. Based on Juror Bond’s disclosures and assurances, it is speculative to assume that more questioning would have shown otherwise.
D. Whether current post-conviction counsel must interview jurors who served at Powers’s trial in order to fully develop his impartial- jury claims.
¶173. To fully develop his impartial-jury claims, Powers argues that current post-conviction
counsel must interview jurors who served at his trial. They have not done so to date, he
*71
maintains, because of uncertainty about whether the procedure set forth in
Gladney
applies.
In
Gladney
, the Court adopted a “prophylactic method to uniformly execute juror inquiry,
under M.R.E. 606(b) . . . .”
Gladney
625 So. 2d at 418. To start, “the trial court and
opposing counsel must be made aware of any potential juror misconduct when this evidence
is manifested.”
Id.
at 418. So “if a juror approaches an attorney for one of the parties or the
court itself, or if either subsequently learns such through alternative means, all parties
involved should be made aware of the allegation as expeditiously as possible.”
Id.
Next, to
determine if an investigation is merited, “the party contending there is misconduct must make
an adequate showing to overcome the presumption . . . of jury impartiality.”
Id.
At a
minimum, that requires a showing of “sufficient evidence to conclude that good cause exists
to believe that there was in fact an improper outside influence or extraneous prejudicial
information.”
Id.
at 419. To protect the parties’ and jurors’ interests, the trial court must
supervise the post-trial investigation, and inquiry is allowed outside the trial court’s presence
only “upon written request and trial court permission.”
Id.
Finally, if a “threshold showing
of external influences” is made, then the trial court should conduct a post-trial hearing.
Id.
¶174. Powers maintains the
Gladney
procedure should apply only when the trial court still
has jurisdiction to do something about the alleged misconduct. Eppling the
Gladney
procedure at the prepetition, post-conviction stage, he argues, is a “bad,” “prejudicial” fit.
By that time, trial ended long ago, and post-conviction counsel have a duty to “investigate
the entire case for potential claims as soon as the direct appeal is decided, not wait for
suggestions of due process violations simply to ‘arise.’” Barring juror contact during post-
conviction counsel’s prepetition investigation, then, “effectively foreclose[s] a death row
*72
inmate’s right to raise juror bias as a challenge to his conviction and sentence before he has
the chance to assert it.” “That neither the State nor this Court has previously objected to or
prevented counsel from doing that in other cases,” he adds, “evinces a longstanding, though
implicit, recognition of that basic necessity of post-conviction practice.”
¶175. As support, he cites
Batiste v. State (Batiste II)
,
[A]t the earliest stage of the post-conviction process, when an inmate’s legal
team is investigating possible claims, it is permissible to ask jurors about their
experiences at trial and to record reports of bias, misconduct, or extraneous
influences in an affidavit if a juror is willing to submit it. That is how
allegations of juror bias or misconduct would “arise” in the post-conviction
context. And the first court to review such allegations in a post-conviction
petition would be . . . the Supreme Court of Mississippi. Then, if this Court
decides to remand a claim for juror bias, it would naturally entrust the proper
procedure for overseeing an investigation into that claim to the trial court.
¶176. The State counters that
Batiste
,
¶178. Because the Batiste Court has already answered the instant question adversely to Power’s arguments, the instant issue is without merit.
PART THREE: BATSON
¶179. With every post-trial stage, Powers has contended that jury selection in his trial violated Batson . At every rung on the post-trial ladder, his contentions have been without merit. As more fully developed below, the only potential avenue for relief remaining to him now is a claim that his first post-conviction counsel failed to competently present the issue. He makes that claim, but it fails because he cannot make a substantial showing of ineffectiveness or Strickland prejudice.
Trial Proceedings ¶180. With their summonses, prospective jurors received questionnaires. The questionnaires lacked a place for them to mark their race. At the start of the jury-selection process, sixty or so prospective jurors were individually questioned in-chambers about their questionnaire responses concerning the death penalty or other matters, such as hardship or general excuses. Of the sixty, the prosecution asked three—Rolanda Boyd, Cynthia Hill, and Michael Tate—if Lafferty’s being white and Powers’s being Black would influence them. Each said no:
[Prosecutor Burdick]. The girl involved here is white. Would that have an influence on you?
[Boyd]. No.
. . . .
[Prosecutor Burdick]. When it comes to considering the death penalty, the fact that the defendant is black and the victim is white, will that have any bearing? [Hill]. No.
. . . .
[Prosecutor Burdick]. Stephen Powers is the defendant and victim in this case is white. Would that make a difference to you?
[Tate]. None whatsoever.
¶181. As jury selection proceeded, the prosecution used six peremptory strikes.
Powers I
,
¶182. Before proceeding with trial, the trial judge asked Powers if he was satisfied. “I want to make certain you had input into the selection of the jury and that you are satisfied with the composition of the jury that has been selected,” the trial judge said. Powers answered, “Yes, sir.”
¶183. In a post-trial motion, McIntosh argued that “the
court
erred in not requiring
Batson
challenges during jury selection.”
Powers I
,
[L]et me say that I’m not casting any aspersions in this record, but I was shocked and appalled that Batson was not raised, but as I understand and appreciate the law . . . a trial judge does not have the authority to invoke [ Batson ] on his own initiative; there must be an objection by either the defense or the prosecution, and the objecting party must establish a prima facie case of racial discrimination before a Batson inquiry is held. Though I was surprised *75 that it wasn’t raised, as I understand and appreciate the law . . . this [c]ourt cannot, on its own initiative, institute Batson . . . .
McIntosh agreed that counsel, not the court, must raise
Batson
. “As part of the record,”
McIntosh said, “I agree that we have to raise [
Batson
].”
Powers I
,
Powers I ¶184. On direct appeal, appellate counsel moved to remand for record supplementation or, alternatively, for post-conviction relief. They argued that McIntosh’s failure to raise Batson was “inexplicable based on the existing record.” To expedite and preserve Powers’s ineffective-assistance claim, then, appellate counsel sought a stay and asked the Court to remand the case for an evidentiary hearing. The Court granted the motion.
¶185. At the ensuing evidentiary hearing, McIntosh testified. In his thirty-six years of practicing law, including three or four years as a public defender, he had “gone to trial” in “[s]everal murder cases,” but not in a capital-murder case. In the trials, he never raised Batson . Before Powers’s trial, McIntosh attended a jury-selection seminar. Though Batson was a topic “to some degree,” it was not the seminar’s main “focus” or “thrust.” On direct, the following exchange occurred:
Q. Can you tell me what the burden of proof is on a party challenging peremptory strikes under Batson . . . .
[McIntosh]. Not as an expert on it, no. It basically has to do with race or prejudicial matters, but I am not an expert on Batson . I have read Batson , but I would certainly not consider myself an expert on Batson or challenges.
Q. You did not make an effort to become “an expert” on Batson prior to the beginning of this trial?
[McIntosh]. No, sir.
Q. You realize that Mr. Powers was facing a trial where he faced the death penalty?
[McIntosh]. Yes, sir.
Q. And as a critical aspect of that trial, you had to participate in the selection of the jury; isn’t that correct?
[McIntosh]. Yes, sir.
Q. You made no effort as the defense attorney to become familiar with the basic requirements of Batson ; is that correct?
[McIntosh]. I think I would have to say yes to that. THE COURT: Yes, you did or, yes, you didn’t make any effort?
Q. Thank you, Your Honor. You made no effort to become familiar with the requirements of Batson prior to the inception of this trial; is that correct?
[McIntosh]. I reread Batson , but that was basically all; yes, sir. Q. You made no Batson challenges during jury selection?
[McIntosh]. No, sir. McIntosh said he raised Batson in the post-trial motion in “hop[es] that another appeal attorney might find it useful.” On cross-examination, McIntosh said that he was familiar with Batson “to a degree” but “certainly wouldn’t claim to be an expert.” “I have read Batson several times,” he said, “and that is all I can say about that.” On redirect, he was asked if it was “fair to say that [he] did not come to [Powers’s] trial prepared to raise Batson issues[.]” He answered, “No. I would have to say, no. I obviously did not raise [ Batson ,] and I was not fully prepared to raise it. That is the only way that I know to answer your question. I did not raise it, nor was I fully ready to raise it.”
¶186. McIntosh also admitted that, in preparing the jury questionnaires, he omitted a place
for prospective jurors to indicate their race, nor could he find his notes where had marked
prospective jurors’ race and gender. “We only ended up with one African-American on the
jury,” he said; “most were let off because of their feelings toward the death penalty.”
¶187. After the evidentiary hearing, direct appeal proceeded. The Court rejected Powers’s
claim that McIntosh was ineffective for failing to raise
Batson
.
Powers I
,
• McIntosh filed and brought on for hearing a pretrial motion seeking information about prospective jurors, including their race, and noted that information’s importance for challenging the prosecution’s strikes. Id.
• The State used six peremptory strikes. Id.
• The struck jurors’ race was unknown. Id. • Powers affirmed that he had input in jury selection and was satisfied with the jury’s composition. Id.
• When McIntosh asserted in a post-trial motion that the trial court should have allowed Batson challenges, the trial judge “indicated surprise” that Batson was not raised; however, the judge said that it was not the court’s duty to raise Batson , and McIntosh agreed. Id. ¶188. The Powers I Court found that Powers failed to show “the requisite deficiency and prejudice.” Id. at 30. After noting that the direct-appeal record omitted the struck jurors’ race, the Court concluded that “[t]here was no[] . . . Batson issue for [McIntosh] to raise.” Id. at 30–31. It then discussed that the record showed race-neutral reasons for each of the prosecution’s strikes:
• S-1 “knew one of the testifying officers and had child care problems.” Id. at 31.
• S-2 “was on medication, was concerned about her health, migraine headaches, and did not wish to serve.” Id.
• S-3 “was taken on individual voir dire, having indicated that she did not believe in the death penalty on her questionnaire but having scratched through the response and indicated she wanted to be heard in chambers on the issue.” Id.
• S-4 “thought she was related to the District Attorney, although she did not know him,” and “indicated that she was not pleased with the outcome of a lawsuit she had filed.” Id.
• S-5’s “questionnaire indicated some distrust of police testimony, having indicated that the police ‘try to tell the truth,’ as opposed to ‘always tell the truth’ or other choices.” Id.
• S-6 “requested to be removed citing preoccupation with her sick mother who was in the care of this juror and this juror’s sister,” and was “concerned about the potential length of trial.” Id.
¶189. The Powers I Court thus found that Powers had no “viable Batson challenge.” Id. “[I]t is inconceivable,” the Court said, “how [McIntosh] could have been ineffective, and thus Powers’s case prejudiced by failure to raise such a challenge.” Id.
Powers II
¶190. In Powers’s first post-conviction petition, post-conviction counsel argued that
McIntosh was ineffective for failing to raise
Batson
. To merit relief from the bars, they
asserted
Miller-El
as an intervening decision. There, the Supreme Court held that purposeful
discrimination was at least debatable for four reasons.
Miller-El
,
¶191. In addition to relying on Miller-El , post-conviction counsel attached a venire list that the trial court had reviewed in-camera and had ordered disclosed to post-conviction counsel. Post-conviction counsel said the venire list showed that “the prosecution color coded the venire panel[]”:
The prosecution placed a “B” beside each African-American venire member. The State used its peremptory strikes to exclude all African-Americans except one[, Juror Duckworth]. This resulted in a jury of eleven Whites and only one African-American. In Miller-El , ten of fourteen “peremptory strikes were used against African-Americans. Happenstance is unlikely to produce this disparity.”
¶192. “Why,” post-conviction counsel asked, “did the prosecution specifically list the race of African-American jurors but not those of other races?” Also, “[w]hy did the prosecution overwhelmingly] provide notations beside the jurors that were non-White but not those that were?”
¶193. Continuing on, post-conviction counsel argued that McIntosh was ineffective for failing to follow American Bar Association Guidelines. “[McIntosh] readily admitted that he was not prepared to raise Batson issues during jury selection.” That admission alone, they argued, established his ineffectiveness.
¶194. After discussing McIntosh’s failure to challenge Jurors Cuevas and Russell, post- conviction counsel questioned why McIntosh did not challenge the prosecution’s strike of a person who suffered from migraines even though Juror Duckworth suffered the same malady. They then asserted generally that “[o]ther members of the venire were allowed to serve who also had similar problems and concerns as those of the African-American Jurors who were ‘tagged’ and not selected to serve on the jury.”
¶195. “At the very minimum,” they concluded, “[Powers] should be afforded an evidentiary hearing to determine the racial make-up of those jurors who were struck by the State and for a Batson hearing on this issue.”
¶196. The venire list attached to Powers’s first post-conviction petition is initialed “RBH” at the top. Of the seventy-two names listed, a “B” along with the following handwritten notations appear beside eight (quotation marks reflect handwritten notations):
“B” 3. Veronica A. Harris “S-1–Bored–Left Hand–Child Care 4 Kids 73 yr old mother”
“B” 8. Charlotte L. Duckworth “– migraines” “?” “B” 10. Rolanda Yvette Boyd “cell phone went off during voir dire – got up + moved”
“?” “B” 34. Cynthia P. Hill “– moving – S –” “?” “B” 40. Ann[]ie K. Bolden “– Diabetic” *81 “?” “B” 41. Terrea L. Hoze “– problems w/kids –“ ”B” 44. Michael A. Tate “–S”
“?” “B” 50. Brandy Elizabeth Quarles ¶197. Handwritten notations appear beside other names too. In addition to markings showing who was struck for cause or peremptorily, there are notes about certain individuals. Next to Juror Bond, for example, is “Dad terminally ill.” And next to Prospective Juror Downing is “Final Exam Pending.”
¶198. In response, the State argued that statutory res judicata barred Powers’s claim. Miller-El was not intervening decision, it argued, because Miller-El did not change Batson . As for the RBH venire list, the State dismissed Powers’s argument that the “B” notations showed discriminatory intent. “In almost every case that is presented to this Court dealing with [a] jury list,” it said, “that is the method of identifying the race of the jurors.” “What is more important,” it said, “when we look to the jury list, we find that the State exercised only one strike against a juror with a ‘B’ beside their name[]”: Harris. “Looking further down the list,” it continued, “one thing becomes readily apparent, the rest of the jurors excused peremptorily were all white.” The State thus deemed Powers’s “racial motive theory” as “specious.”
¶199. As it turns out, the State’s response was inaccurate. The RBH venire list does show that the prosecution struck Harris as S-1, Gay C. Hanberry as S-2, Estelle C. Butler as S-3, Jettie Vell Stogner as S-4, Ann C. Atteberry as S-5, William Patrick McCoy as S-6, and Myra Grey Rachal as S-7. Of the seven, Harris indeed is the only person with a “B” beside his or her name, but the trial transcript shows that the prosecution’s third strike was actually Boyd, *82 who had a “B” beside her name. So two of the prosecution’s first three strikes were on individuals with a “B” beside their name. In addition, the prosecution struck Hill, who also had a “B” beside her name, as an alternate juror.
Powers II
¶200. The
Powers II
Court held that the
Batson
issue was barred and meritless.
Powers II
,
While the decision in Miller-El stands for the proposition that it is possible for potential jurors to be excluded on the basis of race despite the presentation of a race-neutral reason for the exercise of a peremptory strike, it does not change the basic holding of Batson that the use of peremptory strikes based upon race is prohibited. Powers’s trial jury unquestionably had only one African-American juror; however, this Court on direct appeal specifically held that, from the totality of the record on this issue, there was no viable Batson claim to be raised by trial counsel and that it was “inconceivable how counsel could have been ineffective, and thus Powers’s case prejudiced by failure to raise such a challenge.”
Powers II
,
I. Whether trial counsel was ineffective during jury selection for not
making
Batson
objections to the State’s peremptory strikes.
¶201. Defendants “have the right to be tried by a jury whose members are selected by
nondiscriminatory criteria.”
Ronk
,
¶202. To determine if a jury was selected in a discriminatory manner, courts follow a three-
step inquiry.
Pitchford v. State
,
¶203. Powers claims that McIntosh was ineffective for failing to raise
Batson
. Had
McIntosh done so, he argues, there is a reasonable probability that the
Batson
objections
would have been successful. Powers’s claim that McIntosh’s performance as to
Batson
was
constitutionally ineffective, however, has been raised on direct appeal and on post-conviction
relief. It is barred now. Also, because Powers fails to make a sufficient showing of
Strickland
prejudice,
i.e.
, that the outcome of the trial would have been different, we hold
that he fails to articulate a claim sufficient to be allowed to proceed in the trial court.
¶204. Having shown (in his view) that McIntosh’s performance was clearly deficient,
Powers proceeds to argue that
Strickland
prejudice should be presumed because a
Batson
violation is a structural error. Structural errors are “a limited class of fundamental
constitutional errors . . . that are not subject to harmless-error analysis and require automatic
*84
reversal.”
Smith v. State
,
¶205. Powers contends, “[t]he Supreme Court has always treated racial discrimination in
jury selection as structural error.” As support, he points to
Weaver
. There, the Supreme
Court said that it “has granted automatic relief to defendants who prevailed on claims
alleging race or gender discrimination in the selection of the petit jury, though the Court has
yet to label those errors structural in express terms.”
Weaver v. Massachusetts
,
¶206. The Mississippi Supreme Court, too, according to Powers, has said “the harmless error
standard has no place in the
Batson
analysis.”
Manning v. State
,
When an ineffective-assistance-of-counsel claim is raised in postconviction proceedings, the costs and uncertainties of a new trial are greater because more time will have elapsed in most cases. The finality interest is more at risk and direct review often has given at least one opportunity for an appellate review of trial proceedings. These differences justify a different standard for evaluating a structural error depending on whether it is raised on direct review or raised instead in a claim alleging ineffective assistance of counsel.
Id. (citation omitted).
¶209. From Weaver , Powers infers that “structural errors that always result in fundamental unfairness—like Batson violations—merit a presumption of Strickland prejudice.” Unlike the courtroom closure in Weaver , which he deems “a uniquely poor candidate” to merit *86 presumed prejudice, Batson violations are different: There are no exceptions; fundamental unfairness always results; and Batson protects the “defendant, juror, and justice alike.” Accordingly, he maintains that he need only show deficient performance here. That is shown, he argues, by a showing of a reasonable probability that he would have succeeded in making a Batson claim.
¶210. Conversely, the State maintains that
Strickland
prejudice is required. Not only has the
Supreme Court not yet labeled
Batson
violations structural errors, but also
Weaver
rejected
the argument that
Strickland
prejudice is waived when a structural error is raised via an
ineffective-assistance claim. To support its position, the State cites three cases:
Powers I
, 883
So. 2d at 30;
Turner v. State
,
¶211. We hold that Powers must show
Strickland
prejudice. First, the Supreme Court limited
Weaver
to “the context of trial counsel’s failure to object to the closure of the courtroom
during jury selection” and declined to address treatment of a
Batson
violation raised in an
ineffective-assistance claim on collateral review.
¶212. Turning to the bars, Powers argues that neither statutory nor common-law
res judicata
bar his
Batson
-based ineffective-assistance claim. He highlights Section 99-39-21(3)’s text:
“The doctrine of
res judicata
shall apply to all issues, both factual and legal,
decided
at trial
and
on direct appeal.” At his trial, the
Batson
issue was not decided—nor could it have been
due to McIntosh’s ineffectiveness. That ineffectiveness then left the
Powers I
Court unable
to properly decide the
Batson
issue because the direct-appeal record lacked the prospective
jurors’ race, the prosecution’s race-neutral reasons for its peremptory strikes, Powers’s
rebuttal, and the trial court’s
Batson
ruling. As for common-law
res judicata
, he maintains
the statutory bars are valid and applicable only because the Court adopted them,
see
McClendon v. State
,
¶213. The State counters that Powers’s Batson -based ineffective-assistance claim is barred and meritless: the Powers I Court already held that McIntosh was not ineffective for failing to make Batson objections.
¶214. If any bar applies, Powers argues that his claim is excepted for four reasons: (1) Section 99-39-5(2)(a)(i)’s intervening-decision exception; (2) the fundamental-rights exception; (3) trial, appellate, and post-conviction counsel’s ineffectiveness; and (4) Section 99-39-5(2)(a)(i)’s newly-discovered-evidence exception.
¶215. Section 99-39-5(2)(a)(i)’s intervening-decision exception provides the time bar is
inapplicable if “there has been an intervening decision of the Supreme Court of either the
State of Mississippi or the United States which would have actually adversely affected the
outcome of [the petitioner’s] conviction or sentence . . . .” Powers contends
Snyder v.
Louisiana
,
¶216.
Snyder
, he argues, clarified that “all of the circumstances that bear upon the issue of
racial animosity must be consulted.”
Snyder
, 552 U.S. at 478 (emphasis omitted) (citing
Miller-El v. Dretke
,
¶217. For Foster , Powers emphasizes its factual similarity to his case. There, the Supreme Court held that “prosecutors were motivated in substantial part by race when they struck” two Black prospective jurors. Foster , 578 U.S. at 514. Five Black prospective jurors were qualified to serve. Id. at 492. After one was removed for cause, the prosecution peremptorily struck the remaining four. Id. at 493. During state habeas proceedings, Foster obtained the prosecution’s trial file. Id. Its contents included the following:
• Copies of the jury venire list, with Black prospective jurors’ names highlighted in green. Id. at 493. The green, according to a legend on the list, “represent[ed] Blacks.” Id. (internal quotation marks omitted). In addition, each black prospective juror’s name had a “B” beside it. Id. (internal quotation marks omitted). An investigator who assisted the prosecution during jury selection said that the highlighted lists circulated in the district attorney’s office during jury selection. Id. at 493–94. • A draft affidavit prepared by the same investigator. Id. at 494. The affidavit was to be submitted in response to Foster’s motion for a new trial. Id. Under the name of one Black prospective juror, the investigator *90 wrote, in part, that “[i]f it comes down to having to pick one of the black jurors, [this one] might be okay.” Id. (internal quotation mark omitted). That and other related text was crossed out by hand and omitted from affidavit filed that was filed in the trial court. Id.
• Handwritten notes on three Black prospective jurors, denoted as “‘B # 1,’ ‘B# 2,’ and ‘B# 3[.]’” Id.
• A typed list of all qualified jurors, with “Ns” beside ten names. Id. at 495 (internal quotation marks omitted). According to the investigator, the “Ns” “signif[ied] the ten jurors that the State had strikes for during jury selection.” Id. (alteration in original) (internal quotation marks omitted). All five qualified Black prospective jurors had an “N” beside their names. Id. (internal quotation marks omitted).
• “A handwritten document titled ‘definite NO’s,’ listing six names.” Id. Of the six, the first five were the five qualified Black prospective jurors. Id.
• “A handwritten document titled ‘Church of Christ,’” with a notation that said: “‘ NO . No Black Church.’” Id.
• Jury questionnaires from several Black prospective jurors, with the responses indicating the juror’s race circled. Id.
¶218. Foster’s
Batson
claim concerned two Black prospective jurors.
Foster
,
¶219. Powers and the State disagree on whether the Court recognized
Foster
as an
intervening decision in
Brown
. Powers maintains it did. In
Brown
, Brown raised
Batson
in
a successive post-conviction application and argued that his claim was unbarred based on
Foster
.
Brown
,
¶220. Powers further argues that
Flowers
reinforced
Batson
.
Flowers
itself said that it
“br[o]k[e] no new legal ground”; it “simply enforce[d] and reinforce[d]
Batson
by applying
it to the extraordinary facts of th[at] case.”
¶221. Powers maintains
Snyder
,
Foster
, and
Flowers
show that
Powers I
and
II
are “out of
step with
Batson
and its progeny.”
Batson
’s first step—a
prima facie
showing of
discrimination—is a light burden. (citing
Price v. Cain
,
¶222. In response, the State counters that Powers’s
Batson
-based ineffective-assistance claim
is
res judicata
barred and that the intervening-decision exception is inapplicable. That
exception applies only to the time and successive-writ bars: Section 99-39-5(2)(a)(I) refers
only to the time bar, and Sections 99-39-23(6) and -27(9) refer to the successive-writ bar. The
State concedes that the
Powers II
Court applied the intervening-decision exception to the
res
judicata
bar. The State argues that was error, however; Section 99-39-27(9) “clearly relates”
only to the successive-writ bar. The State adds that cause and actual prejudice do not merit
relief from the
res judicata
bar either.
Walker v. State
,
¶223. Powers replies that
Snyder
,
Foster
, and
Flowers
need not change
Batson
’s holding in
order to satisfy the intervening-decision exception. They need only “have actually adversely
affected the outcome of his conviction or sentence.” Miss. Code. Ann. § 99-39-5(2)(a)(i).
To illustrate, Powers points to
Flowers
. In 2016, the Supreme Court vacated the Court’s
judgment and remanded
Flowers
for further consideration in light of
Foster
.
Flowers v.
Mississippi
,
¶224. Finally, Powers argues that the notated venire lists satisfy the newly-discovered-
evidence exception—
i.e.
, “(1) [they] w[ere] discovered after the trial; (2) [they] could not by
due diligence have been discovered before trial; (3) [they] [are] material to the issue and not
merely cumulative or impeaching; and (4) [they] would probably produce a different result
or verdict in the new trial,”
Brown
,
¶225. We hold that
res judicata
applies to all but Powers’s claim of ineffective assistance of
post-conviction relief counsel. Powers argues that it is inapplicable because
Batson
was not
decided both at trial and on direct appeal.
See
Miss. Code. Ann. § 99-39-21(3). Yet
Batson
was raised in a post-trial motion and at the post-trial supplemental hearing. In
McGilberry
v. State
,
¶226. The question, then, is whether any exception applies.
¶227. The intervening-decision exception is inapplicable. Strictly speaking, the State is right
that the intervening-decision exceptions in Sections 99-39-5(2)(a)(i), -23(6), and 27(9) relate
only to the time and successive-writ bars. At the same time, the Court has indicated that a
“sudden reversal of law relative to th[e] issue” at stake would exempt a claim from the
res
judicata
bar.
See
Dickerson v. State
,
¶228. The last two possible exceptions are newly discovered evidence and ineffective assistance of post-conviction counsel. The newly-discovered-evidence exception is unmet. Neither venire list qualifies as newly discovered evidence here . The RBH list was presented in Powers I . The new, unidentified list is unaccompanied by any affidavit or other form of authentication that would make it competent evidence. Miss. Code Ann. § 99-39-9(1)(d)-(e).
II. Whether post-conviction relief counsel were ineffective in arguing trial counsel’s Batson effectiveness.
¶229. We find that Powers fails to show that his post-conviction relief counsel were
constitutionally ineffective. To determine if post-conviction counsel were ineffective, the
Court must consider the circumstances that existed at the time of Powers’s first post-
conviction proceedings.
See
Brawner v. State
,
¶230. The steps taken by post-conviction counsel are described above. To summarize, post- conviction relief counsel produced the RBH venire list and argued the significance of the *98 marks found there. They argued that disparate treatment of jurors and statistical problems similar to those found in Miller-El existed in Powers’s case. They pointed to trial counsel’s failure to raise Batson until post-trial motions. After reviewing the record of original post- conviction counsels’ performance, we find that Powers fails to overcome the presumption of competence.
¶231. Moreover, Powers has failed to demonstrate that the outcome of his trial or first post-
conviction petition would have been any different.
See
Conner v. State
,
¶232. In the two later cases of
Brown
,
PART FOUR: GUILT PHASE
¶233. Lafferty invited Powers, “Junior” or “Jay” Otis Jr., and Eddie Barnes to drink beer at
her home.
Powers I
,
¶234. The next morning, Parrigin and another person went to visit Lafferty. Lafferty’s back door was wide open. Upon entry, they discovered Lafferty’s dead body. She had been shot five times in the head, “three at point-blank range in the back of the head.” Id. Crime-scene photos showed the “prone position” in which she was found:
While words cannot fully illustrate the prone position in which the victim was found, suffice it to say that the victim’s legs were spread open more than ninety degrees, with a foot in each of the doors of the bedroom and bathroom, which are on opposite sides of the hallway where she was found. The left leg was raised slightly higher than the right and wedged within the doorjam to the bedroom. Her shorts were “wadded up” around the left ankle (keeping in mind that except for these wadded up shorts, she was nude from the waist down). Id.
¶235. After Powers emerged as a suspect, police searched his apartment and arrested him. Id. Eventually, he led police to a shed behind his apartment where they found a .22 caliber gun. Afterwards, Powers said, “you didn’t have a case until I got the murder weapon for you.” Id. at 28 (internal quotation marks omitted). In a later written statement, he admitted killing Lafferty. Id. at 24. He said that they had “struggled with the gun, and the gun went off[.]” Id. at 24 (internal quotation marks omitted). He “denied having sex with Lafferty and claimed that she voluntarily partially undressed herself because she was ‘playing’ around with *100 him.” Id. In addition, Powers “admitted taking a computer from Lafferty’s home and placing it in a nearby alley, where it was later picked up by Powers’s brother and/or his girlfriend.” Id.
¶236. Two other items of physical evidence were found. First, in a search of Powers’s person, police found “what appeared to be a blood-stained note to his mother located in his crotch area.” Id. It said, “Everything I do is wrong.” Id. (internal quotation marks omitted). Second, Powers’s mother, Dora Powers, found a used sanitary napkin in one of Powers’s baseball hats. Id. at 25. The State Crime Lab tested the napkin but could not match it to the Lafferty. Id.
¶237. Pretrial, McIntosh “made numerous oral and written requests” for discovery, including moving for production of (a) Lafferty’s school, medical, employment, court, criminal, and phone records; (b) the testifying officer’s personnel and criminal records; and (c) photos that the prosecution intended to use at trial. He moved to quash the indictment, to suppress Powers’s handwritten statement, and to discover information about the prosecution’s witnesses. His proposed witness list had eleven names: Powers, Dora, Barnes, Charles Powers, Candace Owens, Wilbert Lee Otis Jr., Dr. Michael West, Chief Charles Sims, Arties L. Weathersby, Mrs. Arties L. Weathersby, and Mrs. Weathersby’s daughter.
¶238. Dr. Hayne did the autopsy and testified at trial as an expert in forensic pathology. He said that Lafferty had been shot five times in the head and identified gunshot wounds as the cause of death. He identified two wounds as “consistent with defense posturing injuries.” He said evidence showed that she was in her menstrual phase.
¶239. On cross-examination, Dr. Hayne said he saw no signs of rape. When asked how Lafferty’s body could have gotten in that position, he said the “prone position . . . certainly presents in a sexually explicit position.” In his opinion, it was unlikely that her body had gotten in that position from a “neurospasm” or that she had been killed before she could finish inserting a tampon or sanitary napkin.
¶240. Though he could not exclude the possibility, he did not consider her body’s position consistent with consensual sex:
[T]he reason I would have such an objection would be that she was shot three times in the back of the head. If she were in that position and her head was on the ground, then it would be impossible to shoot her from that position, and we know that she was shot.
¶241. On redirect examination, when asked if he had an opinion “within a reasonable degree of medical certainty” as to whether a person would “normally fall that way,” he answered, “No, sir.”
¶242. After the prosecution rested, McIntosh unsuccessfully moved for a direct verdict based on insufficient evidence of attempted rape.
¶243. As his first witness, McIntosh called Dr. West, a dentist, who was the county coroner at the time of Lafferty’s murder and had responded to the crime scene. McIntosh wanted Dr. West to testify both on that basis and as an expert in “crime scene investigation and also gunshots.” Over the course of twenty-three years, Dr. West said that he had investigated more than four thousand deaths.
¶244. The prosecution objected to Dr. West’s qualifications as an expert. Though the trial court recalled having previously accepted Dr. West as an expert in forensic odontology and *102 gunshot reconstruction, it did not recall having accepted him as an expert in crime-scene investigation. So the court asked if McIntosh could offer more information. Dr. West then testified that he had been accepted as an expert in crime-scene reconstruction in prior cases and that he had some education or training in that area.
¶245. But because no crime-scene reconstruction was done in Lafferty’s case, the prosecution questioned what Dr. West could testify to as an expert. When McIntosh conceded that no crime-scene reconstruction had been done in Lafferty’s case, the court asked why Dr. West was being offered as an expert in crime-scene reconstruction. McIntosh replied that he “want[ed] to ask Dr. West about what he observed that night.” Because McIntosh was not offering Dr. West as an expert, then, the court neither accepted nor rejected him as an expert in crime-scene reconstruction.
¶246. On direct examination, Dr. West said that he was never able to ascertain if Lafferty was putting her shorts on or taking them off, nor could he say if anyone else put the shorts around her ankle. Nothing at the scene, however, led him to believe that there had been a struggle. And “[o]ther than the body position,” nothing indicated a rape. When asked what could have caused Lafferty’s body to arrive in the position she was found in, the prosecution objected as “complete speculation.” The court sustained the objection. When asked if he knew from his “own knowledge” how Lafferty’s body got in that position, Dr. West answered, “No, sir, I do not know how she wound up in that final position.”
¶247. As his second witness, McIntosh sought to call Jennifer Hale to testify about a statement she made to police. Hale did not appear, however, nor could she be found. According to McIntosh’s proffer, Hale said that around 7:30 p.m. on the night Lafferty was *103 murdered, Lafferty came to Hale’s house. Lafferty told Hale that “she thought that two of the guys wanted to have sex with her,” but Lafferty did not act as though she felt threatened. ¶248. Without Hale, McIntosh rested and moved for a directed verdict. He highlighted (a) the lack of attempted-rape evidence; (b) the lack of physical evidence tying Powers to the gun; (c) and the prosecution’s firearm expert’s inability to match positively the bullets to the gun:
[T]here is not one scintilla of evidence to the exclusion of every other hypothesis or supposition beyond a reasonable doubt that links [Powers] to the victim, number one, to the gun, number two, much less does it show in any manner the underlying crime of attempted rape against the will of the victim or in any other manner whatsoever the proof simply isn’t there . . . .
¶249. In closing argument, McIntosh emphasized the lack of evidence for rape or attempted rape. As to how Lafferty’s body got in the position she was found, McIntosh said “no one knows.” “Nobody has come here and testified to y’all, me and the State and the Court and the defendant, I know exactly how the body got in that position, because nobody knows,” he said. McIntosh also noted that jury instruction S-4 allowed the jury to find Powers guilty of the lesser-included crime of murder.
¶250. At the post-trial supplemental hearing, McIntosh said Powers told him that, on the day of Lafferty’s murder, he had been drinking heavily:
[Powers] stated that on the date of the incident that he started drinking I think before noon, drank through the afternoon, was over at [Lafferty’s] house that night; they went out once and got more beer and drank some more and the next morning he told me that he drank some then.
McIntosh conceded that intoxication might have been an issue as to the voluntariness of Powers’s statement to police, but at the same time, McIntosh added that the officers who interviewed Powers saw no signs of intoxication.
¶251. For the guilt phase, McIntosh interviewed Powers; several family members, including Dora, Powers’s brother Charles, and Charles’s girlfriend; Dr. West; and the testifying police officers. He read witnesses’ statements too and tried unsuccessfully to find Barnes. In addition, he checked Lafferty’s background, and his investigator spoke to several of her friends. “I kept hoping [Powers] could give me something else to go on,” McIntosh said. “The ‘leads,’ if you will, [Powers] g[a]ve us up front cost us about 40 hours of chasing a ghost and it led to absolutely nowhere.”
¶252. McIntosh was asked about his shift from offering Dr. West as an expert offering him a to a nonexpert. McIntosh expressed surprise at what he perceived as the prosecution’s and the court’s hostility to Dr. West. When McIntosh was asked if he thought it was “confusing to the jury and perhaps harmful to [the] case and [Powers] to go from offering [Dr. West] as an expert to then . . . a nonexpert, “ he answered, “No, I did not.” “I believe at the time I did not feel like that I had any choice.”
Powers I ¶253. In Powers I , Powers claimed that the attempted-rape charge was based solely on circumstantial evidence and, therefore, the jury should have received a circumstantial- evidence instruction. 883 So. 2d at 26. We disagreed. Id. at 26–27. We held that the “sexually explicit position in which Lafferty’s body was found” plus Powers’s written confession removed his case “outside the realm of circumstantial evidence”; thus, the trial court correctly refused Powers’s proposed circumstantial-evidence instruction. Id. ¶254. Further, the Court held that sufficient evidence supported attempted rape. Id. at 27. “The physical evidence,” the court said, “clearly reveals that there was an attempt and [a] *105 direct ineffectual act performed toward the commission of rape.” Id. The Court conceded that Dr. Hayne was unable “testify to a ‘reasonable degree of medical certainty’” about the cause of Lafferty’s apparent defensive-posturing wounds. Id. He also “testified that the position of the body was ‘sexually explicit’ and ‘not consistent’ with consensual sex particularly in light of the fact that she was shot three times in the back of the head.” Id. The crime-scene photos, the Court said, were key. Id . “We cannot overemphasize the importance of the color photographs of the victim at the scene as they relate to the attempted rape charge.” Id. Words, the Court added, were insufficient to “visually re-create” the images. Id. “Certainly,” it concluded, “based upon all the direct evidence, and especially the physical evidence at the crime scene as depicted, inter alia, by the color photographs of the victim, the jury could reasonably find that an attempted rape occurred.” Id.
¶255. In addition, the Court rejected Powers’s claim that McIntosh was ineffective (1) regarding the admissibility of Powers’s written statement; (2) in selecting the jury; (3) in presenting a coherent defense; (4) in offering Dr. West’s testimony after the trial court refused to accept him as an expert in crime-scene reconstruction; (5) and for failing to request lesser- included-offense or lesser-offense instructions on murder or manslaughter. Id. at 29–34.
Powers II
¶256. The
Powers II
Court held, in part, that Powers’s challenge to the sufficiency of the
attempted-rape evidence and his claim that McIntosh was ineffective for failing to obtain an
expert to counter Dr. Hayne were barred and meritless.
4. The forensic testimony in this case is silent regarding any post mortem proof of attempted rape inflicted on or in the murder victim. 5. The crime scene photos and video presented to the court in this case [do]es not present sufficient or convincing forensic evidence to support the charge of attempted rape in the commission of a murder. 6. The location and positioning of the body are strong signs that the positioning was “staged” for reasons other than attempted rape. The positioning of the legs and panties are surely shocking, even to experienced investigators but the perpetrator’s intent is open to multiple interpretations. The absence of autopsy findings of sexual activity on or in the decedent’s body clearly makes the State’s theory of “attempted rape” only a hypothesis which can’t be tested scientifically. The alternative intent of the perpetrator such as “staging” exists is an equally viable explanation.
7. The lack of physical findings regarding an attempt to rape makes the positioning of the body as just seen in the photographs insufficient to determine with medical certainty that an attempted rape was committed. Id. at 393. Applying the test set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), the Court held that Powers’s claim lacked merit:
[S]uch a conclusion by Dr. Bowers that the positioning of Lafferty’s body was somehow “staged” is speculative at best, and such testimony does not counter the State’s evidence by way of Dr. Hayne, the forensic pathologist who performed the autopsy, who testified that the victim suffered defensive wounds. It is highly doubtful that any expert testimony regarding the positioning of the body would have likely resulted in a different verdict. After all, the victim was found nude from the waist down with her shorts and underwear bunched at one ankle, as well as with five gunshot wounds to her head.
I. Whether the attempted-rape evidence was sufficient, as a matter of
federal due process, to support Powers’s capital-murder conviction.
*107
¶257. Attempted rape requires (1) “an intent to commit rape, [(2)] a direct ineffectual act
done towards its commission, and [(3)] the failure to consummate its commission.”
Powers
I
,
¶258. Here, Powers claims that the attempted-rape evidence was insufficient under the federal due-process standard— i.e. , no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The crime-scene photos and Dr. Hayne’s opinions about them were insufficient. He emphasizes Dr. Hayne’s testimony that Lafferty could not have been shot three times in the back of the head while lying with the back of her head on the ground. Her positioning, Powers insists, occurred post-shooting and is no evidence of any prior attempted sexual assault. The Powers I dissent made the same “logically irrefutable” point:
[D]espite the fact that the victim is lying face up with the back of her head
against the floor, the evidence clearly showed that she suffered three gunshot
wounds to the back of the head. Simply stated, this is not the position that the
body would have been in during the alleged attempted rape. Therefore, the
position is not directly, or circumstantially, probative of an attempted rape.
Powers I
,
¶259. Powers adds that the trial court erred by refusing to grant a circumstantial-evidence instruction.
¶260. As for the bars, he argues that neither res judicata nor Section 99-39-21(2) waiver applies because sufficiency of the evidence has not previously been challenged on federal due-process grounds. Regardless, he contends that his claim is excepted from the bars for three reasons. First, he argues that the fundamental-rights exception applies. If denial of due- process at sentencing is excepted, he reasons that due-process violations in the guilt phase should be excepted too.
¶261. Second, he argues that relief from the bars is merited based on trial and post-conviction counsel’s ineffectiveness. Neither challenged the sufficiency of the evidence on federal due- process grounds. Still more, post-conviction counsel failed to retain a proper expert to support their state-law based challenge to the sufficiency of the evidence. Now, however, Powers has an affidavit from board-certified forensic pathologist and physican Dr. James R. Lauridson. To a reasonable degree of medical certainty, Dr. Lauridson offers the following opinions:
There is no scientific evidence to support a sexual assault in this case. Specifically, this includes: the absence of semen, absence of any injuries of the external genitalia, vagina, anus and rectum of the deceased.
In reviewing the photographs from the death scene, I cannot see any blood pattern that would confirm that the body had been dragged after death. However, it appears that the left leg and foot are being wedged against the door frame. The overall position is not one I would expect for sexual intercourse, as testified to by Dr. Hayne, and not indicative of attempted rape.
¶262. Finally, Powers argues that newly discovered evidence concerning Dr. Hayne’s credentials merits relief from the bars. For example, citing K.C. Meckfessel Taylor, Marielle Elisabet Dirkx, William Mcintosh, W. Tucker Carrington, CSI Mississippi: The Cautionary Tale of Mississippi’s Medico-Legal History , 82 Miss. L.J. 1271, 1306–10 (2013), he contends *109 Dr. Hayne lacked American Board of Pathology certification. In 2008, Dr. Hayne was “removed from the list of designated pathologists and may no longer conduct autopsies at the State Medical Examiner Facility.” Id. at 1312 (citation omitted).
¶263. In response, the State maintains Powers’s claim is
res judicata
barred. No
fundamental-rights exception is implicated. Nor does Powers explain how any evidence
regarding Dr. Hayne’s credentials meets the newly-discovered-evidence standard. Such
evidence, according to the State, is merely impeaching and thus insufficient to show that a
different result was reasonably probable.
See
Crawford
,
¶264. Even if an exception applies, the State insists that Powers’s claim has no arguable
basis. Less evidence has been deemed sufficient to affirm an attempted-rape conviction.
See
Harden v. State
,
¶265. We conclude that Powers’s sufficiency-of-the-evidence and circumstantial-evidence
claims are
res judicata
barred. The propriety of a circumstantial-evidence instruction was
decided at trial and in
Powers I
. And though Powers tries to distinguish his sufficiency of the
*110
evidence claim here by basing it on federal due process,
Powers I
applied the same standard:
Jackson
, the case Powers relies on here, provides “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution,
any
rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt[.]” 443 U.S.
at 319 (citing
Johnson
,
¶266. No exception merits relief from the bars. First, sufficiency of the evidence is not a recognized fundamental-rights exception. Second, no extraordinary or exceptional circumstances merit relief from the bars for Powers’s ineffective-assistance-of-trial-counsel claim.
¶267. Further, Powers presents no substantial showing that post-conviction counsel were
ineffective. Dr. Lauridson’s affidavit does not rebut Dr. Hayne’s testimony.
See
Howard
,
*111
¶268. Finally, any new impeaching evidence regarding Dr. Hayne’s credentials (or lack
thereof) does not meet the newly-discovered-evidence exception.
See
Brown
,
II. Trial and post-conviction counsel were ineffective concerning the guilt phase.
¶269. “Counsel in a death-penalty case has ‘a duty to make reasonable investigation or to
make a reasonable decision that makes particular investigations unnecessary.’”
Walker v.
*112
State
,
¶270. Powers argues that McIntosh’s guilt-phase performance was deficient for two reasons. ¶271. First, McIntosh failed to investigate, lacked a consistent strategy or understanding of the meaningful evidence, and called only one witness. Powers gives three examples. ¶272. For one, McIntosh spoke with witnesses, but failed to follow up on what he learned. For example, McIntosh learned of an “obvious line of defense”: that Powers had alcohol problems and had been drinking the night of Lafferty’s murder. Yet McIntosh failed to pursue that defense.
¶273. To that example, the State responds that no prejudice resulted. No “obvious line of
defense” existed because “voluntary intoxication does not negate criminal liability.”
Evans
v. State
,
¶274. Next, Powers maintains McIntosh was unaware of evidence that disproved the prosecution’s theory of the case. At trial, Detective Mark Berry said that he believed officers took a camera with a roll of film from Lafferty’s bedroom; however, Detective Berry was unaware of any developed film from that camera. Powers maintains he has now learned that Hattiesburg Police Department not only developed film from that camera but also obtained Lafferty’s diary.
¶275. To that example, the State counters it is speculative to assume that McIntosh was unaware that Lafferty’s camera and diary had been logged as evidence. The State notes that Powers offers no supporting affidavit about McIntosh’s or post-conviction counsel’s unawareness of those items. “It is just as likely,” the State maintains, “that both knew about and examined the items and determined they lacked probative value.” Regardless, the State contends current post-conviction counsel failed to tell what the camera and diary show. ¶276. As a third example, Powers maintains McIntosh failed to question witnesses about (a) Lafferty’s boyfriend, (b) her kicked-in back door, (c) a bloody handprint on her arm, or (d) a bloody footprint in the hall. Because he had been invited to Lafferty’s home as a guest, Powers asks why the back door was kicked in. As for the bloody handprint and footprints, he points out that no blood was found on his shoes or clothes.
¶277. The State responds that the
Powers I
Court already held that McIntosh’s guilt-phase
strategy was reasonable. “[McIntosh] pursued a clear defense strategy[,]” it said, including
“extensively call[ing] into question the gun and the forensics regarding the bullet fragments.”
Powers I
,
¶278. Second , Powers argues that McIntosh was deficient for failing to present a qualified expert to refute the prosecution’s theory of the case. The Dr. West debacle, he argues, undermined the defense. Dr. West’s going from an expert to a fact witness not only confused the jury, but also Dr. West was unable to say how Lafferty ended up positioned as she was found.
¶279. Powers likens his case to
Payton v. State
,
¶280. Prejudice resulted, Powers argues, because the jury never heard evidence that contradicted the prosecution’s theory of the case. Had they heard such evidence, a high probability exists that at least one juror would have voted for a different outcome. ¶281. As for post-conviction counsel, Powers contends they were ineffective for much the same reasons. Not only did they fail to raise McIntosh’s deficient guilt-phase investigation as an issue, but also they failed to investigate adequately themselves.
¶282. Specifically, Powers argues post-conviction counsel failed to pursue “potentially explosive, exonerating leads.” In a February 12, 2004 investigative report, post-conviction counsel investigator Tomika Harris conveyed the following.
¶283. First, Dora told Harris that Dora’s cousin, Ben McNair, served as Chief of Police in Hattiesburg at the time of Powers’s arrest. Dora said she “begged [McNair] to tell the attorneys what he knew about [Powers’s] case,” but “[McNair] told her that he could not say *115 anything because he had to live in Hattiesburg, he had to work and he needed his job.” “Later that night,” according to Harris, “[McNair] died.” In a footnote, Powers notes that McNair apparently died on December 18, 2001. Similarly, Powers’s sister Joa Margarette Oatis avers that after Powers’s conviction, McNair told Dora that “[Powers] . . . t[oo]k[] the fall for something a white police officer did, but [McNair] had to think about his family.” ¶284. Second, Harris said that Powers’s brother James Powers contacted attorney Albert Necaise about representing Powers. Necaise did “‘some’ checking into the case” and offered to take it for a $75,000 retainer. In his preliminary investigation, Necaise “f[ou]nd out that Officer Mark Berry stated ‘We finally got a N***A boy to take the fall for what a WHITE man done[.]’” Powers maintains those leads are now lost. Dora and Neciase suffer from dementia. McIntosh, McNair, and James are all deceased. So too is Eddie Barnes, who was at Lafferty’s house on the evening before she was murdered.
¶285. The State responds that not only are there a “number of good reasons” why post-
conviction counsel did not present the “multi-layer hearsay statements” (
e.g.
, a finding that
they lacked merit), but also Powers fails to show prejudice (
i.e.
, that his petition would have
been granted had post-conviction counsel followed up on the leads). Because of hearsay,
Powers, citing
Turner v. State
,
¶286. Generally, the State argues that Powers’s guilt-phase ineffective-assistance-of-trial-
counsel claims are
res judicata
barred and meritless. The
Powers I
Court rejected Powers’s
claims that McIntosh was ineffective at the guilt phase for (a) failing to have Powers’s
statement suppressed; (b) failing to present a “plausible, coherent defense”; (c) having Dr.
*116
West testify after the trial court refused to accept him as an expert; (d) “failing to move to
have the capital murder charge reduced to manslaughter”; and (e) failing to request murder
or manslaughter instructions.
Powers I
,
¶288. Powers now offers Dr. Lauridson as a qualified expert to rebut Dr. Hayne’s opinions.
Dr. Lauridson, he maintains, would have “called into question” the crime-scene photos.
¶289. The State responds that “a close reading” of
Powers II
shows that the Court concluded
that McIntosh was not ineffective for failing to offer an expert. In any event, “[t]he decision
to call a witness is generally considered a matter of trial strategy.”
Brown
,
¶290. As for any bar, Powers disputes the Powers II Court’s assertion that he could have raised McIntosh’s guilt-phase ineffectiveness on direct appeal. He had no meaningful opportunity to do so because extra-record evidence was required. So he asserts that he has been deprived an adequate means to challenge McIntosh’s ineffectiveness. The Court can now remedy the deprivation, however, by granting review.
¶291. The State responds that Powers is unable to show prejudice.
¶292. We find that Powers’s ineffective-assistance-of-trial counsel claim is res judicata barred and is insufficient to merit waiving that or any other bars and that Powers does not present a substantial showing that post-conviction counsel were ineffective.
¶293. Powers’s claim that McIntosh was ineffective in the guilt phase is
res judicata
barred.
The
Powers I
Court rejected Powers’s claim that McIntosh was ineffective in presenting a
coherent defense.
Id.
at 33. To the contrary, it said that he “pursued a clear defense strategy.”
Id.
The
Powers II
Court rejected Powers’s claim that McIntosh was ineffective for failing
to obtain expert assistance.
Powers II
,
¶294. Further, Powers’s claim is insufficient to merit relief from any bar. McIntosh made
discovery requests, conducted interviews, and pursued the leads that Powers gave him.
Intoxication would not have been a defense.
See
Evans
,
¶295. No doubt, calling Dr. West as an expert did not go as McIntosh had planned, but given that Dr. West had testified as an expert in prior cases and was the coroner who responded to the crime scene, McIntosh’s decision to call him was reasonable. It is hard to fault Dr. West for his inability to do what no one else—including Dr. Lauridson—has been able to do: to say how Lafferty’s body became positioned in the way she was found.
¶296. Powers does not present a substantial showing that post-conviction counsel were ineffective either. Although he points to what he characterizes as the “potentially explosive, exonerating leads,” he falls short. Also, the State seems to misconstrue the issue: it is not the *119 statements’ admissibility, but whether they should have prompted post-conviction counsel to investigate further. As the State notes, however, it is unknown if post-conviction counsel did so and found the allegations meritless. Current post-conviction counsel does not say why they did not try to contact former attorneys Ryan or Williams about the issue. Though current post- conviction counsel claim the leads are now all lost, they do not say why they did not try to contact Detective Berry or others who worked at the police department at the time of Lafferty’s murder.
PART FIVE: SENTENCING PHASE
¶297. Both the prosecution and McIntosh simply resubmitted all guilt-phase evidence. The jury was given two aggravators:
1. Whether the capital offense was committed while the defendant was engaged in the commission of or an attempt to commit the crime of rape. 2. Whether the capital offense was especially heinous, atrocious or cruel. And they were given six mitigators:
1. Whether the defendant has no significant history of prior criminal activity.
2. Whether the defendant was an accomplice in the capital offense committed by another person, and his participation was relatively minor. 3. The capacity of the defendant to appreciate the criminality of his conduct as to conform his conduct to the requirements of law was substantially impaired.
4. The age of the defendant at the time of the crime.
5. The Defendant acted under extreme duress or under substantial domination of another person.
6. Any other matter, any other aspect of the Defendant’s character or record, and any other circumstance of the offense brought before you during the trial of this cause which you, the jury, deem to be mitigating on behalf of the Defendant.
¶298. In closing arguments, the prosecution concluded by stating that “the facts justify the imposition of the death penalty, and . . . the law allows it.” McIntosh then began by saying, “I cannot argue with anything Mr. Helfrich just said.” McIntosh affirmed that, based on the jury’s verdict, the law indeed allowed them “to do a legal killing,” but he told them to search their consciences and to “prayerfully consider” the gravity of the decision before them. “[I]t’s probably going to be one of the most trying decisions you ever make in your life,” he told them. He argued that the prosecution had failed to prove the aggravating circumstances beyond a reasonable doubt and that mitigating circumstances merited “saving [Powers’s] life.” “I can’t tell you what to do,” McIntosh said, “but I am going to ask for mercy for my client. Don’t kill him.”
¶299. In the post-trial supplemental hearing, McIntosh said that he did nothing to investigate or prepare for the sentencing phase:
Q. [F]aced with the prospect of having essentially two trials and always the looming possibility that your client might be found guilty of capital murder and you are faced with a second sentencing hearing, what investigations or preparations did you make for the sentencing hearing? A. Nothing separate.
¶300. Dora, he said, had been supportive, and he discussed with her the possibility of her testifying at sentencing. Ultimately, he decided against it. “I saw no reason of putting a weeping mother back on during the sentencing phase,” he said.
¶301. Aside from Dora, McIntosh said that other family members were not fully supportive. McIntosh did not think or feel that their testimony would be useful or helpful.
¶302. McIntosh said he “simply r[a]n out of time” to fully prepare for the sentencing phase:
I was unable to do all of this prior to trial by myself as I explained to [Dora]. I needed some help and I never got it. There is only so many hours in a day, and there is only so much that I can do in each hour, and I do admit readily that I could have done -- possibly should have put on proof during the sentencing phase . . . .
Still, he “d[id]n’t think it would have made one bit of difference”: I did not think it would be helpful in this case [to have witnesses testify at sentencing] and that is why I didn’t do it; and I didn’t have the time to look up old high school chums and all of that. In fact I did not have the names of any from the family. All I had was basically family members and guys that he had been running around with down here, a couple of drinking buddies, which I certainly did not think would help.
¶303. McIntosh said he was “hoping that the jury would understand the basic facts of the case; that [Powers] just had not been proven guilty of murder much less while attempting a rape.” He felt that the jury would understand that no rape occurred.
¶304. When asked if he considered an expert regarding Powers’s alcohol problem, McIntosh said he lacked money for experts. At the same time, he was unaware how much such expert would cost.
¶305. McIntosh acknowledged Powers’s character and lack of any prior felonies or assaults as mitigating factors, but Powers had also had a “domestic squabble” with a prior girlfriend and had been arrested “several times” for public drunkenness or something to that effect. “[R]ightly or wrongly,” McIntosh said, “I did not think that [mitigating factors] would make that much difference with the jury as it was sitting.”
¶306. McIntosh was surprised to learn that he had not objected to the prosecution’s aggravators. He though he had, and he acknowledged that his failure to do so “was definitely a mistake.”
¶307. Eight people provided post-trial supplemental hearing affidavits:
• Dora Powers. Dora said that she neither was asked to testify nor was she even told that she had the opportunity to do so. In describing Powers, she said his father left when Powers was a baby. A “kind man” named Herman Fairly then lived with her and the family for fifteen years, and she never saw any problems between Fairly and Powers. Dora described Powers as an “easy going” child. “He was about babysitting for friends and relatives and seemed to want to go out of his way to help people,” she said. He graduated from high school and attended junior college for one year before having to drop out for financial reasons. Two years before his arrest, she said, he developed a problem with alcohol. Still, he went to church and she never saw him act violently.
• James Watts. Watts, who had dated Dora, said he was not asked to testify. Watts admired Powers and found him “very amenable” and nonviolent. Powers’s “biggest problem,” Watts said, was alcohol. “[Powers] would drink too much and would pass out,” Watts said. But even when Powers was drinking, Watts never saw him act violently. Watts said he would have asked the jury to spare Powers’s life. “I do not believe that [Powers] is a cold-blooded killer,” he said. • Armond Barnes. Armond, a close, lifelong friend of Powers’s, said he was neither interviewed nor asked to testify. Armond had hired Powers on occasion and described him as “a good worker.” Armond said that he had never seen Powers act violently, even when Powers drank. • Joa Margarette Oatis. Oatis, Powers’s sister, said that she was not asked to testify. She described Powers as “a pleasant child,” who “appeared to be . . . very average . . . in terms of his emotional development and emotional needs.” Though she believed that he had an alcohol problem, she said she had never seen him act violently, even when drinking.
• Estella Louise Durr. Durr, Powers’s aunt, said that she was not asked to testify. Durr said that Powers had helped her move. She described him as “quiet” and “seem[ed] to really like people.” She said she never saw him act violently, even when drinking.
• Betty Stapleton. Stapleton, Powers’s aunt, said that she would have asked the jury to spare Powers’s life if given the chance. She described him as “a very nice person, honest and hard working.” Indeed, she “c[ould] [not] say anything bad about [him].” “If I asked him to do anything,” she said, “he would do it without hesitating.” • James Powers. James, Powers’s brother, said he was not asked to testify. James described Powers as “a fun person who loved sports” and “never got into any kind of trouble.”
• Wilbert Lee Oatis. Otis, Powers’s brother-in-law, said he was not asked to testify. Otis described Powers as “always good with people.” Otis added that Powers “did develop a drinking problem.” Powers I
¶308. The Powers I Court rejected Powers’s claim that McIntosh was ineffective for “failing to (1) investigate and present mitigation evidence, (2) give adequate closing arguments, and (3) object to the two aggravating circumstances submitted by the State.” Powers I , 883 So. 2d at 34. The record, it said, showed that McIntosh
personally interviewed family members and friends of Powers, the girlfriend of Powers’s brother, the officers involved, Dr. West, Powers’s mother, and Powers. Counsel also spoke with several of Lafferty’s friends and reviewed the State’s discovery, including witness statements and photos. Counsel also filed a list of eleven potential witnesses. Trial counsel also ultimately concluded that while Powers and his family were in the best position to know of any possible mitigating witnesses, the family was not very supportive.
Id. at 35. As for Powers’s alcohol problem, the Court said that such evidence is “double- edged” and could have prejudiced him. Id.
¶309. The
Powers I
Court saw “very little” in terms of mitigating factors.
Id.
The post-trial
supplemental hearing affidavits, it said, “indicated that Powers had a nice home life and was
emotionally developed and also that Powers was a high school graduate who had attended
college.”
Id.
“[McIntosh],” it concluded, “should not be faulted for failing to put on
mitigation evidence which apparently did not exist.”
Id.
The Court contrasted Powers’s case
with
Williams v. Taylor
,
¶310. Next, the Court held that McIntosh’s plea-for-mercy strategy was not a “poor strategic
choice” under the circumstances.
Id.
(citing
Manning v. State
,
¶311. Finally, the Court held that McIntosh was not ineffective for failing to object to the two aggravators. Id. at 36. Throughout trial, it said, McIntosh consistently attacked the sufficiency of the attempted-rape evidence. Id. The heinousness, atrociousness, or cruelty *125 of the crime was not “constitutionally objectionable”: Lafferty was shot five times in the head, and “[her] death was classified as lingering and not immediate.” Id.
¶312. The Powers I Court thus concluded that McIntosh effectively represented Powers:
We certainly cannot by any stretch of the imagination conclude on this record that the performance of Powers’s trial counsel was deficient; and, even assuming arguendo that we could, there is absolutely no indication in this record that any such perceived deficiency prejudiced the defense of this case. Indeed, given the evidence in this case, Powers has failed to produce anything that would “undermine the confidence in the outcome” of the jury’s determination of guilt as to Lafferty’s murder. Finally, we note that Powers stated on the record that he did not want to testify and that he was satisfied with his attorney’s services.
Id.
Powers II
¶313. In
Powers II
, Powers argued, in part, that McIntosh was ineffective for failing to
investigate and present mitigating evidence.
Powers II
,
¶316. Dr. Mooers noted that Powers had no prior criminal record, worked steadily cleaning houses and maintaining lawns, and attended church. As an inmate, Powers posed no problems.
¶317. Dr. Mooers thus found two main mitigators:
The first is a long-standing problem with alcohol abuse that was never addressed by family, friends, or official agencies, or organizations. This substance abuse problem seems to be part of a family pattern among male members of this family. The other mitigating factor consists of a previous record of self-support and employment, no previous criminal record, and no previous history of violent acts against males or females.
“An expanded mitigation investigation with access to additional records and documents and interviews with other family members, friends, teachers, employers, and others,” he said, “could provide a much more complete and meaningful mitigation report.” ¶318. Dr. Mooers’s affidavit is dated October 17, 2005. Powers filed his first post-conviction petition four days later on October 21, 2005. That same day, he moved to amend or supplement the petition. Motion for Leave to Proceed in the Trial Court & Motion to Amend and/or Supplement the Petition for Post-Conviction Relief, Powers v. State , No. 2003-DR- 02810-SCT (Miss. filed Oct. 21, 2005). Post-conviction counsel argued that more time was needed because of the devastation caused by Hurricane Katrina. Id. at *4. In an attached supporting affidavit, paralegal Deirdre Jackson said that she and two other post-conviction counsel staff had interviewed two seated jurors at Powers’s trial, but had been unable to locate *127 others. Id. ex. 1. The motion was denied. Order, Powers v. State , No. 2003-DR-02810-SCT (Miss. Oct. 25, 2005).
¶319. The
Powers II
Court held that Powers’s ineffective-assistance claim based on
McIntosh’s failure to present mitigating evidence was barred and “still without merit.”
Powers
II
,
I. Whether
Cronic
applies.
¶320. “
Cronic
recognized a narrow exception to
Strickland
’s holding that a defendant who
asserts ineffective assistance of counsel must demonstrate not only that his attorney’s
performance was deficient, but also that the deficiency prejudiced the defense.”
Florida v.
Nixon
,
¶321. While conceding that Cronic deficiencies are rare, Powers argues that it applies here because of McIntosh’s complete lack of assistance at sentencing.
¶322. Powers maintains McIntosh effectively abandoned representation by failing to submit
any mitigating evidence. Such evidence is critical for the sentencing phase.
State v. Tokman
,
*128
¶323. Powers argues that the Court “entertained and effectively agreed with a
Cronic
claim”
in
Payton
. There, after stating Payton’s
Cronic
claim, the Court said that there had been “a
total break down of the adversarial system” in that case.
Payton
,
¶324. To support his
Cronic
claim, Powers cites
Lewis v. Zatecky
,
¶325. In Lewis , the United States Court of Appeals for the Seventh Circuit held that Cronic applied because the petitioner’s counsel totally abandoned him at sentencing. Lewis , 993 F.3d at 1006. With the petitioner facing up to one hundred and thirty years in prison, trial counsel’s sole participation at sentencing was as follows: “Judge I’m going to defer to Mr. Lewis if he has any comments. I don’t have anything to add.” Id. at 998 (internal quotation marks *129 omitted). That statement, the Seventh Circuit said, “went beyond a failure to conduct adversarial testing; it was an announcement of abandonment.” Id. at 1006.
¶326. In
Phillips
, the Sixth Circuit held that
Cronic
applied because trial counsel’s failure
to mount a defense during capital sentencing effectively deprived Phillips of counsel at a
critical stage of trial.
Phillips
,
¶327. Powers maintains the State often relies on
Bell v. Cone
,
In Darden v. Wainwright ,477 U.S. 168 , 184,106 S. Ct. 2464 ,91 L. Ed. 2d 144 (1986), for example, we evaluated under Strickland a claim that counsel was ineffective for failing to put on any mitigating evidence at a capital sentencing hearing. In Burger v. Kemp ,483 U.S. 776 , 788,107 S. Ct. 3114 , 97 L. Ed. 2d 638 (1987), we did the same when presented with a challenge to counsel’s decision at a capital sentencing hearing not to offer any mitigating evidence at all.
Id. at 698.
¶328. Powers argues Bell is distinguishable. Here, unlike trial counsel in Bell , McIntosh neither prepped for sentencing nor did anything—except “make an artificial plea for mercy” and agree with the prosecution that the facts merited death.
¶329. Powers further argues that his
Cronic
claim is unbarred. As support, he cites
Fusi v.
O’Brien
,
¶330. Alternatively, Powers asserts that his Cronic claim is unbarred based on post- conviction counsel’s ineffectiveness.
¶331. The State responds that Powers “is really just repackaging his
Strickland
claim as a
Cronic
claim”; thus, the claim is waived and
res judicata
barred. Regardless, the State insists
that Powers was “neither deprived of counsel nor did counsel entirely fail to subject the
State’s case to meaningful adversarial testing.” The State disputes that McIntosh did no
mitigation investigation.
Powers I
,
¶332. The State counters that
Bell
is clear that
Strickland
applies here. Powers’s actual claim
is McIntosh’s failure to call any sentencing witnesses.
Cronic
requires
complete
failure, and
here McIntosh “subjected the State’s case to meaningful adversarial testing . . . [by] fil[ing]
pretrial motions, rais[ing] many objections throughout trial, gain[ing] many concessions in
cross-examining witnesses, and strenuously f[ighting] to show that Powers did not commit
an attempted rape and that the murder weapon was not conclusively linked to him.”
¶333. Because Powers’s
Cronic
claim could have been raised when McIntosh’s effectiveness
at sentencing was litigated on direct appeal and in prior post-conviction proceedings, the issue
is waived.
See
Miss. Code. Ann. § 99-39-21(2). Powers does not present a substantial
showing that post-conviction counsel were ineffective for failing to raise
Cronic
.
¶334. For
Cronic
to apply, “the attorney’s failure must be complete.”
Bell
,
II. If Cronic is inapplicable, whether trial and post-conviction counsel were ineffective under Strickland .
¶335. “An attorney representing a defendant in a death-penalty case has a duty to focus on
both the guilt and penalty phases of the trial.”
Bennett v. State
,
¶336. Though counsel’s judgments and strategies are afforded deference, at a minimum they
must “interview potential witnesses and to make independent investigation of the facts and
circumstances of the case.”
Ross
, 954 So. 2d at 1005 (internal quotation mark omitted)
(quoting
Ferguson v. State
,
¶337. “[C]ounsel will not be deemed ineffective if there is proof of investigation or if there
is no factual basis for the [petitioner’s] claim,”
id.
at 1006, but that “presuppose[s] a certain
level of investigation.”
Id.
“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable[.]”
Doss v. State
, 19 So. 3d
690, 695 (Miss. 2009) (quoting
Strickland
,
¶338. “[A] particular decision not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”
Ronk
, 267 So. 3d at 1257 (quoting
Wiggins v. Smith
, 539 U.S. 510, 521–22 (2003)).
Reasonableness depends not only on what counsel knew, but also on “whether the known
evidence would lead a reasonable attorney to investigate further.”
Wiggins
,
¶340. The duty to investigate extends to post-conviction counsel. See Grayson , 118 So. 3d at 126–28 (holding that post-conviction counsel’s minimal investigation was deficient); Am. Bar. Ass’n, American Bar Association Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases , 31 Hofstra L. Rev. 913, 1015 (“Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty.”).
¶341. Powers argues that McIntosh was ineffective for failing to investigate for the sentencing phase, call a single sentencing witness, or obtain an expert regarding Powers’s alcohol dependency.
¶342. Powers likens his case to
Williams
,
¶343. In Ronk , this Court summarized Williams , Wiggins , and Rompilla as follows:
In Williams , the Supreme Court held that counsel was ineffective for failing to investigate and present substantial mitigating evidence. In that case, at sentencing, the prosecution produced evidence of Williams’s prior violent crimes and called experts who said a “high probability” existed that he posed a serious, continuing threat to society. Defense counsel, in turn, produced three witnesses and a taped excerpt from a psychiatrist’s statement. The three witnesses described Williams as a “nice boy” and nonviolent; the psychiatrist’s statement simply showed that during a prior robbery, Williams had removed bullets from a gun so no one would be injured. Defense counsel also emphasized that Williams had turned himself in (which enabled police to solve several crimes), cooperated, and expressed remorse. The Supreme Court said *135 defense counsel’s performance fell short of professional standards by not “fulfill[ing] their obligation to conduct a thorough investigation of [Williams’s] background. Had counsel done so, they would have “uncovered extensive records graphically describing Williams’[s] nightmarish childhood.” From those records, the jury
would have learned that Williams’[s] parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents’ incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents’ custody.
In addition, defense counsel failed to (a) “introduce available evidence that Williams was ‘borderline mentally retarded’ and did not advance beyond sixth grade in school”; (b) seek prison records that showed he had received commendations in prison; (c) seek favorable testimony from prison officials; and (d) return a phone call from someone who had offered to testify about Williams’s participating in a prison-ministry program and earning a carpentry degree while in prison. While not all the additional evidence was favorable, the Supreme Court said that “the entire postconviction record, viewed as a whole and cumulative of mitigation evidence presented originally, raised ‘a reasonable probability that the result of the sentencing proceeding would have been different’ if competent counsel had presented and explained the significance of all the available evidence.”
In Wiggins , likewise, the Supreme Court held that counsel was ineffective for failing to investigate Wiggins’s background and to present mitigating evidence of his unfortunate life history. In that case, counsel did some investigation. First, counsel hired a psychologist who found that Wiggins “had an IQ of 79, had difficulty coping with demanding situations, and exhibited features of a personality disorder.” The psychologist’s reports said nothing, however, about his life history. Second, counsel had a one-page “‘personal history’ noting [Wiggins’s] ‘misery as a youth,’ quoting his description of his own background as ‘disgusting,’ and observing that he spent most of his life in foster care.” Finally, counsel had social-service records documenting his various foster-care placements. The latter showed (a) his mother was a chronic alcoholic; (b) he displayed emotional difficulties in foster care; (c) he frequently missed school for long periods of time; and (d) “on at least one occasion, his mother left him and his siblings alone for days without food.” Instead of investigating further, counsel chose to emphasize that *136 Wiggins was not directly responsible for the murder and presented no evidence of his life history. The Supreme Court said counsel’s investigation was unreasonable. Counsel’s limited investigation, the Court said, fell short of both local and ABA standards because they neither prepared a social-history report nor did they try to discover all reasonably available mitigating evidence. “[C]ounsel abandoned their investigation of [Wiggins’s] background after having acquired only rudimentary knowledge of his history from a narrow set of sources,” the Court continued. Counsel had “uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would have been counterproductive, or that further investigation would have been fruitless.” To the contrary, further investigation would have revealed Wiggins’s “bleak life history,” which included physical and sexual abuse. What is more, sentencing proceedings suggested that counsel’s “failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment.” Counsel put on a “halfhearted mitigation case,” telling the trial court that they were prepared to present mitigating evidence and even asking the jury to consider “who [Wiggins] is” and his hard life, but never following up with specifics about his history. In sum, the Supreme Court concluded that if the jury had heard all the mitigating evidence, it may have assessed Wiggins’s moral culpability differently.
Finally, in Rompilla the Supreme Court held that even if a capital defendant and his or her family members suggest no mitigating evidence exists, counsel still must “make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial.” In that case, counsel interviewed Rompilla, who was uninterested and even “actively obstructive” at times, and family members. They also had three mental-health experts evaluate him. But counsel did not examine Rompilla’s school records or records of his prior convictions. Nor did they follow up on evidence of possible alcohol dependance. The Supreme Court said, at the very least, counsel were deficient for not examining Rompilla’s prior-conviction records when they knew the prosecution intended to use his prior felony convictions as an aggravator. Had counsel examined those records, they would have found “a range of mitigation leads.” The records showed that Rompilla (a) was raised in a “slum environment”; (b) quit school at age sixteen; (c) was in and out of jail; (d) abused alcohol; (e) showed signs of schizophrenia and other disorders; (f) and had a third-grade cognition level. And with further investigation, counsel presumably would have uncovered that (a) his parents were severe alcoholics; (b) his mom drank during pregnancy; (c) his dad severely beat his mom and bragged about cheating on her; (d) his parents fought violently; (e) his dad abused him verbally and physically; (f) he was forced to sleep in an unheated attic; and (g) he was not given clothes. In addition, mental-health experts retained by post-conviction counsel found that *137 he suffered from organic brain damage, could not appreciate the criminality of his conduct, and had an IQ in the mentally retarded range. All that mitigation evidence surpassed the “few naked pleas for mercy” that constituted counsel’s mitigation case. And had the jury heard such evidence, the likelihood of a different result was “‘sufficient to undermine confidence in the outcome’ actually reached at sentencing.”
Ronk
,
¶344. In
Porter
, the Supreme Court held that “if the sentencing judge and jury had heard the
significant mitigation evidence that Porter’s counsel neither uncovered nor presented,” then
a different sentence was reasonably probable.
¶345. In
Sears
, the Supreme Court held that the state court incorrectly applied the
Strickland
prejudice inquiry.
Sears
,
¶346. In
Andrus
, the Supreme Court held that trial counsel’s performance was deficient and
remanded the case for the Texas Court of Criminal Appeals to consider the prejudice prong.
Andrus
,
¶347. Powers asserts that McIntosh’s ineffectiveness exceeds that of counsel’s in Andrus because McIntosh never considered obtaining an expert regarding Powers’s alcohol dependency. Though McIntosh claimed he lacked funds for such expert, he did not know how much one would cost either.
¶348. The State counters that Andrus changes nothing. Not only have we already held that McIntosh’s mitigation investigation was adequate, but “the combination of circumstances and deficiencies present in Andrus are not present [here].”
¶349. Turning to Ross , the Ronk Court summarized it as follows:
In Ross , we held that counsel was ineffective at sentencing for two reasons. First, counsel failed to investigate potential psychological problems simply because Ross had said he was not “crazy.” Yet his life history included physical and sexual abuse; possible alcoholism; hallucinations; his sister’s murder; and the tragic deaths of his ex-wife and four children in a car accident. *140 While the jury heard much of that information, counsel provided no expert to explain how those experiences had affected him psychologically. Second—and “[f]ar more problematic”—was counsel’s failure to adequately investigate Ross’s record as an inmate. For mitigation, counsel had emphasized Ross’s good character, especially his reputation as a “good prisoner.” That evidence, however, opened the door for the State to introduce Ross’s bad acts while incarcerated: he had been moved to a higher security facility for possessing a hacksaw and trying to escape, and he had been punished for making alcoholic beverages in his cell. Those bad acts cast him “as unrepentant, a habitual criminal, and a danger to society.” Given the severity of the charge, we said counsel’s deficiencies undermined our faith in the sentence.
Ronk
,
¶350. In
Bennett
the Court granted death-row inmate Bennett leave to seek post-conviction
in the trial court based on counsel’s ineffectiveness at sentencing.
Bennett
,
¶351. Like counsel in Bennett , Powers maintains McIntosh knew about Powers’s history of alcohol abuse and lacked any strategic reason for failing to investigate that or Powers’s life history in general.
¶352. The State counters that Bennett is inconsequential. The Court already held that Powers’s drinking problem was double-edged and that McIntosh was “not ineffective for choosing not to elaborate on it.” Powers I , 883 So. 2d at 35. Further, Powers “had no childhood psychiatric diagnosis, treatment history, or traumatic childhood to discover and present at sentencing.”
¶353. The Ronk Court summarized Doss as follows:
[I]n
Doss
, we held counsel was ineffective at sentencing. There, we said that
if counsel had reviewed records and followed up with potential witnesses, he
would have uncovered mitigating evidence almost identical to that in
Rompilla
.
Records showed that Doss (a) drank alcohol regularly and had started drinking
at age eleven; (b) had tried other drugs; (c) attended special-education classes
and did poorly in school; (d) had a low IQ; (e) had family and legal issues; and
(f) showed signs of psychological disorders. In addition, counsel did not elicit
testimony from Doss’s mother about his abusive, poverty-stricken home
environment. “[T]aken as a whole,” the Court said, “[the mitigation evidence
discovered by post-conviction counsel] might well have influenced the jury’s
appraisal of Doss’[s] culpability, and the likelihood of a different result if the
evidence had gone in [was] sufficient to undermine confidence in the outcome.”
Ronk
,
¶354. In Jones , the United States District Court for the Southern District of Mississippi vacated Jones’s death sentence partly because of counsel’s ineffectiveness at sentencing. Jones , 555 F. Supp. at 879–80. There, counsel presented no mitigation evidence at sentencing. Id. at 879. Instead, immediately after the prosecution rested, counsel did too. Id. Yet there was relevant evidence concerning Jones’s competence at the time of the crime. Id. A licensed clinical psychologist testified that, “functionally,” Jones was mildly intellectually disabled. Id.
¶355. Like counsel in Jones , Powers contends McIntosh rested without “present[ing] one scintilla of mitigation evidence.”
¶356. Powers deems trial counsel’s failure to investigate as an “identifiable lapse,”
Tokman
,
¶357. To assess the probability of a different sentence, the Court must consider all available
mitigating evidence—both that presented at trial and in post-conviction proceedings—and
reweigh it against the aggravating evidence.
See
Porter
,
¶358. Powers was the ninth of Dora and James Powers’s ten children. Like Dora’s own father, James was an abusive alcoholic. His drinking led to arguments and fights. Once, James had to be hospitalized after Dora threw him across an ironing board and struck him on the head with a glass jar.
¶359. According to Powers’s aunt Betty Stapleton, James and Dora fought “in front of [Powers] and his siblings,” and the fighting scared the children. “To keep the kids from *143 seeing James’s drunk and abusive behaviors,” Stapleton avers, “Dora would get the kids and they would go stay with our mom or grandma.”
¶360. Though Stapleton’s recollection may be mostly accurate, it is questionable whether Powers witnessed James and Dora’s fighting. Dora said that James left when Powers was a baby, and Powers’s sister Alisa Watts avers James “was not around when [Powers] was younger.” “[James] [had] left and moved to Gulfport, MS,” she avers. Powers’s older brother Wayne Powers, too, avers James lived Gulfport and that the children saw him “maybe once or twice a year.” Eventually, James’s excessive drinking caused his and Dora’s marriage to fail. After James left, Dora and the children lived with a grandmother for about a decade. To support her family, Dora worked two to three jobs, and Powers and his brothers did odd jobs for farm owners.
¶361. Dora was a “great provider.” The family never lacked for food or decent clothing. Christmas morning, the living room would be full of toys, and almost every year, the children got a new bicycle. Eventually, Dora got her own place, and her boyfriend, Herman Fairly, moved in. He came and went, and he and Dora ended the relationship after they each shot each other in the leg.
¶362. As for Powers, family and friends describe him as easygoing, pleasant, humble, nice, friendly, helpful, respectful, honest, trustworthy, loving, hardworking, outgoing, and nonviolent. Lifelong friend Armond Barnes grew up fishing, playing sports, and singing in the church choir with Powers. Powers’s youngest brother, Charles Powers, avers Powers was naive and that friends and girlfriends took advantage of Powers’s openness, love, trust, and generosity.
¶363. Powers loved and babysat children. Charles called him “a built-in babysitter.” Powers especially loved his niece Delisha Barnes, a child with special-needs. She fondly remembers their time together, so much so that her dream is to care for him when he gets out of prison. Powers himself has a son, who serves in the National Guard.
¶364. Early in life, Powers developed a drinking problem. He began drinking at age seven. By age eighteen or nineteen, he was drinking heavily. Once while living with his sister, he wrecked her car while driving drunk. After he moved out of his sister’s place and got his own apartment, his drinking escalated. He drank before and after work. His older brother Wayne unsuccessfully tried to intervene and help Powers’s alcohol abuse.
¶365. About a month before Lafferty’s murder, Powers’s girlfriend broke up with him. Depressed, he drank more and more. Even on the day he was arrested for Lafferty’s murder, he had been drinking all day.
¶366. According to Powers, then, a requisite minimal investigation would have shown that
• his violent, alcoholic father raised him;
• his drunken father abused Dora in front of the children; • to protect herself, Dora became the aggressor; • his father abandoned the family, leaving Dora to fend for herself and her ten children by working multiple jobs;
• Powers began drinking at age seven, drank increasingly more throughout his life, and was even drunk on the day he was arrested for Lafferty’s murder;
• Powers was honest, hardworking, loving, and had great relationships with family;
• Powers loved children, babysat them, and has a son himself. *145 Had the jury heard about his “violent upbringing, alcohol issues, perseverance, love for family, and care for children,” he contends, had they learned about his life and seen him “as a unique and complex individual”—“as a son, a brother, an adored uncle, and a father”—then at least one juror would have voted differently.
¶367. Powers argues that post-conviction counsel were ineffective in presenting McIntosh’s
ineffectiveness. First, they failed to note that McIntosh spoke to individuals about only the
guilt phase, not sentencing. The
Powers II
Court said, “The record reflects that [McIntosh]
personally interviewed family members and friends of Powers, the girlfriend of Powers’s
brother, the officers involved, Dr. West, Powers’s mother, and Powers.”
¶368. Second, Powers argues that post-conviction counsel failed to investigate and find mitigation evidence uncovered by current post-conviction counsel. Though Dr. Mooers advised that “[a]n expanded mitigation investigation with access to additional records and documents and interviews with other family members, friends, teachers, employers, and others could provide a much more complete and meaningful mitigation report.” Instead, just four days after receiving Dr. Mooers’s report, they filed Powers’s first post-conviction petition. Though they argued that McIntosh failed (1) to investigate or interview family members concerning mitigating evidence or (2) “to investigate [Powers’s] mental retardation,” they offered no supporting evidence, like an evaluation by a mental-health expert.
¶369. Now, Powers argues current post-conviction counsel offers “a plethora of supporting affidavits from renowned experts and family members,” including from board-certified toxicologist Dr. Susan M. Skolly-Danziger. Dr. Skolly avers Powers began drinking at age seven and had two prior DUIs. “Studies,” she avers, “. . show a clear link between early adolescent alcohol use and poor executive functioning,” which “involves cognitive skills that are needed for managing behaviors and self-control.” “Poor executive functioning,” she adds, “has also been linked to risky decision-making in alcohol-dependent individuals.” ¶370. Quoting from page twelve of her affidavit, Powers maintains Dr. Skolly “opined that [his] early-aged and continued drinking had ‘a disruptive effect on his brain function and neurobiology in areas critical to cognition, perception, motivation, memory, learning, judgment, decision making, behavior, and impulse control.’” Notably, part of page twelve is omitted, including the language Powers quotes.
¶371. Powers argues that both McIntosh and post-conviction counsel were ineffective for
failing to consult a psychological or psychiatric expert.
Caro v. Calderon
,
¶372. Powers thus maintains that post-conviction counsel’s “failure to investigate known mitigating factors thoroughly, and their failure to give effect to such important evidence by retaining proper experts to explain them, violated . . . [his] right to effective post-conviction counsel . . . .” A comparison of post-conviction counsel’s “scant mitigating evidence” to current post-conviction cousnel’s ample evidence, he argues, shows that his first post- conviction petition was “a sham, and [that] he was denied an opportunity to present a meritorious [post-conviction] motion.”
¶373. The State responds that McIntosh’s ineffectiveness is res judicata barred. Powers replies that but for appellate counsel’s unreasonable decision to raise McIntosh’s ineffectiveness without the requisite mitigating evidence, the claim would not have been *148 barred in Powers II , and in any event, he argues the State ignores his argument that post- conviction counsel were ineffective.
¶374. Because the Powers I and Powers II Courts rejected Powers’s claim the McIntosh was ineffective at sentencing, his ineffective-assistance-of-trial-counsel claim is res judicata barred. See Miss. Code. Ann. § 99-39-21(3). No extraordinary or exceptional circumstances merit relief from the bar. Further, Powers does not present a substantial showing that post- conviction counsel were ineffective.
¶375. Even if McIntosh and post-conviction counsel were deficient in failing to investigate
mitigation evidence no prejudice is shown. No “large body of mitigating evidence” is offered.
See
Ross
,
¶376. In rejecting Powers’s claim that McIntosh was ineffective for failing to investigate and
present mitigation evidence, the
Powers I
Court said that the post-trial supplemental hearing
affidavits “indicated that Powers had a nice home life and was emotionally developed and also
that Powers was a high school graduate who had attended college.”
Powers I
,
¶377. Even if Powers’s biological father, James, was an abusive alcoholic, it appears that James was not around as Powers grew up. In her post-trial supplemental hearing affidavit, Dora indicated that Fairly was a positive influence in Powers’s life. “Fairly lived with me in the house for approximately fifteen years after [James] left,” she said. “Fairly,” she said, “was a kind man and took the boys fishing. He and [Powers] seemed to get along well.” Though *149 Powers’s family was “less fortunate,” as his sister Alisa Watts put it, they never lacked for food or clothing. Indeed, Watts’s fondest family memories were Christmases “wak[ing] up to a living room full of toys.”
¶378. As for Powers’s drinking problem, the
Powers I
Court held that McIntosh was not
ineffective for failing to elaborate on that.
Powers I
,
¶379. In sum, the new mitigation evidence Powers offers here “is nowhere near the
magnitude of the undiscovered evidence” in the cases he cites as support.
Ronk
, 267 So. 3d
at 1274;
Williams
,
PART SIX: CUMULATIVE ERROR
¶380. The cumulative-error doctrine “holds that individual errors, which are not reversible
in themselves, may combine with other errors to make up reversible error, where the
cumulative effect of all errors deprives the defendant of a fundamentally fair trial.”
Ross
, 954
So. 2d at 1018 (citing
Byrom
,
¶381. Powers argues that cumulative error merits post-conviction relief. He urges the Court to focus on the “synergistic prejudice caused by the combination of errors and improprieties[.]” United States v. Munoz , 150 F.3d 401, 418 (5th Cir. 1998) (internal quotation marks omitted).
¶382. Cumulative error does not merit relief here.
CONCLUSION
¶383. Powers’s oral-argument reconsideration motion, his motion for the Court to rehear its June 21, 2022 order, and his First Successive Petition for Post-Conviction Relief are denied. *151 ¶384. POST-CONVICTION RELIEF DENIED .
RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., AND ISHEE, J.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶385. Respectfully, I dissent. First, as I expressed in my separate statement to this Court’s
previous order, we should not forsake our well-established precedent that a defendant “must
be competent at all stages of the criminal process,” including post-conviction proceedings.
Neal v. State
,
I. This Court should adhere to its longstanding position that criminal defendants must be competent at all stages of the criminal process, including post-conviction proceedings.
¶386. This Court long has recognized defendants’ right to mental competency during post-
conviction proceedings, and we have remanded many cases for hearings to determine post-
conviction petitioners’ mental competency to proceed.
Dickerson v. State
,
¶387. With today’s decision, the right to mental competency remains intact during direct appeal and at execution, but disappears during the period between direct appeal and execution. This is particularly concerning in the context of state post-conviction proceedings, which, unlike federal habeas proceedings , entail investigation outside the record, an investigation in which the defendant usually is a vital source of information—and in some cases the only source of information.
¶388. The state post-conviction attorney has a duty to “brin[g] to the trial court’s attention
facts not known at the time of judgment.”
Williams v. State
,
¶389. For death-sentenced petitioners, “PCR proceedings are a critical stage of the
death-penalty appeal process
at the state level
[.]”
Grayson v. State
,
¶390. Powers is correct in his assertion that “the distinction between representing inmates in
state post-conviction cases versus federal habeas cases is a difference of kind–-not only
degree.” The majority abandons our longstanding comprehension of this distinction by relying
on a decision of the United States Supreme Court that found the Sixth Amendment to the
United States Constitution does not provide a right to mental competence during federal
habeas
proceedings.
Ryan v. Gonzales
,
¶391. Because intensive factual investigation of the petitioner’s claims must occur at the
level of state post-conviction proceedings, usually necessitating investigation outside the trial
court record, the petitioner must be mentally competent and able to point post-conviction
counsel toward relevant information. Now, under the majority holding, post-conviction
*154
counsel may be stymied hopelessly by their inability to get meaningful assistance from
mentally dysfunctional clients. The majority holding is inconsistent with the state
constitutional right of death-sentenced petitioners such as Powers to the effective assistance
of post-conviction counsel.
Grayson
,
¶392. The doctrine of
stare decisis
should prevent our abandonment of a right of this
importance that has been extant in Mississippi for more than a quarter century. As a reminder,
I reiterate the well-established principle that “
[s]tare decisis
[i]s the ‘doctrine of precedent,
under which it is necessary for a court to follow earlier judicial decisions when the same
points arise again in litigation.’”
Caves v. Yarbrough
,
¶393. It is the
removal
of the right to mental competence during post-conviction proceedings
that falls easily into the realms of pernicious, impractical, and mischievous. Indeed, several
*155
of our sister states have recognized, in varying degrees, a due process right of mental
competency in post-conviction proceedings, including Maine, Tennessee, Florida, and Illinois.
Haraden v. State
,
II. This Court should grant an evidentiary hearing on whether Powers’s post-conviction counsel was ineffective in arguing trial counsel’s Batson effectiveness.
¶395. The influence of race on jury selection in this case should not be ignored or brushed aside. When trial counsel presented a post-trial motion arguing that “the court erred in not requiring Batson challenges during jury selection,” the trial judge stated: “I was shocked and appalled that Batson was not raised, but as I understand and appreciate the law . . . a trial judge does not have the authority to invoke [ Batson ] on his own initiative.” Trial counsel subsequently acknowledged in an evidentiary hearing that he was not experienced with Batson and was not “fully prepared to raise it” at trial. In its briefing for this PCR, the State’s response does not rebut or respond to Powers’s argument that there is more than a reasonable probability that a Batson objection would have been successful. This silence is telling. At the time of Powers’s first post-conviction proceeding, his post-conviction counsel knew or should have known the following:
¶396. First, there was disparate questioning of Black prospective jurors during voir dire . See Batson , 476 U.S. at 97 (“[T]he prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.”). Three prospective jurors (all Black) with a “B” beside their name—Rolanda Boyd, Cynthia Hill, and Michael Tate—were asked whether the victim’s or the defendant’s race would affect them. The prosecution struck Boyd and Hill. And though the jury selection was completed before Tate was reached, the prosecution’s venire list shows an indication to strike beside his name.
¶397. Second, trial counsel’s failure to raise
Batson
was not strategic. This Court (denying
relief) in
Powers v. State (Powers I)
,
¶398. Third, a reasonable probability exists that Powers could have satisfied
Batson
’s first
step—a
prima facie
case. That showing is a “light burden.”
Price v. Cain
,
To make a prima facie case, Price needed to show only that the facts and circumstances of his case gave rise to an inference that the State exercised peremptory challenges on the basis of race. This was a light burden, and Price carried it. Price, an African-American man, was tried for the rape of a Chinese- American woman. The State used six of its twelve peremptory challenges to strike African-Americans from the venire, and the resulting jury was all-white. Under Batson ’s “permissive terms,” these facts and circumstances were “sufficient to permit the trial judge to draw an inference that discrimination has occurred.”
Id.
at 287 (citation omitted). The Fifth Circuit thus remanded the case for a hearing.
Id.
¶399. Here, eleven of the seventy-two prospective jurors (15 percent) were Black; the
prosecution used two of its six strikes (33 percent) on Black prospective jurors; and one Black
juror was seated. Considering those numbers alongside the case’s racial overtones (i.e., a
Black male defendant and a white female victim), the disparate voir dire questioning, the
prosecutions’ use of two of its first three strikes on black prospective jurors (Harris and
Boyd), and the trial judge’s statement post-trial that he was “shocked and appalled” that
McIntosh had not raised
Batson
, it is reasonably probable that Powers could at least have
shown a
prima facie
case.
See
Birkhead v. State
,
¶400. Fourth, at least one of the
Powers I
Court’s stated reasons for the striking of potential
juror Harris is problematic. The Court said the record showed that Harris “knew one of the
testifying officers and had child care problems.”
Powers I
, 883 So. 2d at 31. Yet the
prosecution tendered five individuals who knew officers on the potential witness list: Juror
Murphy Bond (knew Chief Sims and Detective Robbie Suber); Juror Kevin Cuevas (knew
Chief Charlie Sims), Juror William Russell (knew Chief Sims); Juror Gardner (knew
Detective-Captain Danny Rigel); Maureen E. Johnson (knew Detective-Captain Rigel). If the
“proffered reason for striking a black [prospective juror] applies just as well to an otherwise-
similar nonblack who is permitted to serve, that is evidence tending to prove purposeful
discrimination . . . .”
Miller-El v. Dretke
,
¶401. Knowing a testifying officer was not the only reason the
Powers I
Court gave for the
prosecution’s strike against Harris. It noted also that she had “child care problems.” As to that
reason, Powers argues that Juror Bond’s father’s being terminally ill made Juror Bond
similarly situated to Harris. On one hand, the two situations are distinct: Juror Bond was
concerned about having to leave the trial if something happened to his terminally ill father,
whereas Harris was concerned about her seventy-three-year-old mother’s ability to watch
Harris’s four children. But the comparison does not have to be identical to suggest
discriminatory intent.
Flowers v. Mississippi
,
¶402. “[D]isinterested demeanor” is a valid, race-neutral reason for a strike.
Moore v. Keller
Indus., Inc.
,
¶403. Therefore, as to Harris, post-conviction counsel would or should have known of three
possible reasons the prosecution struck her: (1) that she knew a testifying officer; (2) that she
had childcare problems; and (3) that she appeared bored. If the prosecution had multiple
reasons for striking her, pretext would not be shown just because one of those reasons was
shared by others tendered by the prosecution.
See
Moore
, 948 F.2d at 202 (“[B]ecause
multiple reasons led . . . counsel to strike [two individuals] the existence of other jurors with
some of their individual characteristics does not demonstrate that the reasons assigned were
pretextual.”);
Alverio v. Sam’s Warehouse Club, Inc.
,
¶404. As with Harris, the venire list offers another possible reason the prosecution struck
Boyd: “cell phone went off during voir dire – got up + moved” is handwritten beside her
name. As stated, “disinterested demeanor” is a valid, race-neutral reason for a strike.
Moore
,
¶405. Fifth, the venire list did more than simply identify prospective jurors’ races. Of the eight people on the venire list with a “B” beside their name, all except Harris and Juror *162 Duckworth have either a “?” or an “S” beside their names. And no other names have a “?” beside them except those with a “B” too. Anticipated strikes are also indicated on prosecutor’s venire list. Jury selection ended at prospective juror number 37. Of the remaining names on the list, only two have an “S” beside their names—Shannon L. Estes and Tate. So it would appear that, if reached, the prosecution intended to strike them. The record shows good reason for striking Estes: As a newspaper reporter, she knew most of the testifying officers. And when asked whether she could be fair and impartial, she answered, “I think so.” ¶406. Tate is more problematic. A possible reason for wanting to strike him is be that he did not complete his jury questionnaire. Specifically, he did not answer question numbers 52 to 58: “52) Has any other member of your immediate family or a close friend ever been accused of a crime?”; 53) In regard to a person charged with committing a crime, which of the following best describes your general attitude[]”; “54) If you belong to a religious denomination/church, does it support death penalties for certain crimes?”; “55) Do you believe in the death penalty?”; “56) In regard to police officers, which of the following best describes your general attitude[]”; “57) In regard to an accused person on trial, which the following best describes your general attitude[]”; and “58) List the motor vehicles you, you spouse or children living in your home own[.]” Yet Keith W. Sumrall, who sat on the jury, answered only three of those same questions: He marked that no immediate family or close friend had ever been accused of a crime and that he believed in the death penalty, and he listed two vehicles. During individual, in-chambers questioning, Tate said he did not complete his jury questionnaire because he filled it out late at night and had to go to work the next morning. *163 Yet three times he affirmed his belief in the death penalty. And when asked whether Powers’s and Lafferty’s race would make any difference to him, he said, “None whatsoever.” ¶407. Powers makes enough of a substantial showing to merit an evidentiary hearing on whether his post-conviction counsel were ineffective concerning the Batson issues. Counsel’s deficiency includes failure to (a) highlight the disparate voir dire questioning; (b) cite authority to support that McIntosh’s mistaken belief about Batson meant that his decision to forgo raising it could not have been strategic; (c) argue the likelihood of a prima facie case; (d) show that jurors similarly situated to Harris (in at least one way) were allowed to serve; (e) assert that the venire list constituted newly discovered evidence that merited relief from the bars; (f) pinpoint problems with the handwritten notations on the venire list—mainly, that except for Harris (who was struck) and Juror Duckworth (who served), every person with a “B” beside their name had either a “?” or an “S”, and “?s” appear only next to “Bs”; and (g) question the basis for the apparent anticipated future strike of Tate.
¶408. Based on Powers’s showing and to ensure as complete a record as possible on
Batson
,
I would hold that Powers makes enough of a substantial showing to merit an evidentiary
hearing on whether his post-conviction counsel were ineffective on the
Batson
issue. In any
case, but especially a death penalty case, “the harmless error standard has no place in the
Batson
analysis.”
Manning v. State
,
¶409. Powers should be granted evidentiary hearings on two disjunctive grounds. First, he has made a sufficient showing that his medical conditions render him incompetent to participate in post-conviction proceedings. This Court gravely errs by eliminating this right. Second, Powers has made a sufficient showing of merit to warrant an evidentiary hearing on whether race played an impermissible role in jury selection. I therefore dissent.
KING, P.J., AND ISHEE, J., JOIN THIS OPINION.
Notes
[1]
Batson v. Kentucky
,