King v. State

• Decision Date: 24 September 2009
• Docket Number: No. 2007-DR-01363-SCT.,2007-DR-01363-SCT.
• Parties: Mack Arthur KING v. STATE of Mississippi.
• Court: Mississippi Supreme Court

23 So.3d 1067

Mack Arthur KING v. STATE of Mississippi.

No. 2007-DR-01363-SCT.

Supreme Court of Mississippi.

September 24, 2009.

Rehearing Denied January 7, 2010.

Mississippi Office of Capital Post-Conviction Counsel by Glenn Swartzfager, Louwlynn Vanzetta Williams, attorneys for appellant.

Office of the Attorney General by Jason L. Davis, Marvin L. White, Jr., attorneys for appellee.

EN BANC.

GRAVES, Presiding Justice, for the Court.

¶ 1. Mack Arthur King was convicted of capital murder of Lela Patterson in 1980 and was sentenced to death. On October 27, 1982, this Court affirmed both the conviction and the sentence. King v. State, 421 So.2d 1009 (Miss.1982). This Court denied without prejudice King's subsequent application for leave to file a petition for writ of error coram nobis on December 14, 1983, for failure to comply with Court rules. King then filed a second application for leave to petition the circuit court for writ of error coram nobis, and this Court ordered the trial court to conduct an evidentiary hearing regarding King's claim of ineffective assistance of counsel. See King v. Thigpen, 441 So.2d 1365 (Miss.1983); King v. Thigpen, 446 So.2d 600 (Miss. 1984). The trial court conducted a hearing and found that counsel had rendered effective assistance. This Court affirmed the trial court's denial of relief. King v. State, 503 So.2d 271 (Miss.1987). King's petition for writ of habeas corpus was then denied by the United States District Court for the Northern District of Mississippi. However, on August 25, 1993, the Fifth Circuit Court of Appeals vacated the sentence of death and remanded the case with instructions to return it to the state court for reconsideration of the sentence of death. King v. Puckett, 1 F.3d 280 (5th Cir.1993). This Court vacated the sentence of death and remanded for a new sentencing trial. King v. State, 656 So.2d 1168 (Miss.1995). On April 9, 1998, King was again sentenced to death. King appealed, and this Court reversed the death sentence and remanded for a new sentencing hearing on the ground that the trial court had erred in instructing the jury to disregard sympathy in its deliberations. King v. State, 784 So.2d 884 (Miss.2001). King was again sentenced to death in 2003 and subsequently appealed. This Court affirmed the conviction of capital murder and sentence of death on May 31, 2007. King v. State, 960 So.2d 413 (Miss.2007).

¶ 2. Thereafter, King filed this application for leave to seek post-conviction relief in the trial court pursuant to Mississippi Code Section 99-39-5. He filed a supplemental petition on September 19, 2008. King asserts the following: 1) Mississippi's lethal injection procedure creates a substantial risk of serious harm in violation of the Eighth Amendment; 2) he was denied due process when the trial court denied funds for a mental health expert and this Court affirmed the denial, thus denying him the opportunity to fully develop evidence of mental retardation; 3) the trial court erred in failing to allow presentation of mitigation evidence; 4) he was denied his Sixth Amendment right to the effective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the corresponding portions of the Mississippi Constitution; 5) he is mentally retarded as defined by the Court in Chase v. State, 873 So.2d 1013 (Miss.2004), and is ineligible for the death penalty; 6) he was denied his rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Mississippi law due to the cumulative effect of the errors at trial; and 7) the sentence is disproportionate and in violation of the Eighth and Fourteenth Amendments to the United States Constitution and corresponding portions of the Mississippi Constitution.

ANALYSIS

¶ 3. Post-conviction relief is limited in nature and is the means "to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal." Miss. Code Ann. § 99-39-3 (Rev.2007).

¶ 4. Mississippi Code Section 99-39-21 also provides, in relevant part:

(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

(2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice.

(3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.

Miss.Code Ann. § 99-39-21(1)(2)(3) (Rev. 2007). Moreover, Mississippi Code Section 99-39-27 provides that "[t]he dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article." Miss.Code Ann. § 99-39-27(9) (Rev.2007). The exceptions to this procedural bar include: supervening mental illness; an intervening decision that would adversely affect the outcome of the conviction; newly discovered evidence that was not discoverable at the time of trial and that would have caused a different result; expired sentence; and unlawful revocation of probation, parole, or conditional release. Miss.Code Ann. § 99-39-27(9) (Rev.2007).

¶ 5. In Foster v. State, this Court said:

Procedural bars of waiver, different theories, and res judicata and exception thereto as defined in post-conviction relief statute are applicable in death penalty post-conviction relief application. [Citations omitted]. We have repeatedly held that a defendant is procedurally barred by waiver from making a challenge to a capital sentencing scheme as a whole in a petition for post-conviction relief where the issue was capable of determination at trial and/or on direct appeal but was not raised, and defendant failed to show cause or actual prejudice for not raising the issue on direct appeal. [Citations omitted]. Post-conviction relief is not granted upon facts and issues which could or should have been litigated at trial and on appeal." The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal." Miss.Code Ann. § 99-39-21(3) (Supp.1994). We must caution that other issues which were either presented through direct appeal or could have been presented on direct appeal or at trial are procedurally barred and cannot be relitigated under the guise of poor representation by counsel.

Foster, 687 So.2d 1124, 1129 (Miss.1996).

I. Mississippi's lethal injection procedure creates a substantial risk of serious harm in violation of the Eighth Amendment.

¶ 6. King failed to raise this issue at trial or on direct appeal. Therefore, this claim is procedurally barred by Mississippi Code Section 99-39-21(1) as set out above. However, notwithstanding the procedural bar, this claim is without merit pursuant to Bennett v. State, 990 So.2d 155, 161 (Miss.2008) (holding that Mississippi's lethal injection protocol does not violate the Eighth Amendment) (citing Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)).

II. King was denied due process when the trial court denied funds for a mental health expert and this Court affirmed the denial, thus denying him the opportunity to fully develop evidence of mental retardation.

¶ 7. King asserts that he was denied due process when the trial court denied counsel's request for funds for a mental health expert. This Court previously considered this issue and affirmed the trial court's denial of funding in King v. State, 960 So.2d 413 (Miss.2007). On direct appeal, this Court offered a detailed analysis of this assignment of error pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and found that King did not show the "substantial need" required to obtain funds for an additional independent expert and did not find that he was prejudiced by the denial of funds. King, 960 So.2d at 420-24. Therefore, King is procedurally barred from reasserting this issue under the doctrine of res judicata. See Miss.Code Ann. § 99-39-21(3) (Rev.2007).

¶ 8. Moreover, King has failed to demonstrate that his claims are not procedurally barred as required by Mississippi Code Section 99-39-21(6).¹ King asserts that Rivera v. Quarterman, 505 F.3d 349 (5th Cir.2007) and Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) constitute intervening decisions and are sufficient to overcome the procedural bar. However, we disagree. Both Rivera and Panetti uphold the requirement that a defendant must make a substantial threshold showing of mental retardation.² These holdings are consistent with Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and do not constitute intervening caselaw for the purpose of overcoming a procedural bar. As set out above, this Court previously has determined that King has failed to show substantial need. Therefore, King is procedurally barred from reasserting this issue. See Miss.Code Ann. § 99-39-21(3) (Rev. 2007).

III. The trial court erred in failing to allow presentation of mitigation evidence.

¶ 9. King asserts that the trial court erred in not allowing him to challenge or rebut the State's case against him by presenting evidence of his innocence during resentencing. King raised...