Underwood v. State, 2015-DR-01378-SCT
| Decision Date | 16 December 2021 |
| Docket Number | 2015-DR-01378-SCT |
| Parties | JUSTIN UNDERWOOD A/K/A JUSTIN H. UNDERWOOD v. STATE OF MISSISSIPPI |
| Court | Mississippi Supreme Court |
EN BANC ORDER
This matter is before the Court on the Petition for Post-Conviction Relief filed by Justin Underwood. Underwood was convicted of capital murder in Madison County in 1995. He was sentenced to death. His direct appeal was affirmed in Underwood v. State, 708 So.2d 18 (Miss. 1998). This Court thereafter denied Underwood's first petition for postconviction relief. Underwood v. State, 919 So.2d 931 (Miss. 2005). His second petition for post-conviction relief also was denied. Underwood v. State, 37 So.3d 10 (Miss. 2010).
Before the Court is Underwood's third petition for post-conviction relief. Underwood raises numerous issues in his petition. In response, the State argues that many of those claims are procedurally barred.
Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA) this Court will grant leave to proceed only if Underwood's petition, exhibits, and the prior record show that his claims are not procedurally barred and that they "present a substantial showing of the denial of a state or federal right." Miss. Code Ann. § 99-39-27(5) (Rev. 2020); see also Grayson v. State, 118 So.3d 118, 125 (Miss. 2013). "Direct appeal [is] the principal means of reviewing all criminal convictions and sentences . . ." Miss Code Ann. § 99-39-3(2) (Rev. 2020). Review at this stage, with certain exceptions, is limited to issues that could not or should not have been reviewed at trial and in the direct appeal. Miss. Code Ann. § 99-39-3(2); Brawn v. State, 798 So.2d 481, 491 (Miss. 2001). "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.'" Ronk v. State, 267 So.3d 1239 1247 (Miss. 2019) (quoting Crawford v. State, 218 So.3d 1142, 1150 (Miss. 2016)).
Underwood must overcome several procedural bars. First, the mandate in the direct appeal issued on April 16, 1998. This successive petition was filed in March of 2020 and is subject to the one-year time bar. Miss. Code Ann. § 99-39-5(2) (Rev. 2020); see also Brown v. State, 306 So.3d 719, 729 (Miss. 2020) (citing Jordan v. State, 213 So.3d 40, 42 (Miss. 2016); Havard v. State, 86 So.3d 896, 899 (Miss. 2012)). A failure to raise post-conviction claims within the limitations period results in a waiver of potential relief unless the petitioner meets an exception to the time bar. M.R.A.P. 22(c)(5)(i); Jordan, 213 So.3d at 42. Unless Underwood can show that his claims are excepted, the petition is barred.
Second, Underwood has filed two previous petitions for post-conviction relief. Both were denied. This petition is subject to the successive writ bar set forth in Mississippi Code Section 99-39-27(9) (Rev. 2020). Absent an applicable exception, a successive motion for post-conviction relief is procedurally barred. Rowland v. State, 42 So.3d 503, 507 (Miss. 2010).
Third, Underwood is prohibited from raising claims which have been addressed in prior proceedings.
Howard v. State, 945 So.2d 326, 353 (Miss. 2006) (quoting Jackson v. State, 860 So.2d 653, 660-61 (Miss. 2003); Lockett v. State, 614 So.2d 888, 893 (Miss. 1992)). In Grayson v. State, 118 So.3d 118 (Miss. 2013), the Court held that the petitioner's second attempt to argue that trial counsel had been ineffective in presenting in the sentencing phase "has been considered and rejected and, therefore, his claims are barred by the doctrine of res judicata." Id. at 141. In Brawner v. State, 166 So.3d 22, 23 (Miss. 2012), the Court declined to revisit claims that previously had been addressed. The Court held that "these claims have been substantially reviewed in prior proceedings and are now procedurally barred and barred by the doctrine of res judicata."
Jordan, 213 So.3d at 42. "Res judicata also extends to those claims that could have been raised in prior proceedings but were not." Brown, 306 So.3d at 730 (citing Ronk, 267 So.3d at 1288); Miss. Code Ann. § 99-39-21(3) (Rev. 2020).
Miss. Code Ann. § 99-39-21(1) (Rev. 2020).
Mississippi Code Section 99-39-21(2) (Rev. 2020) provides that "[t]he 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 . . . ." Reframing an issue that previously has been considered and rejected is not allowed. Can v. State, 873 So.2d 991, 1002 (Miss. 2004). "[A]ny relief sought... upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice." Miss. Code Ann. § 99-39-21(2).
After a full review of Underwood's petition, we find that the majority of his claims are procedurally barred and, notwithstanding the procedural bars, they are without merit. Underwood's remaining claims are without merit.
Underwood raises several claims of newly discovered evidence. Newly discovered evidence claims, under certain circumstances, can be excepted from the procedural bars. See Miss. Code Ann. § 99-39-5(2)(a)(i) (Rev. 2020) (); Miss. Code Ann. § 99-39-23(6) (Rev. 2020) ().
For purposes of the post-conviction relief statutes, newly discovered evidence is "evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence." Miss. Code Ann. § 99-39-5(2)(a)(i); see also Miss. Code Ann. § 99-39-23(6) (Rev. 2020). At this stage, Underwood must show that "(1) the new evidence was discovered after the trial; (2) it could not by due diligence have been discovered before trial; (3) it is material to the issue and not merely cumulative or impeaching; and (4) it would probably produce a different result or verdict in the new trial." Brown, 306 So.3d at 744 (citing Crawford v. State, 867 So.2d 196, 203-04 (Miss. 2003)).
Underwood claims that there is new evidence that Lindsay Harris, the victim's husband, could have been the actual killer and that there is new evidence about how the murder weapon was located. At trial, the defense attempted to blame Harris as the perpetrator and raised questions about how officers had obtained the gun. Underwood also argued in his first two petitions for post-conviction relief that Harris was the true murderer. At this stage, Underwood has not shown that this evidence could not have been discovered before the trial or before the filing of his first two petitions. And he has not shown that the result would have been different.
Underwood next argues that there is new evidence of advancements in firearms science shown by a 2009 National Academy of Sciences report and a 2013 FBI letter. He contends that those documents establish a scientific consensus that examiners may not present as fact that a particular gun fired a particular bullet. He argues that, if the State's firearms expert had been prohibited from testifying that the bullets recovered from the victim's body were fired in the gun recovered from Underwood's car or had been cross-examined about the scientific consensus, the result would have been different. The Supreme Court of Florida has found that the 2009 National Academy of Sciences Report does not meet the test for newly discovered evidence. Johnston v. State, 27 So.3d 11, 21 (Fla. 2010). We agree. And in light of Underwood's confessions that he used the gun to kill the victim, we cannot say that the State's presentation of less conclusive forensic testimony identifying the gun as the murder weapon probably would have produced a different result or verdict. See Brewer v. State, 819 So.2d 1169, 1172 (Miss. 2002). We hold that Underwood's claims of newly discovered evidence do not meet the newly discovered evidence exceptions to the time bar and the successive writ bar of the UPCCRA.
Underwood claims also that the State improperly suppressed evidence that would have been favorable to him. He makes little attempt to argue that those claims could not have been discovered and raised in prior proceedings over the last twenty-five years.
To establish a discovery violation under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215, 218 (1963), a defendant must show:
(1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome...
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