Wiley v. State, 2003-DR-01317-SCT.

• Decision Date: 26 August 2004
• Docket Number: No. 2003-DR-01317-SCT.,2003-DR-01317-SCT.
• Citation: 890 So.2d 892
• Parties: William L. WILEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

890 So.2d 892

William L. WILEY v. STATE of Mississippi.

No. 2003-DR-01317-SCT.

Supreme Court of Mississippi.

August 26, 2004.

Rehearing Denied October 28, 2004.

James McLaughlin, Robert B. McDuff, Jackson, Mark E. Feldman, Timothy C. Hester, attorneys for appellant.

Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.

EN BANC.

EASLEY, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. William L. Wiley (Wiley) was charged with capital murder in a DeSoto County robbery that left store owner J.B. Turner dead and his daughter seriously injured as well as blind.¹ Wiley lay in wait for some time outside the store for Turner and his daughter and then shot and robbed them as they were closing the store. The sawed-off shotgun used in the murder was traced to Wiley, who was later arrested and subsequently confessed. Wiley was tried, convicted, and sentenced to death in 1982.

¶ 2. On direct appeal his conviction was affirmed by this Court, but the case was remanded for re-sentencing because of comments made by the prosecutor regarding appellate review. Wiley v. State, 449 So.2d 756 (Miss.1984). Wiley was again sentenced to death in 1984, and this Court affirmed the case. Wiley v. State, 484 So.2d 339 (Miss.1986). His petition for rehearing was denied by this Court as was his petition for writ of certiorari to the United States Supreme Court. Wiley v. Mississippi, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278, reh'g denied, 479 U.S. 999, 107 S.Ct. 604, 93 L.Ed.2d 604 (1986). Thereafter, Wiley filed a petition for post-conviction relief that was denied by this Court. Wiley v. State, 517 So.2d 1373 (Miss.1987). His motion for rehearing was denied, and again the United States Supreme Court declined review of the case. Wiley v. Mississippi, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 610, reh'g denied, 487 U.S. 1246, 109 S.Ct. 6, 101 L.Ed.2d 957 (1988).

¶ 3. Wiley then filed a petition for a writ of habeas corpus that was denied by the U.S. District Court via unpublished opinion. He appealed to the U.S. Court of Appeals for the Fifth Circuit which held that Wiley's death sentence was improper because the sentencing jury was improperly instructed as to the "especially heinous, atrocious or cruel" aggravating circumstance. Wiley v. Puckett, 969 F.2d 86 (5th Cir.1992). This Court remanded for a new sentencing hearing. Wiley v. State, 635 So.2d 802 (Miss.1993). In 1995, Wiley was again sentenced to death. Wiley appealed, and this Court affirmed. Wiley v. State, 691 So.2d 959 (Miss.1997), reh'g denied, 693 So.2d 384 (Miss.1997)(motion for substitution of counsel granted), cert. denied, Wiley v. Mississippi, 522 U.S. 886, 118 S.Ct. 219, 139 L.Ed.2d 153 (1997).

¶ 4. Also in 1997, Wiley filed a pro se motion to stay execution and to appoint an attorney in the United States District Court. The district court denied the motion in an unpublished order. He appealed to the Fifth Circuit, which entered an unpublished order staying the execution and remanding the case to the district court. On January 16, 1998, the district court appointed Thomas Levidiotis (Levidiotis) as counsel and ordered that the habeas petition be filed within sixty (60) days. Shortly thereafter, Robert B. McDuff (McDuff), present counsel, filed a motion to vacate the appointment of Levidiotis and substitute himself as counsel without payment which was granted by the district court.

¶ 5. McDuff and Timothy C. Hester, Brian Miller and Anthony Picarello, Jr., of the Washington, D.C., firm of Covington & Burling, then filed a motion for post-conviction relief on Wiley's behalf that was denied by this Court in June of 1999. Wiley v. State, 750 So.2d 1193 (Miss.1999). His motion for rehearing was denied, and the United States Supreme Court denied certiorari. Wiley v. Mississippi, 530 U.S. 1275, 120 S.Ct. 2742, 147 L.Ed.2d 1007 (2000). Also in June of 1999, McDuff and counsel filed a motion for appointment of compensated counsel and funding for litigation expenses, but it was denied by this Court in January of 2000. Wiley then filed an Application for Leave to file Motion to Vacate Death Sentence seeking collateral review of the denial of his motion for appointment of compensated counsel and litigation funding, and asking for leave to present new claims of ineffective assistance of counsel. This Court denied the application. Wiley v. State, 842 So.2d 1280 (Miss.2003). Wiley apparently still has a petition for habeas corpus pending in the U.S. District Court.

¶ 6. On June 19, 2003, Wiley filed a successive application for leave to file a motion to vacate the death sentence based on the U.S. Supreme Court decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Wiley asserts that Atkins is an intervening decision affecting a fundamental right and allows him to seek relief on the basis that he is mentally retarded and no longer eligible for imposition of the death penalty. We find that Wiley's claim is without merit and that the application should be denied.

ANALYSIS

¶ 7. In Atkins, 122 S.Ct. 2242, the United States Supreme Court determined that imposition of the death penalty on mentally retarded inmates constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The Atkins decision did not define who is or is not mentally retarded for purposes of eligibility for a death sentence but instead "leave[s] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences." 122 S.Ct at 2250.

¶ 8. In Foster v. State, 848 So.2d 172 (Miss.2003), it was alleged that Ron Chris Foster had an IQ score of 80 from a test done at Whitfield in 1990, but the source of this score could not be found in the appeal record. This Court found that IQ alone was not determinative under Atkins. Foster had the following scores on the Wechsler test in December 2002, just before his scheduled execution: verbal IQ of 68, performance score of 59 and a full scale score is 62. He further produced evidence to the effect that he had always been in special or remedial classes. Dr. Marc Zimmerman, who administered the tests, stated that the results were "consistent with a diagnosis of mental retardation." Foster, 848 So.2d at 174. This Court granted leave to proceed in the trial court on the issue of mental retardation and provided the following standards:

To that end the standard or definition of mental retardation shall be that enunciated by the Supreme Court in Atkins, especially the American Psychiatric Association's definition of mental retardation. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV 39-46 (4th ed.1994). We further hold that the Minnesota Multiphasic Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales make the test best suited to detect malingering. See id. at 683 (defining malingering as the "intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs"). See also United States v. Battle, 235 F.Supp.2d 1301, 1307 (N.D.Ga.2001) (explaining MMPI and its validity scales and stating that "[t]he MMPI is generally agreed to be difficult to cheat on without getting caught"). Foster must prove that he meets the applicable standard by a preponderance of the evidence pursuant to Miss.Code Ann. § 99-39-23(7). This issue will be considered and decided by the circuit court without a jury.

Foster, 848 So.2d at 175.

¶ 9. Mental retardation is defined by the American Psychiatric Association as significantly sub-average general intellectual functioning accompanied by significant limitations in adaptive functioning in two skill areas, such as communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety.² The onset of this must occur before age 18. The American Psychiatric Association also provides that mild mental retardation is typically used to describe someone in the IQ range of approximately 50 to 70.³

¶ 10. In Russell v. State, 849 So.2d 95 (Miss.2003), Willie Russell was found by one doctor to have a full scale IQ of 68, which indicated that Russell was functioning within the upper range of the mildly mentally retarded category of intelligence. Another doctor testified that Russell's IQ was 76, "borderline to low normal," and that he was not retarded. Evidence was also presented concerning Russell's life before and during his imprisonment. Russell too was granted leave to proceed on this lone issue.

¶ 11. In Goodin v. State, 856 So.2d 267 (Miss.2003), Howard Goodin relied on evidence which showed that he had a verbal IQ of 65, a performance IQ of 60, for a full scale IQ 60 on the Wechsler Test. On the Shipley test, Goodin had obtained an estimated IQ of 50, within the mildly mentally retarded range. Goodin could read at a second grade level and do math at a first grade level. The trial court reported Goodin's intelligence level was "low (IQ below 70)." Goodin produced school records showing poor performance and affidavits from relatives discussing his strange behavior. The State relied on evidence showing that Goodin had intentionally not done as well as he was capable on the IQ tests, that he had no significant neuropsychological problems, and that his behavior during the shooting/robbery at issue and on the witness stand at trial undermined his claim of retardation. This Court nonetheless granted Goodin leave to proceed in the trial court on this issue.

¶ 12. More recently, this Court remanded Carr v. State, 873 So.2d 991 (Miss.2004), to the trial court for an evidentiary hearing to determined whether Carr is still eligible...