Branch v. Epps et al

Filing 68

MEMORANDUM OPINION AND ORDER on 67 FINAL JUDGMENT. Signed by Michael P. Mills on 12/2/2011. (lpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
LAWRENCE BRANCH

PETITIONER

V.

NO.: 4:07CV138-MPM

CHRISTOPHER EPPS, ET AL.

RESPONDENTS

MEMORANDUM OPINION & ORDER
Lawrence Branch, the petitioner in this action, was convicted of the capital murder of
Dorothy Jorden in the Circuit Court of Carroll County, Mississippi, and sentenced to death. The
Mississippi Supreme Court affirmed the verdict and sentence on direct appeal. See Branch v.
State, 882 So.2d 36 (Miss. 2004) (“Branch I”). Petitioner sought post-conviction relief and was
denied. Branch v. State, 961 So.2d 659 (Miss. 2007) (“Branch II”). Thereafter, Petitioner timely
filed a petition for a writ of habeas corpus in this Court. The Court, having fully considered
Petitioner’s claims and the responses thereto, vacates Petitioner’s sentence of death for the
reasons that follow.
Facts
Dorothy Jorden owned and operated Dot’s Burger Bar, a restaurant and club located next
to her home in Coila, Mississippi. Jorden closed business at around 3:00 a.m. on January 21,
2001, and her body was discovered inside of her home later that afternoon. She had been beaten
to death. Upon investigation, police learned that two of the customers at Dot’s the previous
evening, Petitioner and his cousin, Deondray Johnson, left Dot’s at around 1:30 a.m. with a
promise to return to give two other patrons a ride home. They failed to return as promised.

1

Petitioner and Johnson were questioned and gave conflicting statements as to their whereabouts
the previous evening. Upon additional questioning, Petitioner confessed that he and Johnson
robbed and murdered Jorden. Both Petitioner and Johnson were arrested.
Petitioner’s murder trial began on May 20, 2002. Petitioner testified at trial that he was
with Johnson on January 20, 2001, but he denied any involvement in the murder. Petitioner was
convicted of capital murder on May 22, 2002. The jury returned a sentence of death on May 23,
2002.1
Applicable Standard
The instant petition is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), which allows federal habeas review of a petitioner’s claims alleging a
“violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
The AEDPA precludes a federal court from granting a petition for a writ of habeas corpus on any
claim “adjudicated on the merits in State court proceedings” unless that adjudication “(1)
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; or (2) resulted
in a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2); Cullen v. Pinholster, ___
U.S. ___, 131 S. Ct. 1388, 1398 (2011).
A decision is “contrary to” the applicable law when the conclusion reached by the state
court is “opposite that reached by the Supreme Court on a question of law or if the court decides
1

Johnson was separately tried and convicted of capital murder. The trial court imposed a
sentence of life imprisonment without the possibility of parole after Johnson’s jury failed to agree
on a punishment. See, e.g., Johnson v. State, 885 So.2d 72 (Miss. App. 2004).
2

the case differently on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). The “unreasonable application” clause allows a court to grant relief if the state
court identifies the correct legal principle but unreasonably applies it to the facts of a petitioner’s
case. Id. Whether either of the § 2254(d) clauses is met is determined by assessing the record
that was before the state court. See Holland v. Jackson, 542 U.S. 649, 652 (2004); see also 28
U.S.C. § 2254(d)(2). Factual determinations made by a state court are presumptively correct, and
a petitioner bears the burden of rebutting the presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 343 (2003). This deference is afforded
to both the express and implicit factual findings of the state court. See, e.g., Garcia v.
Quarterman, 454 F.3d 441, 444 (5th Cir. 2006).
The standards of the AEDPA are “highly deferential” and “demand[] that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, ___ U.S. ___, 130 S. Ct. 1855, 1862
(2010) (internal citation and citation omitted). The federal habeas court’s inquiry is not whether
the decision of the state court is incorrect, but “whether that determination was unreasonable - a
substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) Unless a
petitioner can demonstrate that there is no reasonable basis for the state court decision denying
relief, federal habeas relief is precluded. Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770,
784 (2011).
Because federal habeas review is a review of the determination reached by the state court,
a petitioner must ordinarily exhaust his claims in state court prior to seeking federal habeas relief.
See 28 U.S.C. § 2254(b)(1). Additionally, if a petitioner fails to present his claim in compliance
with state procedural rules, the claim is barred on federal habeas review. See Coleman v.
3

Thompson, 501 U.S. 722, 729 (1991). If either failure occurs at the state court level, a federal
court may review the claim in one of two instances: (1) if the petitioner shows cause for the
default and actual prejudice as a result, or (2) that “a constitutional violation has ‘probably
resulted’ in the conviction of one who is ‘actually innocent.’” Dretke v. Haley, 541 U.S. 386, 393
(2004) (citation omitted); see also Walker v. Martin, ___ U.S. ___, 131 S. Ct. 1120, 1127 (2011).
The Court now considers Petitioner’s claims in light of the foregoing standards.
I. Mental Retardation
Petitioner claims that he suffers from mental retardation and is exempt from the death
penalty. In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States Supreme Court held
that the execution of offenders with mental retardation2 is proscribed by the Eighth Amendment
to the United States Constitution. The Court found that due to the necessarily reduced culpability
of persons with mental retardation, the dual societal purposes of deterrence and retribution would
not be served by their execution. Atkins, 536 U.S. at 319-20.
Prior to Atkins, many states had adopted standards restricting the execution of the
mentally disabled. Atkins notes that these states generally followed the diagnostic criteria set
forth by the American Association on Mental Retardation (“AAMR”) and the American
Psychiatric Association (“APA”). See id. at 317 and n.22. Under either standard, there are three
components for a determination of mental retardation: (1) substantial limitations in intellectual
functioning; (2) significant limitations in particular adaptive skill areas; and (3) manifestation of
2

The American Association on Mental Retardation (“AAMR”) is now the American
Association on Intellectual and Developmental Disabilities (“AAIDD”). The AAIDD currently
uses the term “intellectual disability” instead of mental retardation. For purposes of continuity
and clarity in this opinion, the Court uses the term “mental retardation” and will refer to the
professional organization as AAMR.
4

those limitations before age 18. See id. at 309 n.3 (noting the similarity between the professional
standards); see also Clark v. Quarterman, 457 F.3d 441, 446 (5th Cir. 2006). While the Atkins
Court recognized a growing societal interest in protecting the mentally retarded from execution,
it allowed the individual states to adopt means to enforce the constitutional restriction. See
Atkins, 536 U.S. at 317.
In Chase v. State, 873 So.2d 1013, 1028-29 (Miss. 2004), the Mississippi Supreme Court
set forth a definitive standard for how Atkins is applied in trial courts. Pursuant to the Chase
standard, a determination of mental retardation is to be made by the trial judge, by a
preponderance of the evidence, after evidence is presented by both the defendant and State. Id.
The Mississippi Supreme Court held that:
[N]o defendant may be adjudged mentally retarded for purposes of the Eighth
Amendment, unless such defendant produces, at a minimum, an expert who
expresses an opinion, to a reasonable degree of certainty, that:
1. The defendant is mentally retarded, as that term is defined by the American
Association on Mental Retardation and/or The American Psychiatric Association;
2. The defendant has completed the Minnesota Multiphasic Personality InventoryII (MMPI-II) and/or other similar tests, and the defendant is not malingering.
Id. at 1029.
The court also determined that those offenders whose trials were final prior to Chase
could obtain an evidentiary hearing by attaching to their petition an affidavit from a qualified
psychologist “who opines, to a reasonable degree of certainty, that: (1) the defendant has a
combined Intelligence Quotient (“IQ”) of 75 or below, and; (2) in the opinion of the expert, there
is a reasonable basis to believe that, upon further testing, the defendant will be found to be
mentally retarded, as defined herein.” Id. A few months later, the court “expand[ed] on the
procedure to be used in reaching a determination of mental retardation” by holding that the entire
5

record would be considered before “deciding whether to grant an Atkins hearing.” Wiley v. State,
890 So.2d 892, 897 (Miss. 2004). Shortly thereafter, the Mississippi Supreme Court noted that
in cases already pending before the procedure in Chase was handed down, it had ordered a
hearing without requiring an expert’s affidavit where the record contains “a qualified opinion”
that an offender is mentally retarded. Scott v. State, 878 So.2d 933, 948 (Miss. 2004).
When Petitioner was five years old, he was referred by his teachers to the Region VI
Mental Health-Mental Retardation Center in Greenwood, Mississippi, where he was evaluated
and diagnosed with mild mental retardation. (See Pet. Memo Ex. A). At a pretrial hearing held
in his capital murder trial in 2002, defense counsel moved for a psychiatric evaluation to
determine whether Petitioner’s IQ exceeds 70. (Trial Tr. vol. 1, 23-26). The trial court granted
the motion and determined that the evaluation would also encompass issues relevant to
Petitioner’s competency and sanity. (Trial Tr. vol. 1, 26, 27-29; see also SCP vol. 1, 34-35). Dr.
W. Criss Lott evaluated Petitioner on February 28, 2002. (See Pet. Memo Ex. B). He found
Petitioner’s full-scale IQ score to be 84, his reading ability to be at a high school level, and his
mathematic skills to be at a sixth grade level. (Id.). In his report to the trial judge, Dr. Lott noted
that Petitioner’s “history of mental retardation (diminished cognitive abilities during childhood)”
should be considered as a non-statutory mitigating factor (Id.). Defense counsel did not object to
Dr. Lott’s findings, and no evidence of Petitioner’s intellectual deficits was presented in
mitigation at trial.
Less than a month after Petitioner filed a motion for a new trial, the United States
Supreme Court handed down Atkins. Petitioner did not move to amend his motion for a new trial
to include an Atkins claim, and his prior motion was denied on July 16, 2002. (Trial Tr. vol. 8,
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877-887). He did raise an Atkins claim on direct appeal to the Mississippi Supreme Court on
March 31, 2004. The court found that Petitioner was barred from bringing the claim for his
failure to present the issue to the trial court in a post-trial motion but stated it would “consider
the merits” of the claim, “[i]nasmuch as [the] issue is raised in the direct appeal of a capital
case[.]” Branch I, 882 So.2d at 49-50. The court found that “[w]hile Branch may have
manifested intellectual limitations at the age of five, he does not have substantial limitations in
present functioning which ‘exist [] concurrently with related limitations in’” the applicable
adaptive skill areas. See id. The court stated that when he was evaluated in 2002, Petitioner
“was appropriately groomed and properly maintained personal hygiene, possessed a driver’s
license, was responsible for buying clothing, groceries, and personal items. He completed school
through the 9th grade and attended GED classes. Branch was employed at the time of his arrest.
Branch performed household chores for relatives and people in the neighborhood. He helped
raise money for the church and community. Under these facts, Branch has not made a prima
facie showing that he falls within the category of persons protected under Atkins.” See id.
Seven days before Petitioner’s direct appeal was denied, the Mississippi Supreme Court
set forth the procedure to be followed for convicted offenders seeking to raise a challenge to their
death sentences pursuant to Atkins. See Chase v. State, 873 So.2d 1013 (Miss. 2004). When
Petitioner moved for rehearing from the rejection of his appeal on July 7, 2004, he attached to it
the affidavit3 of psychologist Dr. Daniel H. Grant, who stated that all the documents submitted to
him for review “support a diagnosis of mental retardation.” (Pet. Memo Ex. C, Aff. of Daniel H.
Grant). He stated that as he had not been afforded the opportunity to evaluate Petitioner,
3

The Court notes that the document, while sworn, is not dated.
7

however, he could not offer a conclusive diagnosis. (See id.). He stated that “it appears that Mr.
Branch has significant intellectual and adaptive deficits,” and noting the definitive prior
diagnosis, he determined that full testing was necessary to accurately assess the issue and render
a conclusive opinion. (See id.). The court granted the State’s motion to strike the exhibit, and
rehearing was denied. (See “Order” filed September 30, 2004, Pleadings Brief, No. 2002-DP01315-SCT).
Petitioner later filed for post-conviction relief, and on September 22, 2005, he filed a
petition for a stay of the proceedings in order to allow him to complete investigations prior to the
statute of limitations deadline of October 7, 2005. (See “Petition for Extraordinary Relief and
Equitable Stay, filed September 22, 2005, Pleadings Brief, No. 2004-DR-01086-SCT). Attached
as an exhibit to his motion was the affidavit of Dr. Marc L. Zimmermann, who had been retained
to evaluate Petitioner. (See id., Ex. F, Aff. of Dr. Marc L. Zimmermann, September 22, 2005).
The Mississippi Supreme Court denied Petitioner’s motion to stay, noting that the brief was
already past due and that no request for an extension of time had ever been made. (See Pleadings
Brief, “Order”, September 23, 2005).
When Petitioner presented a motion for post-conviction relief on October 7, 2005, he
argued that his claim of mental retardation was not barred, as he had not been given an
opportunity to comply with Chase. On March 24, 2006, Petitioner filed a “Motion to Amend
Petition for Post-Conviction Relief with Exhibits and Proposed Amendment.” (See Pleadings
Brief, No. 2004-DR-01086-SCT). Included in the proposed amendment were the affidavits and
reports of Dr. Zimmermann and licensed social worker Adriane Dorsey Kidd, who conducted a
psychosocial evaluation of Petitioner. Counsel attached the documents to the petition for relief.
8

(See Pet. Memo Ex. D, E, F).4 In an addendum to his psychological evaluation, Dr.
Zimmermann opines that Petitioner “meets all criteria for a diagnosis of mental retardation.”
(Pet. Memo Ex. D). On June 1, 2006, the Mississippi Supreme Court, sitting en banc, granted
Petitioner’s motion to amend, and the amended petition containing the expert opinions was filed.
(See “Order,” Pleadings Brief No. 2004-DR-01086-SCT).
In its opinion on post-conviction review, the Mississippi Supreme Court rejected
Petitioner’s claim that he should be allowed to present evidence complying with Chase in
support of his claim of mental retardation. Branch II, 961 So.2d at 663-64. The court found that
Chase was handed down seven weeks after Petitioner’s direct appeal was submitted and one
week before the direct appeal was decided on May 27, 2004. See id. at 664. The court noted that
it had struck the undated affidavit from Dr. Grant that Petitioner filed along with his motion for
rehearing, and that the same document was attached, this time unsigned, to his petition for postconviction relief. See id. The court recited its opinion on direct appeal to demonstrate that
Petitioner’s claim had been presented and alternately considered on its merits. See id. at 664-65.
The court found that Petitioner’s claims were res judicata, and that Petitioner had not complied
with “the necessary procedures nor provided the necessary documentation to rightfully comply”
with Chase. See id. at 666.5 Relief was denied.
Despite objection from the State, this Court found that Petitioner was entitled to an
4

The pleadings volumes are not consecutively paginated, and these affidavits and
documents appear numerous times in various filings. Therefore, where the same document is
also filed as an exhibit to the instant petition, the Court will refer to its designation on habeas for
ease of reference.
5

Presiding Justice Diaz, joined by Justice Graves, dissented and would have granted
Petitioner a hearing. See id. at 668-69.
9

evidentiary hearing on his claim, inasmuch as Petitioner presented a prima facie showing of
mental retardation in compliance with the requirements of Chase and was denied a hearing. (See
docket entry no. 54, “Order Setting Evidentiary Hearing on Petitioner’s Claim under Atkins v.
Virginia, 536 U.S. 304 (2002)”). This Court found that Dr. Zimmermann’s affidavit filed with
the amended petition for post-conviction relief fully complied with Chase’s requirements. It
determined that the majority of the Mississippi Supreme Court never mentioned the supplemental
proof offered by Petitioner and instead noted that the claim presented on post-conviction review
was “identical” to that raised and rejected on direct appeal. Branch II, 961 So.2d at 667 n.4.
The Court also found, on the basis of the record, that the Mississippi Supreme Court’s decision
was unreasonable, both in light of the facts presented and in light of clearly established federal
law. (See docket entry no. 54). Therefore, it determined to hold an evidentiary hearing and to
review Petitioner’s claim without the deference ordinarily afforded under the AEDPA. See, e.g.,
Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir. 2007).
The Court ordered an evidentiary hearing and granted the State’s request to allow Dr.
Gilbert Macvaugh, III, to conduct an Atkins/Chase evaluation of Petitioner. (See docket entry no.
62). Dr. Macvaugh subsequently conducted an evaluation of Petitioner and determined that
Petitioner meets the standard for mental retardation as contemplated by Atkins. The State has
now filed a notice confessing that Petitioner suffers from mental retardation. (See docket entry
no. 64).
In light of Petitioner’s submitted proof and the State’s concession, the Court will not here
engage in a detailed analysis of the evidence on this issue. Rather, it finds that proof exists in the
record to support a determination that Petitioner has met each prong of the clinical criteria for a
10

diagnosis of mental retardation by a preponderance of the evidence.
A. Significantly subaverage general intellectual functioning
The APA states that “[s]ignificantly subaverage intellectual functioning is defined as an
IQ of about 70 or below (approximately 2 standard deviations below the mean).” See DSM-IVTR at 41. Petitioner’s intellectual functioning has been assessed on four known occasions using
the Stanford-Binet Intelligence Scale and successive versions of the Wechsler Adult Intelligence
Scale (“WAIS”). The United States Supreme Court has recognized the Wechsler Scales as the
“standard instrument in the United States for assessing intellectual functioning.” Atkins, 536
U.S. at 309 n.5. Taking the approximately five point standard error of measurement into
account, the typical cutoff score for the intellectual functioning prong of the definition is an IQ
between 70 and 75 or lower. Atkins, 536 U.S. at 309 n.5; see also DSM-IV TR at 39, 41.
In 1985, Petitioner obtained a full-scale IQ score of 68 (See Pet. Memo Ex. A). In 2002
on the WAIS-III, he obtained a full-scale IQ score of 84. (See Pet. Memo Ex. B). In 2005, he
obtained a full-scale IQ score of 68 on the WAIS-III. (See Pet. Memo Ex. D). In 2011, he
obtained a full-scale IQ score of 60 on the WAIS-IV.
Dr. Macvaugh states in his report that a review of the test data from Dr. Lott’s evaluation
in 2002 reveals that a student administered the intelligence testing and made several errors in
scoring and administration that make the report invalid. (Macvaugh Rept. 14-15). Discounting
the invalid 2002 score, the remainder of Petitioner’s obtained scores fall within the range of mild
mental retardation. This Court determines that Petitioner has demonstrated by a preponderance
of the evidence that he suffers from significantly subaverage intellectual functioning.

11

B. Significant limitations in adaptive functioning6
A diagnosis of mental retardation requires significantly subaverage general intellectual
functioning “that is accompanied by significant limitations in adaptive functioning in at least two
[] skill areas.” DSM-IV-TR at 41. Significant limitations in adaptive functioning “refers to how
effectively individuals cope with common life demands and how well they meet the standards of
personal independence expected of someone in their particular age group, sociocultural
background, and community setting.” Id. at 40. Persons with mild mental retardation can
develop social, communication, and minimal sensorimotor skills at an early age such that they
are not distinguished from normally functioning individuals until later in life. Harold L. Kaplan
& Benjamin J. Saddock, Synopsis of Psychiatry: Behavioral Sciences/Clinical Psychiatry 1138
(8th ed. 1998). During their school years, persons with mental retardation can learn academic
skills up to the approximately sixth-grade level, and by their late teens may be “guided toward
social conformity.” Id. As an adult, they can “usually achieve social and vocational skills
adequate to minimum self-support but may need guidance and assistance when under unusual
social or economic stress.” Id. The definitions of the DSM-IV-TR and the 1992 AAMR use the
same categories of skill areas to be considered.7 These adaptive skill areas are: (1)

6

All of the adaptive skill deficits found by the experts are not discussed herein, though
the areas of deficits are recounted in each report/affidavit filed by the experts.
7

The 1992 AAMR combines “health and safety” into one category while the DSM-IV-TR
separates them into two categories. As such, the AAMR uses ten categories while the DSM-IVTR references eleven. In 2002, the AAMR re-designated the skill areas into three categories:
conceptual, social, and practical. 2002 AAMR 73. A clinician making a diagnosis using the
2002 edition determines whether the individual scores two standard deviations or more below the
mean in one of the three adaptive behavior skill areas to determine if that individual’s limitation
is significant. See 2002 AAMR at 78.
12

communication; (2) self-care; (3) home living; (4) social skills; (5) community use; (6) selfdirection; (7) health; (8) safety; (9) functional academics; (10) leisure; and (11) work. See, e.g.,
DSM-IV-TR at 41; 1992 AAMR at 5.
Both Dr. Zimmermann and Dr. Macvaugh found Petitioner to suffer significant deficits in
communication and functional academics. (See Pet. Memo Ex. D; Macvaugh Rept. 35).
Petitioner failed the fifth and sixth grades and failed the GED exam. (See id). In standardized
achievement testing, Dr. Zimmermann found Petitioner’s academic abilities to be at or below a
third grade level, while Dr. Macvaugh found Petitioner’s skills “no higher than the 6th grade level
in all areas assessed.” (See Pet. Memo Ex. D; Macvaugh Rept. 35-36). Dr. Macvaugh also noted
that Petitioner’s trial testimony was “replete with instances in which he had obvious difficulties
understanding and responding to fairly simple questions asked of him.” (Macvaugh Rept. 36).
Both experts also noted Petitioner’s limitations in caring for himself. Dr. Zimmermann found it
significant that Petitioner’s family members handled money and made decisions for him, while
Dr. Macvaugh noted that Petitioner required assistance in getting a driver’s license and in
obtaining his two semi-skilled employment positions. (See id.). Dr. Macvaugh also noted that
Petitioner appears to suffer significant deficits in reasoning abilities, as he was unable to
successfully look up numbers in a telephone book, fill out a check, address an envelope, or look at
a clock and determine the time. (See id. at 36).
In light of these findings, the Court finds Petitioner has met his burden of demonstrating
by a preponderance of the evidence that he suffers from significant limitations in at least two
adaptive skill areas identified by the DSM-IV-TR and the 1992 AAMR, and in at least one area as
identified by the 2002 AAMR, prior to the age of 18.
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C. Onset “before age 18 years”
Both Dr. Zimmermann and Dr. Macvaugh opined that the onset of Petitioner’s condition
occurred prior to his reaching eighteen years of age. Petitioner was assessed for mental
retardation at the age of five, and he was administered an adaptive behavior instrument, the
Vineland Social Maturity Scale, at that time. Petitioner’s scores on the Vineland and his
diagnosis of mental retardation at the age of five indicate that he had intellectual and adaptive
deficits before the age of eighteen. (See Pet. Memo Ex. D; Macvaugh Rept. 36). Petitioner has
shown by a preponderance of the evidence that mental retardation was present before he turned
eighteen years old.
D. Malingering
Dr. Macvaugh administered the Test of Memory Malingering (“TOMM”) as a malingering
measure and found no evidence that Petitioner appeared to be malingering adaptive deficits. (See
Macvaugh Rept. 33).
Therefore, Petitioner has shown by a preponderance of the evidence that he satisfies the
criteria for a diagnosis of mental retardation within the meaning of Atkins v. Virginia and Chase v.
State, and he is entitled to have his sentence of death vacated.8
II. Assistance of Counsel
Petitioner maintains that his trial counsel performed ineffectively pre-trial and at trial. In
order to demonstrate that he received the ineffective assistance of counsel in violation of his rights

8

In his federal habeas petition, Petitioner raised additional claims relating to the
sentencing phase of his trial. Because the Court vacates Petitioner’s sentence of death on the
ground of mental retardation, these issues are rendered moot and will not be addressed in this
opinion.
14

under the Sixth Amendment, Petitioner must demonstrate that counsel performed deficiently, and
that his defense was prejudiced as a result of the deficient performance. Strickland v. Washington,
466 U.S. 668, 687 (1984). The Court presumes that counsel exercised an objectively reasonable
professional judgment, and it reviews counsel’s behavior in light of counsel’s perspective at the
time of the conduct and in light of “prevailing professional norms.” Id. at 687, 689-90. Errors by
counsel warranting relief are only those “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Prejudice is shown where a
petitioner demonstrates a reasonable probability of a different outcome absent the errors. Id. at
694. This inquiry is not solely outcome related, however, as the concern is whether counsel’s
errors deprived the petitioner of a fair or reliable result. See Lockhart v. Fretwell, 506 U.S. 364,
368-69 (1993). Where a Strickland claim has been presented in a state court and adjudicated on its
merits, federal court review is “doubly deferential” and asks “‘whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.’” Cullen v. Pinholster, ___ U.S.
___, ___, 131 S. Ct. 1388, 1426 (2011) (quoting Harrington v. Richter, 526 U.S. ___, ___, 131 S.
Ct. 770, 788 (2011)).
A. Voluntariness of statement
Petitioner argues that trial counsel rendered ineffective assistance in failing to present
evidence of his intellectual disability when moving to suppress his confession. He maintains that
his confession was the only evidence linking him to the crime and was the lynchpin for the
introduction of evidence concerning Deondray Johnson. Petitioner contends that he was
prejudiced by counsel’s failure because the jury never had the opportunity to consider the effect of
his disability on the voluntariness or reliability of his statements. He otherwise argues that
15

counsel should have pointed out the exculpatory portions of his statement once the confession was
admitted. The Mississippi Supreme Court rejected Petitioner’s claim on direct appeal, finding
that counsel did the best it could to suppress Petitioner’s statement on the basis of allegations of
physical and psychological intimidation. Branch I, 882 So.2d at 60-62.
Defense counsel moved to suppress Petitioner’s statement to police on the basis that it was
involuntarily given, taken in violation of his right to counsel and to remain silent, and taken after
an unconstitutionally prolonged detention. (See Pet. Memo Ex. V). Defense counsel did not seek
a release of Petitioner’s records until the day of the suppression hearing, when counsel obtained
permission from Petitioner and his mother for the release of his mental health records. (See Pet.
Memo Ex. S; see also Trial Tr. vol. 2, 30). At the suppression hearing, Deputy Michael
Spellman testified that on each occasion before Petitioner was interviewed, Petitioner was advised
of his rights and voluntarily executed a waiver without pressure, threats, or promises. (See id. at
31-33; 34-38; 65-66). Sheriff Gray and Deputy Miskelly also testified that no threats were made
to Petitioner during the time he was questioned or transported for questioning. (See id. at 67-70).
Petitioner testified at the suppression hearing that law enforcement officials entered his
home and took evidence without permission. (See id. at 39-40). He also testified that he was read
his rights, though he did not really understand them, and that the deputies brandished their
weapons and insinuated harm might come to his family if he did not cooperate. (See id. at 39-43).
Petitioner maintained that the deputies told him how the crime occurred, and that he only repeated
their statements on videotape out of fear that he and his family would be killed otherwise. (See id.
at 43-44). On cross-examination, he admitted that he was advised of his rights three different
times. (See id. at 46).
16

Neither defense counsel nor the prosecution asked to be heard further on the motion. (Id.
at 71). The trial court found that Petitioner “freely and voluntarily gave a statement, and the same
was not coerced by any officer of the law.” (See id. at 71-72). The defense motion was overruled,
and Petitioner’s videotaped statement was introduced against him at trial.
Voluntariness under the Due Process Clause is assessed by inquiring “‘whether a
defendant’s will was overborne’ by the circumstances surrounding the giving of a confession.”
Dickerson v. United States, 530 U.S. 428, 434 (2000) (citation omitted); Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973) (holding that voluntariness is assessed under the totality of
the circumstances). A statement is voluntary if it is the “product of a free and deliberate choice”
that is “made with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). In the
absence of coercive police tactics, the statement is not constitutionally involuntary merely because
Petitioner’s intellectual functioning is impaired. See Colorado v. Connelly, 479 U.S. 157, 164
(1986). The trial court found Petitioner’s statement freely given and rejected Petitioner’s
allegations of police overreaching. The record provides a factual basis for the trial court’s
decision. See Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir. 1993) “stating [w]hether the
police engaged in the coercive tactics alleged by the defendant is a subsidiary fact; as such, the
trial court’s finding is entitled to deference if it is supported in the record.” (citation omitted).
Inasmuch as Petitioner’s allegation of coercion was rejected, evidence of Petitioner’s prior
diagnosis of mental retardation would not have led to the suppression of the statement.
Additionally, the Court finds that the record supports a conclusion that defense counsel did
attempt to use the exculpatory facts in evidence to further the defense in this case. Petitioner’s
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counsel did contest the DNA evidence on relevancy grounds and presented testimony to show that
it was Johnson, not Petitioner, who was the principal actor in the murder.
Petitioner has not demonstrated that his statement would have been suppressed as
involuntary if counsel had presented evidence of his mental deficiencies, or that counsel’s use of
the admitted videotaped statement warrants federal habeas relief. Petitioner has failed to
demonstrate that the Mississippi Supreme Court’s rejection of this claim is unreasonable, and
Petitioner will be denied relief on this claim.
B. Constitutionality of arrest
Petitioner maintains that he gave an inculpatory statement to police only after his
warrantless arrest, and that his trial counsel performed ineffectively in failing to seek the
suppression of his custodial statement as the fruit of an illegal seizure. On direct appeal, the
Mississippi Supreme Court rejected his claim. Branch I, 882 So.2d at 60.9
The Fourth Amendment guarantees an individual’s right “to be secure . . . against
unreasonable searches and seizures.” U.S. CONST. amend. IV. A warrantless arrest is a seizure
within the meaning of the Fourth Amendment, and as such, it must be supported by probable
cause in order to be valid. See Kaupp v. Texas, 538 U.S. 626, 630 (2003). In order to determine
whether a seizure has occurred, a court asks whether, in light of the circumstances surrounding the
officer’s actions, a reasonable person would have believed he was free to leave. United States v.
Mendenhall, 446 U.S. 544, 554 (1980). Where a person’s Fourth Amendment right has been
9

The Court notes that the Mississippi Supreme Court did not engage in a discussion of
this particular claim, even though it cited the argument. See Branch I, 882 So.2d at 60 ¶ 62. The
decision, even though unexplained, is afforded deference. See Harrington, 131 S. Ct. at 784
(holding that a decision denying relief “unaccompanied by an explanation” must still be shown
to have no reasonable basis in order for a petitioner to carry his burden).
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violated, evidence obtained in violation of that right is generally inadmissible against him at trial
as the “fruit” of the illegal activity. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484-85
(1963).
If Petitioner were bringing an independent Fourth Amendment claim, it would be barred
by Stone v. Powell, 428 U.S. 465, 494 (1976), as he had a full and fair opportunity to litigate the
issue of his arrest in State court. Inasmuch as Petitioner’s claim is that counsel rendered
ineffective assistance in failing to suppress the fruits of the allegedly unconstitutional arrest, and it
is viable. See Kimmelman v. Morrison, 477 U.S. 365, 383 (1986). However, in order to show
ineffective assistance in these circumstances, Petitioner must first show that his Fourth
Amendment claim has merit. Id. at 375.
Petitioner was twice questioned by law enforcement officers before he gave an inculpatory
statement. When Petitioner was approached at his place of employment and asked to accompany
Deputy Spellman to the sheriff’s office for additional questioning, he voluntarily agreed. (See,
e.g., Trial Tr. vol. 5, 467). Petitioner was not under arrest at the time, though he was handcuffed
in front of his body and placed in the back of the squad car for transport. (See Trial Tr. vol. 2, 34;
Trial Tr. vol. 5, 466-67; Trial Tr. vol. 6, 657-59, 695, 732-33). Deputy Spellman testified that
Petitioner was informed at that time that he was not under arrest but was being handcuffed solely
for safety reasons. (Trial Tr. vol. 7, 735-36). Petitioner’s voluntary interaction with law
enforcement is not a seizure within meaning of Fourth Amendment. See Mendenhall, 466 U.S. at
557-58 (determining that a voluntary consent to accompany police is not an arrest requiring
probable cause); Morales v. New York, 396 U.S. 102 (1961); United States v. Webster, 750 F.2d
307, 321 (5th Cir. 1984) (holding that a “voluntary trip to the police station for questioning does
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not implicate the fourth amendment”).
However, because law enforcement officials came to Petitioner’s place of employment,
handcuffed him, and transported him back to the sheriff’s department to question him, it is
arguable that Petitioner did not really believe that he had a choice but to cooperate. Assuming,
without deciding, that Petitioner was subject to “arrest” at the time of his interrogation, it was
invalid if not supported by probable cause. See, e.g., Kauup, 538 U.S. at 631-32. Probable cause
existed if the officers had “reasonably trustworthy information . . . sufficient to warrant a prudent
man in believing that the petitioner had committed” a crime in light of all the circumstances. Beck
v. Ohio, 379 U.S. 89, 91 (1964). In this case, Petitioner gave facts that the officers objectively
knew to be untrue, such as where he was during the early morning hours of the murder. The
officers had spoken to numerous patrons of Dot’s and knew that Petitioner had been there with
Johnson in the early morning hours before Dot was killed. Additionally, Petitioner gave officers
facts in the initial interview that were denied by Johnson, with whom Petitioner conceded he had
spent the evening. These facts are sufficient to provide reasonable grounds to believe that
Petitioner had been involved in the crime. See, e.g., McBride v. Crime Stoppers, 41 F.3d 661,
1994 WL 684541at *4 (5th Cir. 1994) (finding that inconsistent statements as to whereabouts
constitute probable cause for arrest); Thorson v. State, 653 So.2d 876, 886 (Miss. 1994) (probable
cause existed to arrest defendant without a warrant when he was last person to see victim alive
and gave conflicting statements to police).
Defense counsel did argue in this case for the suppression of Petitioner’s statement, and
counsel’s assistance is not rendered deficient by her failure to allege an invalid arrest as grounds.
Because Petitioner has not shown a reasonable probability that his claim would have been
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successful, he has also not demonstrated that he was prejudiced as a result of counsel’s strategy.
Moreover, the harm suffered when counsel is ineffective in suppressing reliable evidence is “not
the denial of a fair and reliable adjudication of his guilt, but rather the absence of a windfall.”
Kimmelman, 477 U.S. at 396 (1986) (Powell, J., concurring). Therefore, Petitioner has not
demonstrated that it was unreasonable for the State court to deny his Strickland claim on this
issue, and it will be dismissed.
C. Forensic evidence
Petitioner maintains that trial counsel rendered ineffective assistance in failing to
challenge the State’s forensic evidence linking Johnson to the crime, as Petitioner’s custodial
statement was the only evidentiary connection between Johnson and Petitioner. The Mississippi
Supreme Court rejected Petitioner’s claim on direct appeal. See Branch I, 882 So.2d at 62.
Petitioner maintains that the court’s decision is unreasonable, as trial counsel had a duty to secure
experts who could present an alternate theory in an effort to create reasonable doubt. Counsel’s
failure was compounded, Petitioner maintains, by counsel’s failure to cross-examine the State’s
DNA experts and subject the case to adversarial testing.
Jorden’s blood was found on broken pieces of furniture wood discarded in the woods near
her home, and wood with a similar appearance was found at Johnson’s home. Jorden’s blood was
also found on clothing that police recovered from Johnson. Defense counsel Crawford moved at a
pretrial hearing to suppress the DNA evidence obtained in the case, as it linked Johnson, but not
Petitioner, to the crime. (See SCP vol. 1, 32-33). At trial, defense counsel objected to the
introduction of the physical evidence, and the trial court determined the evidence was relevant and

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more probative than prejudicial. (See Trial Tr. vol. 6, 594, 600, 610, 612-14).10 Joe Andrews,
employed in the trace evidence section of the Mississippi Crime Laboratory, testified that the
wood pieces recovered from near the victim’s house were originally part of the same piece, and
that the pieces of wood recovered from Johnson’s home bore a consistent appearance with the
wood recovered near the crime scene. (See Trial Tr. vol. 6, 585-95). Forensic DNA analyst,
Chris Larsen, testified that the blood found on the wood, Johnson’s shoes, and Johnson’s jeans
was consistent with the known DNA sample of Jorden. (See id. at 617-28).11 Trial counsel did
not cross-examine these witnesses.
The record demonstrates that defense counsel did make efforts, although unsuccessful, to
suppress Petitioner’s confession and the physical evidence in this case. The defense theory at trial
was that Johnson killed the victim in this case, and the testimony established that the physical
evidence linked only Johnson to the crime. Once the attempt to suppress Petitioner’s confession
failed, the omission of the physical evidence linking only Johnson to the murder would not have
been exculpatory to Petitioner in light of his chosen defense. Additionally, there is no basis to
assume that another expert’s review of the DNA results would have revealed different
information, and the possibility that something could have been wrong with the testing will not
support an ineffective assistance of counsel claim. See Collier v. Cockrell, 300 F.3d 577, 587 (5th
Cir. 2002) (holding that conclusory allegations of counsel’s ineffectiveness do not raise a

10

All of the evidence was allowed except Petitioner’s shoes. The court refused to admit
the shoes into evidence, as it could only be determined that there was human DNA on them.
(Trial Tr. vol. 6, 613-14).
11

Amy Winters also testified regarding the standard process for collecting blood samples
that were followed in the case. (Trial Tr. vol. 6, 585-89).
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constitutional issue in federal habeas). Petitioner has failed to demonstrate that the decision of the
Mississippi Supreme Court is unreasonable, and this claim will be dismissed.
D. Batson objections
Petitioner was convicted and sentenced to death by an all white jury. He maintains that
counsel rendered ineffective assistance by failing to challenge the State’s use of three out of four
peremptory challenges to exclude black venire members from the jury on the basis of race in
violation of Batson v. Kentucky, 476 U.S. 79 (1986). He maintains that counsel’s failure to make
an objection or make a record in this case prevented meaningful review of his claim on appeal,
and that the Mississippi Supreme Court unreasonably rejected his claim by assessing the merits of
his Batson claim rather than applying Strickland. On direct appeal, the Mississippi Supreme
Court found Petitioner’s claim barred for counsel’s failure to raise it at trial, and it otherwise
found the claim without merit, as Petitioner failed to make a prima facie case of racial
discrimination. See Branch I, 882 So.2d at 58-60.
The record establishes that Petitioner’s jury was selected out of the first twenty-eight
persons remaining on the panel after challenges for cause were exercised, and only three of those
potential jurors were black. (See Pet. Memo Ex. W; Trial Tr. vol. 4, 345-50). All three of the
black potential jurors were peremptorily struck by the prosecution, and no challenge to the strikes
was raised by defense counsel. (See Trial Tr. vol. 4, 350-51; Pet. Memo Ex. W). When defense
counsel presented a motion for a new trial on July 16, 2002, Crawford made an ore tenus Batson
motion. (See Trial Tr. vol. 8). She argued that defense counsel Stuckey handled that portion of
the trial, and that the process went too quickly to allow her to talk to him about challenging the
strikes on the basis of Batson. (See id. at 880-81). Stuckey informed the court that he did not
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object because there were justifiable reasons to have the jurors excluded, which he recited to the
trial court as to two of the jurors. (See id. at 881-82). Stuckey noted only a “justifiable reason”
for the exclusion of the first juror. (See id. at 881). He believed that one of the jurors was
completely unresponsive to questions regarding the death penalty, while another potential juror
had been previously represented by defense counsel Crawford and had a sister previously
convicted of shoplifting. (See id.). The trial court found that the matter had been waived under
State law, and that Stuckey’s statements as to why he did not raise a challenge “sufficiently
answer[ed]” all of the Batson issues. (Id. at 883).
Despite Respondents’ contentions to the contrary, the Court does not find Petitioner’s
ineffective assistance claim procedurally barred from federal habeas review. Trial counsel did not
have to raise an allegation of his or her own ineffectiveness under State law to preserve the issue.
See Archer v. State, 986 So.2d 95, 956 (Miss. 2008) (“[A] self-ineffectiveness claim is absolutely
inappropriate”). Therefore, the Court considers the merits of Petitioner’s claim.
The exercise of peremptory challenge in a racially discriminatory manner violates the
Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79 (1986).
Batson established a three-part analysis for a defendant claiming racial discrimination in the
prosecutor’s use of peremptory challenges: “(1) a defendant must make a prima facie showing
that the prosecutor exercised his peremptory challenges on the basis of race; (2) the burden then
shifts to the prosecutor to articulate a race-neutral reason for striking the juror in question; and (3)
the trial court must determine whether the defendant carried his burden of proving purposeful
discrimination.” Moody v. Quarterman, 476 F.3d 260, 266 (5th Cir. 2007) (citations omitted).
A petitioner’s production of evidence “sufficient to permit the trial judge to draw an
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inference that discrimination has occurred” will allow the petitioner to move to the second step of
the Batson inquiry. Johnson v. California, 545 U.S. 162, 170 (2005). A court must consider “all
relevant circumstances” when determining whether a prima facie case of discrimination has been
made, and that includes all of the information known to the parties at the time the strike was
exercised. Edmondson v. Leesville Concrete Co., Inc., 500 U.S. 614, 631 (1991). However,
Petitioner does not make out a prima facie case just by demonstrating that the jury was not
diverse. See Soria v. Johnson, 207 f.3d 232, 239 (5th Cir. 2000) (finding that a defendant must
prove discrimination by more than the sole fact that minority venire-persons struck); Lockett v.
Anderson, 230 F.3d 695, 707 (5th Cir. 2000) (“[M]ere cognizance of racial identity does not
necessarily establish, or even imply, racial discrimination.”). Petitioner fails to carry his burden
simply by pointing out that the jury contained no black members and that there is no facially
sufficient finding that a race-based pattern is absent. The burden is on Petitioner to make out the
prima facie case and not upon the State to show the absence of one.
However, even if the Court were to assume that Petitioner made a prima facie case of
discrimination that was not sufficiently rebutted by the prosecution, it notes that the “ultimate
burden of persuasion” in this case belongs to Petitioner. See Purkett v. Elem, 514 U.S. 765, 768
(1995). There were three black potential jurors - Gatewood, Givens, and Williams - who were
peremptorily struck by the prosecution in this case. (See, e.g., Trial Tr. vol. 8, 882). A review of
the record shows that Gatewood had been related by marriage to one of the witnesses in this case
and expressed inconsistencies in her death penalty views. (See Trial Tr. vol. 4, 291, 312-13, 332).
There is no record that Givens gave any voir dire responses. The voir dire responses of Williams
indicate that defense counsel Crawford did previously represent her, and that she had a sister who
25

had been convicted of shoplifting. (See Trial Tr. vol. 3, 141, 161). The record confirms Stuckey’s
recount to the trial court of his reasons for not objecting to the strikes. Additionally, the Court
notes that the trial judge indicated to the Mississippi Supreme Court that racial considerations
were not apparent at trial. (See “Report of the Trial Judge Where Death Penalty Is Imposed”).
The fact that a member of the defense team thought the strikes were justified is not, absent other
proof, evidence of any collusion with the State to deny Petitioner a racially diverse jury. The
Court notes that even if counsel performed deficiently in failing to communicate and agree on
whether to make Batson objections, there is no indication in the record that Petitioner was
prejudiced as a result. Because Petitioner has failed to demonstrate that potential jurors were
excluded in a racially discriminatory manner, his ineffective assistance claim based on Batson
also fails. See Medellin v. Dretke, 371 F.3d 270, 278 (5th Cir. 2004).
E. Cumulative effect
Petitioner maintains that the cumulative effect of trial counsel’s errors warrants federal
habeas relief. An accumulation of errors, which are individually harmless or otherwise nonreversible, may require reversal where they deny the defendant a fundamentally fair trial. See,
e.g.,United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998). The doctrine of cummulative
error will allow habeas relief when errors of constitutional dimension have occurred, the matters
are not procedurally barred, and the errors “so infected the entire trial that the resulting conviction
violates due process.” Derden v. McNeel, 978 F.3d 1453, 1454 (5th Cir. 1992). On direct appeal,
the Mississippi Supreme Court held that “each of the foregoing assignments of error have been
found to be without merit and we thus find that there was no cumulative error.” Branch I, 882
So.2d at 58. Petitioner has not demonstrated that decision was unreasonable, and this claim shall
26

be dismissed.
Certificate of Appealability
Under the AEDPA, Petitioner must obtain a certificate of appealability (“COA”) before
appealing this Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA
will not issue unless Petitioner makes “a substantial showing of the denial of a constitutional
right” of any claim rejected on its merits, which Petitioner may do by demonstrating that
“reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where a petitioner’s claim has been denied on procedural grounds, Petitioner must additionally
demonstrate that “jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Slack, 529 U.S. at 484. This Court must issue or deny a COA upon its
entry of an order adverse to Petitioner. See Rule 11 of the Rules Governing § 2254 Cases. The
Court, resolving in Petitioner’s favor any doubt as to whether a COA should issue, determines that
Petitioner has not demonstrated that reasonable jurists would debate its procedural and/or
substantive rulings on the remaining claims raised by Petitioner. Therefore, a certificate of
appealability will not issue.
Conclusion
For the reasons stated herein, Petitioner is entitled to have his sentence of death vacated
pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) and Chase v. State, 873 So.2d 1013 (Miss.
2004). This Court will issue a Writ of Habeas Corpus unless, within sixty days of the date the
Judgment in this case becomes final, the State of Mississippi vacates Petitioner’s death sentence
and imposes a sentence less than death. The remainder of Petitioner’s claims do not warrant
27

federal habeas corpus relief and shall be dismissed. A separate judgment in accordance with this
opinion shall issue today. Accordingly, it is hereby ORDERED that:
1. Relief on Petitioner’s claim of mental retardation is GRANTED, and this Court will issue a
Writ of Habeas Corpus unless, within sixty days of the date the Judgment in this case becomes
final, the State of Mississippi vacates Petitioner’s death sentence and imposes a sentence less than
death.
2. Petitioner is DENIED an evidentiary hearing on his remaining claims.
3. All other federal habeas corpus relief requested by Petitioner is DENIED, and the remaining
claims in the petition shall be DISMISSED with prejudice.
4. All pending motions are DISMISSED as moot.
5. Petitioner is DENIED a Certificate of Appealability on all claims raised in the petition not
related to the sentencing phase of his trial.
6. A separate Judgment in conformity with this Opinion and Order shall issue today.
SO ORDERED, THIS the 2nd day of December, 2011.
/s/ MICHAEL P. MILLS
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI

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