Grayson v. Epps, et al

Filing 155

Memorandum Opinion and Order: the Court denies 104 Seconded Amended Writ of Habeas Corpus Petition and dismisses this case with prejudice. Court denies a certificate of appealability upon the entry of a final order... see order. Signed by District Judge Carlton W. Reeves on 3/21/2024 (PKS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
BLAYDE GRAYSON
v.

PETITIONER
CIVIL ACTION NO. 1:04-CV-708-CWR

LYNN FITCH, Attorney General, State
of Mississippi, et al.

RESPONDENTS

MEMORANDUM OPINION AND ORDER
This is a capital habeas case. The Petitioner, Blayde Grayson, was convicted of
capital murder and sentenced to death in the Circuit Court of George County,
Mississippi. He wants this federal court to issue a Writ of Habeas Corpus that vacates
his state-court conviction and sentence. In habeas cases, the standard of review is
highly deferential, constraining, and even suffocating. It is a difficult standard to
meet. As the Court will explain in more detail below, when reviewing the state court’s
rulings, it does not matter whether the federal court believes the state court’s
determinations might have been incorrect. Instead, the federal court determines
whether the state court’s determinations were unreasonable. For the following
reasons, the Court denies Grayson’s petition and dismisses this case with prejudice.
I. BACKGROUND
It was not unusual for Ray Pierce to begin his day early. The morning of May
5, 1996, was just another day. Around 5:00 a.m., Pierce took a walk around his George
County property. Trial Record Vol. 7 [153-12], at 22. His mother-in-law, Minnie
Smith, lived in a house nearby. Id. at 20. During the walk, Pierce noticed that one of

Smith’s windows was open, and the screen was missing. Id. at 22. Otherwise, nothing
appeared to be out of order. Id. at 23. He checked her front door, to see if there was
any indication that she was awake, but he concluded that she was still asleep and
returned home. Id. at 22-23. It was early.
Pierce then stuck to his routine on this Sunday morning. He left home to pick
up a newspaper and some breakfast. Id. at 23. When he returned to Smith’s home,
his typical day turned into a nightmare. There was still no indication that Smith was
awake. Id. at 23. Pierce went to Smith’s bedroom window and called for her, but she
did not answer. Id. at 23-24. He walked around to the back of the house and noticed
that the door onto a small back porch – which Smith typically kept latched – was
open. Id. at 24. Pierce also noticed that the door which led from the porch into Smith’s
kitchen was open. Id. That was unusual, as she typically locked that door with a
deadbolt. Id.
Pierce entered the house to investigate, and he found Minnie Smith’s lifeless
body lying on her bed with a bloody quilt over her head. He pulled back the quilt and
found that her head was black from an apparent beating, and she had a gash on her
neck. Id. at 24-26. She was dead. He and his wife called the authorities.
Elaine Pierce – Smith’s daughter – had seen her 78-year-old mother the night
before, and she was in generally good health for her age. Trial Record Vol 6 [153-11],
at 133-34. On the morning Pierce and her husband discovered that Smith had been
murdered, a wheelbarrow had been pushed under the open window on Smith’s home,
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and there were tire tracks leading to the back porch. Id. at 137, 142. They could not
find the missing screen. Id. at 138. Elaine Pierce also testified that Smith’s purse, a
pocket watch that had belonged to her father, a shotgun, a flashlight, a lantern, and
a kitchen knife were missing from the house. Id. at 143. A couple of days earlier,
Pierce had taken her mother to the bank to cash a social security check, and there
was over $200.00 in Smith’s purse at the time of the murder. Id. at 150-51.
Paramedics arrived and confirmed that Smith was dead. According to the
autopsy report, 1 Smith suffered thirty stab wounds, six slashing wounds, and blunt
force trauma to the head. Trial Record Vol. 8 [153-13], at 123, 138, 140; PCR Record
Vol. 1 [154-1], at 58, 66. The medical examiner, Dr. Stephen Hayne, testified that the
stab wounds were made by a blade about two inches long, and he confirmed that the
kitchen knife which was stolen from Smith’s house fit the criteria. Trial Record Vol.
8 [153-13], at 143-44. Hayne testified that Smith’s first injury was the blunt force
trauma to the head, which caused significant bleeding over the surface of the brain
and could have caused her death over time. Id. at 142, 147. Most of the stabbing and
slashing wounds were likely inflicted after the head injury, and they were primarily
on her face and neck, although there were some defensive wounds to her hands and
arms. Id. at 128-131, 135, 147. Hayne testified that two stab wounds to Smith’s chest
killed her. Id. at 136-37. One cut through her trachea and carotid artery; another cut
through her lung and struck her heart. Id. Hayne estimated that the total time of the

1

See PCR Record Vol. 1 [154-1], at 57-67.

3

attack was less than twenty minutes, and that Smith would have been conscious for
at least part of that time, given the defensive wounds on her hands and arms. Id. at
131, 136, 147, 149. He said that while she was conscious, she suffered “considerable
pain.” Id. at 146, 148.
Local law enforcement officers, assisted by the State Crime Lab, began their
investigation. Trial Record Vol. 7 [153-12], at 53. They took blood samples from
several locations in the house, including the bathroom. Id. at 114-23. They also took
fingerprints, as well as photographs of tire tracks and shoe impressions from outside
the house. Id. at 123-29. After interviewing several people in the area, officers settled
on the Petitioner, Blayde Grayson, as a suspect. Id. at 65-66, 95.
Grayson grew up about a quarter of a mile from Minnie Smith, where he lived
with his mother and stepfather. Trial Record Vol. 10 [153-15], at 52, 57. The Smith
and Grayson families were well-acquainted and friendly with each other. Id. at 58;
Exhibit 9 to Petition [8-2], at 27, 33-34. Grayson began having disciplinary problems
as a teenager. Trial Record Vol. 10 [153-15], at 54. He started using marijuana when
he was thirteen or fourteen, and by the time he was seventeen he graduated to using
crystal meth and cocaine. Id. at 54; Trial Record Vol. 9 [153-14], at 30, 33-34; Exhibit
35 to Petition [8-2], at 137; Exhibit 37 to Petition [8-2], at 147; Exhibit 51 to Petition
[8-2], at 189-90. The drugs made him a different person according to some, Exhibit
35 to Petition [8-2], at 137, and Grayson began breaking into homes while under the
influence. Trial Record Vol. 9 [153-14], at 31, 34; Exhibit 36 to Petition [8-2], at 142.
4

In August 1995 – approximately nine months before the murder – he pleaded guilty
to grand larceny and knowingly receiving stolen property and was sentenced to the
Pascagoula Restitution Center. Trial Record Vol 9 [153-14], at 31; Exhibit 12 to
Petition [8-2], at 66-67.
In January 1996 – before he completed his sentence – he left the Restitution
Center and traveled to Florida. A warrant was issued for his arrest. Successive PCR
Record Vol. 2 [69-2], at 107; Exhibit 2 to Petition [8-2], at 5-6; Exhibit 37 to Petition
[8-2], at 148. While in Florida, Grayson met Jason Kilpatrick and moved in with him
near Pensacola. Exhibit 55 to Petition [8-2], at 201-02; Trial Record Vol. 8 [155-13],
at 9. From January 1996 to May 1996, Grayson and Kilpatrick were active drug users,
and they committed at least three armed robberies together. Exhibit 55 to Petition
[8-2], at 201-02; Trial Record Vol. 9 [153-14], at 44; Trial Record Vol. 4 [153-9], at 46.
On May 4, 1996 – the night of the murder – Grayson and Kilpatrick traveled to
George County, Mississippi, ostensibly to visit Grayson’s grandparents. Exhibit 10 to
Petition [8-2], at 37, 41.
After their initial investigation led to Grayson as a suspect, law enforcement
officers learned that he had been living in Escambia County, Florida. Trial Record
Vol. 7 [153-12], at 65-55. They notified law enforcement in that area that they were
looking for Grayson in connection with a murder. Id.; Trial Record Vol. 4 [153-9], at
46. On May 17, 1996, Escambia County authorities took Grayson and Kilpatrick into
custody after a SWAT team stand-off at Grayson’s girlfriend’s trailer, and they
5

contacted George County that they had Grayson in custody. Trial Record Vol. 9 [15314], at 40; Trial Record Vol. 4 [153-9], at 60. After the Florida officers questioned
Grayson about the series of armed robberies he and Kilpatrick had committed, he
expressed a desire to talk about “other crimes going on.” Trial Record Vol. 4 [153-9],
at 54. Accordingly, George County Sheriff George Miller traveled to Florida with Al
Hillman, a Sheriff’s Department investigator, and Houston Dorr, a Mississippi
Highway Patrol (“MHP”) investigator. Trial Record Vol. 7 [153-12], at 66; Trial Record
Vol. 8 [153-13], at 31.
While the Mississippi officers were in Florida, they recovered a twelve-gauge
shotgun, a small knife, a flashlight, and a lantern from Grayson’s girlfriend’s trailer.
These four items were later identified by the Pierces as having been taken from
Minnie Smith’s house. Trial Record Vol. 8 [153-13], at 31; Trial Record Vol. 7 [15312], at 66-72, 84-85; Trial Record Vol. 6 [153-11], at 145-49. The officers also retrieved
the vehicle that Grayson had driven to Mississippi. Trial Record Vol. 7 [153-12], at
72-74. A crime lab technician took impressions of the tire tracks and footprints left at
the murder scene, but the State’s forensic scientist was unable to make a definitive
identification. Id. at 127, 131, 138-143. The technician also took fingerprints from the
crime scene, but they did not match Grayson’s or Kilpatrick’s. Trial Record Vol. 8
[153-13], at 106-07.
When the Mississippi officers arrived in Florida, they attempted to interview
Grayson because the Florida officers had said he wanted to talk. Trial Record Vol. 4
6

[153-9], at 26, 50, 54. The Mississippi officers gave Grayson a Miranda warning, and
he signed a waiver of rights. Id. at 27, 32. However, after they asked a few questions,
Grayson said he did not want to talk to them until he talked to his lawyer. Id. at 27;
Trial Record Vol. 8 [153-13], at 97; Trial Record Vol. 9 [153-14], at 47, 52. Sheriff
Miller responded that the Florida officers had said that he wanted to talk, and
Grayson answered, “I was going to deal with you all when I got down there and got
my lawyer.” Trial Record Vol. 4 [153-9], at 28. Miller then asked another question
about Grayson’s location at the time Minnie Smith was murdered, and Grayson
answered, “I’m not willing to discuss nothing until I talk to my lawyer. I didn’t mean
to bring you fellows all the way down here for nothing, . . . but I need to talk to my
lawyer about this. This is a situation.” Id. at 28-29; Trial Record Vol. 9 [153-14], at
52-53. Miller pressed on. He asked Grayson questions about traveling to Mississippi,
and Grayson finally answered: “I want to talk to my lawyer, and I’m through
discussing this. I don’t mean to drag you fellows all the way down here, and I didn’t
know you were coming. They ain’t nobody told me nobody was coming from George
[County]. I told [them] I would take care of that next week when I got [to] George
[County].” Trial Record Vol. 4 [153-9], at 29-31. Sheriff Miller terminated the
interrogation.
Grayson waived an extradition hearing, and officers transported him to the
George County Jail. Id. at 58-59. On May 20, a court order permitted officers to take
biological samples from him. Exhibit 4 to Petition [8-2], at 15. For several days after
7

he arrived in George County, Grayson was on suicide watch, and an officer checked
on him every fifteen minutes. Exhibit 3 to Petition [8-2], at 8-13; Trial Record Vol. 4
[153-9], at 59-60. While incarcerated in George County, Grayson never asked for use
of a telephone to contact his attorney until after he was charged with murder. Trial
Record Vol. 4 [153-9], at 64.
The next day, on May 21, James Tanner, the jailer, told Sheriff Miller that
Grayson had asked to speak with him about “getting something off his chest.” Exhibit
5 to Petition [8-2], at 17; Trial Record Vol. 4 [153-9], at 65-66. Officers gave Grayson
another Miranda warning. Exhibit 8 to Petition [8-2], at 24; Trial Record Vol. 4 [1539], at 66. Grayson then wrote out a statement in which he admitted coming to
Mississippi to see his grandparents. Exhibit 7 to Petition [8-2], at 22; Trial Record
Vol. 7 [153-12], at 98-99. However, Grayson said that Kilpatrick had killed Minnie
Smith while he was at his grandparents’ house. Exhibit 7 to Petition [8-2], at 22; Trial
Record Vol. 7 [153-12], at 100. Grayson admitted that he entered Smith’s home after
the killing, but he said he just checked on her and covered up her body. Exhibit 7 to
Petition [8-2], at 22; Trial Record Vol. 7 [153-12], at 101. He agreed to show the
officers where Smith’s checkbook was located, and they all returned to Florida on
May 22. Trial Record Vol. 7 [153-12], at 102. Officers recovered Smith’s checkbook
hidden under a scarf on a shelf in Kilpatrick’s trailer. Id. at 102-03. Officers never
recovered Smith’s purse or the missing screen from her window. Id. at 108.
On May 23, on his own initiation and after executing a waiver of rights,
8

Grayson gave another statement to Sheriff Miller and Houston Dorr. Exhibit 9 to
Petition [8-2], at 26-35; Trial Record Vol. 8 [153-13], at 34-39, 98; Trial Record Vol. 4
[153-9], at 39-40. In this second, much more detailed statement, Grayson said that he
came to George County on the night of May 4 with Kilpatrick so that he could visit
his grandparents. Exhibit 9 to Petition [8-2], at 26. He said that he told Kilpatrick to
park by Smith’s house so that he could walk to his grandparents’ house and see if
they were awake. Id. When he discovered no one was awake at his grandparents’
home, Grayson returned to the car. He stated:
When I got back to the car, he had a gun. It was lying in the back seat
of the car, and I said, “Shit, man.” I knew he had killed someone, and
then he told me, and I run up to the house, and I went through the
window, and I looked to see where she was in her room, and she was
laying on the bed. She was just laying there. I didn’t check her out. I
didn’t see if her eyes were opened, how she was laying, or what have
you. I mean, I wasn’t paying no attention [to] all that bull, so I threw the
blanket over her and throwed a pillow over her and I left, and that was
it.
Id. Grayson denied taking anything from the house, and he denied entering the
bathroom. Id. at 27. He said that Kilpatrick threw the knife away when they got back
to Florida. Id. at 27, 30. After Grayson finished his statement, Investigator Dorr
asked if he would be willing to take a lie detector test. Trial Record Vol. 8 [153-13], at
40-41; Trial Record Vol. 4 [153-9], at 40. Grayson agreed to do so. Trial Record Vol. 8
[153-13], at 40-41.
The next day, officers transported Grayson to Jackson for a polygraph
examination. Id. at 41. During the examination, Grayson admitted to murdering
9

Minnie Smith, telling the examiner, “I didn’t mean to kill her. I just freaked out.
That’s Miss Minnie.” Id. at 102. The examiner told Investigator Dorr, who was in the
next room, that Grayson wanted to talk to him. Dorr gave Grayson another Miranda
warning and started interviewing him again. Id. at 41-44. This time, the statement
was videotaped. Id. at 45.
Grayson stated that he and Kilpatrick came to Mississippi for money and drugs
on the night of May 4, 1996. Exhibit 10 to Petition [8-2], at 37, 41. They went to his
grandparents’ house, but no one was awake. Id. at 42, 51. Grayson then walked to
Minnie Smith’s house. Id. at 40, 42, 52. Kilpatrick drove the car there and parked by
the side of the house. Id. at 43. Grayson entered Smith’s home through the window
and picked up her shotgun, which he claimed was the only item he intended to take
from the house. Id. at 37, 42, 45, 52. Kilpatrick followed Grayson into the house, and
Smith woke up. Id. at 39, 43. She asked who was there and sat up in her bed. Id. at
40, 43. Grayson then got a knife from the kitchen, went to Smith’s bedroom, and
stabbed Smith to death as she begged him, “Please, don’t.” Id. at 39-40, 47, 53.
Grayson admitted that the knife retrieved from the trailer in Florida was the murder
weapon. Id. at 47.
After he had murdered Smith, Grayson went to the bathroom to wash her blood
off his hands and face. Id. at 41. Grayson exited the house by climbing back out the
window. Id. at 44. Kilpatrick stayed in the house after Grayson exited and took
Smith’s purse before exiting via the back door. Id. at 44-45. The two men took
10

approximately $200.00 and Smith’s checkbook from the purse before throwing it out
the car window on their way back to Florida, along with the window screen. Id. at 4546, 56. Upon returning to Florida, they bought some cocaine and sold Smith’s
shotgun. Id. at 57-58.
After this confession, Grayson was formally charged with capital murder on
August 16, 1996. Trial Record Vol. 1 [153-6], at 15. His trial attorney filed several
pre-trial motions, including a motion for an investigator and a motion for a
psychiatric examination, both of which the trial court granted. Exhibits 13, 14, 15,
19, 21 to Petition [8-2], at 69-70, 73-74, 78, 91, 95; Trial Record Vol. 3 [153-8], at 8891, 110-12. However, the trial court denied Grayson’s motion for a change of venue
after a hearing in which a sample of the county’s jury pool testified. Trial Record Vol.
3 [153-8], at 2-75. On August 1, 1997, the trial court held a hearing on Grayson’s
motion to suppress his videotaped confession of May 24, 1996, and heard testimony
from several witnesses, including Sheriff Miller and Investigator Houston Dorr.
Exhibit 11 to Petition [8-2], at 61-63; Trial Record Vol. 4 [153-9], at 24-151; Trial
Record Vol. 5 [153-10], at 1-66. The Court ultimately denied the motion. Trial Record
Vol. 5 [153-10], at 68-78.
Grayson’s trial began on August 4, 1997. After the State rested, Grayson’s
attorneys notified the trial court that Grayson had instructed them to not contest the
death penalty if he were convicted. Trial Record Vol. 9 [153-14], at 6-7. They asked
the trial court to appoint a third attorney to meet with Grayson and discuss his
11

options. Id. at 7. The court questioned Grayson briefly, learning that he had several
family members in attendance, including his mother and grandmother. Id. at 10-12.
Grayson’s mother and grandmother told the court that they understood his decision
and agreed with it. Id. at 12-14. However, after Grayson discussed the issue with a
third attorney, he changed his mind. Id. at 99.
The jury returned a guilty verdict. Trial Record Vol. 10 [153-15], at 18. Grayson
allowed his attorneys to call his mother and grandmother to testify during the
sentencing phase of trial. Id. at 25, 50-66. Their testimony was the only mitigation
evidence Grayson presented. Id. at 50-66. The jury found that Grayson had actually
killed Minnie Smith, that he had attempted to kill her, and that he had intended the
killing take place, rendering him eligible for the death penalty. 2 Trial Record Vol. 9
[153-14], at 93-94. As aggravating circumstances, the jury found that Grayson
murdered Smith for pecuniary gain during the course of a burglary, that it was an
especially atrocious and cruel crime, that it was committed by a person under a
sentence of imprisonment, and that it was committed to avoid arrest. Id. at 94.
Finally, the jury found that there were insufficient mitigating circumstances to
outweigh the aggravating circumstances, and they returned a verdict that Grayson
should be sentenced to death. Id.
Grayson appealed his conviction and sentence, and on November 8, 2001, the
Mississippi Supreme Court affirmed both. Grayson v. State (“Grayson I”), 806 So. 2d

2

See MISS. CODE ANN. §§ 97-3-19, 99-19-101.

12

241 (Miss. 2002). He filed a Petition for a Writ of Certiorari with the United States
Supreme Court, but the Supreme Court denied the petition. Grayson v. Mississippi,
537 U.S. 973, 123 S. Ct. 466, 154 L. Ed. 2d 329 (2002). Grayson then filed a petition
seeking post-conviction relief, and the Mississippi Supreme Court denied it on June
24, 2004. Grayson v. State (“Grayson II”), 879 So. 2d 1008 (Miss. 2004). He filed
another Petition for a Writ of Certiorari with the United States Supreme Court. It
was denied. Grayson v. Mississippi, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122
(2005).
In September 2004, Grayson sought appointment of counsel [1] in this Court
to represent him in a federal habeas case. The Court appointed counsel, and Grayson
filed his initial Petition for Writ of Habeas Corpus [8] on April 25, 2005. On January
11, 2012, Grayson filed a Motion to Stay [32] the case while he exhausted certain
claims by pursuing a successive post-conviction petition in state court. The Court
granted [35] the motion on May 11, 2012, and stayed the case pending a final
adjudication of Grayson’s successive petition for post-conviction relief.
Grayson filed a motion in the Mississippi Supreme Court seeking leave to file
a successive petition for post-conviction relief. He also sought leave for certain experts
to access him in the Mississippi State Penitentiary for the purpose of evaluating him,
testing him, and any other purpose deemed reasonably necessary by counsel in
litigating his post-conviction claims. The Mississippi Supreme Court denied his
motion for leave to file a successive petition, but it granted his experts leave to access
13

him in the State Penitentiary subject to the rules and regulations of the Mississippi
Department of Corrections (“MDOC”). Grayson v. State (“Grayson III”), 118 So. 3d
118 (Miss. 2013).
This Court lifted the stay on the habeas case and set a new pleading and
briefing schedule. On December 16, 2013, Grayson filed his Amended Petition for
Writ of Habeas Corpus [41]. He eventually filed a Second Amended Petition [104] on
November 14, 2017, raising numerous issues for this Court’s review.
II. DISCUSSION
Petitions for writs of habeas corpus by prisoners challenging state-court
convictions because of alleged constitutional deprivations are governed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). AEDPA permits this
Court to “entertain an application for a writ of habeas corpus on behalf of a person in
custody pursuant to a judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). “[I]t is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67, 112
S. Ct. 475, 116 L. Ed. 2d 385 (1991). Moreover, AEDPA only permits this Court to
grant habeas relief on claims adjudicated in state court in two circumstances:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
14

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).
Before the Court conducts the § 2254(d) analysis, a habeas petitioner must
clear several procedural hurdles. “The point of AEDPA, . . . is to require prisoners
first to exhaust state court remedies before seeking federal relief . . . .” Broadnax v.
Lumpkin, 987 F.3d 400, 406 (5th Cir. 2021). Therefore, a federal habeas petitioner
“must exhaust all claims in state court prior to requesting federal collateral relief.”
Smith v. Quarterman, 515 F.3d 392, 400 (5th Cir. 2008); see also 28 U.S.C. §
2254(b)(1)(A). The exhaustion requirement is satisfied when the substance of the
federal habeas claim has been fairly presented to the highest [state] court.” Smith v.
Quarterman, 515 F.3d 392, 400 (5th Cir. 2008) (alteration original). The exhaustion
requirement “refers only to remedies still available at the time of the federal petition,
[and] it is satisfied if it is clear that the habeas petitioner’s claims are now
procedurally barred under state law.” Gray v. Netherland, 518 U.S. 152, 161-62, 116
S. Ct. 2074, 135 L. Ed. 2d 457 (1996) (punctuation and internal citations omitted).
Generally, federal courts dismiss unexhausted habeas claims without prejudice,
Smith, 515 F.3d at 400, but they may also deny unexhausted claims and dismiss them
with prejudice. Buntion v. Lumpkin, 31 F.4th 952, 964 n. 4 (5th Cir. 2022); 28 U.S.C.
§ 2254(b)(2).
15

Additionally, a federal habeas court “will not take up a question of federal law
presented in a case if the decision of the state court rests on a state law ground that
is independent of the federal question and adequate to support the judgment.” Lee v.
Kemna, 534 U.S. 362, 375, 122 S. Ct. 877, 151 L. Ed. 2d 820 (2002). “The rule applies
with equal force whether the state-law ground is substantive or procedural,” id., and
this rule is jurisdictional in nature. Ford v. Davis, 910 F.3d 232, 237 (5th Cir. 2018).
The Court must “honor a state holding that is a sufficient basis for the state court’s
judgment, even when the state court also relies on federal law” in the alternative.
Buntion, 982 F.3d at 949.
A federal habeas claim is procedurally barred where “the last state court to
review the petitioner’s claims unambiguously based its denial on a state procedural
bar.” Mullis v. Lumpkin, 47 F.4th 380, 387-88 (5th Cir. 2022). This is a corollary to
the exhaustion requirement, in that “a habeas petitioner who has failed to meet the
State’s procedural requirements for presenting his federal claims has deprived the
state courts of an opportunity to address the merits of those claims in the first
instance.” Davila v. Davis, 582 U.S. 521, 527, 137 S. Ct. 2058, 198 L. Ed. 2d 603 (2017)
(punctuation omitted).
“Where a state court asserts a procedural bar, [the Court] presume[s] that
obstacle is ‘adequate and independent,’” Paredes v. Quarterman, 574 F.3d 281, 289
(5th Cir. 2009), and the petitioner has the burden of proving it is not. Mullis, 47 F.4th
at 388. “If the State has firmly established and regularly followed the rule by the time
16

of the relevant state court decision, then the rule is adequate. If the state court
decision clearly and expressly relies on the state rule to deny relief, or if the decision
does not fairly appear to rest primarily on or be interwoven with federal law, then
the state rule is independent.” Buntion, 31 F.4th at 962 (punctuation and citations
omitted). A state procedural rule can be “firmly established and regularly followed . .
. even if there is an occasional aberrant state court decision. The question is whether
the rule is applied strictly or regularly to the vast majority of similar claims.” Mullis,
47 F.4th at 388 (citations omitted).
“Federal review of the merits of a procedurally-barred claim is permitted,
however, where the petitioner is able to demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law.” Garza v. Stephens, 738
F.3d 669, 675 (5th Cir. 2013). “To establish ‘cause’ . . . the [Petitioner] must show that
some objective factor external to the defense impeded counsel’s efforts to comply with
the State’s procedural rule.” Davila, 582 U.S. at 528. “A factor is external to the
defense if it cannot fairly be attributed to the movant.” Id. “The Supreme Court has
not provided an exhaustive catalog of such objective impediments to compliance with
a procedural rule, but a showing that the factual or legal basis for a claim was not
reasonably available to counsel or that some interference by officials made
compliance impracticable would constitute cause.” United States v. Vargas-Soto, 35
F.4th 979, 993 (5th Cir. 2022) (punctuation omitted). However, “[a]ttorney ignorance
or inadvertence is not ‘cause’ because the attorney is the petitioner’s agent when
17

acting, or failing to act, in furtherance of the litigation, and the petitioner must bear
the risk of attorney error.” Coleman v. Thompson, 501 U.S. 772, 753, 111 S. Ct. 2546,
115 L. Ed. 640 (1991); see also Prible v. Lumpkin, 43 F.4th 501, 518 (5th Cir. 2022). 3
Once a habeas petitioner has cleared these procedural hurdles, “AEDPA
restricts a federal court’s ability to grant habeas relief after an adjudication on the
merits in state court to only two grounds.” Chamberlin v. Fisher, 885 F.3d 832, 837
(5th Cir. 2018). First, questions of law are addressed under § 2254(d)(1), which
permits relitigation of claims adjudicated on the merits in state court when the state
court’s adjudication “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law . . . .” 28 U.S.C. §
2254(d)(1). “Clearly established federal law” is “the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its
decision.” Poree v. Collins, 866 F.3d 235, 246 (5th Cir. 2017).
“A state prisoner can only satisfy the ‘contrary to’ standard if he shows the
state court decision arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if it resolves a case differently than the Supreme Court
has on a set of materially indistinguishable facts.” Neal v. Vannoy, 78 F.4th 775, 783
(5th Cir. Aug. 23, 2023). To satisfy the “unreasonable application” prong, “the

A habeas petitioner can also overcome procedural default if they “demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice.” Harper v. Lumpkin, 19 F.4th 771, 781
n. 1 (5th Cir. 2021). This exception “is limited to cases where the petitioner can make a persuasive
showing that he is actually innocent of the charges against him.” McGowen v. Thaler, 675 F.3d 482,
499 (5th Cir. 2012). Grayson does not argue that he is actually innocent, and the Court need not further
address this exception.
3

18

petitioner must show the state court was so wrong that the error was well understood
and comprehended in existing law beyond any possibility for fair-minded
disagreement.” Id. Stated another way, “the state court’s decision [must] be ‘so
lacking in justification’ that the error is ‘beyond any possibility for fairminded
disagreement.’” Russell v. Denmark, 68 F.4th 252, 262 (5th Cir. 2023), cert. denied,
___ S.Ct.___, 2024 WL 72074 (Jan. 8, 2024) (citation omitted). This standard is
difficult to meet. Id.
Accordingly, § 2254(d)(1) “establishes a highly deferential standard for
evaluating state-court rulings that requires federal courts to give those rulings the
benefit of the doubt.” Engle v. Lumpkin, 33 F.4th 783, 790 (5th Cir. 2022). “The
question under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable – a
substantially higher threshold.” Chamberlin, 885 F.3d at 837. The habeas court must
determine “whether fairminded jurists could disagree as to how the Supreme Court’s
caselaw applies to the circumstances that the state court confronted; if so, then [this
Court] cannot set aside the state court’s conclusion.” Engle, 33 F.4th at 790.
Second, questions of fact are addressed under § 2254(d)(2) and (e)(1). Neal, 78
F.4th at 783. Section 2254(e)(1) provides that “a determination of a factual issue by a
state court shall be presumed to be correct,” and the “applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). Then, § 2254(d)(2) permits relitigation of claims adjudicated on
19

the merits in state court when the state court’s adjudication “resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.” 28 U.S.C. § 2254(d)(2). In other words, the
Court first applies § 2254(e)(1)’s “clear and convincing” standard to specific factual
issues, and then applies § 2254(d)(2)’s “reasonableness” standard to the state court’s
decision as a whole. Lucio v. Davis, 751 F. App’x 484, 488 (5th Cir. 2018); Neal, 78
F.4th at 783.
“The deference to state-court factfinding required by these provisions
precludes a federal court from setting aside reasonable state-court determinations of
fact in favor of its own debatable interpretation of the record. Ultimately, to clear the
required threshold, the petitioner must show a reasonable factfinder must conclude
the state court’s determination of the facts was unreasonable.” Neal, 78 F.4th at 783.
An “unreasonable determination of the facts” is one “outside the bounds of reasonable
debate.” Seals v. Vannoy, 1 F.4th 362, 370 (5th Cir. 2021). In this context, “[t]he term
‘unreasonable’ refers not to ordinary error or even to circumstances where the
petitioner offers a strong case for relief, but rather to extreme malfunction in the state
criminal justice system.” Mays v. Hines, 592 U.S. 385, 391, 141 S. Ct. 1145, 209 L.
Ed. 2d 265 (2021) (punctuation omitted).
“Claims presenting mixed questions of law and fact are reviewed under a
combination of these provisions; a state court’s ultimate legal conclusion is reviewed
under Section 2254(d)(1), while the underlying factual findings supporting that
20

conclusion are reviewed under Sections 2254(d)(1) and (e)(1).” Neal, 2023 WL
5425588 at *4.
There are yet other hurdles petitioners must clear to receive relief. When
conducting a § 2254(d) analysis, the Court may generally only consider “the record
that was before the state court that adjudicated the claim on the merits.” Lucio v.
Lumpkin, 987 F.3d 451, 472 (5th Cir. 2021); see also Cullen v. Pinholster, 563 U.S.
170, 180-81, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011). And even if a petitioner clears
AEDPA’s general bar on relitigation, the Court may not grant habeas relief “if the
trial error was harmless.” Burgess v. Dretke, 350 F.3d 461, 466 (5th Cir. 2003). That
is, “a federal court may grant habeas relief only if it determines that the
constitutional error had substantial and injurious effect or influence in determining
the jury’s verdict.” Id. at 466-67. Finally, the petitioner must “persuade a federal
habeas court that ‘law and justice require’ relief. And whatever else those inquiries
involve, they continue to require federal habeas courts to apply the Court’s precedents
governing the appropriate exercise of equitable discretion.” Neal, 78 F.4th at 783
(quoting Brown v. Davenport, --- U.S. ---, 142 S. Ct. 1510, 1524, 212 L. Ed. 2d 463
(2022)).
AEDPA was designed to “curb the abuse of the statutory writ of habeas corpus,
and to address the acute problems of unnecessary delay and abuse in capital cases.”
Graham v. Johnson, 168 F.3d 762, 764 (5th Cir. 1999). The restrictions on the Court’s
authority to grant habeas relief recited above “further the principles of comity,
21

finality, and federalism.” Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479, 146
L. Ed. 2d 435 (2000). The Court must give challenged state-court decisions the benefit
of the doubt. Charles v. Stephens, 736 F.3d 380, 387 (5th Cir. 2013). “This deferential
standard stops short of imposing a complete bar on federal court relitigation of claims
already rejected in state proceedings and requires the state prisoner to show that the
state court’s ruling was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility.” Id.
(punctuation omitted).
A.

Suppression of Statements
Petitioner argues that the state trial court erred by failing to suppress

statements he made to law enforcement officers after he had invoked his right to
counsel, violating rights secured by the Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution. Specifically, Petitioner contends that the trial court
erred by admitting evidence of statements he provided to law enforcement agents on
May 21, 23, and 24, 1996. He argues that the initial statement on May 21 was
unconstitutionally taken after he had requested counsel, and that he never waived
his previously-invoked right to counsel prior to the two subsequent statements.
Accordingly, Petitioner asserts that the three statements and any evidence obtained
because of them, such as Minnie Smith’s checkbook, should have been excluded from
trial. He also argues that his third statement – in which he confessed to the murder
– should have been excluded because it was coerced.
22

“Following the commencement of adversary proceedings in a criminal case, the
Sixth Amendment entitles a defendant to counsel at ‘critical stages’ of the criminal
proceedings.” Lucio, 751 F. App’x at 488 (quoting Rothgery v. Gillespie, 554 U.S. 191,
212-13, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008)). The Supreme Court defined
“critical stages” as “proceedings between an individual and agents of the State
(whether formal or informal, in court or out) that amount to trial-like confrontations,
at which counsel would help the accused in coping with legal problems or meeting his
adversary.” Id. at 488-89 (quoting Rothgery, 554 U.S. at 212 n. 16). Similarly, the
Supreme Court has “declared that an accused has a Fifth and Fourteenth
Amendment right to have counsel present during custodial interrogation.”
Quintanilla v. Thaler, 443 F. App’x 919, 922 (5th Cir. 2011) (quoting Edwards v.
Arizona, 451 U.S. 477, 481, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). 4 “The Court
defined ‘custodial interrogation’ as ‘questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom of
action in any significant way.’” Quintanilla, 443 F. App’x at 922 (quoting Miranda v.
Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)). If a defendant’s
confession was obtained in violation of the Fifth or Sixth Amendment right to counsel,
then it is not admissible against him at trial. Miranda, 384 U.S. at 474, 479; Massiah
v. United States, 377 U.S. 201, 206, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964).

“[T]he right to have counsel present during custodial interrogation” is a prophylactic measure “to
insure that the [Fifth Amendment] right against compulsory self-incrimination is protected.” Goodwin
v. Johnson, 132 F.3d 162, 178 n. 12 (5th Cir. 1997).
4

23

The Court will address Petitioner’s arguments as to each of the statements
individually, but it must first address threshold issues applicable to each one.
1. Procedural Bar
Respondents argue that this claim is procedurally barred because the
Mississippi Supreme Court found that an adequate and independent state procedural
law barred its consideration of those claims. As noted above, “[f]ederal review of a
habeas claim is procedurally barred if the last state court to consider the claim
expressly and unambiguously based its denial of relief on a state procedural bar.”
Gonzalez v. Davis, 924 F.3d 236, 241 (5th Cir. 2019). “Where a state court asserts a
procedural bar, [the Court] presume[s] that obstacle is ‘adequate and independent,’”
Paredes, 574 F.3d at 281, and the petitioner has the burden of proving it is not. Mullis,
47 F.4th at 388.
In Grayson II, the Mississippi Supreme Court found that Petitioner’s claims
related to the admission of statements provided before he had counsel were “barred
by the doctrine of res judicata and . . . procedurally barred from relitigation by Miss.
Code Ann. § 99-39-21(3)” because they had been addressed in the trial court’s
suppression hearing and on direct appeal. Grayson II, 879 So. 2d at 1012-13. The
relevant statute provides: “The doctrine of res judicata shall apply to all issues, both
factual and legal, decided at trial and on direct appeal.” MISS. CODE ANN. § 99-3921(3).
In Grayson III, the Mississippi Supreme Court found that Petitioner’s initial
24

post-conviction counsel had provided ineffective assistance, which required it to
address the merits of the claims asserted in Grayson II to determine whether the
ineffective assistance prejudiced him. Grayson III, 118 So. 3d at 128-29. In doing so,
the Mississippi Supreme Court found that despite Petitioner’s attempt to “recast” his
arguments concerning the trial court’s admission of his inculpatory statements
“under a different legal theory,” they were procedurally barred by Miss. Code Ann. §
99-39-21(2). Id. at 135. That subsection provides:
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.
MISS. CODE ANN. § 99-39-21(2). Alternatively, the Mississippi Supreme Court held
that the claim was meritless.
Neither Grayson II nor Grayson III prevent this Court from considering the
habeas claims asserted in Ground A of the Second Amended Petition. “[R]es judicata
does not prevent federal review of a habeas claim.” Jordan v. Mississippi, 654 F. App’x
196, 197 (5th Cir. 2016) (citing Cone v. Bell, 556 U.S. 449, 129 S. Ct. 1769, 1781, 173
L. Ed. 2d 701 (2009)). Likewise, a statutory bar that “has the same effect as res
judicata and prevents the re-litigation of claims” does not prevent federal review of a
habeas claim, “as long as the claim was not procedurally barred for some other
reason.” Jackson v. Epps, 447 F. App’x 535, 544 (5th Cir. 2011) (addressing MISS.
CODE ANN. § 99-39-21(2)). Applying these principles, the Fifth Circuit has found that
25

federal review of a claim denied by a state court pursuant to Miss. Code Ann. §§ 9939-21(2) or 99-39-39-21(3) is not procedurally barred. See Foster v. Johnson, 293 F.3d
766, 787 n. 12 (5th Cir. 2002); Jordan, 654 F. App’x at 197; Jackson, 447 F. App’x at
544; see also Willie v. Bradley, 2008 WL 1990775, at *7-*8 (N.D. Miss. Feb. 12, 2008).
Therefore, the claims asserted in Ground A of the Second Amended Petition are not
procedurally barred.
2. Sixth Amendment Claims
Respondents also argue that any Sixth Amendment right-to-counsel claim
arising from Petitioner’s statements is meritless because his Sixth Amendment rights
had not attached at the time each statement was given. In reply, Petitioner contends
that he would not have been held by local investigators but for the fact that he was a
suspect in a murder. He argues that he was clearly being held because of the murder,
rather than the parole violation.
“An accused in custody, having expressed his desire to deal with the police only
through counsel, is not subject to further interrogation by the authorities until
counsel has been made available to him, unless he validly waives his earlier request
for the assistance of counsel.” United States v. Cruz, 22 F.3d 96, 97 (5th Cir. 1994).
“[I]f the accused invoked his right to counsel, courts may admit his responses to
further questioning only on finding that he (a) initiated further discussions with the
police, and (b) knowingly and intelligently waived the right he had invoked.” Smith
v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984).
26

However, “[a] defendant’s right to counsel under the Sixth Amendment
attaches when adversary judicial proceedings have been initiated against him.”
McFarland v. Lumpkin, 26 F.4th 314, 322 (5th Cir. 2022). An adversary judiciary
proceeding may commence “by way of formal charge, preliminary hearing,
indictment, information, or arraignment.” Texas v. Cobb, 532 U.S. 162, 167-68, 121
S. Ct. 1335, 149 L. Ed. 2d 321 (2001). Moreover, the Sixth Amendment right to
counsel is “offense specific,” and it “cannot be invoked once for all future
prosecutions.” Id. at 167. In other words, “[e]ven though an accused has a Sixth
Amendment right to counsel for one offense – because formal charges have been
brought – the right does not automatically attach to other offenses with which he has
not been charged,” United States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006), even
if they are “closely related to” or “inextricably intertwined with” the charged offense.
Cobb, 532 U.S. at 173; cf. United States v. Avants, 278 F.3d 510, 518 (5th Cir. 2002)
(6th Amendment right to counsel had not attached with respect to federal murder
charge where defendant had been charged with murder in state court). 5
Therefore, Petitioner’s Sixth Amendment right to counsel with respect to the

The Supreme Court has carved out a limited exception to this rule for “offenses that, even if not
formally charged, would be considered the same offense under the Blockburger test.” Cobb, 532 U.S.
at 173 (citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)). That
exception is not applicable here. Blockburger provides that “where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one is whether each provision requires proof of a fact which the other
does not.” Cobb, 532 U.S. at 173. Petitioner was arrested on a warrant for a probation violation after
leaving a restitution center work detail. See Exhibit 2 to Petition [8-2], at 5-6. The statements at issue
were admitted at a trial on charges of capital murder. These charges plainly require proof of different
facts. Compare MISS. CODE ANN. § 47-7-37, with MISS. CODE ANN. §§ 97-3-19, 99-19-101.
5

27

capital murder charge attached when he was formally charged with capital murder.
See Cobb, 532 U.S. at 168; Crawford v. Epps, 531 F. App’x 511, 517 (5th Cir. 2013)
(petitioner’s right to counsel attached when he was formally charged with capital
murder by issuance of a general affidavit and warrant); Quintanilla, 443 F. App’x at
924. Grayson was formally charged with capital murder on August 16, 1996 – almost
three months after he gave the disputed statements. Successive PCR Record Vol. 2
[69-2], at 107. Accordingly, at the time of the May 21, 23, and 24, 1996, statements,
Grayson’s Sixth Amendment right to counsel had not attached with respect to the
capital murder charge.
Petitioner argues that the Mississippi Supreme Court unreasonably
determined that he was not entitled to a hearing or appointment of counsel upon his
detention because he was only being held on an arrest warrant arising from a
probation violation. Petitioner contends that, despite the arrest warrant for his
probation violation, he was being held “incommunicado” and “under subterfuge” on a
murder charge without a warrant, initial appearance, or appointment of counsel in
violation of his Sixth Amendment right to counsel.
The Supreme Court has considered the possibility that officers would engage
in tactics like those alleged by Petitioner, but it expressly declined to abrogate the
general rule that the Sixth Amendment right to counsel attaches with respect to a
specific crime upon the formal initiation of charges for that crime. Cobb, 532 U.S. at
167-72. The Court concluded that Miranda and the Fifth Amendment’s protection
28

against compulsory self-incrimination provided sufficient protection of a suspect’s
rights in such situations. Cobb, 532 U.S. at 171-72. It also acknowledged that the
“Constitution does not negate society’s interest in the ability of police to talk to
witnesses and suspects, even those who have been charged with other offenses.” Id.
Therefore, the Court finds that Petitioner’s Sixth Amendment claims arising
from the admission of his May 21, 23, and 24, 1996, statements are meritless, and
the Mississippi Supreme Court’s judgment that his Sixth Amendment right to
counsel had not attached when he provided the statements was not contrary to or an
unreasonable application of clearly established federal law.
3. Exhaustion of “Limited Waiver” Argument
Respondents argue that Petitioner failed to exhaust his claim that he only
provided a “limited waiver” of his right to counsel. As noted above, a federal habeas
petitioner “must exhaust all claims in state court prior to requesting federal collateral
relief.” Smith, 515 F.3d at 400. AEDPA’s “exhaustion requirement is satisfied when
the substance of the federal claim is fairly presented to the highest state court on
direct appeal or in post-conviction proceedings, even if the state court fails to address
the federal claim.” Johnson v. Cain, 712 F.3d 227, 231 (5th Cir. 2013). A federal claim
“is fairly presented when the petitioner asserts the claim in terms so particular as to
call to mind a specific right protected by the Constitution or alleges a pattern of facts
that is well within the mainstream of constitutional litigation.” Id. “It is not enough
that all the facts necessary to support the federal claim were before the state courts,
29

or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S.
4, 6, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982) (internal citation omitted). Rather, “the
state court system must have been presented with the same facts and legal theory
upon which the petitioner bases his current assertions.” Ruiz v. Quarterman, 460
F.3d 638, 643 (5th Cir. 2006).
Moreover, new facts which “supplement,” rather than “fundamentally alter,” a
claim presented to the state courts are not sufficient to render a habeas claim a new,
unexhausted claim. Anderson v. Johnson, 338 F.3d 382, 386-87 (5th Cir. 2003).
Likewise, “merely putting a claim in a stronger evidentiary posture is not enough” to
make it a new, unexhausted claim. Nelson v. Davis, 952 F.3d 651, 671 (5th Cir. 2020);
see also Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005). Rather, “new evidence
that fundamentally alters the legal claim or places the claim in a significantly
different legal posture can render it a new claim that was not adjudicated on the
merits by the state court.” Id. at 671-72.
On direct appeal, Petitioner argued that his statements were coerced, rather
than voluntary. Appeal Record [153-2], at 11-17. He also argued that the State
violated his right to counsel, and that his waiver of rights was not made knowingly
or intelligently. Id.; see also Grayson I, 806 So. 2d at 247-49. He did not argue that
the State violated his right to counsel because he only intended to give a limited
waiver of rights.
Likewise, in Petitioner’s first post-conviction proceeding, he argued that the
30

State intentionally delayed filing formal charges against him so that it could coerce
a confession from him before his Sixth Amendment right to counsel attached. PCR
Record Vol. 1 [154-1], at 189-98; see also Grayson II, 879 So. 2d at 1012-13. He also
argued that his alleged waiver of rights was ineffective due to the State’s misconduct
in holding him without charges. PCR Record Vol. 1 [154-1], at 199-200. He did not
assert a claim that the State violated his right to counsel because he only intended to
give a limited waiver of rights.
In Petitioner’s successive post-conviction proceeding, he argued that his trial
counsel provided ineffective assistance by failing to adequately investigate and
present evidence in support of his motion to suppress his statements to law
enforcement officers. Successive PCR Record Vol. 3 [69-5], at 42-43; see also Grayson
III, 118 So. 3d at 135. Among other things, Petitioner argued that his attorney “failed
to assert that, even assuming Grayson reinitiated discussions with police after
invoking his right to counsel, he made only a limited waiver to [write a voluntary
statement], which was ignored by officers, who repeatedly interrogated Grayson and
obtained confessions in violation” of his rights. Successive PCR Record Vol. 3 [69-5],
at 43, 46. However, despite claiming that his counsel provided ineffective assistance
by failing to argue that the waiver of rights was limited, Grayson did not assert a
post-conviction claim that the State violated his right to counsel by taking his
statements despite the limited scope of his waiver.
As noted above, to exhaust a claim a petitioner must present the state court
31

system “with the same facts and legal theory upon which the petitioner bases his
current assertions.” Ruiz, 460 F.3d at 643. Grayson first presented his “limited
waiver” argument to the state courts in his successive post-conviction proceeding,
under a legal theory of ineffective assistance of counsel. In this habeas case, he
presented the “limited waiver” argument under a different legal theory, asserting it
as a standalone claim that the State violated his Fifth and Sixth Amendment right
to counsel. Therefore, the Court finds that Petitioner failed to exhaust the claim that
the State violated his Fifth and Sixth Amendment right to counsel by taking the
statements despite his execution of a “limited waiver.”
“Though courts are free to dismiss unexhausted claims without prejudice, they
are also free to deny such claims and dismiss with prejudice.” Buntion, 31 F.4th at
964. Petitioner’s claim that the State violated his right to counsel by ignoring the
“limited” nature of his waiver of rights lacks merit. Accordingly, the Court will not
dismiss the unexhausted claim without prejudice, opting rather to deny it for the
reasons provided below.
4. May 21, 1996
With respect to the first statement, taken on May 21, 1996, Petitioner argues
that the Mississippi Supreme Court unreasonably determined that he had waived his
right to counsel. He contends that his re-initiation of contact on May 21 was “limited
in nature.” That is, he contends that he only agreed to write out a statement
concerning what had happened with Minnie Smith, and that he did not agree to
32

submit to questioning from Sheriff Miller. Thus, Petitioner argues that the
Mississippi Supreme Court 1) unreasonably assumed that his waiver of rights was
complete, or unlimited in nature; 2) unreasonably determined that his waiver of
rights was knowing and voluntary; and 3) unreasonably applied applicable federal
law by holding that his signature on a waiver form automatically constitutes a
knowing and intelligent waiver of rights.
In response, the State argues that Petitioner’s claims are procedurally barred,
that his “limited waiver” argument is barred because he failed to present it to the
Mississippi Supreme Court, and that his Sixth Amendment right to counsel had not
attached when he gave the statements. The Court has already addressed those issues.
The State also broadly argues that Mississippi Supreme Court’s determination of the
facts was reasonable, and that its decision was not contrary to or an unreasonable
application of federal law.
On direct appeal, the Mississippi Supreme Court addressed whether the trial
court should “have suppressed Grayson’s incriminating statements to the police.”
Grayson I, 806 So. 2d at 247. The court held that Petitioner’s “claim fails because he
clearly waived any right to an attorney he might theoretically have had at the time
he confessed.” Id. at 248. It also discussed the evidence from trial and held that the
“record does not support Grayson’s” argument that the “factors surrounding his
confinement . . . render[ed] his confession involuntary.” Id. Finally, it noted that the
first statement “lasted less than four minutes and elicited no information that was
33

offered at trial.” Id.
Petitioner addressed these issues again on post-conviction relief, albeit from a
different direction. There, he argued that the “State delayed the filing of formal
charges against him for the purpose of extracting a confession from him, in violation
of his constitutional rights.” Grayson II, 879 So. 2d at 1012. In other words, he argued
that the officers intentionally delayed charging him with a crime so that they would
not have to appoint counsel. The Mississippi Supreme Court rejected the argument,
holding that it was a restatement of Petitioner’s arguments in the trial court’s
suppression hearing and on direct appeal and, therefore, barred by res judicata. Id.
a. Limited Waiver
Petitioner argues that the Mississippi Supreme Court unreasonably assumed
that his waiver of rights was complete, or unlimited in nature. Respondents broadly
contend that the state court’s factual determinations were not unreasonable
considering the evidence presented at trial.
Although Petitioner did not assert this issue as an independent claim in state
court, the Mississippi Supreme Court addressed it as an element of an ineffective
assistance claim. In his successive post-conviction proceeding, Petitioner argued that
his trial counsel provided ineffective assistance by failing “to assert that . . . he made
only a limited waiver to [write a voluntary statement], which was ignored by officers,
who repeatedly interrogated Grayson and obtained confessions in violation” of his
rights. Successive PCR Record Vol. 3 [69-5], at 43, 46; see also Grayson III, 118 So. 3d
34

at 135. The Mississippi Supreme Court held that Petitioner failed “to offer sufficient
evidence in support of his” assertion that he only intended to provide a limited waiver.
Grayson III, 118 So. 3d at 135. It noted that his own affidavit offered in support of
the successive petition did not mention any facts on this point, and that a “thorough
review” of the records from direct appeal and both post-conviction proceedings
revealed no evidence to support his late claim that he only intended to provide a
limited waiver. Id.
“The Fifth Amendment, which applies to the states by virtue of the Fourteenth
Amendment, provides that no person shall be compelled in any criminal case to be a
witness against himself.” Quintanilla, 443 F. App’x at 922 (citations and punctuation
omitted). Therefore, “an accused has a Fifth and Fourteenth Amendment right to
have counsel present during custodial interrogation.” Id. (quoting Edwards, 451 U.S.
at 481). If a suspect in custody “indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease.” Gribble
v. Johnson, 196 F.3d 1258, 1999 WL 800203, at *6 (5th Cir. 1999). “If the
interrogation continues without the presence of an attorney and a statement is
taken,” the state has the burden “to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and his right to retained
or appointed counsel,” Butler, 441 U.S. at 373, by a preponderance of the evidence.
Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).
A waiver of Fifth Amendment rights can be explicit or implicit. Berghuis v.
35

Thompkins, 560 U.S. 370, 383-84, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). An
explicit, written waiver “is usually strong proof” of its validity, but it “is not inevitably
either necessary or sufficient to establish waiver.” North Carolina v. Butler, 441 U.S.
369, 373, (1979). Rather, “waivers can be established even absent formal or express
statements . . . .” Berghuis, 560 U.S. at 383. “As a general proposition, the law can
presume that an individual who, with a full understanding of his or her rights, acts
in a manner inconsistent with their exercise has made a deliberate choice to
relinquish the protection those rights afford.” Id. at 385. Likewise, the totality of the
circumstances may render an express waiver involuntary or unknowing. United
States v. Cardenas, 410 F.3d 287, 293 (5th Cir. 2005). The Court’s “determination is
made on a case-by-case basis and is viewed under the totality of the circumstances
surrounding the interrogation.” Id.
“Any statement given freely and voluntarily without any compelling influences
is, of course, admissible in evidence . . . . Volunteered statements of any kind are not
barred by the Fifth Amendment.” Miranda, 384 U.S. at 478. Accordingly, if “the
accused himself initiates further communication, exchanges, or conversations with
the police” after invoking his right to counsel, he waives Miranda’s bar on further
interrogation, and any statements he makes thereafter are admissible at trial.
Edwards, 451 U.S. at 484-85. However, “[i]f the police do subsequently initiate an
encounter in the absence of counsel . . . , the suspect’s statements are presumed
involuntary and therefore inadmissible as substantive evidence at trial, even where
36

the suspect executes a waiver and his statements would be considered voluntary
under traditional standards.” Johnson v. Stephens, 617 F. App’x 293, 300 (5th Cir.
2015). In this context, police-initiated “questioning” or “interrogation” includes “any
words or actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Gribble, 1999 WL 800203 at *8.
On May 21, 1996, Grayson called for the jailer, James Tanner, to “come to his
cell.” Exhibit 5 to Petition [8-2], at 17. Grayson said he wanted to talk to Sheriff Miller
and “get[ ] something off his chest.” Id.; Trial Record Vol. 4 [153-9], at 65-66. Grayson
does not dispute that he initiated the interaction with Miller on May 21, 1996. Rather,
Grayson contends that he only provided a partial waiver of his Fifth Amendment
rights. Specifically, he contends that he only agreed to write out a statement
concerning what occurred with Minnie Smith.
Petitioner cites a single piece of evidence in support of this argument. One of
the officers – either Sheriff Miller or James Tanner – took handwritten notes while
Miller interviewed Petitioner. The first several lines of the notes read as follows:
Rights were given – wants to make to
George Miller & James Tanner statement
Willing to write vol [sic] statement –
concerning Mrs. Ms. [sic] Minnie.
Exhibit 6 to Petition [8-2], at 19. The rest of the notes summarize the interview, in
which Petitioner claimed that Kilpatrick had killed Minnie Smith while he was at his
grandparents’ house. Exhibit 7 to Petition [8-2], at 22; Trial Record Vol. 7 [153-12],
37

at 100. Grayson admitted that he entered Smith’s home, but he said he just checked
on her and covered up her body. Exhibit 7 to Petition [8-2], at 22; Trial Record Vol. 7
[153-12], at 101.
After the interview, Petitioner provided the following handwritten statement:
I, Blayde Grayson, & Jason Kilpatrick came to Miss. to see my
grandparents and while I was gone through the woods Jason broke in
Mrs. Minnie’s house, stole her gun & money (appr. $200.00) and stabbed
her. When he told me this, I ran up to the house to see if she was dead,
in hopes that she wasn’t and I could call someone to help her. So, when
I saw she was dead, she was, so I covered her up and we left and came
back to Florida. The clothes are on the west side of Pensacola. He threw
the knife at his mom’s house and the gun was sold to Chris Miller.
Exhibit 7 to Petition [8-2], at 22. Petitioner also agreed to show the officers where
Smith’s checkbook was located, and they all returned to Florida on May 22, where
the officers recovered Smith’s checkbook hidden under a scarf on a shelf in
Kilpatrick’s trailer. Trial Record Vol. 7 [153-12], at 102-03.
Petitioner contends that the notes from the interview demonstrate that he only
intended to waive his Fifth Amendment rights to provide a written statement, rather
than to be interviewed by Sheriff Miller. Accordingly, he contends that testimony
regarding the interview and the checkbook which the officers retrieved as fruit of the
interview should have been excluded from his trial. The Court disagrees, for the
following reasons.
First, the notes from the interview do not unambiguously state that Petitioner
only intended to “write [a] vol[untary] statement.” Exhibit 6 to Petition [8-2], at 19.
Given the context – notes written by hand while conducting an interview of a party
38

of interest in a murder investigation – it is reasonable to assume that “willing to write
vol statement” does not mean that Petitioner was only willing to provide a written
statement. Indeed, it could reasonably be interpreted as his agreement to provide a
written statement in addition to the interview from which the notes were taken. At
best, the notes are ambiguous on this point, and it is important to note that the
Mississippi Supreme Court concluded that Grayson never made this factual claim in
the suppression hearing at trial, on direct appeal, or in his first post-conviction
proceeding.
The affidavit that Petitioner presented in support of his successive postconviction petition does not include any mention of the alleged “limited” waiver.
Successive PCR Record [69-4], at 33-34. Additionally, the notes from the interview
indicate that Petitioner was advised of his rights prior to the interview. Exhibit 6 to
Petition [8-2], at 19. Likewise, Sheriff Miller testified that Officer Tanner advised
Petitioner of his rights prior to the interview. Trial Record Vol. 4 [153-9], at 215.
Therefore, despite knowing that he had the right to remain silent, Petitioner willingly
participated in the interview, suggesting that he did not intend to limit his waiver to
a written statement. Cf. United States v. Hearn, 563 F.3d 95, 104 (5th Cir. 2009)
(“[The petitioner] was fully apprised of her Miranda rights and chose to waive those
rights by answering the officers’ questions.”). Accordingly, the Court finds that the
Mississippi Supreme Court’s determination that Petitioner waived his Fifth
Amendment right to counsel with respect to the May 21 statement was not
39

unreasonable.
Even if the Mississippi Supreme Court’s determination of this factual issue
had been unreasonable, the trial court’s admission of evidence arising from the May
21 interview was harmless. First, Sheriff Miller’s testimony regarding the
interview was not materially different than Petitioner’s written statement. Second,
“[t]he Supreme Court . . . has never held – much less ‘clearly established’ – that
physical evidence derived as a result of a Fifth Amendment violation must be
suppressed.” Burgess, 350 F.3d at 468. Therefore, even if the May 21 statement had
been suppressed, it does not necessarily follow that the checkbook would have been
suppressed as fruit of the statement.
Even if the statement and checkbook had not been admitted into evidence,
there was still ample evidence to support Petitioner’s conviction. Law enforcement
officers retrieved other physical evidence from Kilpatrick’s trailer that was not a fruit
of the May 21 statement: the shotgun, the flashlight, and the murder weapon.
Petitioner later confessed to the murder, and although he contends that the
confession was inadmissible for other reasons, he does not argue that it was fruit of
the May 21 statement. Therefore, even if the Mississippi Supreme Court
unreasonably determined that Petitioner did not provide a limited waiver, he has not
demonstrated that the “error had substantial and injurious effect or influence in
determining the jury’s verdict.” Id. at 466-67.

40

b. Knowing and Voluntary
Next, Petitioner argues that the Mississippi Supreme Court unreasonably
determined that his waiver of rights with respect to the May 21, 1996, statement was
knowing and voluntary. In response, the State broadly contends that the Mississippi
Supreme Court’s factual determination on this point was not unreasonable in light of
the evidence before it.
On direct appeal, Petitioner argued that several factors combined to “overcome
his free will and render his confession involuntary,” such as his confinement under
suicide watch and prior questioning by officers. Grayson I, 806 So. 2d at 248. Grayson
did not offer specific arguments regarding each statement. Rather, he focused only
on the confession statement of May 24, 1996.
The Mississippi Supreme Court held that the “trial record does not support
Grayson’s interpretation of the facts or their legal significance.” Id. It noted that
Sheriff Miller’s initial questioning of Petitioner in Florida “lasted less than four
minutes and elicited no information that was offered at trial.” Id. Petitioner offered
no evidence that being under observation for a potential suicide attempt “had any
coercive effect, nor any evidence that he suffered sleep deprivation as a result of
being” under observation.” Id. at 249. It also held that he offered no evidence that
officers “used coercive tactics to induce him to take the polygraph test,” and that he
had no evidence that officers had induced him to confess by telling him that “it would
be better for him to admit the charges.” Id. Therefore, the Mississippi Supreme Court
41

concluded that there was no evidence to support Petitioner’s argument that his
confession was coerced. Id.
In his second post-conviction proceeding, Grayson argued that his trial counsel
had provided ineffective assistance by failing to adequately investigate and support
his motion to suppress. Grayson III, 118 So. 3d at 135. The Mississippi Supreme
Court held that this was merely a restatement of the argument he presented on direct
appeal and, therefore, procedurally barred. Id. It also held that, regardless of the
procedural bar, he had failed to offer sufficient evidence to demonstrate that he only
intended to provide a limited waiver of his rights. Id.
“There are two inquiries to determine whether an accused has voluntarily and
knowingly waived his” right to counsel. Hopkins v. Cockrell, 325 F.3d 579, 583 (5th
Cir. 2003). “First, the waiver of the right must be voluntary in that it was not the
product of intimidation, coercion, or deception.” Id. “In order for a defendant to
establish that his confession was involuntary, he must demonstrate that it resulted
from coercive police conduct, and it is essential that there be a link between the
coercive conduct of the police and the confession of the defendant.” Id. at 584.
Evidence of police trickery can “show that the defendant did not voluntarily waive his
privilege.” Id. (quoting Miranda, 384 U.S. at 476). But “[t]rickery or deceit is only
prohibited to the extent it deprives the suspect of knowledge essential to his ability
to understand the nature of his rights and the consequences of abandoning them.”
United States v. Alvarado-Palacio, 951 F.3d 337, 341 (5th Cir. 2020). “The
42

voluntariness determination is made on a case-by-case basis and is viewed under the
totality of the circumstances surrounding the interrogation.” Id.
Second, the waiver must be knowing, in that it “must be made with a full
awareness of the nature of the right being waived.” Hopkins, 325 F.3d at 583. Once
again, the Court examines the totality of the circumstances surrounding the
interrogation. Id. (citing Spano v. New York, 360 U.S. 315, 321-23, 79 S. Ct. 1202, 3
L. Ed. 2d 1265 (1959)). The question is whether the officers’ actions “deprive[d] the
defendant of knowledge essential to his ability to understand the nature of his rights
and the consequences of abandoning them,” whether by trickery, deceit, or the
conditions of his confinement. Id.
Petitioner claims that officers coerced him into giving a statement on May 21,
1996. However, despite asserting this claim in his Second Amended Petition [104], he
made no serious attempt to brief it, focusing instead on the “limited waiver”
argument. Regardless, the record contains ample evidence to support the Mississippi
Supreme Court’s determination that Grayson knowingly and voluntarily waived his
Fifth Amendment rights with respect to the May 21 statement.
Grayson admitted that Florida officers advised him of his right to counsel on
May 17, 1996, and he admitted that he understood his right to counsel. Trial Record
Vol. 9 [153-14], at 52. Likewise, Sheriff Miller testified that he advised Petitioner of
his rights before taking the statement on May 21. Trial Record Vol. 4 [153-9], at 66.
After he provided the statement, Petitioner signed a waiver form in which he affirmed
43

that he knew and understood his rights. Exhibit 8 to Petition [8-2], at 24. Petitioner
also testified that when he provided the May 21 statement, he knew he had a right
to remain silent and a right to an attorney, but he wanted to tell Sheriff Miller his
version of events surrounding the murder. Trial Record Vol. 9 [153-14], at 56.
Sheriff Miller testified that Petitioner appeared to understand what he was
doing, and that he did not appear to be under the influence of drugs or alcohol at the
time he provided the May 21 statement. Trial Record Vol. 4 [153-9], at 66-67. Miller
also testified that no one threatened, pressured, or coerced Grayson. Id. at 67. Indeed,
Petitioner admitted to the trial court that he was not physically abused in any
fashion. Trial Record Vol. 9 [153-14], at 64.
Tanner, the jailer, testified that Grayson initiated contact on May 21, 1996.
Trial Record Vol. 4 [153-9], at 125. Grayson “called for” Tanner and then said he
“need[ed] to talk to [Tanner] and the Sheriff.” Id. “He said he wanted to get something
off of his chest.” Id. Tanner’s testimony on this point was corroborated by
contemporaneous notes. Exhibit 5 to Petition [8-2], at 17. Tanner also testified that
he did not witness anyone threaten or coerce Petitioner while he was in custody. Trial
Record Vol. 4 [153-9], at 127. Likewise, he did not witness anyone question Petitioner
about any criminal conduct until he met with the Sheriff on May 21. Trial Record Vol.
4 [153-9], at 126. Tanner testified that Petitioner was given access to a phone, id. at
127, and the jail watch log corroborates Tanner’s testimony on this point. Exhibit 3
to Petition [8-2], at 8-10.
44

With respect to the suicide watch procedures, Tanner testified that officers
checked in on prisoners to “make sure they don’t do harm to themselves” at least once
an hour, sometimes up to four times an hour. Trial Record Vol. 4 [153-9], at 136-37.
He said: “We look in on them. If they’re moving around, we know they’re all right. We
leave them alone. If they’re asleep, we might wake them up, especially in the daytime
we make sure they’re there.” Id. at 137. However, Tanner testified that Grayson never
made any complaints about sleep deprivation, or otherwise complained that the
suicide watch bothered him. Id. at 138. Grayson did not produce any evidence that
the suicide watch procedures deprived him of sleep.
In summary, Grayson knew he had a right to counsel, as evidenced by his
invocation of it back in Florida. He also admitted to the trial court that he knew and
understood his right to counsel at the time he provided the statement to Sheriff
Miller. “The law can presume that an individual who, with a full understanding of
his or her rights, acts in a manner inconsistent with their exercise has made a
deliberate choice to relinquish the protection those rights afford.” Lucio, 751 F. App’x
at 492. Moreover, after he gave the statement, Grayson signed a waiver form
acknowledging that he understood and waived his rights, and “[a] signed waiver form,
though not conclusive, is usually strong proof of a knowing and voluntary waiver.”
Alvarado-Palacio, 951 F.3d at 341.
Additionally, Grayson has not directed the Court to any evidence that the
conditions of his confinement were coercive. Miller and Tanner both testified that no
45

one threatened or coerced Petitioner, and Petitioner admitted that he was not
physically abused. The record contains no evidence that Petitioner suffered sleep
deprivation from the suicide watch, or that it otherwise influenced his decision to
waive his rights and provide a statement on May 21, 1996.
Therefore, accounting for all the circumstances surrounding the May 21
statement, the Court concludes that the Mississippi Supreme Court reasonably
determined that Grayson knowingly and voluntarily waived his Fifth Amendment
right to counsel.
c. Application of Federal Law
Petitioner argues that the Mississippi Supreme Court’s determination that he
provided a knowing and voluntary waiver of rights was contrary to or an
unreasonable application of clearly established federal law. Petitioner contends that
the Mississippi Supreme Court held that his signature on a waiver form
automatically constitutes a knowing and intelligent waiver of rights. This, however,
is a mischaracterization of the Mississippi Supreme Court’s decision.
On appeal, the Mississippi Supreme Court provided a thorough survey of the
Fifth Amendment right to counsel. Grayson I, 806 So. 2d at 247-48. It noted that
“[w]hen a suspect invokes his right to counsel, all interrogation must cease until the
lawyer is present, unless the suspect himself reinitiates communication with the
police.” Id. at 247 (quoting Edwards, 451 U.S. at 484). It held that the authorities
ceased questioning Petitioner when he invoked his right to counsel, but that he then
46

waived his right to counsel by reinitiating communication with them. Id. at 248. He
also signed a waiver of his rights. Id. The Mississippi Supreme Court then considered
the circumstances surrounding Petitioner’s confession statement, including many of
the facts discussed herein, but it ultimately disagreed with Petitioner’s
“interpretation of the facts or their legal significance.” Id. at 248-49. Ultimately, the
Mississippi Supreme Court concluded that Petitioner had not offered any evidence of
coercion. Id. at 249.
Therefore, the Court finds that this claim has no merit. This Court’s reading
of the Mississippi Supreme Court’s decision does not align with Grayson’s
interpretation argued here. The Mississippi Supreme Court did not hold that a
suspect’s signature on a waiver form automatically constitutes a knowing and
intelligent waiver of rights. Rather, it conducted the proper analysis under the
applicable law, examining the totality of the circumstances to determine whether
Petitioner’s waiver was, in fact, knowing and voluntary. 6
Petitioner also contends that the Mississippi Supreme Court’s decision was
directly contrary to three specific Supreme Court opinions, but this argument is
likewise meritless. “A state prisoner can only satisfy the ‘contrary to’ standard if he
shows the state court decision arrives at a conclusion opposite to that reached by the
Supreme Court on a question of law or if it resolves a case differently than the

Even if the Mississippi Supreme Court had held that Petitioner’s signature on a waiver form
automatically constituted a knowing and intelligent waiver of rights, the error would be harmless
because, for all the reasons discussed above, the record contains ample evidence to support the same
outcome under the proper analysis.
6

47

Supreme Court has on a set of materially indistinguishable facts.” Neal, 78 F.4th at
783.
In Edwards v. Arizona, the Supreme Court held that “waivers of counsel must
not only be voluntary, but must also constitute a knowing and intelligent
relinquishment or abandonment of a known right or privilege, a matter which
depends in each case upon the particular facts and circumstances surrounding that
case . . . .” 451 U.S. at 482. The Supreme Court also held that “an accused, . . . having
expressed his desire to deal with the police only through counsel, is not subject to
further interrogation by the authorities until counsel has been made available to him,
unless the accused initiates further communication . . . with the police.” Id. at 48485.
Here, Petitioner has never argued that his waiver was not knowing and
intelligent. Indeed, he could not credibly claim as much because of his own testimony
to the contrary in the trial court. See Trial Record Vol. 9 [153-14], at 52, 56. Therefore,
that aspect of Edwards is inapplicable here. Even if the Mississippi Supreme Court
erred by not expressly finding that Petitioner’s waiver was knowing and intelligent,
the error was harmless in light of Petitioner’s undisputed testimony that he
understood his rights.
Petitioner also argues that the Mississippi Supreme Court’s decision was
contrary to the Supreme Court’s decision in Oregon v. Bradshaw, 462 U.S. 1039, 103
S. Ct. 2830, 77 L. Ed. 2d 405 (1983). In that case, the Supreme Court held:
48

[E]ven if a conversation taking place after the accused has expressed his
desire to deal with the police only through counsel is initiated by the
accused, where reinterrogation follows, the burden remains upon the
prosecution to show that subsequent events indicated a waiver of the
Fifth Amendment right to have counsel present during an interrogation.
Id. at 1044. Thus, there are two separate inquiries: whether the accused reinitiated
communication, and whether he waived the previously asserted right. Id. at 1045.
“[I]nquiries or statements, by either an accused or a police officer, relating to routine
incidents of the custodial relationship, will not generally” waive a previously asserted
right to counsel. Id.
On appeal, the Mississippi Supreme Court expressly found that Petitioner
reinitiated contact with the police, and then, considering the totality of the
circumstances, it expressly found that Petitioner voluntarily waived his right to
counsel. Grayson I, 806 So. 2d at 248-49. It repeated these findings in Petitioner’s
successive post-conviction proceeding. Grayson III, 118 So. 3d at 135. Therefore, the
Mississippi Supreme Court conducted the analysis prescribed by Bradshaw. Recall,
the question is not whether this Court believes the state court’s determination was
incorrect, but whether that determination was unreasonable. Chamberlain, 885 F.3d
at 837.
Additionally, Petitioner did not initiate a conversation with Tanner and Miller
about “routine incidents of the custodial relationship.” Bradshaw, 462 U.S. at 1045.
According to the record – including Petitioner’s own testimony – he wanted to talk to
Miller about Smith’s murder. Trial Record Vol. 4 [153-9], at 125; Trial Record Vol. 9
49

[153-14], at 56; Exhibit 5 to Petition [8-2], at 17. The Mississippi Supreme Court
considered Petitioner’s late assertion that he only intended to provide a limited
waiver of his rights, but it did not believe him because the evidence says otherwise.
That determination was reasonable, for all the reasons provided above.
Finally, Petitioner argues that the Mississippi Supreme Court’s decision was
contrary to the Supreme Court’s decision in Connecticut v. Barrett, 479 U.S. 523, 107
S. Ct. 828, 93 L. Ed. 2d 920 (1987). In that case, the Supreme Court held that a
suspect made a limited invocation of the right to counsel when he refused to provide
a written statement but agreed to talk to police. Id. at 529. The Mississippi Supreme
Court’s decision was not contrary to Barrett in that it rejected Petitioner’s assertion
that he only intended to give a limited waiver of rights. As discussed above, that
factual determination was reasonable. Therefore, this argument is meritless.
5. May 23, 1996
With respect to the statement taken on May 23, 1996, Petitioner argues that
the Mississippi Supreme Court unreasonably determined that he re-initiated contact
with police after previously invoking his right to counsel. Accordingly, he contends
that any evidence of or derived from the second statement should have been excluded
from trial.
In response, the State argues that Petitioner’s claims are procedurally barred,
and that his Sixth Amendment right to counsel had not attached when he provided
the May 23 statement. The Court has already addressed those issues. The State also
50

broadly argues that Mississippi Supreme Court’s determination of the facts was
reasonable, and that its decision was not contrary to or an unreasonable application
of federal law.
On appeal, the Mississippi Supreme Court addressed whether the trial court
should “have suppressed Grayson’s incriminating statements to the police.” Grayson
I, 806 So. 2d at 247. The court generally focused on the final confession statement of
May 24, 1996. Id. 7 It held Petitioner’s “claim fails because he clearly waived any right
to an attorney he might theoretically have had at the time he confessed.” Id. at 248.
It also discussed the evidence from trial and held that the “record does not support
Grayson’s” argument that the “factors surrounding his confinement . . . render[ed]
his confession involuntary.” Id. In reaching these conclusions, the Mississippi
Supreme Court found that “Grayson himself reinitiated communication with the
authorities . . . .” Id.
In the second post-conviction proceeding, the Mississippi Supreme Court
addressed Petitioner’s claim that his counsel provided ineffective assistance by failing
to adequately investigate and present evidence in support of his motion to suppress.
Grayson III, 118 So. 3d at 135. The court held that there was no evidence to support
Petitioner’s assertion that he had not reinitiated contact with the police “sufficient to
waive his invocation of the right to counsel,” or that he had only provided a limited
waiver of his rights. Id.
In his briefing on appeal, Petitioner did not individually analyze each statement, instead addressing
them as a whole and focusing on the May 24 confession. Appeal Record [153-2], at 11-17.
7

51

Sheriff Miller testified that Petitioner “wanted to talk to” Investigator Houston
Dorr. Trial Record Vol. 4 [153-9], at 40. This testimony was corroborated by the MHP
Investigator, Houston Dorr, who specifically testified that Petitioner “initiated [the
May 23] conference.” Trial Record Vol. 8 [153-13], at 98. Dorr said that he was in
George County on another matter when “the Sheriff came in and said, ‘Blayde
Grayson said he wanted to talk to us.’” Trial Record Vol. 4 [153-9], at 88. This is the
only evidence in the record regarding the initiation of communication between
Petitioner and officers on May 23, 1996, and Petitioner has not directed the Court to
any evidence disputing Dorr and Miller’s testimony.
As explained above, an “unreasonable determination of the facts” is one
“outside the bounds of reasonable debate.” Seals, 1 F.4th at 370. “The term
‘unreasonable’ refers not to ordinary error or even to circumstances where the
petitioner offers a strong case for relief, but rather to extreme malfunction in the state
criminal justice system.” Mays, 592 U.S. at 391. That is not the case here. Two officers
testified specifically that Petitioner reinitiated communication with them on May 23,
1996, and Petitioner has not provided any evidence to dispute that testimony.
Accordingly, the Court concludes that the Mississippi Supreme Court’s determination
on this issue was not unreasonable, and this claim is meritless.
6. May 24, 1996
As the Court recounted above, Petitioner took a polygraph examination on May
24, 1996, and in a subsequent interview he confessed to having murdered Minnie
52

Smith. Petitioner argues that all evidence of the polygraph examination and
confession should have been excluded from trial because his agreement to take the
examination was fruit of the May 23 statement, which he contends officers illegally
obtained by questioning him after he had invoked his Fifth Amendment right to
counsel. As the Court explained above, the evidence demonstrates that Petitioner
initiated contact with officers on May 23, and the Mississippi Supreme Court’s
determination on this issue was not unreasonable.
Petitioner also argues that the Mississippi Supreme Court unreasonably
determined that he voluntarily submitted to the polygraph examination and
voluntarily provided the confession. He contends that officers coerced him to take the
polygraph examination and to provide the confession statement.
In response, the State argues that Petitioner’s claims are procedurally barred,
and that his Sixth Amendment right to counsel had not attached when he confessed
on May 24. The Court has already addressed those issues. The State also broadly
argues that Mississippi Supreme Court’s determination of the facts was reasonable,
and that its decision was not contrary to or an unreasonable application of federal
law.
On appeal, Petitioner argued that “his confession should have been suppressed
at trial, because he was denied his right to counsel guaranteed by the Fifth and Sixth
Amendments of the U.S. Constitution . . . , or in the alternative, because the
confession was involuntary.” Grayson I, 806 So. 2d at 247. He claimed that several
53

factors combined to “overcome his free will and render his confession involuntary,”
such as his confinement under suicide watch and prior questioning by officers.
Grayson I, 806 So. 2d at 248.
The Mississippi Supreme Court held that the “trial record does not support
Grayson’s interpretation of the facts or their legal significance.” Id. Among other
things, it noted that Petitioner had not offered evidence that being under suicide
watch “had any coercive effect, nor any evidence that he suffered sleep deprivation as
a result of being” under observation.” Id. at 249. It also held that he offered no
evidence that officers “used coercive tactics to induce him to take the polygraph test”
or induced him to confess by telling him that “it would be better for him to admit the
charges.” Id. Therefore, the Mississippi Supreme Court concluded that there was no
evidence to support Petitioner’s argument that the confession was coerced. Id.
As discussed above, the evidence indicates that Petitioner initiated contact
with officers on May 23, 1996. Houston Dorr testified that he was at the jail for
another matter when “the Sheriff came in and said, ‘Blayde Grayson said he wanted
to talk to us.’” Trial Record Vol. 4 [153-9], at 88. Dorr read Petitioner his rights and
took his statement. Id. at 89; Exhibit 9 to Petition [8-2], at 26-35. Petitioner never
asked for attorney, and he appeared to fully understand his rights. Trial Record Vol.
4 [153-9], at 106. After Dorr had taken Petitioner’s statement – in which he again
implicated Jason Kilpatrick as the murderer – Dorr “asked [Petitioner] would he take
a lie detector test or polygraph, and [Petitioner] said ‘yeah.’” Id. at 89.
54

Dorr explained why he brought up the possibility of a polygraph examination:
“At that point in time I had – I didn’t know what to do, because I had – when I was
in Florida I had Kilpatrick saying [Petitioner] did it and over here I’ve got [Petitioner]
over here telling me Kilpatrick did it.” Id. at 89-90. He was trying to determine “[w]ho
was telling the truth or neither one of them was telling the truth.” Id. at 107. In his
experience as an investigator, a polygraph examination is “a good investigative tool
even though we don’t use it in court, but it gives an idea if he’s lying or not.” Id. at
108. According to Dorr, no one made any threats or promises in relation to the
polygraph. Id. at 109-110. No one used force or a demonstration of force to coerce him.
Id. at 110. He said, “[N]obody even raised their voice or anything . . . .” Id.
Dorr testified that he did not discuss the case at all with Petitioner on the way
to Jackson for the polygraph examination. Id. at 90. Larry Waggoner, another MHP
investigator, administered the polygraph examination. Id. at 300. Waggoner provided
a Miranda warning before the examination started. Id. at 92, 111; Trial Record Vol.
5 [153-10], at 2, 4. Waggoner specifically testified that he did not witness anyone
promise anything to Petitioner, threaten him, or otherwise coerce him, and Petitioner
never asked for or mentioned an attorney. Trial Record Vol. 5 [153-10], at 4. Dorr was
not in the room during the polygraph, but he could see and hear what was happening
from the next room. Trial Record Vol. 4 [153-9], at 91-92, 111.
Waggoner began by explaining the examination process to Petitioner and
telling him the exact questions that he intended to ask. Trial Record Vol. 5 [153-10],
55

at 5-6. During this process, Petitioner told Waggoner “that he was in the house and
that a friend or companion, . . . Jason had killed Ms. Minnie.” Id. at 10. But Grayson’s
demeanor changed later during the polygraph examination, “when [Waggoner] asked
him to be truthful and talk . . . about it. He just changed at that point.” Id. Dorr said
he got “really upset.” Trial Record Vol. 4 [153-9], at 92-93. Grayson changed his story
and admitted that he had murdered Minnie Smith. Id. at 92-93; Trial Record Vol. 5
[153-10], at 10-11. Grayson “slumped – like he was letting out a lot of anxiety. He
said ‘I didn’t mean to do it. I didn’t mean to kill her. I just went berserk,’ something
to those words.” Trial Record Vol. 4 [153-9], at 94. At that point, Waggoner asked
Petitioner if he wanted to speak with Dorr, and Petitioner answered affirmatively.
Id.
After the polygraph examination was terminated, Investigator Dorr “got
another Miranda sheet” and “read [Petitioner] his Miranda warning and explained
it to him.” Id. at 95. Dorr specifically denied that he told Petitioner “it would be better
for him if he admitted” to the murder before reading him his rights. Id. He testified:
“I tried my best not to say anything until I got through reading his Miranda warning.
He kept on wanting to say something beforehand and I told him not to say anything
until I read him his Miranda warning.” Id. Dorr denied making any threats or
promises to obtain Petitioner’s waiver. Id. at 114. He also testified that he gave
Petitioner an opportunity to call a lawyer before taking the confession. Id. at 96. Dorr
said: “He was given the opportunity after he was read the Miranda warning. He was
56

told. I told him he could stop if he wanted to try to get one.” Id. Petitioner declined
and signed the waiver of rights, id. at 112, and during the interview, he confessed to
murdering Minnie Smith. Exhibit 10 to Petition [8-2], at 37-59. During the confession,
Petitioner admitted that Dorr had advised him of his rights, that he understood his
rights, and that he had not been threatened in any way. Id. at 48-49. According to
Dorr, Petitioner said that he “just wanted to get it over with.” Trial Record Vol. 4
[153-9], at 97.
Later in the trial – after the prosecution had rested and, therefore, long after
the suppression hearing – Petitioner’s counsel raised additional issues regarding the
trial court’s admission of the confession, and Grayson himself took the stand outside
the presence of the jury. He admitted that he was not physically abused in any
fashion. Trial Court Vol. 9 [153-14], at 64. Although he initially claimed that
Investigator Dorr threatened him, he later admitted that Dorr had not threatened
him. Id. at 66-67. Rather, he said that Dorr “told [him] that they was going to throw
the book at [him] . . . .” Id. at 67. With respect to the polygraph examination, Grayson
testified that officers “said it was to [his] best interest” to take the test. Id. at 68. He
also testified that two officers, James Earl Tanner and Porky Holloman, told him that
it would be better for him to cooperate and give a statement. Id. at 78. Petitioner’s
testimony was unclear on the timeline of these events or their proximity to his
agreement to take the polygraph examination or his confession. Regardless, the trial
court obviously viewed the testimony – which Petitioner elected to give after the
57

prosecution had already rested – with skepticism. It noted:
[W]e have these motions, day long motions on issues. And every time a
ruling goes against this man, he comes up with some new version of
something to point fingers at everybody involved in this case. Any
question of coercion of a confession, he should have brought up on Friday
when I had a day long motion on that question. He did not. He never
said a word. . . . I think he’s – he’s trying to pull the wool over everybody’s
eyes. Trying to pull the wool over this Court’s eyes, and he’s not going to
do it. All of this should have been brought up at the proper time, not
three days after the beginning of a capital murder case, after a video
confession has already been played to the jury.
Id. at 95.
As discussed above, a waiver of the Fifth Amendment right to counsel “must
be voluntary in that it was not the product of intimidation, coercion, or deception.”
Hopkins, 325 F.3d at 583. Petitioner must show that his confession “resulted from
coercive police conduct, and it is essential that there be a link between the coercive
conduct of the police and the confession . . . .” Id. at 584. “[T]here is nothing wrong
with efforts to create a favorable climate for confession. Neither mere emotionalism
and confusion, nor mere trickery will alone necessarily invalidate a confession.” Self
v. Collins, 973 F.2d 1198, 1205 (5th Cir. 1992). “Trickery or deceit is only prohibited
to the extent it deprives the suspect of knowledge essential to his ability to
understand the nature of his rights and the consequences of abandoning them.”
Alvarado-Palacio, 951 F.3d at 341. “The voluntariness determination is made on a
case-by-case basis and is viewed under the totality of the circumstances surrounding
the interrogation.” Id.
Petitioner argues that the same factors discussed above with respect to the
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May 21 statement rendered his May 24 confession involuntary. However, the record
contains ample evidence that officers advised Petitioner of his rights multiple times
before he provided the confession. Likewise, there is ample evidence that Petitioner
knew and understood those rights. Dorr specifically testified that he asked Petitioner
if he wanted to get a lawyer before the confession, and Petitioner declined. The record
contains no evidence that officers threatened, abused, or made any promises to
Petitioner to induce the confession. Indeed, Waggoner and Dorr’s testimony indicates
that Petitioner was ready to come clean and unburden himself. Finally, Petitioner
has not offered any evidence that the suicide watch procedures deprived him of sleep,
affected his cognitive ability, or otherwise affected his ability to give a voluntary
waiver.
Petitioner also notes that Waggoner told him that he had failed the polygraph
examination. However, Petitioner does not dispute that he did, in fact, fail the
polygraph examination – which he agreed to take. Moreover, Grayson has not
directed the Court to any record evidence or cited any case law supporting the
assertion that merely being provided that information deprived him of the ability to
voluntarily and intelligently waive his right to counsel.
Petitioner focuses most of his argument on one comment by Dorr during a
section of the recorded confession that was not included in the written transcript. 8
The following exchange occurred after Petitioner entered the room but before Dorr

8

A video recording of the confession was conventionally filed with the Court.

59

advised him of his rights once again:
Petitioner:

“They gonna’ kill me, ain’t they?”

Dorr:

“You gotta’ show some remorse, okay.”

Petitioner:

“I really didn’t mean to.”

Dorr:

“I know you didn’t, but let’s – look, we’ll do it together…”

Dorr then read the waiver form to Petitioner, advising him of his rights. Dorr stopped
at one point and asked Petitioner, “I haven’t threatened you any, have I?” Petitioner
responded negatively. After Dorr finished reading the waiver form, he filled in the
location of the interview, and Grayson, not responding to any question or prompt from
Dorr, said, “Didn’t mean to do it. We just needed some money, that’s all.” Petitioner
then signed the waiver form and asked Dorr, “What are they gonna’ do with me?”
Dorr responded, “I don’t know, Blayde. You didn’t mean to do it. I’m gonna’ turn this
thing on, okay.” Dorr then turned the tape recorder on and began the portion of the
interview included in the written transcript.
Grayson argues that Dorr’s comment – “You gotta’ show some remorse, okay.”
– was coercive because it implicitly promised that Petitioner would not receive the
death penalty if he confessed. The Court disagrees. One could reasonably conclude
that 1) the comment was not a promise of leniency, and 2) Petitioner did not or should
not have interpreted it as such, particularly in light of Dorr’s explicit statement a
couple of minutes later that he did not know what would happen. At worst, the
comment could be interpreted as an attempt to build a rapport with Petitioner to
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make him more comfortable opening up about the murder, and the Constitution does
not forbid such practices. As noted above, “there is nothing wrong with efforts to
create a favorable climate for confession.” Self, 973 F.2d at 1205. The comment was
not forbidden trickery or deceit because it did not “deprive[ ] the suspect of knowledge
essential to his ability to understand the nature of his rights and the consequences of
abandoning them.” Alvarado-Palacio, 951 F.3d at 341. Therefore, the Court finds that
the Mississippi Supreme Court’s determination that the confession was not coerced
was not unreasonable in light of the record evidence.
B.

Funding for an Investigator
Petitioner also argues that the trial court violated his Sixth and Fourteenth

Amendment right to a fair trial by failing to grant adequate funding for an
investigator. Petitioner contends that the Mississippi Supreme Court’s adjudication
of this issue was based on multiple unreasonable determinations of fact. He also
contends that the Mississippi Supreme Court’s decision was an unreasonable
application of the United States Supreme Court’s decision in Ake v. Oklahoma, 470
U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). In response, the State argues that
the Mississippi Supreme Court’s decision was based on reasonable determinations of
fact, that its decision was not an unreasonable application of clearly established
federal law, and that Petitioner’s claim is procedurally barred.
On appeal, Petitioner argued that the trial court erred by denying his motion
for funds for a private investigator and jury consultant. The Mississippi Supreme
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Court noted that Petitioner did, in fact, receive funding for one investigator, but the
trial court did not address his motion for funding a second investigator. Grayson I,
806 So. 2d at 255. The court observed that Petitioner did not exhaust all the funds
allocated for the first investigator, and that the motion seeking additional funding for
a second investigator did not include enough supporting factual details. Id. “In light
of this sparse information,” the Mississippi Supreme Court held that “the trial court
did not abuse its discretion in denying the motion for additional funds.” Id.
In his successive petition for post-conviction relief, Petitioner argued that his
trial counsel provided ineffective assistance by failing to timely and adequately
support his motion for additional funding for a second investigator. He presented an
affidavit from a prisoner who was allegedly cellmates with Jason Kilpatrick, in which
the prisoner claimed that Kilpatrick had confessed to the crime. Grayson III, 118 So.
3d at 133. Petitioner argued that if his counsel had timely and adequately supported
the motion for additional funds, the trial court would have authorized the funding,
he would have developed evidence that Kilpatrick was the murderer, and the result
of the trial would have been different. Id.
The Mississippi Supreme Court held that Petitioner was attempting to “recast
his argument made on direct appeal – regarding the denial of investigative funds –
under a different legal theory . . . .” Id. Accordingly, the claim was barred by Miss.
Code § 99-39-21(2) unless Petitioner could show cause and actual prejudice. Id. at 134
(citing MISS. CODE ANN. §§ 99-39-21(2), (4)-(5)). It held that the cellmate’s affidavit
62

was “not enough to prove prejudice.” Id. First, the information in the affidavit was
inconsistent with the evidence in the record. Id. Second, it was inconsistent with
Petitioner’s own confession. Id. Therefore, the Mississippi Supreme Court held that
even if the cellmate’s “hearsay testimony” had been introduced at trial, Petitioner
had “failed to show a reasonable probability that the result of the proceedings would
have been different.” Id. Accordingly, the claim was procedurally barred. Id. Even if
the claim were not barred, Petitioner did not prove that his counsel provided
ineffective assistance because he had “failed to offer sufficient proof of what
additional funds or . . . a proper investigation would have revealed” and, therefore,
“failed to show a reasonable probability that the result of the proceedings would have
been different.” Id.
1. Procedural Bar
First, Respondent argues that this claim is procedurally barred. As noted
above, “[f]ederal review of a habeas claim is procedurally barred if the last state court
to consider the claim expressly and unambiguously based its denial of relief on a state
procedural bar.” Gonzalez, 924 F.3d at 241.
In Grayson I, the Mississippi Supreme Court found that the trial court did not
abuse its discretion in denying Petitioner’s motion to pay for a second investigator.
Grayson I, 806 So. 2d at 255. In Grayson III, Petitioner argued that his counsel
provided ineffective assistance by failing to timely and adequately support a motion
for investigative funds. Grayson III, 118 So. 3d at 133. The Mississippi Supreme
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Court found that this was an impermissible attempt to “recast his argument made on
direct appeal – regarding the denial of investigative funds – under a different legal
theory, ineffective assistance of counsel.” Id. Accordingly, the claim was procedurally
barred by Miss. Code Ann. § 99-39-21(2). Id. at 134.
As noted above, a statutory bar that “has the same effect as res judicata and
prevents the re-litigation of claims” does not prevent federal review of a habeas claim,
“as long as the claim was not procedurally barred for some other reason.” Jackson,
447 F. App’x at 544 (addressing MISS. CODE ANN. § 99-39-21(2)). Applying these
principles, the Fifth Circuit has found that federal review of a claim denied by a
Mississippi court pursuant to Miss. Code Ann. § 99-39-21(2) is not procedurally
barred. See Foster, 293 F.3d at 787 n. 12; Jackson, 447 F. App’x at 544. Therefore, the
Court finds that Petitioner’s claim related to the trial court’s denial of his funding
motions is not procedurally barred.
2. Facts Relevant to this Claim
Petitioner was indicted on August 16, 1996. Trial Record Vol. 1 [153-6], at 15.
On March 5, 1997, Petitioner filed a Motion for Funds for Court Appointed
Investigator, in which he asked the trial court to grant him “funding in an amount
adequate to conduct the proper investigation of the alleged offense.” Id. at 44-45.
Although he suggested that he should receive “funding for his own investigative team
equal in size, funding, and man power [sic] of the resources of law enforcement
agencies involved in” his case, he did not request a specific amount of funds or explain
64

how he intended to spend them. Id. at 45.
On March 24, 1997, the trial court held a motions hearing, in which it heard
several motions, including the initial Motion for Funds for Court Appointed
Investigator. Trial Record Vol. 3 [153-8], at 3-4. Petitioner argued that he needed to
hire an investigator to “organize and catalog evidence and perhaps . . . to investigate
a possibility of DNA.” Id. at 79-80. The Court instructed Petitioner’s counsel to file a
written motion that provided more detailed information, such as who they wanted to
hire, what they would investigate, how it would help Petitioner’s case, and how much
it would cost. Id. at 80-81.
On March 27, 1997, the trial court brought up the motion for an investigator
while hearing a separate motion in chambers. Id. at 111-12. Petitioner’s counsel
requested that the Court hold the motion in abeyance. Id. at 112.
On May 20, 1997, Petitioner filed a second Motion for Funds for Court
Appointed Investigator, in which he asked the trial court to appoint Clayton Hall to
assist in the preparation of his defense. Trial Record Vol. 1 [153-6], at 105-06.
Petitioner did not specify what Hall would investigate, how it would help his case, or
how much it was expected to cost. Id. The record contains no information regarding
what services, if any, Hall performed on Petitioner’s behalf, and the trial court never
authorized a payment to him.
On June 27, 1997, the trial court held another motions hearing. Trial Record
Vol. 3 [153-8], at 113. Petitioner’s counsel re-urged the motion to fund an investigator.
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Trial Record Vol. 4 [153-9], at 19-20. The trial court said that it wanted to hear more
details ex parte before ruling on the motion. Id. at 22-23. It granted the motion on
July 2, 1997, authorizing Petitioner to employ a private investigator at an expense of
up to $750.00. Trial Record Vol. 1 [153-6], at 114.
On July 25, 1997, Petitioner filed a Motion for Continuance of the trial. Id. at
115-17. He alleged that on July 21, 1997, the State produced copies of reports from
the Escambia County Sheriff’s Department which contained “possible exculpatory
evidence based on a statement taken by law enforcement officers of Richard Dale
Rogers, . . . a former cell mate of Jason Kilpatrick, a former suspect” in the case. Id.
at 116. Grayson claimed Rogers had information which contradicted Kilpatrick’s
claim that he was not present at the murder scene. Id.
On July 31, 1997, Grayson filed an Ex Parte Motion for Additional Funding for
Private Investigator. Id. at 123-24. He asked the trial court to authorize additional
funds to pay a second private investigator, James Bowman, to obtain a statement
from a “possible exculpatory witness currently residing in Florida City,
approximately one (1) hour south of Miami, Florida.” Id. He also wanted funds to
“properly subpoena an out-of-state criminal witness and compel his appearance” at
trial. Id. at 124.
On the same day, James Bowman submitted a bill for his services to
Petitioner’s counsel. Trial Record Vol. 2 [153-7], at 52. According to the invoice,
Bowman charged Petitioner’s counsel $838.15 for “services furnished on Richard Dale
66

Rogers 732599.” Id. The itemized bill indicates that Bowman met with Petitioner’s
counsel, located a phone and address, traveled to Pensacola, and discussed something
with a travel agent. Id. The record does not indicate when this invoice was provided
to the trial court. Long after the trial had concluded, on April 15, 1998, the trial court
entered an Order to pay James Bowman $500.00 for services rendered on Petitioner’s
behalf. Id. at 51.
On August 1, 1997, Petitioner filed an Application for Subpoena for Out-ofState Witness. Trial Record Vol. 1 [153-6], at 129-31. He asked the trial court to issue
the necessary paperwork to petition a local court in Florida to compel the attendance
of Richard Dale Rogers at trial. Id. at 129-30. At that time, Rogers was an inmate in
the Dade Correctional Institute in Florida City, Florida. Id. at 130.
On the same day, the Court heard several pretrial motions filed by Petitioner.
Petitioner did not raise the Ex Parte Motion for Additional Funding, Motion for
Continuance, or Motion for Out-of-State Subpoena. The Court also heard motions
before trial began on August 4, 1997, and, once again, Petitioner did not raise these
motions.
3. Merits Analysis
The Fourteenth Amendment’s due process guarantee of fundamental fairness
entitles an indigent defendant to a “fair opportunity to present his defense.” Ake, 470
U.S. at 76. “[M]ere access to the courthouse doors does not by itself assure a proper
functioning of the adversary process.” Id. at 77. Indeed, “a criminal trial is
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fundamentally unfair if the State proceeds against an indigent defendant without
making certain that he has access to the raw materials integral to the building of an
effective defense.” Id. This does not mean “that a State must purchase for the indigent
defendant all the assistance that his wealthier counterpart might buy.” Id. Rather,
“[m]ost of those raw materials come to the defendant in the form of his courtappointed lawyer – in his expert knowledge about how to negotiate the rules of court,
how to mount an effective defense, and so forth. Other materials come from lay
witnesses, such as evidence necessary to the defendant to establish his defense.”
Moore v. Johnson, 225 F.3d 495, 503 (5th Cir. 2000). In fact, the Fifth Circuit has
specifically found that a criminal defendant is not entitled to court-funded “nonpsychiatric experts,” including “mitigation experts.” Id.
To establish that a trial court’s failure to fund an investigator or expert
deprived him of a fair opportunity to present his defense, a criminal defendant must
“establish a reasonable probability that the requested experts would have been of
assistance and that their absence resulted in a fundamentally unfair trial.” United
States v. Snarr, 704 F.3d 368, 405 (5th Cir. 2013). Therefore, a trial court does not
deprive a criminal defendant of due process where it rejects “undeveloped assertions
that the requested assistance would be beneficial.” Caldwell v. Mississippi, 472 U.S.
320, 324 n. 1, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985); see also Yohey v. Collins, 985
F.2d 222, 227 (5th Cir. 1993). At a minimum, “an indigent defendant requesting nonpsychiatric experts must demonstrate something more than a mere possibility of
68

assistance from a requested expert.” Moore, 225 F.3d at 503.
a. Factual Determinations
Petitioner argues that the Mississippi Supreme Court’s adjudication of this
issue was based on unreasonable determinations of fact. The Court agrees that the
Mississippi Supreme Court’s decision was premised on factual errors, although the
Court ultimately concludes that the errors were harmless. Upon close inspection of
the record, it appears that the Mississippi Supreme Court misapprehended some
specific facts from the trial record. It held that Petitioner “did in fact receive funding
for an investigator named Clayton M. Hall up to a maximum of $750, and the trial
court in fact ordered that the county pay that investigator the sum of $500 . . . .”
Grayson I, 806 So. 2d at 255. It also held that the trial court “never ruled on funding
for the second investigator, one James Bowman, which is tantamount to a denial of
Grayson’s motion.” Id.
As this Court explained above, the trial court granted Petitioner $750.00 for
an investigator, but it did not specify whom Petitioner had to hire. The record
contains no evidence that Hall performed any services for Petitioner, or that the court
paid him anything. However, the trial court eventually paid Bowman $500.00 for
investigative services, although there is no record that the court was aware that
Bowman performed any services until long after the trial had concluded. Finally,
there is no record of the trial court addressing Petitioner’s Ex Parte Motion for
Additional Funding, Motion for Continuance, or Motion for Out-of-State Subpoena.
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Likewise, there is no record of Petitioner raising those motions in either of the pretrial
motion hearings held after he had filed them.
Petitioner focuses on the following section of the Mississippi Supreme Court’s
opinion:
The trial court had already approved $750 in funds for one investigator,
not all of which was spent. The second motion stated that funds were
needed to contact a ‘possible exculpatory witness’ without any further
information, as well as to arrange to subpoena this witness and
transport him or her to Grayson’s trial. In light of this sparse
information, the trial court did not abuse its discretion in denying the
motion for additional funds.
Id. He argues that the Mississippi Supreme Court unreasonably determined that
Petitioner had not expended all $750.00 of the initial funding granted for an
investigator. Grayson contends, rather, that he requested additional funding because
he needed it for Bowman to complete his work and obtain a statement from Richard
Dale Rogers.
Grayson also argues that the Mississippi Supreme Court unreasonably
described the purpose of the request for additional funding as the need to “pursue
exculpatory evidence from an unidentified out-of-state witness.” Grayson I, 806 So.
2d at 254. He contends that the witness was not unidentified, and that the record
clearly reveals that his counsel wanted to obtain a statement from Richard Dale
Rogers.
Petitioner has since obtained a statement from Rogers. He first presented it to
the Mississippi Supreme Court with his successive petition for post-conviction relief.
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Successive PCR Record [69-4], at 133-135. The document states:
My name is Richard Dale Rogers and I am currently serving a life
sentence in Florida Department of Corrections. I dictated this statement
to Sonya Rudenstine and certify that it is true and correct.
In 1995, I was in Escambia County Jail awaiting transfer and was put
in a cell with Jason Kilpatrick. He was being pulled out of his cell several
times a day and kept coming back with cigarettes, so I asked him who
he was snitching on. I had seen an article in the cell about his case and
asked him if that’s what it was about. He told me it was and I asked him
how he was going to get away with it. He told me they were making it
easy for me because they had not asked him if he did it or accused him
– all they wanted was a statement against Blayde Grayson.
He then told me how the crime happened. He and Grayson went to the
victim’s house and were talking with her. Kilpatrick took her to the
restroom in her wheelchair and pushed her in while Grayson was going
through the house. When she tried to get out, he grabbed her chair and
tipped it over and bent one of the wheels. She fell out and banged her
head pretty hard. She was knocked out. She came to and started
screaming. The next thing he knew he had blood all over him and
everywhere and the knife was in his hand.
Grayson had been carrying things out to the car while this was going on.
They got a shotgun, jewelry, not much cash, and some antique things.
They went back to Pensacola to sell the stuff. There was camping
equipment, too. Kilpatrick also told me he put the knife in the backyard
near the porch.
I was questioned at the County Jail about the case as well, I assume by
the same people who questioned Kilpatrick. They wanted to know if
Kilpatrick had spoken to me about his case and whether Grayson had
stabbed the old lady.
I swear that the information in this statement is true and correct to the
best of my knowledge and is in my own words.
Id. The statement was notarized and dated April 22, 2005. Id. at 135.
The Mississippi Supreme Court held that Petitioner’s trial counsel’s failure to
71

present this testimony at trial was not prejudicial because “[a]lthough Rogers’s
affidavit implicates Grayson, Rogers’ description of the crime is not consistent with
the information about the crime found in the record.” Grayson III, 118 So. 3d at 134.
Moreover, “Grayson confessed to murdering Smith and provided details which are
consistent with the evidence at the crime scene. Even if Rogers’s hearsay testimony
had been admitted into evidence, Grayson has failed to show a reasonable probability
that the result of the proceedings would have been different.” Id.
This claim raises two issues. First, there is the question of whether the
Mississippi Supreme Court’s factual determinations were reasonable. See 28 U.S.C.
§ 2254(d)(2). Second, if the trial court erred, the Court must determine whether the
error was harmless or “had substantial and injurious effect or influence in
determining the jury’s verdict.” Burgess, 350 F.3d at 466-67; Hood v. Cockrell, 72 F.
App’x 171, 182 (5th Cir. 2003) (alleged Ake errors are subject to harmless error
review). The Court need only address the second issue.
Even if the trial court erred in not providing Petitioner with additional funds
for an investigation into Rogers’ claims, the error was harmless. As the Mississippi
Supreme Court noted in Petitioner’s successive post-conviction proceeding, the
Rogers affidavit is not consistent with the evidence presented at Petitioner’s trial.
Grayson III, 118 So. 3d at 134.
Rogers stated that Kilpatrick told him about the murder in 1995, but the
murder actually occurred in May 1996. Successive PCR Record [69-4], at 133. Rogers
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claims Kilpatrick said he took Minnie Smith to the bathroom in her wheelchair,
dumped her out of it, and then stabbed her to death while she was on the floor. Id. at
134. Rogers specifically said Kilpatrick described “blood all over . . . everywhere. . . .”
Id. Rogers also said, “Kilpatrick also told me he put the knife in the backyard near
the porch.” Id. However, these statements do not match the physical evidence at the
scene of the crime and multiple witnesses’ testimony from trial.
Ray Pierce testified that he discovered Smith’s body on the bed. Trial Record
Vol. 7 [153-12], at 24. Also, Melissa Schoene, the State’s forensic scientist, testified
that she found blood on the floor of the hallway between Minnie Smith’s bedroom and
bathroom, but she said, “[I]t was not a smear or a pool. It was not a pool or a drop. It
was more of a transfer, possibly a smear.” Trial Record Vol. 7 [153-12], at 116. She
specifically testified that “it was not a lot of blood.” Id. She also collected suspected
blood from a “faint stain all throughout the sink,” and a “diluted stain inside the basin
of the tub.” Id. at 120. She also collected blood from the south wall of Smith’s bedroom,
next to where the body was found. Id. at 121-22. She said that there was not a large
amount of blood anywhere in the house except on Smith’s bed and bedding, where the
body was found. Id. at 123.
Faith Colvin testified that Petitioner had been with her earlier on the night of
the murder at Jason Kilpatrick’s residence in Florida, but she said Petitioner left
around ten o’clock at night and returned around six or seven in the morning. Trial
Record Vol. 8 [153-13], at 3-6. She also testified that Kilpatrick did not leave with
73

Petitioner, but, rather, stayed there in Florida the entire night. Id. at 7.
Houston Dorr testified that, among other things, he retrieved a knife from the
Florida law enforcement officers who arrested Petitioner. Id. at 31. Elaine Pierce
identified the knife as having belonged to Minnie Smith, Trial Record Vol. 6 [153-11],
at 145-49, and Dr. Hayne testified that the knife was consistent with Minnie Smith’s
stab wounds. Trial Record Vol. 8 [153-13], at 143-44.
In summary, Rogers said Kilpatrick told him about the murder in 1995, before
it had even occurred. Rogers said Kilpatrick claimed to have stabbed Smith on her
bathroom floor, but the physical evidence indicates that Smith was murdered in her
bed. Rogers said that Kilpatrick claimed to have murdered Smith, but Faith Colvin
testified that Kilpatrick never left Florida. Rogers said that Kilpatrick claimed to
have left the murder weapon in Smith’s backyard, but officers retrieved it in Florida.
Finally, Grayson’s own confession contradicts the Rogers affidavit on numerous
points, including Petitioner’s role in the offense.
For all these reasons, the Court concludes that even if the trial court erred by
failing to allocate additional funds for an investigation into Rogers’ claims, the error
was harmless. “[A] federal court may grant habeas relief only if it determines that
the constitutional error had substantial and injurious effect or influence in
determining the jury’s verdict.” Burgess, 350 F.3d at 466-67. “Actual prejudice must
be shown.” Atkins v. Hooper, 979 F.3d 1035, 1049 (5th Cir. 2020). Even if Petitioner
had investigated Rogers and presented the testimony set out in his affidavit, it is
74

unlikely that it would have made any difference in the result of his trial, given the
weight of evidence against Petitioner, the inconsistencies between Rogers’ statement
and that evidence, and Petitioner’s own confession to the murder. See Kelly v.
Cockrell, 72 F. App’x 67, 76-77 (5th Cir. 2003) (where petitioner argued that
insufficient funding for investigation violated his rights, appellate court found that
he had not shown any prejudice because the alleged evidence to be uncovered was not
credible); cf. White v. Johnson, 153 F.3d 197, 207 (5th Cir. 1998) (in light of evidence
presented against petitioner, it was unlikely that trial court’s failure to allocate funds
for an expert swayed the jury); Aranda v. Lumpkin, 2022 WL 16837062 at *3 (5th
Cir. Nov. 9, 2022) (trial court error violating Miranda was harmless due to
“overwhelming evidence” of petitioner’s guilt); Thompson v. Davis, 916 F.3d 444, 454
(5th Cir. 2019) (trial court violation of Sixth Amendment right to counsel was
harmless because of additional evidence against petitioner).
b. Application of Federal Law
Grayson also argues that the Mississippi Supreme Court’s adjudication of this
claim was an unreasonable application of the United States Supreme Court’s decision
in Ake v. Oklahoma. He contends that the trial court’s failure to grant additional
funds for more investigation violated the rule “that when a State brings its judicial
power to bear on an indigent defendant in a criminal proceeding, it must take steps
to assure that the defendant has a fair opportunity to present his defense.” Ake, 470
U.S. at 76.
75

Ake is inapplicable here. “In Ake, the Supreme Court held that, upon request,
a trial court must appoint a psychiatrist for an indigent defendant if a defendant
demonstrates to the trial judge that his sanity at the time of the offense is to be a
significant factor at trial . . . .” Woodward v. Epps, 580 F.3d 318, 331 (5th Cir. 2009).
“Non-psychiatric experts should be provided only if the evidence is both critical to the
conviction and subject to varying expert opinion.” Snarr, 704 F.3d at 405. Petitioner
argues that the reasoning behind Ake is equally applicable to investigators, but he
has not cited a Supreme Court decision extending the precedent in that fashion. See
Poree, 866 F.3d at 246 (“Clearly established federal law” is “the governing legal
principle or principles set forth by the Supreme Court at the time the state court
renders its decision.”); Kelly, 72 F. App’x at 76 (expressing skepticism that Ake applies
to investigative services).
Even if the Supreme Court had extended Ake’s holding to investigative
services, this claim fails because Petitioner has not demonstrated that the denial of
additional funds prejudiced his defense. “To demonstrate reversible error on the basis
that he lacked [ ]adequate funds for expert witnesses, a defendant must establish a
reasonable probability that the requested experts would have been of assistance to
the defense and the denial of such expert assistance resulted in a fundamentally
unfair trial.” Snarr, 704 F.3d at 405. Grayson has not made that showing, for all the
reasons provided above.

76

C.

Jury Instruction on Mitigating Evidence
Petitioner argues that his death sentence violates the Eighth and Fourteenth

Amendments to the United States Constitution because the trial court failed to
instruct the jury that it could consider any and all mitigating evidence beyond that
specifically enumerated in the court’s instructions. 9 He contends that the Mississippi
Supreme Court’s adjudication of this claim relied on an unreasonable application of
federal law and an unreasonable determination of fact. In response, the State argues
that the claim is procedurally barred, and that the jury was properly instructed.
As noted above, “[f]ederal review of a habeas claim is procedurally barred if the
last state court to consider the claim expressly and unambiguously based its denial
of relief on a state procedural bar.” Gonzalez, 924 F.3d at 241. Petitioner first
presented this argument to a state court in his successive petition for post-conviction
relief. See Grayson III, 118 So. 3d at 129. The Mississippi Supreme Court held that
this issue “was capable of determination at trial and on direct appeal,” and therefore
waived pursuant to Miss. Code Ann. § 99-39-21(1), unless he could show “‘cause’ and
‘actual prejudice.’” Id. The court stated: “Since the legal foundation upon which the
claim for relief is based was discoverable with reasonable diligence at the time of trial

“Upon conviction . . . of capital murder or other capital offense,” Mississippi courts “conduct a
separate sentencing proceeding to determine whether the defendant should be sentenced to death, life
imprisonment without eligibility for parole, or life imprisonment.” MISS. CODE ANN. § 99-19-101(1). “In
the proceeding, evidence may be presented as to any matter that the court deems relevant to the
sentence, and shall include matters relating to any of the aggravating or mitigating circumstances”
outlined in the statute. MISS. CODE ANN. § 99-19-101(1), (5), (6). “For the jury to impose a sentence of
death, it must unanimously find in writing . . . [t]hat sufficient aggravating circumstances exist . . .
[and t]hat there are insufficient mitigating circumstances . . . .” MISS. CODE ANN. § 99-19-101(3).
9

77

or direct appeal, Grayson cannot show cause.” Id. at 129-30. Accordingly, the claim
was procedurally barred. Id. at 130.
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
with federal law, then the state rule is independent.” Id.
Grayson challenges both the adequacy and independence of the state
procedural bar, arguing that the Mississippi Supreme Court’s decision was
“interwoven with federal law and the adequacy and independence of the state law
ground is not clear from the opinion.” Memorandum of Law in Support of Second
Amended Petition [119], at 47.
First, the Fifth Circuit has specifically held that Miss. Code Ann. § 99-39-21(1)
is adequate. Stokes v. Anderson, 123 F.3d 858, 860-61 (5th Cir. 1997); cf. Gaston v.
Anderson, 214 F.3d 1349, 2000 WL 633436, at *1 (5th Cir. Apr. 25, 2000) (district
court did not err in finding that claims waived under Miss. Code Ann. § 99-39-21(1)
were procedurally barred). Regardless, Petitioner has “not identified specific
instances when the Mississippi Supreme Court did not apply [Miss. Code Ann. § 9978

39-21(1)] to claims identical or similar” to his. Rogers v. Mississippi, 555 F. App’x 407,
408 (5th Cir. 2014). Therefore, “he has not met his burden of establishing that the
procedural bars were not strictly or regularly applied to the vast majority of similar
claims.” Id.
As for independence, “the fact that the state court alternatively addressed the
merits of [a petitioner’s] claim does not prevent its procedural default determination
from being an independent basis that bars review by the federal courts.” Cotton v.
Cockrell, 343 F.3d 746, 754 (5th Cir. 2003). Here, the Mississippi Supreme Court first
held that Petitioner’s claim related to the trial court’s mitigation instruction was
procedurally barred. Grayson III, 118 So. 3d at 130. It then stated, “Procedural bar
notwithstanding, this claim does not entitle Grayson to relief,” and it proceeded to
address the merits of the claim. Id. at 130-32. Therefore, the Mississippi Supreme
Court’s determination of the merits of this claim was an alternative ruling, and it
does not vitiate the independent nature of the procedural bar.
Accordingly, the Court finds that the Mississippi Supreme Court rejected this
claim “pursuant to a state procedural rule that provides an adequate basis for the
decision, independent of the merits of the claim,” Garza, 738 F.3d at 675, and it is
barred from federal habeas review.
Notwithstanding the procedural bar, the instructions were adequate. In a
death penalty case, “the jury must be allowed to consider and give effect to mitigating
evidence relevant to a defendant’s character or record or the circumstances of the
79

offense” when determining a sentence. Penry v. Lynaugh, 492 U.S. 302, 327-28, 109
S. Ct. 2934, 106 L. Ed. 2d 256 (1989). However, “a clearly drafted catchall instruction
on mitigating evidence” generally satisfies this requirement. McCoskey v. Thaler, 478
F. App’x 143, 150 (5th Cir. 2012). The question for the Court is whether “there is a
reasonable likelihood that the special issues precluded the jury from giving full
consideration and full effect to the defendant’s mitigating evidence, including
evidence that has mitigating relevance outside the scope of the special issues because
it speaks to a defendant’s moral culpability.” Id.
Here, the trial court instructed the jury: “You are not to single out one
instruction alone as stating the law, but you must consider these instructions as a
whole.” Trial Record Vol. 1 [153-6], at 143. It also instructed the jury:
[T]he procedure you must follow is not a mere counting process of a
certain number of aggravating circumstances versus the number of
mitigating circumstances. Rather, you must apply your reasoned
judgment as to whether this situation calls for life imprisonment or
whether it requires the imposition of death, in light of the totality of the
circumstances present.
Trial Record Vol. 2 [153-7], at 18. The Court also instructed the jury:
You must now decide whether the Defendant will be sentenced to death
or life imprisonment. In reaching your decision, you may objectively
consider the detailed circumstances of the offense for which the
Defendant was convicted, and the character and record of the Defendant
himself. You should consider and weigh any aggravating and mitigating
circumstances, as set forth later in this instruction . . . .
Id. at 19. The same instruction listed four of the statutory aggravating factors. Id. at
20; see also Miss. Code Ann. § 99-19-101(5). It listed two of the statutory mitigating
80

factors:
If one or more of the above aggravating circumstances is found to exist,
then you must consider whether there are mitigating circumstances
which outweigh the aggravating circumstance(s). Consider the following
elements of mitigation in determining whether the death penalty should
not be imposed:
(1) Whether the capacity of the Defendant to appreciate the
criminality of his conduct was substantially impaired.
(2) The age of the Defendant at the time of the crime.
If you find from the evidence that one or more of the preceding elements
of mitigation exists, then you must consider whether it (or they)
outweigh(s) or overcome(s) the aggravating circumstance(s) you
previously found. In the event that you find the mitigating
circumstance(s) do not outweigh or overcome the aggravating
circumstance(s), you may impose the death penalty. Should you find
that the mitigating circumstance(s) outweigh or overcome the
aggravating circumstance(s), you shall not impose the death sentence.
Trial Record Vol. 2 [153-7], at 20-21.
Therefore, the trial court instructed the jury that they should “apply [their]
reasoned judgment as to whether this situation calls for life imprisonment or whether
it requires the imposition of death, in light of the totality of the circumstances
present,” and it instructed the jury they “may objectively consider . . . the character
and record of the Defendant himself,” in addition to the specific listed mitigating
factors. Trial Record Vol. 2 [153-7], at 18-19. “[J]urors are presumed to follow their
instructions.” Sheppard v. Davis, 967 F.3d 458, 470 (5th Cir. 2020). Accordingly, the
Mississippi Supreme Court reasonably determined that the instructions, when taken
as a whole, did not foreclose the jury from considering all available mitigating
81

evidence.
D.

Jury Instruction on Parole Ineligibility
Petitioner argues that his sentence violated the Eighth and Fourteenth

Amendments to the United States Constitution because the jury was not adequately
instructed that he would be ineligible for parole if sentenced to life imprisonment.
The State argues that this claim is procedurally barred, and that the Mississippi
Supreme Court’s adjudication of it was reasonable.
Petitioner first presented this argument to a state court in his successive
petition for post-conviction relief. See Grayson III, 118 So. 3d at 132. The Mississippi
Supreme Court held that “this claim was capable of determination at trial or on direct
appeal and is procedurally barred.” Id. (citing MISS. CODE ANN. § 99-39-21(1)). The
court also found that the claim “does not meet an exception to the procedural bars
and should be dismissed.” Id. Alternatively, the court held that the claim was
meritless because the “jury was informed adequately that a life sentence would be
without parole.” Id.
As with the previous claim, Petitioner challenges both the adequacy and
independence of the state procedural bar, arguing that the Mississippi Supreme
Court’s decision was “interwoven with federal law and the adequacy and
independence of the state law ground is not clear from the opinion.” Memorandum of
Law in Support of Second Amended Petition [119], at 47.
The Fifth Circuit has held that Miss. Code Ann. § 99-39-21(1) is adequate,
82

Stokes, 123 F.3d at 860-61, and Petitioner has “not identified specific instances when
the Mississippi Supreme Court did not apply [it] to claims identical or similar” to his.
Rogers, 555 F. App’x at 408. Therefore, “he has not met his burden of establishing
that the procedural bars were not strictly or regularly applied to the vast majority of
similar claims.” Id.
As for independence, “the fact that the state court alternatively addressed the
merits of [a petitioner’s] claim does not prevent its procedural default determination
from being an independent basis that bars review by the federal courts.” Cotton, 343
F.3d at 754. Here, the Mississippi Supreme Court explicitly held that Petitioner’s
claim related to an instruction regarding ineligibility for parole was procedurally
barred. See Grayson III, 118 So. 3d at 132 (citing MISS. CODE ANN. § 99-39-21(1)).
“Procedural bar notwithstanding,” it alternatively held that the claim was meritless.
Id. Therefore, the merits ruling did not vitiate the independent nature of the
procedural bar.
Regardless, the claim is meritless. Grayson cites Simmons v. South Carolina,
512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994), in support of his argument
that the trial court erred by failing to give an instruction that he would be ineligible
for parole if sentenced to life in prison. “In Simmons, the Supreme Court held that
‘where a defendant’s future dangerousness is at issue, and state law prohibits the
defendant’s release on parole, due process requires that the sentencing jury be
informed that the defendant is parole ineligible.’” Rhoades v. Davis, 914 F.3d 357,
83

374 (5th Cir. 2019) (quoting Simmons, 512 U.S. at 156 (plurality opinion)).
Here, Petitioner has not highlighted – and the Court did not find – any overt
argument by the prosecution or jury instruction putting his future dangerousness in
issue. Indeed, in Mississippi, future dangerousness is not a potential aggravating
circumstance to be considered by the jury in a capital murder case. See MISS. CODE
ANN. § 99-19-101(5). However, Simmons can still apply in cases where the
prosecution does not overtly argue that the defendant poses a future danger. Kelly v.
South Carolina, 534 U.S. 246, 253-54, 122 S. Ct. 726, 151 L. Ed. 2d 670 (2002).
“Evidence of future dangerousness under Simmons is evidence with a tendency to
prove dangerousness in the future.” Id. at 254.
The Court will assume that the State introduced evidence at trial that could
tend to prove that Petitioner poses a future danger. The claim is still meritless.
Simmons does not require an instruction from the court as to parole ineligibility when
the defendant’s future dangerousness is at issue. Rather, it “requires that the
sentencing jury be informed that the defendant is parole ineligible.” Rhoades, 914
F.3d at 374. A plurality of the Supreme Court held: “Because truthful information of
parole ineligibility allows the defendant to deny or explain the showing of future
dangerousness, due process plainly requires that he be allowed to bring it to the jury’s
attention by way of argument by defense counsel or an instruction from the court.”
Simmons, 512 U.S. at 169; see also Ramdass v. Angelone, 530 U.S. 156, 180, 120 S.
Ct. 2113, 147 L. Ed. 2d 125 (2000) (O’Connor, J., concurring) (where the defendant is
84

ineligible for parole, “Simmons entitles the defendant to inform the jury of that
ineligibility, either by argument or instruction . . . .”).
Here, the trial court specifically instructed the jury: “[Y]ou are under no
obligation to impose the death penalty. That is simply one option. You may also
consider a sentence of life, without parole.” Trial Record Vol. 2 [153-7], at 24.
Throughout closing argument, Grayson’s trial counsel repeatedly emphasized that
the jury was choosing between death or life imprisonment without parole. Trial
Record Vol. 10 [153-15], at 76, 78-80. In fact, he made that a key point of his
argument, asserting that life without parole was a harsher sentence than death. He
said, “[Y]ou are not going to turn him loose today if you don’t kill him. You are going
to inflict a lifetime of punishment on the defendant. You will make him think about
this day for the rest of his life.” Id. at 80.
Therefore, the trial court instructed the jury that a sentence of life
imprisonment would be without parole, and Petitioner’s counsel emphasized that fact
in closing argument. Accordingly, the jury was informed that a sentence of life
imprisonment would be without parole, and that is all the Constitution requires.
Rhoades, 914 F.3d at 374. 10

Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1, cited by Petitioner, does not
address whether a jury must be instructed that a defendant would be ineligible for parole if sentenced
to life imprisonment. Rather, it provides that a jury “not be precluded from considering, as a mitigating
factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death.” Id. at 4. Here, Petitioner was not
precluded from offering anything regarding his parole ineligibility. As discussed above, his counsel
repeatedly emphasized that a life sentence would be without parole. Therefore, Skipper is inapplicable
here.

10

85

Accordingly, the Court finds that the Mississippi Supreme Court rejected this
claim “pursuant to a state procedural rule that provides an adequate basis for the
decision, independent of the merits of the claim,” Garza, 738 F.3d at 675, and it is
barred from federal habeas review. Notwithstanding the procedural bar, the claim is
meritless.
E.

Ineffective Assistance of Counsel
In his next enumerated ground for relief, Petitioner argues that he was

deprived of effective assistance of counsel at the culpability and penalty phases of his
trial, as well as on direct appeal, in violation of rights guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution.
The Fifth Circuit has summarized the law governing claims of ineffective
assistance of counsel:
To demonstrate a claim of ineffective assistance of counsel under
Strickland v. Washington, the defendant must show both that counsel
rendered deficient performance and that counsel’s actions resulted in
actual prejudice. To demonstrate deficient performance, the defendant
must show that, in light of the circumstances as they appeared at the
time of the conduct, counsel’s representation fell below an objective
standard of reasonableness as measured by prevailing professional
norms. There is a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Trial counsel’s
strategic decisions must be given a strong degree of deference. On
habeas review, if there is any reasonable argument that counsel
satisfied Strickland’s deferential standard, the state court’s denial must
be upheld. . . .
To demonstrate prejudice under Strickland, [the petitioner] must show
that counsel’s deficient performance was so serious as to deprive him of
a fair trial, a trial whose result is reliable. This requires the showing of
a reasonable probability that but for counsel’s deficiencies, the result of
86

the proceeding would have been different.
Rhoades, 852 F.3d at 431-32 (punctuation and citations omitted); see also Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Prejudice exists when the likelihood of a different result is substantial, not just
conceivable.” Trottie v. Stephens, 720 F.3d 231, 241 (5th Cir. 2013) (citations and
punctuation omitted). 11
“When an ineffective-assistance-of-counsel claim is subject to AEDPA, the
pivotal question is whether the state court’s application of the Strickland standard
was unreasonable,” not whether counsel’s performance fell below the Strickland
standard. Trottie, 720 F.3d at 241. In the context of a habeas claim, “[a] state court
must be granted a deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.” Id. at 242 (quoting Harrington
v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785, 178 L. Ed. 2d 624 (2011)). “Thus, while
surmounting Strickland’s high bar is never an easy task, establishing that a state
court’s application of Strickland was unreasonable under § 2254(d) is all the more
difficult,” as both standards are “highly deferential” and “doubly so” when combined.
Id. (punctuation and citations omitted). “AEDPA review is doubly deferential because
Petitioner argues that the Court must apply a “cumulative prejudice” analysis. That is, he contends
that the Court must assess prejudice globally, rather than isolating each alleged deficiency in counsel’s
representation. Petitioner is mistaken. The Fifth Circuit has affirmed a district court’s holding that
“the Supreme Court has never affirmatively adopted a cumulative error doctrine with respect to
ineffective assistance of counsel claims.” Hill v. Davis, 781 F. App’x 277, 278 (5th Cir. 2019). Kyles v.
Whitley, 514 U.S. 419, 436, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995), cited by Petitioner, applied a
cumulative prejudice analysis to Brady claims.

11

87

counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Russell, 68
F.4th at 272 (quotations and citations omitted). “Doubly deferential means that we
afford both the state court and the defense attorney the benefit of the doubt.” Id.
(quotations and citations omitted).
1.

Motion for Funding Investigation in Florida

First, Petitioner argues that his trial counsel were ineffective because they
failed to timely and adequately support his motion for funding for an investigator to
interview Richard Dale Rogers, and then failed to preserve the issue for appeal. In
response, the State argues that the claim is procedurally barred, that Petitioner’s
counsel did not provide deficient representation, and that Petitioner has not
demonstrated prejudice.
Petitioner presented this claim to the Mississippi Supreme Court in his
successive petition for post-conviction relief. Grayson III, 118 So. 3d at 133. There,
like here, he presented the affidavit from Richard Dale Rogers. Id. The Mississippi
Supreme Court found that the claim was barred by res judicata, and in assessing
cause and prejudice it found that trial counsel’s failure to present the Rogers
testimony was not prejudicial. Id. at 134. The court said:
Although Rogers’s affidavit implicates Grayson, Rogers’ description of
the crime is not consistent with the information about the crime found
in the record. Additionally, Grayson confessed to murdering Smith and
provided details which are consistent with the evidence at the crime
scene. Even if Rogers’s hearsay testimony had been admitted into
evidence, Grayson has failed to show a reasonable probability that the
88

result of the proceedings would have been different.
Id. Notwithstanding the res judicata bar, Petitioner failed to demonstrate that his
counsel was ineffective in this respect. Id. at 134. Thus, Petitioner did not receive
ineffective assistance in the initial post-conviction proceeding, and the claim was
time-barred and barred as a successive petition. Id. at 125, 134 (citing MISS. CODE
ANN. §§ 99-39-27(9), 99-39-5(2)).
a. Procedural Bar
“Federal review of a habeas claim is procedurally barred if the last state court
to consider the claim expressly and unambiguously based its denial of relief on a state
procedural bar.” Gonzalez, 924 F.3d at 241. Petitioner first presented this claim to a
state court in his successive petition for post-conviction relief. See Grayson III, 118
So. 3d at 133. The Mississippi Supreme Court held that it was time-barred and barred
as a successive petition. Id. at 125, 138 (citing MISS. CODE ANN. §§ 99-39-27(9), 9939-5(2)).
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
89

with federal law, then the state rule is independent.” Id.
Grayson correctly argues that federal review of a claim denied by a Mississippi
court pursuant to Miss. Code Ann. § 99-39-21(2) is not procedurally barred. See
Foster, 293 F.3d at 787 n. 12; Jackson, 447 F. App’x at 544. However, the Mississippi
Supreme Court held that his claim was barred by res judicata, Grayson III, 118 So.
3d at 133-34 (citing MISS. CODE ANN. § 99-39-21(2)), as well as time-barred and barred
as a successive petition. Id. at 125, 134 (citing MISS. CODE ANN. §§ 99-39-27(9), 9939-5(2)).
Petitioner has not challenged the adequacy and independence of the
Mississippi Uniform Post-Conviction Collateral Relief Act’s (“MUPCCRA’s”) statute
of limitations and bar on successive petitions. Regardless, the Fifth Circuit has
specifically held that both rules “are independent and adequate state procedural
grounds” to bar federal habeas review. Spicer v. Cain, 2021 WL 4465828, at *3 (5th
Cir. Sept. 29, 2021) (as applied to an ineffective assistance claim); see also Bell v.
Miss. Dep’t of Corr., 290 F. App’x 649, 655 (5th Cir. 2008); Johnson v. Puckett, 176
F.3d 809, 815 n.3 (5th Cir. 1999). Petitioner did not argue that any exception to the
doctrine of procedural default applies. Therefore, the Court finds that the Mississippi
Supreme Court rejected this claim “pursuant to a state procedural rule that provides
an adequate basis for the decision, independent of the merits of the claim,” Garza,
738 F.3d at 675, and it is barred from federal habeas review. Notwithstanding the
procedural bar, Petitioner has not demonstrated that the Mississippi Supreme
90

Court’s decision was unreasonable.
b. Merits
Two weeks before the trial, the State disclosed reports from the Escambia
County Sheriff’s Department which contained information about the claims made by
Richard Dale Rogers. Trial Record Vol. 1 [153-6], at 116. A few days later –
approximately ten days before the trial – Petitioner’s counsel filed the motion for
continuance to investigate the matter. Id. at 115-16. Less than a week before the trial,
Petitioner’s counsel filed the third motion for funds and a motion for an out-of-state
subpoena. Id. at 123-24, 129-30.
On the same day Petitioner’s counsel filed the third motion for funds and
motion for out-of-state subpoena, an investigator submitted a bill to Petitioner’s
counsel for “services furnished on Richard Dale Rogers.” Trial Record Vol. 2 [153-7],
at 52. The itemized bill indicates that the investigator met with Petitioner’s counsel,
located a phone and address, traveled to Pensacola, and discussed something with a
travel agent. Id.
Overall, Grayson’s trial counsel filed three separate motions seeking funds to
pay an investigator, a motion seeking a continuance of trial to conduct additional
investigation, and an application for a subpoena for an out-of-state witness. Trial
Record Vol. 1 [153-6], at 44-45, 105-06, 115-17, 123-24, 129-30. Counsel argued the
motions in multiple hearings, as well as an ex parte hearing in chambers. Trial Record
Vol. 3 [153-8], at 3-4, 79-80; Trial Record Vol. 4 [153-9], at 19-20.
91

Ultimately, the trial court granted Petitioner’s initial motion for funds, Trial
Record Vol. 1 [153-6], at 114, but there is no evidence that the trial court addressed
the motions filed after Petitioner’s counsel learned about Richard Dale Rogers.
However, the record indicates that there were ex parte proceedings of which there is
no transcript. Trial Record Vol. 4 [153-9], at 22-23; Exhibit 28 to Petition [8-2], at 117.
Likewise, there is no record of how or when the trial court received the investigator’s
bill for payment, or why the trial court only paid $500.00 on an $838.15 bill when it
had already approved up to $750.00 for an investigator.
The Rogers affidavit was executed on April 22, 2005 – almost a decade after
the trial. Successive PCR Record [69-4], at 133-135. The record does not contain a
copy of the Escambia County report which the State disclosed to Petitioner’s counsel.
However, one of Petitioner’s trial counsel executed an affidavit on April 14, 2005, in
which he described what he knew at the time. Exhibit 28 to Petition [8-2], at 117-20.
He said:
I ran some NCIC record checks on some of the witnesses in Florida and
recall that I talked to the judge off the record about getting some
assistance to do investigation. I ended up hiring Jim Bowman, a retired
police officer in Pascagoula, to investigate a guy who was in jail in
Florida and ended up in the penitentiary somewhere near Key West in
south Florida. As I recall, he had heard something potentially
exculpatory from Jason Kilpatrick, who Grayson always insisted had
committed the murder.
Id. at 117-18.
“When evaluating an ineffective assistance of counsel claim, this court will not
question a counsel’s reasonable strategic decisions.” Sandoval Mendoza v. Lumpkin,
92

81 F.4th 461, 479 (5th Cir. Aug. 31, 2023). However, “strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Id. at 473. “If
counsel opts not to explore a particular line of defense, that decision must be assessed
for reasonableness in light of all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” Id. The Court conducts “a context-dependent
consideration of the challenged conduct as seen from counsel’s perspective at the
time,” and makes “every effort to eliminate the distorting effects of hindsight.”
Aranda, 2022 WL 16837062 at *5.
Considering the facts recited above, the Court concludes that the Mississippi
Supreme Court’s rejection of this ineffective-assistance claim was reasonable.
Petitioner’s counsel first learned about Richard Dale Rogers about two weeks before
the trial. There is no evidence that counsel knew the specific content of Rogers’
testimony. In fact, the affidavit that was presented to the Mississippi Supreme Court
in post-conviction was dated April 22, 2005 – almost a decade after the crime.
Petitioner’s counsel said he knew that Rogers “had heard something potentially
exculpatory from Jason Kilpatrick, who Grayson always insisted had committed the
murder.” Exhibit 28 to Petition [8-2], at 118. In response to this limited information
and in the short time remaining before trial, counsel filed a third motion seeking
additional funds for an investigator, a motion for a continuance of trial, and a motion
for an out-of-state subpoena. Counsel also tasked his investigator with tracking down
93

information on Rogers, as evidenced by the investigator’s bill. This was a reasonable
response to a last-minute rumor of “potentially exculpatory” information from a
jailhouse snitch hundreds of miles away.
Even if Petitioner’s counsel knew the specific content of Rogers’ testimony as
provided in the 2005 affidavit, it was a reasonable strategic choice to not utilize the
short time remaining before trial to more thoroughly follow up on it, given 1) the
factual inconsistencies between Rogers’ statement and the evidence, which included
Petitioner’s own confession; and 2) the inherent credibility problems posed by hearsay
testimony from a jailhouse snitch.
Even if Petitioner’s counsel provided deficient representation by failing to
timely and/or more thoroughly support the motions for additional investigative
funding, it was reasonable for the Mississippi Supreme Court to conclude that the
result would not have been different if Rogers had testified at trial. As discussed
above, his affidavit conflicts with much of the evidence, including Petitioner’s own
confession, and the evidence of Petitioner’s guilt was overwhelming.
Petitioner also argues that his counsel provided ineffective assistance by
failing to adequately present the funding claim on appeal, which he contends led to
the claim later being rejected in the successive post-conviction proceeding. However,
Petitioner has not demonstrated what other information his appellate counsel could
have presented in support of the funding claim. The Mississippi Supreme Court’s
appellate decision was issued on November 8, 2001, Grayson I, 806 So. 2d at 241, and
94

the Rogers affidavit was not executed until 2005. Moreover, Petitioner’s counsel
claims to have only known that Rogers “had heard something potentially exculpatory
from Jason Kilpatrick, who Grayson always insisted had committed the murder.”
Even if Petitioner could show deficient performance, he cannot show prejudice, for all
the reasons previously discussed above. Accordingly, the Mississippi Supreme Court’s
rejection of this claim was reasonable. See Miller v. Dretke, 404 F.3d 908, 918-19 (5th
Cir. 2005) (where evidence of petitioner’s guilt was overwhelming, there was no
reasonable probability that the determination of guilt would have changed).
2.

Miscellaneous Failures by Trial/Appellate Counsel

Next, Grayson argues that his trial counsel provided ineffective assistance in
an assortment of ways. In response, the State argues that the claim is procedurally
barred, and that Petitioner failed to demonstrate that his counsel provided deficient
representation. The Court will address each sub-part of this claim in turn.
a. Funding for Other Investigation
Grayson argues that his trial counsel failed to request funding for other
investigation unrelated to Richard Dale Rogers. The Mississippi Supreme Court
rejected this claim in Petitioner’s successive post-conviction proceeding, citing
Petitioner’s failure to “offer sufficient proof of what additional funds . . . would have
yielded [or] . . . sufficient proof of what a proper investigation would have revealed.”
Grayson III, 118 So. 3d at 134. The court further stated that even if “counsel’s
performance was deficient, Grayson has failed to show a reasonable probability that
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the result of the proceedings would have been different.” Id. Accordingly, Petitioner
failed to demonstrate that his trial counsel was ineffective in this respect. Id. Thus,
Petitioner did not receive ineffective assistance in the initial post-conviction
proceeding, and the claim was time-barred and barred as a successive writ. Id. at 125,
134 (citing MISS. CODE ANN. §§ 99-39-27(9), 99-39-5(2)).
“Federal review of a habeas claim is procedurally barred if the last state court
to consider the claim expressly and unambiguously based its denial of relief on a state
procedural bar.” Gonzalez, 924 F.3d at 241. Petitioner presented this claim to a state
court in his successive petition for post-conviction relief. See Grayson III, 118 So. 3d
at 134. The Mississippi Supreme Court held that it was time-barred and barred as a
successive petition. Id. at 125, 134 (citing MISS. CODE ANN. §§ 99-39-27(9), 99-39-5(2)).
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
with federal law, then the state rule is independent.” Id.
Grayson did not challenge the independence and adequacy of the procedural
bar applied by the Mississippi Supreme Court to this claim. Regardless, the Fifth
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Circuit has specifically held that the MUPCCRA’s statute of limitations and bar on
successive petitions “are independent and adequate state procedural grounds” to bar
federal habeas review. Spicer, 2021 WL 4465828 at *3 (as applied to an ineffective
assistance claim); see also Bell, 290 F. App’x at 655; Johnson, 176 F.3d at 815 n.3.
Petitioner did not argue that any other exception to the doctrine of procedural
default applies to this claim. Therefore, the Court finds that the Mississippi Supreme
Court rejected this claim “pursuant to a state procedural rule that provides an
adequate basis for the decision, independent of the merits of the claim,” Garza, 738
F.3d at 675, and it is barred from federal habeas review.
Regardless of the procedural bar, the Mississippi Supreme Court’s
adjudication of this claim was reasonable. The claim rests on a false premise.
Grayson’s counsel did, in fact, seek investigative funding in two motions before he
became aware of Rogers’ potentially exculpatory testimony. Regardless, Petitioner
has not demonstrated prejudice because he has not shown what additional funding
would have uncovered, or that it would have made any difference in the outcome of
his trial in light of the overwhelming evidence against him.
b. Ex Parte Proceedings
Next, Grayson argues that his trial counsel provided ineffective assistance by
failing to establish a record of ex parte discussions to preserve issues for appeal. The
Mississippi Supreme Court did not specifically address this claim, despite it being
presented in Petitioner’s successive post-conviction proceeding.
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“[A] complete verbatim transcript is not always required to ensure that a
defendant’s right to meaningful appellate review is satisfied.” Higginbotham v.
Louisiana, 817 F.3d 217, 222 (5th Cir. 2016) (quotation omitted). [“T]he record is
adequate for full appellate review so long as it contains the portions necessary to
address the alleged errors below.” Id. (quotation omitted). Habeas “claims based on
incomplete transcripts must show that the absence of such a transcript prejudiced
the defendant’s appeal.” Id. (quotation omitted) (alteration in original).
Here, Petitioner has not demonstrated that the outcome of his appellate and
post-conviction proceedings would have been different if his trial counsel had ensured
that there was a record of ex parte proceedings in the trial court. Accordingly, he has
not demonstrated prejudice, and this claim fails. See Higgins v. Cain, 720 F.3d 255,
261-62 (5th Cir. 2013) (where petitioner failed to demonstrate prejudice resulting
from failure to obtain copy of a transcript, ineffective assistance claim failed);
Goodwin v. Johnson, 132 F.3d 162, 176 (5th Cir. 1997) (where transcript would not
have made a difference in appeal outcome, counsel did not provide ineffective
assistance by failing to include it).
c. Continuance
Grayson also argues that his trial counsel provided ineffective assistance by
failing to seek a continuance of trial after the trial court’s belated approval of funding.
The Mississippi Supreme Court did not specifically address this claim, despite it
being presented in Petitioner’s successive post-conviction proceeding.
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This claim rests on a false premise. Petitioner’s counsel did, in fact, file a
motion for a continuance of trial, but the trial court never addressed it. Trial Record
Vol. 1 [153-6], at 115-16. Regardless, Grayson must still show that that additional
evidence would have changed the outcome of the trial if counsel had obtained it. He
has not done so. Accordingly, he has not shown prejudice, and this claim fails. See
Satterwhite v. Johnson, 207 F.3d 658, 2000 WL 122440, at *8 (5th Cir. 2000) (where
petitioner failed to demonstrate that additional evidence would have been favorable
to his defense, he could not show prejudice from counsel’s failure to seek a
continuance to obtain it); Sanchez v. Thaler, 366 F. App’x 494, 500 (5th Cir. 2010)
(where petitioner could not show additional evidence would have helped his defense,
he could not show prejudice from his counsel’s failure to request a continuance to
obtain it).
d. Additional Guilt Phase Investigation
Grayson argues that his trial counsel did not conduct any additional
investigation with respect to the guilt phase of trial. Specifically, he argues that his
counsel had not met any of the State’s witnesses until he cross-examined them at
trial. In support of this assertion, Petitioner cites the fact that his trial counsel
introduced himself to each prosecution witness at the beginning of cross-examination.
The Mississippi Supreme Court held that, other than the Rogers affidavit,
Petitioner “failed to offer sufficient proof of what a proper investigation would have
revealed. Based on Rogers’s affidavit alone, even if trial counsel’s performance was
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deficient, Grayson has failed to show a reasonable probability that the result of the
proceedings would have been different.” Grayson III, 118 So. 3d at 134. Accordingly,
Petitioner failed to demonstrate that his trial counsel was ineffective in this respect.
Id. at 134. Thus, Petitioner did not receive ineffective assistance in the initial postconviction proceeding, and the claim was time-barred and barred as a successive
petition. Id. at 125, 134 (citing Miss. Code Ann. §§ 99-39-27(9), 99-39-5(2)).
“Federal review of a habeas claim is procedurally barred if the last state court
to consider the claim expressly and unambiguously based its denial of relief on a state
procedural bar.” Gonzalez, 924 F.3d at 241. Petitioner presented this claim to a state
court in his successive petition for post-conviction relief. See Grayson III, 118 So. 3d
at 134. The Mississippi Supreme Court held that it was time-barred and barred as a
successive petition. Id. at 125, 134 (citing Miss. Code Ann. §§ 99-39-27(9), 99-39-5(2)).
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
with federal law, then the state rule is independent.” Id.
Petitioner did not challenge the independence and adequacy of the procedural
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bar applied by the Mississippi Supreme Court to this claim. Regardless, the Fifth
Circuit has specifically held that the MUPCCRA’s statute of limitations and bar on
successive petitions “are independent and adequate state procedural grounds” to bar
federal habeas review. Spicer, 2021 WL 4465828 at *3 (as applied to an ineffective
assistance claim); see also Bell, 290 F. App’x at 655; Johnson, 176 F.3d at 815 n.3.
Petitioner did not argue that any other exception to the doctrine of procedural
default applies to this claim. Therefore, the Court finds that the Mississippi Supreme
Court rejected this claim “pursuant to a state procedural rule that provides an
adequate basis for the decision, independent of the merits of the claim,” Garza, 738
F.3d at 675, and it is barred from federal habeas review. Notwithstanding the
procedural bar, the Mississippi Supreme Court’s decision was reasonable.
“Particularly in the context of a capital case, defense counsel has the obligation
to conduct a reasonably substantial, independent investigation.” Trottie, 720 F.3d at
242. “There are no strict rules for counsel’s conduct beyond the general requirement
of reasonableness.” Id. (citing Pinholster, 131 S. Ct. at 1406-07). “In any
ineffectiveness case, 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.” Id. (quoting Strickland, 466 U.S. at 690-91). “An attorney
need not pursue an investigation that would be fruitless, much less one that might
be harmful to the defense.” Id. (quoting Harrington, 562 U.S. at 108). Rather, counsel
is permitted to develop a strategy that balances cost with benefit. Id. at 243. “[A]
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defendant who alleges a failure to investigate on the part of his counsel must allege
with specificity what the investigation would have revealed and how it would have
altered the outcome of the trial.” Id. (quoting Drury v. Thaler, 647 F.3d 535, 541 (5th
Cir. 2011)).
After conducting a reasonable investigation, “defense counsel also has an
obligation to make reasonable strategic decisions regarding which witnesses and
evidence he will present.” Id. The Court assumes that counsel’s decision to not
“present a particular line of argument or evidence” was a strategic choice. Id. (citing
Taylor v. Maggio, 727 F.2d 341, 347 (5th Cir. 1984)). In the end, the Court “must defer
to the state court’s factual findings and deny relief if there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Trottie, 720 F.3d
at 244 (emphasis in original). “In cases where [the Fifth Circuit has] held an
attorney’s investigation was deficient, it is typically because the attorney failed to
interview eyewitnesses to the crime.” Armstrong v. Lumpkin, 2022 WL 2867163, at
*5 (5th Cir. July 21, 2022) (citing Hughes v. Vannoy, 7 F.4th 380, 389-92 (5th Cir.
2021)); Anderson, 338 F.3d at 391; Soffar v. Dretke, 368 F.3d 441, 473-74 (5th Cir.
2004)).
According to time records submitted to the trial court, Petitioner’s lead trial
counsel, David Ishee, spent three hours in phone calls with Petitioner’s family, an
hour and a half in phone calls with a psychiatric expert, thirty-two hours reviewing
discovery, twenty-nine hours conducting research, and thirty-five hours in
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unspecified “trial preparation.” Exhibit 27 to Petition [8-2], at 110.
Ishee executed an affidavit in which he stated that up until the change-ofvenue hearing on March 24, 1997, he relied on his co-counsel, Bill Bailey, “to do
substantial portions of the investigation.” Id. at 117. However, Ishee stated that he
“learned too late . . . that much of what I had asked him to do was not done.” Id.
Accordingly, Ishee took over investigation of the case after the change-of-venue
hearing. Id. He “obtained records pertaining to Grayson’s prior offenses and a drug
overdose when he was a teenager,” but he does “not recall seeing any other
background records.” Id. Ishee also “ran some NCIC record checks on some of the
witnesses in Florida,” “talked to the judge off the record about getting some assistance
to do the investigation,” hired a private investigator to look into Richard Dale Rogers,
met with Grayson “probably about 8-10 times at the County jail and once or twice at
Mr. Bailey’s office,” “met with Grayson’s mother . . . once every two weeks or so,” “met
with Grayson’s grandmother during the trial,” and hired a psychiatric expert to
assess Petitioner’s competence to stand trial. Id. at 117-18.
Assuming that Petitioner has demonstrated deficient performance by his trial
counsel, he has not demonstrated prejudice. He has not provided any evidence that
additional investigation would have altered the jury’s verdict – particularly in light
of the substantial evidence against him, including his own confession. The only
specific task that Petitioner mentions in briefing is his counsel’s failure to meet with
the State’s witnesses before trial. However, Petitioner has not demonstrated what
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such meetings would have accomplished, or that they would have produced any
evidence that was not already in the discovery materials produced by the State.
Accordingly, Petitioner has not demonstrated that his counsel’s alleged failure to
conduct adequate investigation before the guilt phase of trial prejudiced his defense,
and this claim fails. See Ramey v Lumpkin, 7 F.4th 271, 282-83 (5th Cir. 2021) (where
trial counsel failed to investigate some of the prosecution’s witnesses, there was no
prejudice because the alleged failure would not have affected “overwhelming”
evidence of the petitioner’s guilt).
e. Richard Dale Rogers
Finally, Grayson again argues that his counsel provided ineffective assistance
by failing to secure the testimony of Richard Dale Rogers. As discussed above, the
Mississippi Supreme Court held that “Rogers’s affidavit is not enough to prove
prejudice,” citing its inconsistency with the evidence against Petitioner. Grayson III,
118 So. 3d at 134. Accordingly, it held that “[b]ased on Rogers’s affidavit alone, even
if trial counsel’s [investigation] was deficient, Grayson has failed to show a reasonable
probability that the result of the proceedings would have been different.” Id. For the
same reasons provided above, the Court finds that this claim is procedurally barred,
and that the Mississippi Supreme Court’s determination was reasonable.
3.

Failure to Support Motion to Suppress

Grayson argues that his trial counsel was ineffective because they failed to
timely and adequately investigate and present evidence and argument in support of
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his motion to suppress statements made to law enforcement officers. In response, the
State argues that this claim is procedurally barred, and that the Mississippi Supreme
Court’s adjudication of it was reasonable.
a. Procedural Bar
Petitioner first raised this issue in his successive post-conviction proceeding.
The Mississippi Supreme Court cited its rejection of his argument on appeal and in
his first post-conviction proceeding that the trial court had improperly admitted his
confession statement, violating his right to counsel. Grayson III, 118 So. 3d at 135. It
held that this ineffective-assistance claim was an attempt to “recast his argument on
direct appeal under a different legal theory . . . .” Id. Accordingly, it held that the
claim was barred by res judicata, citing Miss. Code Ann. § 99-39-21(2). Id.
Irrespective of res judicata, the Mississippi Supreme Court held that Petitioner had
failed to “offer sufficient evidence in support of his assertions” that his contact with
officers did not constitute a waiver of rights, and that he had “failed to show that
counsel’s performance was deficient or that any such deficiency prejudiced his case.”
Id.
This claim is not procedurally barred. A statutory bar that “has the same effect
as res judicata and prevents the re-litigation of claims” does not prevent federal
review of a habeas claim, “as long as the claim was not procedurally barred for some
other reason.” Jackson, 447 F. App’x at 544. Applying these principles, the Fifth
Circuit has found that federal review of a claim denied by a state court pursuant to
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Miss. Code Ann. § 99-39-21(2) is not procedurally barred. See Foster, 293 F.3d at 787
n. 12; Jackson, 447 F. App’x at 544.
b. Merits
Petitioner argues that his trial counsel provided ineffective assistance by
failing to adequately develop and present evidence and argument in support of his
motion to suppress the confession. Specifically, Petitioner contends that his trial
counsel should have presented the same evidence and argument in support of the
motion to suppress that his habeas counsel has presented in this case.
This Court has thoroughly examined the record and addressed each specific
argument Petitioner presented as to each of his three statements to law enforcement
officers, including the confession. As discussed in detail above, the Mississippi
Supreme Court’s adjudication of these issues was reasonable. Trial counsel’s “failure
to raise meritless objections is not ineffective lawyering; it is the very opposite.” Wood
v. Quarterman, 503 F.3d 408, 413 (5th Cir. 2007). Counsel can hardly be faulted for
failing to make arguments that this Court has rejected.
Regardless of the ultimate success or failure of Petitioner’s motion to suppress,
his trial counsel’s performance was adequate. On July 31, 1997, Petitioner’s counsel
filed a motion to suppress the statements Petitioner provided to law enforcement
officers. Trial Record Vol. 1 [153-6], at 125-28. Therein, trial counsel asserted that
Petitioner invoked his right to counsel multiple times on May 17, 1996, and that the
custodial statements provided on May 17, 23, and 24, 1996, were taken in violation
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of Petitioner’s constitutional rights. Id. at 126. Counsel also noted that Petitioner was
held for several days without bond, denied an initial appearance, denied the
opportunity to consult an attorney, and subjected to emotional distress before he
confessed on May 24, 1996. Id. at 126-27.
On August 1, 1997, the trial court held a hearing on Petitioner’s motion to
suppress. Trial Record Vol. 4 [153-9], at 24-151; Trial Record Vol. 5 [153-10], at 1-66.
Petitioner’s counsel called 2 witnesses: Sheriff George Miller and MHP Investigator
Houston Dorr. Trial Record Vol. 4 [153-9], at 24, 84. The State called three witnesses,
whom Petitioner’s counsel cross-examined: Sergeant James Tanner, Sheriff’s
Department Dispatcher Krystal Bexley, and MHP Polygraph Examiner Larry
Waggoner. Id. at 130, 147; Trial Record Vol. 5 [153-10], at 9.
Petitioner’s counsel then argued that officers violated Mississippi’s Uniform
Circuit and County Court Rules by failing to give Petitioner an initial appearance
within forty-eight hours of his arrest. Trial Record Vol. 5 [153-10], at 12-13, 19-20.
He noted that Petitioner invoked his right to an attorney as early as May 17, 1996,
and that he did not intend to waive his rights by signing the waiver forms. Id. at 14,
25. Rather, counsel argued that Petitioner only intended to acknowledge that the
officers had read him his rights. Id. at 25. He also argued that Petitioner confessed
to the murder under duress, due to the conditions of his confinement, id. at 14, 24,
28, and that officers implied Petitioner would receive a benefit if he cooperated. Id.
at 18. Finally, counsel argued that all of these circumstances combined to have a
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coercive impact on Petitioner. Id. at 62. Petitioner’s counsel described his trial
strategy: “Our main strategy during the trial was to try to get the confession
suppressed. The judge denied our suppression motion just a few days before trial and
really caught us off guard.” Exhibit 28 to Petition [8-2], at 118.
In this habeas case, Petitioner’s counsel offered all the same arguments that
Petitioner’s trial counsel advanced in the suppression hearing. The only material
difference is that here Petitioner argued that he only intended to provide a “limited
waiver” of his rights. Likewise, the record in this habeas case is not materially
different than the evidence before the trial court, insofar as this issue is concerned.
When this federal habeas Court evaluates the performance of a petitioner’s
trial counsel, “[t]here is a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,” Rhoades, 852 F.3d at 432, and the
Court makes “every effort to eliminate the distorting effects of hindsight.” Aranda,
2022 WL 16837062 at *5. Petitioner has not specified what his trial counsel could or
should have done differently in litigating the motion to suppress. The trial court’s
denial of the motion does not, by itself, establish deficient performance. Accordingly,
the Mississippi Supreme Court reasonably determined that Petitioner had failed to
demonstrate a deficiency in the representation.
Even if Petitioner’s trial counsel had inadequately litigated the motion to
suppress in the manner Petitioner argues, there was no prejudice. As the Court
discussed above, the Mississippi Supreme Court’s rejection of Petitioner’s Fifth and
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Sixth Amendment right-to-counsel claims was reasonable. Therefore, even if
Petitioner’s trial counsel had presented the same arguments and evidence at trial
that Petitioner has presented in this habeas case, it would not have made any
difference in the outcome of the motion.
4.

Failure to Request DNA Testing

Grayson argues that his trial counsel was ineffective because they failed to
request DNA testing on fingernail scrapings taken from the victim and blood from
the crime scene. Petitioner contends that even if the DNA evidence would not have
proven his innocence, it might have implicated Kilpatrick. In response, the State
argues that Petitioner’s trial counsel did not provide deficient representation in this
respect, and that Petitioner has not demonstrated prejudice.
The Mississippi Supreme Court addressed this argument in Petitioner’s first
post-conviction proceeding. It held that he had “not shown that counsels’ failure to
conduct DNA testing was deficient performance,” or that there was a “reasonable
probability that the results of the guilt or sentencing phase of trial would have been
different had DNA testing been done.” Grayson II, 879 So. 2d at 1017. The Court
noted that Petitioner admitted “to being at the victim’s home with Kilpatrick at the
time of the crime,” and that conducting DNA testing might have eliminated
Kilpatrick as a suspect, thus removing Petitioner’s primary defense. Id.
Petitioner raised the issue again in his successive post-conviction proceeding,
and the Mississippi Supreme Court held that the claim was procedurally barred.
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Grayson III, 118 So. 3d at 136. It also recited its findings from Grayson II and held
the claim was meritless. Id.
Petitioner’s trial counsel filed a Motion to Preserve Evidence Samples on
March 5, 1997. Trial Record Vol. 1 [153-6], at 42. He specifically asked the trial court
to order preservation of “any type of hair or body fluid samples” for “later testing by
defense experts.” Id. at 43. When counsel argued the motion in a hearing, he stated:
I believe the State plans on calling DNA experts in this matter. If they
do, we would like at this point in time for the Court to order a
preservation of any evidence samples, including hair, blood or other
bodily fluids that may be examined by any DNA experts and that we –
enough of that be preserved in order to have our own expert, if in fact
they do deem it necessary to call a DNA expert on behalf of the State.
Trial Record Vol. 3 [163-8], at 85. The State responded, “[R]ight now there are no
plans for DNA . . . I don’t think there’s a necessity for DNA in this case.” Id. at 85-86.
The trial court told the State that if it used DNA evidence, the trial would likely be
continued so that Petitioner could hire an expert. Id. at 86-87. The State reiterated,
“I don’t see where DNA is going to be relevant in this case at all,” and the Court
directly asked Petitioner’s counsel, “If they don’t do DNA, are you asking the Court
for a DNA specialist for anything?” Id. at 87. Petitioner’s counsel responded: “Not at
this point.” Id.
In an affidavit executed years after trial, Petitioner’s trial counsel explained:
“I did not request DNA testing in this case because I did not think the judge would
approve the necessary funding. I also doubted that the evidence had been preserved
for testing anyway.” Exhibit 28 to Petition [8-2], at 118.
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The transcript demonstrates that Petitioner’s counsel only intended to use
DNA evidence if the State did so. This was a sound trial strategy, in that Petitioner’s
counsel did not know what the results of the DNA testing would be, and it could have
harmed Petitioner’s defense as easily as helped it. As the Fifth Circuit has observed,
when DNA testing “prove[s] reliable, it [is] virtually conclusive of the guilty party’s
identity.” Wooten v. Thaler, 598 F.3d 215, 221 (5th Cir. 2010). Accordingly, it “cuts
both ways for those accused of crimes.” Id.; see also Skinner v. Quarterman, 528 F.3d
336, 341 (5th Cir. 2008). DNA evidence can exonerate, but it can also convict.
Considering Petitioner’s confession and the other evidence against him, it was
reasonable for the Mississippi Supreme Court to conclude that trial counsel’s failure
to obtain DNA testing was not deficient representation.
Regardless, to show prejudice resulting from his trial counsel’s failure to obtain
DNA testing, Petitioner must demonstrate what the DNA testing would yield. Evans
v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). Moreover, he must demonstrate what
the expert witness interpreting the test results would testify. Id.; see also Woodfox v.
Cain, 609 F.3d 774, 808 (5th Cir. 2010) (providing requirements to prove ineffective
assistance claims premised on failure to call witnesses). He has not done so.
Therefore, he has not demonstrated that this alleged deficiency in his trial counsel’s
representation prejudiced his defense. For all these reasons, the Court finds that the
Mississippi Supreme Court’s adjudication of this claim was reasonable.

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5.

“Distancing Themselves” from Petitioner

Petitioner argues that counsel was ineffective because they “distanced
themselves” from Petitioner throughout the trial, repeatedly telling the jury that they
were appointed by the Court. Petitioner contends that his trial counsel violated their
duty of loyalty by effectively conveying that they did not want to represent him. In
response, the State argues that the claim is procedurally barred, that trial counsel
did not perform deficiently, and that Petitioner has not demonstrated any prejudice.
The Mississippi Supreme Court addressed this claim in Petitioner’s successive
post-conviction proceeding. It held that Petitioner “has taken each of these instances
completely out of context. The mere mention that counsel is appointed does not
indicate that counsel was not loyal to his client.” Grayson III, 118 So. 3d at 137.
Accordingly, it held that Petitioner had “failed to show that trial counsel’s
performance was deficient, and . . . failed to show that any such deficiency prejudiced
his case.” Id. Since the claim was meritless, post-conviction counsel’s failure to raise
it in the initial post-conviction proceeding did not prejudice Petitioner. Id. Therefore,
Petitioner did not receive ineffective assistance in the initial post-conviction
proceeding, and the claim was time-barred and barred as a successive petition. Id. at
125, 137 (citing MISS. CODE ANN. §§ 99-39-27(9), 99-39-5(2)).
“Federal review of a habeas claim is procedurally barred if the last state court
to consider the claim expressly and unambiguously based its denial of relief on a state
procedural bar.” Gonzalez, 924 F.3d at 241. Petitioner first presented this claim to a
112

state court in his successive petition for post-conviction relief. See Grayson III, 118
So. 3d at 136-37. The Mississippi Supreme Court held that it was time-barred and
barred as a successive petition. Id. at 125, 137 (citing MISS. CODE ANN. §§ 99-39-27(9),
99-39-5(2)).
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
with federal law, then the state rule is independent.” Id.
Petitioner has neither challenged the adequacy nor the independence of the
state procedural bars at issue. Regardless, the Fifth Circuit has specifically held that
the MUPCCRA’s statute of limitations and bar on successive petitions “are
independent and adequate state procedural grounds” to bar federal habeas review.
Spicer, 2021 WL 4465828 at *3 (as applied to an ineffective assistance claim); see also
Bell, 290 F. App’x at 655; Johnson, 176 F.3d at 815 n.3.
Petitioner argues that Mississippi law allows death-sentenced prisoners to
overcome procedural bars in a successive post-conviction proceeding by establishing
the ineffective assistance of initial post-conviction counsel. The Court assumes that
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Petitioner is arguing that the ineffective assistance provided by his initial postconviction counsel should excuse his procedural default. “[I]f state law requires an
ineffective assistance of counsel claim to be brought for the first time in a collateral
proceeding, then state postconviction counsel’s ineffective assistance in failing to
raise a substantial ineffective assistance of trial counsel claim excuses that claim’s
default.” Ramirez v. Davis, 780 F. App’x 110, 118 (5th Cir. 2019) (citing Martinez v.
Ryan, 566 U.S. 1, 17, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012)).
Under Mississippi law, “[g]enerally, ineffective-assistance-of-counsel claims
are more appropriately brought during post-conviction proceedings.” Spiers v. State,
361 So. 3d 643, 660 (Miss. 2023). However, the Mississippi Supreme Court “will
address such claims on direct appeal when (1) the record affirmatively shows
ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the
record is adequate and the Court determines that the findings of fact by a trial judge
able to consider the demeanor of the witnesses, etc., are not needed.” Id. Therefore,
Mississippi law does not require an ineffective assistance of trial counsel claim to be
brought for the first time in a collateral proceeding, and the Martinez exception to
procedural default is inapplicable here.
Petitioner did not argue that any other exception to the doctrine of procedural
default applies. Therefore, the Court finds that the Mississippi Supreme Court
rejected this claim “pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim,” Garza, 738 F.3d at 675,
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and it is barred from federal habeas review.
Regardless of the procedural bars, Petitioner merely stated, in conclusory
fashion, that the comments prejudiced his defense. He did not direct the Court to any
evidence demonstrating that there is a reasonable probability that the outcome of his
case would have been different if the jury had not known that his trial counsel was
appointed by the court. “Because conclusory assertions of prejudice are insufficient to
satisfy the second prong of Strickland,” the Mississippi Supreme Court’s adjudication
of this claim was reasonable. Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir. 1998).
6.

Objection to Statements

Next, Petitioner argues that his trial counsel was ineffective because they
failed to adequately review and object to the admission of the full transcripts of his
recorded statements and the video of his May 24 statement. Petitioner contends that
trial counsel should have objected to portions of the transcripts and video which
disclosed that he had purchased cocaine after returning to Florida, and that he had
been arrested on a warrant issued in Mississippi related to his leaving the restitution
center in Pascagoula. In response, the State argues that this claim is procedurally
barred, that trial counsel’s performance was not deficient because the disputed
portions of the statements were admissible, and that Petitioner has not demonstrated
prejudice.
In Petitioner’s successive post-conviction proceeding, the Mississippi Supreme
Court held that the information regarding Grayson’s purchase of cocaine after
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returning to Florida after the murder “was admissible as proof of motive,” Grayson
III, 118 So. 3d at 137-38 (citing MISS. R. EVID. 404(b)), as he had admitted in his
confession that he broke into Smith’s house to steal the shotgun because he needed
money to buy drugs. Therefore, the court held that any objection to such evidence
“would have been properly overruled,” and Grayson could not show that the failure
to object prejudiced his defense. Id. at 138. The Mississippi Supreme Court likewise
ruled that “evidence that Grayson had escaped from the Restitution Center” was
admissible “to show that Grayson had the opportunity to commit the crime.” Id.
(citing MISS. R. EVID. 404(b)). Therefore, even if his counsel’s failure to object to such
evidence was deficient, there was no prejudice. Id.
The Mississippi Supreme Court also observed that even if the disputed
portions of the statements had been redacted, the “jury still would have heard the
rest of the confession, including Grayson’s detailed description of the murder.” Id.
Therefore, he failed to demonstrate that the outcome of the trial would have been
different if the mentions of drugs and the Restitution Center had been redacted from
the statements. Id. Since the claim was meritless, post-conviction counsel’s failure to
raise it in the initial post-conviction proceeding did not prejudice Petitioner. Id.
Therefore, Petitioner did not receive ineffective assistance in the initial postconviction proceeding, and the claim was time-barred and barred as a successive
petition. Id. at 125, 138 (citing MISS. CODE ANN. §§ 99-39-27(9), 99-39-5(2)).

116

a. Procedural Bar
“Federal review of a habeas claim is procedurally barred if the last state court
to consider the claim expressly and unambiguously based its denial of relief on a state
procedural bar.” Gonzalez, 924 F.3d at 241. Petitioner first presented this claim to a
state court in his successive petition for post-conviction relief. See Grayson III, 118
So. 3d at 137-38. The Mississippi Supreme Court held that it was time-barred and
barred as a successive petition. Id. at 125, 138 (citing MISS. CODE ANN. §§ 99-39-27(9),
99-39-5(2)).
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
with federal law, then the state rule is independent.” Id.
Petitioner did not address the State’s argument that the claim was
procedurally barred. Therefore, he has not challenged the adequacy and
independence of the state procedural bars at issue. Regardless, the Fifth Circuit has
specifically held that the MUPCCRA’s statute of limitations and bar on successive
petitions “are independent and adequate state procedural grounds” to bar federal
117

habeas review. Spicer, 2021 WL 4465828 at *3; see also Bell, 290 F. App’x at 655;
Johnson, 176 F.3d at 815 n.3. Petitioner did not argue that any exception to the
doctrine of procedural default applies. Therefore, the Court finds that the Mississippi
Supreme Court rejected this claim “pursuant to a state procedural rule that provides
an adequate basis for the decision, independent of the merits of the claim,” Garza,
738 F.3d at 675, and it is barred from federal habeas review.
b. Statement from May 21, 1996
Even if the claim were not procedurally barred, the May 21, 1996, statement
does not include any mention of drugs, a warrant issued for Petitioner’s arrest, or the
restitution center in Pascagoula. Exhibit 7 to Petition [8-2], at 22. Therefore, its
admission could not have prejudiced Petitioner’s defense in the manner he argues,
and the claim is meritless.
c. Statement from May 23, 1996
In the May 23 statement, Investigator Dorr asked Petitioner if he was on
anything the night of the murder, and Petitioner answered, “Yes, sir . . . . We were
doing a little bit of everything to tell you the truth, cocaine.” Exhibit 9 to Petition [82], at 29-30. Petitioner also admitted that he had drunk “a whole bunch” of beer and
snorted cocaine. Id. at 34. A few lines of the statement appear to have been redacted.
Id. at 26. There is no mention of the Restitution Center and Petitioner’s warrant. Id.
at 26-35.
When the May 23 statement was offered into evidence, the trial court had a
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conference with the attorneys in chambers. Trial Record Vol. 8 [153-13], at 77. There
is no transcript of the conference, but Petitioner’s counsel later described what
happened. Id. He said that he had “objected to the mention of the use of illegal drugs
in that statement of the 23rd,” but the trial court overruled his objection. Id. The trial
court agreed with this description of events. It said: “There were still some areas in
here that you did object to me in chambers about. One was about statements
concerning – specific statements concerning drug use and how they related to this
crime, as far as motive or they were so interrelated to the actual committing of the
crime.” Id. at 78-79. The trial court held, with respect to the May 23 statement, “those
references to drugs I felt like were admissible.” Id. at 79.
Therefore, with respect to the May 23 statement, Petitioner’s claim rests on a
false premise. Petitioner’s trial counsel did, in fact, object to the comments about
drugs in the May 23 statement. Accordingly, the Mississippi Supreme Court’s
conclusion that he did not perform deficiently was reasonable. Moreover, Petitioner
has not demonstrated that the admission of the comments about drugs in the May 23
statement prejudiced his defense, particularly in light of the other evidence against
him, including his own confession. “[C]onclusory assertions of prejudice are
insufficient to satisfy the second prong of Strickland,” Green, 160 F.3d at 1041, and
the Mississippi Supreme Court’s adjudication of this claim was reasonable.
d. Statement from May 24, 1996
In the May 24 confession statement, Dorr asked Petitioner, “You needed some
119

money and what was your money for?” Exhibit 10 to Petition [8-2], at 37. Petitioner
answered: “I needed some more drugs.” Id. Petitioner later reiterated this motivation
for the burglary. Id. at 40, 51. He said that when he and Kilpatrick got back to Florida
after the murder, they bought an eight ball of cocaine. Id. at 57. He also said that he
knew officers from Mississippi would be looking for him because of the “Restitution
Center in Pascagoula,” although he did not specifically say he had escaped from there.
Id. at 58-59.
During the trial, Petitioner’s counsel objected to the admission of the May 24
confession on the same grounds he had objected to the May 23 statement. Trial
Record Vol. 8 [153-13], at 76-77. He said he did not make the objection earlier when
they were discussion the May 23 statement in chambers because he “was under the
impression that Your Honor’s ruling about the substance abuse discussed in the video
would be the same as Your Honor’s ruling about the substance abuse on the 23rd.”
Id. at 80. The trial court affirmed that counsel was correct; the “ruling would have
been the same.” Id. Petitioner’s trial counsel then objected to “the mention of drugs
in the videotape, the use of drugs by the defendant and Kilpatrick prior to and
subsequent to the crime.” Id. The Court overruled the objection. Id. at 81.
The State then asked for a clarification of the Court’s ruling – whether
Petitioner’s counsel had only objected to the information about drug use contained in
the statement. Id. at 81-82. Petitioner’s counsel explained that although Petitioner
had mentioned a “warrant outstanding in Mississippi,” he understood it as Petitioner
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assuming that there was an arrest warrant in the murder case. Id. at 82-83.
Accordingly, he had not asserted an objection to that portion of the statement. Id. at
83. As discussion of the issue continued, Petitioner’s counsel said:
[T]he only thing on the restitution center, I don’t feel at this point in
time, I don’t think the Court would grant a mistrial, and I certainly
think a curative instruction would only enhance that to the jury. It had
been so long since I had listened to this videotape – I had read the
transcript several times, but I did not recall the mention of the
restitution center. There’s no mention of the Mississippi Department of
Corrections. There’s no mention of an escape. There’s no mention that
he was incarcerated there. And I don’t think that, at this point in time,
that any juror would realize that it was simply a place in Pascagoula.
And . . . asking for a curative instruction would only enhance that and
bring it to the jury’s attention. And that’s why I’m not asking for a
curative instruction on that.
Id. at 85-86.
With respect to the references to drugs in the May 24 confession, Petitioner’s
claim relies on a false premise. Petitioner’s trial counsel did, in fact, object to the
comments about drugs. Accordingly, the Mississippi Supreme Court’s conclusion that
he did not perform deficiently in this respect was reasonable.
As for the comment about the Restitution Center, Petitioner’s counsel stated
on the record that he would not object to that portion of the statement because “asking
for a curative instruction would only enhance that and bring it to the jury’s attention.”
Id. at 85-86. Therefore, Petitioner’s failure to object to the portion of the statement
mentioning the Restitution Center was a strategic choice and, as such, “virtually
unchallengeable.” Neal, 78 F.4th at 790. To rebut the “strong presumption” that this
choice by his trial counsel was an “exercise of reasonable professional judgment,”
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Petitioner must “prove that his attorney’s representation was unreasonable under
prevailing professional norms and the challenged action was not sound strategy.” Id.
“The decision to raise an objection is driven largely by trial strategy, and we
have no reason to second-guess it.” Hernandez v. Thaler, 398 F. App’x 81, 87 (5th Cir.
2010). As Petitioner’s counsel observed during the trial, sometimes making an
objection draws more attention to unfavorable evidence or argument. Id. Petitioner
has not carried his burden of demonstrating that counsel’s judgment on this issue
was unreasonable under prevailing professional norms. Accordingly, the Mississippi
Supreme Court’s conclusion that he did not perform deficiently in this respect was
reasonable.
Moreover, Petitioner has not demonstrated that the admission of the
comments about the drugs and restitution center in the May 24 confession prejudiced
his defense, particularly in light of the other evidence against him, including his own
confession. “[C]onclusory assertions of prejudice are insufficient to satisfy the second
prong of Strickland,” Green, 160 F.3d at 1041, and the Mississippi Supreme Court’s
adjudication of this claim was reasonable.
7.

Closing Argument

Petitioner argues that his trial counsel were ineffective because they failed to
object to certain comments in the State’s closing argument. Specifically, Petitioner
contends that the prosecutor improperly vouched for Jason Kilpatrick, and that he
asserted facts that were not in the record – namely, that the investigators had
122

investigated Kilpatrick, and that the fingerprint evidence from the crime scene had
not yet been processed when Petitioner initially implicated Kilpatrick as the
murderer. In response, the State argues that the claim is procedurally barred, that
Petitioner’s trial counsel did not perform deficiently, and that Petitioner has not
demonstrated prejudice.
The Mississippi Supreme Court addressed this claim in Petitioner’s successive
post-conviction proceeding. Grayson III, 118 So. 3d 139-40. It held that Petitioner’s
argument took the prosecutor’s comments out of context. Id. at 139. The court
observed that the prosecutor was rebutting Petitioner’s counsel’s argument that
Kilpatrick was the actual murderer, as evidenced by the fact that Petitioner’s
fingerprints were not found at the crime scene. Id. Therefore, any objection would
have been overruled. Id. The Mississippi Supreme Court also found that Petitioner
had not demonstrated that the prosecutor’s comments prejudiced him, given
Petitioner’s confession to the crime. Id. Accordingly, the claim was meritless, and
post-conviction counsel’s failure to raise it in the initial post-conviction proceeding
did not prejudice Petitioner. Id. Therefore, Petitioner did not receive ineffective
assistance in the initial post-conviction proceeding, and the claim was time-barred
and barred as a successive petition. Id. at 125, 139-40 (citing MISS. CODE ANN. §§ 9939-27(9), 99-39-5(2)).
a. Procedural Bar
“Federal review of a habeas claim is procedurally barred if the last state court
123

to consider the claim expressly and unambiguously based its denial of relief on a state
procedural bar.” Gonzalez, 924 F.3d at 241. Petitioner presented this claim to a state
court in his successive petition for post-conviction relief. See Grayson III, 118 So. 3d
at 138-40. The Mississippi Supreme Court held that it was time-barred and barred
as a successive petition. Id. at 125, 139-40 (citing MISS. CODE ANN. §§ 99-39-27(9), 9939-5(2)).
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
with federal law, then the state rule is independent.” Id.
In rebuttal, Petitioner challenges the adequacy of the procedural bar applied
by the Mississippi Supreme Court to this claim. The Fifth Circuit has specifically held
that the MUPCCRA’s statute of limitations and bar on successive petitions “are
independent and adequate state procedural grounds” to bar federal habeas review.
Spicer, 2021 WL 4465828 at *3 (as applied to an ineffective assistance claim); see also
Bell, 290 F. App’x at 655; Johnson, 176 F.3d at 815 n.3.
Petitioner also argues that the ineffective assistance provided by his initial
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post-conviction counsel should excuse his procedural default. As discussed above, “if
state law requires an ineffective assistance of counsel claim to be brought for the first
time in a collateral proceeding, then state postconviction counsel’s ineffective
assistance in failing to raise a substantial ineffective assistance of trial counsel claim
excuses that claim’s default.” Ramirez, 780 F. App’x at 118 (citing Martinez, 566 U.S.
at 17). However, Mississippi law does not require an ineffective assistance of trial
counsel claim to be brought for the first time in a collateral proceeding, Spiers, 361
So. 3d at 660, and the Martinez exception to procedural default is inapplicable here.
Petitioner did not argue that any other exception to the doctrine of procedural
default applies. Therefore, the Court finds that the Mississippi Supreme Court
rejected this claim “pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim,” Garza, 738 F.3d at 675,
and it is barred from federal habeas review.
b. Merits – The First Disputed Argument
Regardless of the procedural bar, the Mississippi Supreme Court’s
adjudication of this claim was reasonable. During closing argument, Petitioner’s
counsel argued that Jason Kilpatrick was the actual murderer. Trial Record Vol. 9
[153-14], at 131-32. He argued that several of the State’s witnesses had not provided
any evidence implicating Grayson, id. at 132-35, 138-39, and he attempted to
discredit others. Id. at 136. He emphasized that Grayson’s fingerprints were not
found at the crime scene, and that the State had not matched the fingerprints to
125

anyone. Id. at 137. Thus, Petitioner’s counsel argued that the only evidence the State
had against Petitioner was the videotaped confession, id. at 139, and he argued that
it was a false confession, coerced by the investigators. Id. at 141-42.
In rebuttal, the prosecutor argued that Petitioner’s counsel had not adduced
any evidence of coercion. Id. at 149. He then discussed the history of the investigation.
Id. at 150-51; Trial Record Vol. 10 [153-15], at 2-4. Petitioner’s counsel made two
objections, which were overruled. Trial Record Vol. 9 [153-14], at 150. The prosecutor
asked the jury to decide which party had more motive to kill a witness to the burglary
– Kilpatrick, who was unknown to Smith, or Petitioner, whom she had known for a
long time. Trial Record Vol. 10 [13-15], at 3-4. Then, he said:
And this is what the police looked for that morning. . . . They are doing
the same thing at this time for Jason Kilpatrick in Florida. We can’t
even put him in Mississippi. If we could, he would be sitting over there.
I’m telling you that. They’re doing it down there. Law enforcement from
two states are involved in this. And that’s why he’s not here. But he’s
going to kill somebody he ain’t got no reason to? He can just – he goes
into the window, grabs the gun, jumps out and runs down the road to
the car. And that the end of that. He’s back in Florida. That’s what he’s
saying. This doesn’t make sense. But we do have a guy who will then tell
you, well, let’s go to Jackson, and let’s check out some things. Let’s do
some more checking on this. Will you do that? Where is the testimony
they put another gunny sack on him, threw him in the truck and beat
him on the way up there?
Id. at 4. Petitioner’s counsel then made an unspecified objection, which the trial court
overruled. Id.
The Mississippi Supreme Court’s adjudication of Petitioner’s claim as to this
portion of the State’s closing argument was reasonable, for a few reasons. First, “[a]
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decision not to object to a closing argument is a matter of trial strategy,” Drew v.
Collins, 964 F.2d 411, 423 (5th Cir. 1992), and, as such, is “virtually unchallengeable.”
Neal, 78 F.4th at 790. To rebut the “strong presumption” that this choice by his trial
counsel was an “exercise of reasonable professional judgment,” Petitioner must “prove
that his attorney’s representation was unreasonable under prevailing professional
norms and the challenged action was not sound strategy.” Id. He has not carried this
steep burden.
Regardless, Petitioner’s counsel did, in fact, make an objection to this line of
argument, which the trial court overruled. Trial Record Vol. 10 [13-15], at 4. It is not
clear from the transcript whether counsel intended the objection for the overall
argument or the last line delivered by the prosecutor. One could reasonably conclude
that Petitioner’s counsel intended to object to the entire line of argument, or, at the
very least, that he did not want to prejudice the jury against him and, by proxy, his
client by repeatedly asserting objections which the trial court overruled.
Moreover, Petitioner’s counsel directly argued that Kilpatrick was the actual
murderer. Trial Record Vol. 9 [153-14], at 131-32. This opened the door for the State
to argue in rebuttal that Kilpatrick had an alibi for the date of the murder, and this
argument was supported by testimony from two of the State’s witnesses. Trial Record
Vol. 7 [153-12], at 108; Trial Record Vol. 8 [153-13], at 7. Therefore, it did not
constitute facts outside the record.
Finally, Petitioner has not demonstrated that his counsel’s failure to object to
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this argument prejudiced his defense, particularly in light of the evidence against
him, including his own confession. “[C]onclusory assertions of prejudice are
insufficient to satisfy the second prong of Strickland.” Green, 160 F.3d at 1041. For
all these reasons, the Court finds that the Mississippi Supreme Court’s adjudication
of this claim was reasonable.
c. Merits – The Second Disputed Argument
In rebuttal, the prosecutor also addressed Petitioner’s argument that his
fingerprints were not found at the crime scene, and that the State had failed to match
the fingerprints to anyone. He said, in relevant part:
Lack of fingerprints. Lack of fingerprints. Jason Kilpatrick’s prints
weren’t found there. Neither were Blayde Grayson’s. Neither one of
them were. Well, let me ask you something. . . . Gloves. In the videotaped
statement, Blayde says that Jason is wearing gloves. He said he had on
gloves. It was either then or in the statement on the 24th. Now, bear in
mind, all of this stuff was being collected and trying to be kept up with
and it hadn’t gotten to the crime lab yet, probably. If it had, it certainly
hadn’t been worked. And, you know, within a week’s span here. So, all
this evidence is being collected. . . . So we don’t have the results of all
this yet. . . . He says he didn’t have gloves on and Jason did. Everything
was over. The window was up. He admits being in the house because his
prints may be found there. He don’t know yet. We don’t have prints. But
he thinks they may be found there. And if his are found there, what
about Jason’s? That’s the guy he’s trying to blame. So, he puts a pair of
gloves on Jason, doesn’t he? He says Jason is wearing a pair of gloves. If
he’s wearing a pair of gloves, there’s not going to be any prints there. So,
if they don’t find any prints of his but they find mine, his story will fit.
Boom. If that’s true, and I think that’s the way it went, when in the
world . . . Now, why would you take the screen? Well, it was all over by
the time Blayde got back there. . . . He never touched a screen. He didn’t
mention about the screen in the 23rd, the statement of the 23rd. He does
in the 24th, though. That screen isn’t to be found. Never will be found.
Why? Because the guy who took it off the window might have left prints
on it. And if Jason Kilpatrick was wearing gloves, he wouldn’t have had
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any prints on it. And so who threw the screen away?
Trial Record Vol. 10 [153-15], at 6-8.
Petitioner contends that this argument was improper because there was no
evidence in the record that the fingerprint evidence had not yet been processed when
he gave the confession. He notes that Melissa Schoen, the forensic scientist who
collected the fingerprints, testified that she collected the fingerprints on May 5, 1996.
Trial Record Vol. 7 [153-12], at 113. According to the evidence submission form, she
submitted her findings to the lab on May 6, 1996. Exhibit 31 to Petition [8-2], at 126.
The lab returned a Latent Print Analysis on May 22, 1996, which indicates that one
fingerprint of value and two palm prints of value were found in the latent lifts.
Exhibit 32 to Petition [8-2], at 129. The technician advised that “known inked prints”
including the “palms and the tips of the fingers” be submitted for comparison,
indicating that the prints had not yet been compared to any known prints. Id.
The Court finds that the Mississippi Supreme Court’s adjudication of this issue
was reasonable. Even if there were no facts in evidence that the latent lifts had not
yet been fully processed, that point is irrelevant to the prosecutor’s argument.
Petitioner’s counsel argued that Kilpatrick was the actual murderer, emphasizing
that Petitioner’s fingerprints were not found at the crime scene, and that the State
had not matched the latent fingerprints to anyone. Trial Record Vol. 9 [153-14], at
131-32, 137. In rebuttal, the prosecutor argued that Kilpatrick had an alibi, Trial
Record Vol. 10 [13-15], at 4, and that Petitioner, knowing that there was a chance his
129

fingerprints might be found at the scene, said that Kilpatrick was there but wore
gloves. Id. at 6-8. Petitioner has not demonstrated how the prosecutor’s assertion that
the latent lifts had not yet been processed was prejudicial – particularly in light of
the evidence against him, including his own confession. “[C]onclusory assertions of
prejudice are insufficient to satisfy the second prong of Strickland.” Green, 160 F.3d
at 1041. For all these reasons, the Court finds that the Mississippi Supreme Court’s
adjudication of this claim was reasonable.
8.

Jury Instructions

Next, Petitioner argues that his trial counsel provided ineffective assistance by
failing to object to Instruction S-3A. Petitioner contends that Instruction S-3A
impermissibly decreased the State’s burden of proof by permitting the jury to find
him guilty of capital murder without a finding that he committed every element of
the crime. In response, the State argues that this claim is procedurally barred, and
that the instructions, when read as a whole, properly instructed the jury that they
must find Petitioner guilty of each element of capital murder to render a guilty
verdict.
Instruction S-3A stated:
The Court instructs the Jury that each person present at the time and
consenting to or encouraging the commission of a crime, and knowingly,
willfully and feloniously doing any act which is an element of the crime
or immediately connected with it, or leading to its commission, is as
much a principal as if he had with his own hands committed the whole
offense; and if you believe from the evidence, beyond a reasonable doubt,
that the Defendant, BLAYDE N. GRAYSON, did willfully, unlawfully,
knowingly and feloniously do any act which is an element of the crime
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with which he is charged, namely Capital Murder, or immediately
connected with it, or leading to its commission, then and in that event,
you should find the Defendant, BLAYDE N. GRAYSON, Guilty of
Capital Murder.
Trial Record Vol. 2 [153-7], at 4.
The trial court also instructed the jury, in Instruction C-1(A): “You are not to
single out one instruction alone as stating the law, but you must consider these
instructions as a whole.” Trial Record Vol. 1 [153-6], at 143. It also instructed them:
“The State must prove each and every essential element of the crime charged beyond
a reasonable doubt.” Id. at 144. Likewise, in Instruction D-8, the trial court told the
jury that the State had the “burden of proving the Defendant guilty of every material
element of the crime which he is charged.” Trial Record Vol. 2 [153-7], at 9.
In Instruction S-4A, the trial court set forth the elements of capital murder
and required the jury to find each of them beyond a reasonable doubt before returning
a guilty verdict:
The Court instructs the Jury that if you believe from the evidence in this
case, beyond a reasonable doubt, that the defendant, Blayde N. Grayson,
on or about May 4, 1996, in George County, Mississippi, did willfully,
unlawfully, feloniously, with or without deliberate design, then and
there, kill Minnie Smith, a human being, without authority of law, when
engaged in the commission of the crime of Burglary, then, if you so
believe from all the evidence in this case beyond a reasonable doubt, the
defendant is guilty of Capital Murder, and it is your sworn duty to say
so by your verdict.
Id. at 5. Instruction S-5A provided the elements of burglary:
The Court further instructs the Jury that if you believe from the
evidence in this case beyond a reasonable doubt that the Defendant,
Blayde N. Grayson, alone or in conjunction with another, in George
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County, Mississippi, on or about May 4, 1996, did willfully, unlawfully,
feloniously and burglariously break and enter the dwelling house of
Minnie Smith, with the intent, then and there to take, steal and carry
away the personal property of Minnie Smith, then same would
constitute the crime of Burglary as used in other instructions of the
Court.
Id. at 6. Instruction D-2A likewise provided the elements of burglary, and it required
the jury to find each element of burglary beyond a reasonable doubt before returning
a guilty verdict. Id. at 8.
Petitioner first presented this claim to the Mississippi Supreme Court in his
successive post-conviction proceeding. Grayson III, 118 So. 3d at 140-41. The court
noted that it had “found similar instructions to be erroneous, though harmless”
because other instructions had required the State to prove all elements of the offense
before the jury could return a guilty verdict. Id. at 140. The court observed that
Instructions C-1(A) and D-8 required the jury to prove each element of the crime
beyond a reasonable doubt, that Instruction S-4A provided the elements of capital
murder, and that Instructions S-5A and D-2A provided the elements of burglary. Id.
Therefore, while trial counsel “should have known that a similar instruction had been
found to be erroneous,” the “error was harmless.” Id. Accordingly, post-conviction
counsel’s failure to raise this claim in the initial post-conviction proceeding did not
prejudice Petitioner. Id. at 140-41. Thus, Petitioner did not receive ineffective
assistance in the initial post-conviction proceeding, and the claim was time-barred
and barred as a successive petition. Id. at 125, 141 (citing MISS. CODE ANN. §§ 99-3927(9), 99-39-5(2)).
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a. Procedural Bar
“Federal review of a habeas claim is procedurally barred if the last state court
to consider the claim expressly and unambiguously based its denial of relief on a state
procedural bar.” Gonzalez, 924 F.3d at 241. Petitioner presented this claim to a state
court in his successive petition for post-conviction relief. See Grayson III, 118 So. 3d
at 140-41. The Mississippi Supreme Court held that it was time-barred and barred
as a successive petition. Id. at 125, 140-41 (citing MISS. CODE ANN. §§ 99-39-27(9), 9939-5(2)).
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
with federal law, then the state rule is independent.” Id.
Petitioner challenges the independence and adequacy of the procedural bar
applied by the Mississippi Supreme Court to this claim. The Fifth Circuit has
specifically held that the MUPCCRA’s statute of limitations and bar on successive
petitions “are independent and adequate state procedural grounds” to bar federal
habeas review. Spicer, 2021 WL 4465828 at *3 (as applied to an ineffective assistance
133

claim); see also Bell, 290 F. App’x at 655; Johnson, 176 F.3d at 815 n.3.
Petitioner also argues that the ineffective assistance provided by his initial
post-conviction counsel should excuse his procedural default. As discussed above, “if
state law requires an ineffective assistance of counsel claim to be brought for the first
time in a collateral proceeding, then state postconviction counsel’s ineffective
assistance in failing to raise a substantial ineffective assistance of trial counsel claim
excuses that claim’s default.” Ramirez, 780 F. App’x at 118 (citing Martinez, 566 U.S.
at 17). However, Mississippi law does not require an ineffective assistance of trial
counsel claim to be brought for the first time in a collateral proceeding, Spiers, 361
So. 3d at 660, and the Martinez exception to procedural default is inapplicable here.
Petitioner did not argue that any other exception to the doctrine of procedural
default applies. Therefore, the Court finds that the Mississippi Supreme Court
rejected this claim “pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim,” Garza, 738 F.3d at 675,
and it is barred from federal habeas review.
b. Merits
Regardless of the procedural bar, Petitioner has not demonstrated that the
Mississippi Supreme Court’s adjudication of this issue was unreasonable. As
discussed above, the trial court specifically instructed the jury that they were “not to
single out one instruction alone as stating the law, but you must consider these
instructions as a whole.” Trial Record Vol. 1 [153-6], at 143. It also instructed them,
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“The State must prove each and every essential element of the crime charged beyond
a reasonable doubt,” id. at 144, and it instructed them as to each element of capital
murder and the underlying felony of burglary. Trial Record Vol. 2 [153-7], at 5-6, 8.
“A jury is presumed to follow its instructions.” Weeks v. Angelone, 528 U.S. 225,
234, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000). Moreover, when assessing the impact
of an instruction on a jury’s deliberations, the Court does not view the erroneous
instruction “in artificial isolation, but . . . in the context of the overall charge.” Cupp
v. Naughten, 414 U.S. 141, 146-47, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973). Given those
principles, it was reasonable for the Mississippi Supreme Court to conclude that the
erroneous instruction was harmless, as the instructions as a whole did not permit the
jury to return a guilty verdict unless they found that the State had proven each
element of capital murder and the underlying felony of burglary beyond a reasonable
doubt. Cf. Galvan v. Cockrell, 293 F.3d 760, 766 (5th Cir. 2002) (where trial court
erroneously instructed jury that the defendant may earn time off his prison term,
other instructions mitigated the error by forbidding jury from considering the manner
in which such time would be applied to defendant); Grillette v. Warden Winn Corr.
Ctr., 348 F. App’x 41, 44-45 (5th Cir. 2009) (trial court’s provision of erroneous
instruction which mitigated the state’s burden to prove intent was harmless error).
9.

Mitigation Investigation

Petitioner argues that his trial counsel was ineffective because they failed to
adequately consult with him and conduct a proper mitigation investigation prior to
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trial. He contends that counsel’s failure to adequately consult with him caused him
to represent that he did not wish to oppose a death sentence if convicted, until his
family intervened and advised him of his options. He also contends that counsel’s
failure to conduct an adequate mitigation investigation prejudiced his defense in that
he was unable to present substantial mitigation evidence at sentencing. 12
In response, the State argues that Petitioner’s claims related to his trial
counsel’s failure to adequately investigate and present mitigating evidence are
procedurally barred. Alternatively, it argues that Petitioner’s trial counsel did not
provide deficient representation because 1) Petitioner instructed him to not present
mitigation evidence if the jury returned a guilty verdict, and 2) counsel prepared an
adequate mitigation case in spite of Petitioner’s wishes to the contrary. The State also
argues that Petitioner was not prejudiced by counsel’s failure to conduct a more
extensive mitigation investigation.
In Petitioner’s first post-conviction proceeding, he argued that his trial counsel
had failed to conduct an adequate mitigation investigation, which resulted in a failure
to present substantial mitigation evidence to the jury during sentencing. Grayson II,
879 So. 2d at 1014. The Mississippi Supreme Court observed that Petitioner
“instructed his counsel not to oppose the death penalty, in the event of a guilty

In the Second Amended Petition [104], Petitioner expressed these three complaints – trial counsel’s
alleged failure to consult with him prior to trial, failure to conduct an adequate mitigation
investigation, and failure to adequately present mitigation evidence – in two ineffective-assistance
claims. Second Amended Petition [104], at 44-65. In briefing, both Petitioner and the State argued
them as a single claim. Accordingly, the Court will treat them as a single claim.

12

136

verdict.” Id. Petitioner only allowed trial counsel to put on a mitigation case after
being convinced to do so by his family and a court-appointed independent counsel. Id.
at 1015. But even then, Petitioner “allow[ed] his counsel to call only [his] mother and
grandmother and make a closing argument in mitigation.” Id.
Accordingly, the Mississippi Supreme Court held that Petitioner’s ineffectiveassistance claim related to mitigation “rings hollow.” Id. at 1016. The court held that
Petitioner “was thoroughly advised by his two defense counsel, the trial court, and
independent counsel . . . of the consequences of his decision,” but he “blocked his
counsel’s efforts and cannot claim deficient performance.” Id. The Mississippi
Supreme Court also held that Petitioner “failed to present any information regarding
the extent of the investigation actually conducted by counsel, or what, if anything, an
‘adequate’ investigation would have revealed.” Id. Therefore, the court concluded that
Petitioner had failed to demonstrate deficient performance by his trial counsel in this
respect. Id. at 1017.
In his successive post-conviction proceeding, Petitioner presented the same
claims asserted here: that his trial counsel provided ineffective assistance by failing
to adequately consult with him before trial, failed to conduct an adequate mitigation
investigation, and failed to adequately present mitigation evidence at sentencing.
Grayson III, 118 So. 3d at 141. The Mississippi Supreme Court recounted its earlier
decision and held that the claim was barred by res judicata. Id.
Alternatively, the court held that Petitioner’s allegation that his counsel failed
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to consult with him before trial was “contrary to the record.” Id. at 142. The court
noted that “[b]oth counsel’s affidavit and Grayson’s affidavit note that Grayson stated
from the beginning that he did not want to oppose the death penalty.” Id. The court
further noted that after being convinced at trial to allow counsel to put on a mitigation
case, Petitioner limited counsel to calling his mother and grandmother and making a
closing argument. Id. Accordingly, Petitioner’s “blanket statement in his latest PCR
proceedings that he ‘would have changed his mind much earlier’ [was] unconvincing.”
Id.
The Mississippi Supreme Court also held that Petitioner’s allegation that he
had not limited his counsel’s ability to present evidence in mitigation was “contrary
to the record,” which demonstrated that Petitioner only permitted his trial counsel to
call his mother and grandmother as witnesses and present a closing argument. Id. at
42-43. Accordingly, the court held that Petitioner “was thoroughly advised by his two
defense counsel, the trial court and independent counsel . . . of the consequences of
his decision” to limit trial counsel’s ability to present a mitigation case. Id. at 143.
Accordingly, the Mississippi Supreme Court found that even if Petitioner’s trial
counsel had conducted a more extensive mitigation investigation, “it could not have
been presented during the sentencing phase of the trial.” Id. The court also found that
much of the evidence Petitioner claimed his counsel should have presented in
mitigation was “cumulative of the testimony presented during the sentencing
proceeding.” Id.
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Therefore, Petitioner failed to demonstrate that his counsel’s performance was
deficient, and he failed to demonstrate that the result of the sentencing would have
been different if counsel had performed differently. Id. Accordingly, post-conviction
counsel’s failure to raise this claim in the initial post-conviction proceeding did not
prejudice Petitioner. Id. at 143. Thus, Petitioner did not receive ineffective assistance
in the initial post-conviction proceeding, and the claim was time-barred and barred
as a successive petition. Id. at 125, 143 (citing MISS. CODE ANN. §§ 99-39-27(9), 9939-5(2)).
a. Exhaustion
Petitioner apparently argues that this claim has not been exhausted. See
Memorandum in Support of Second Amended Petition [119], at 99. He argues that
because he has new evidence which has not been considered by the Mississippi
Supreme Court – namely, expert reports that he obtained after the conclusion of his
successive post-conviction proceeding – the claim is “in a significantly different
posture” than that presented to the state court. The State disagrees, arguing that
Petitioner presented the same claim to the Mississippi Supreme Court.
AEDPA’s “exhaustion requirement is satisfied when the substance of the
federal claim is fairly presented to the highest state court on direct appeal or in postconviction proceedings, even if the state court fails to address the federal claim.”
Johnson, 712 F.3d at 231. A federal claim “is fairly presented when the petitioner
asserts the claim in terms so particular as to call to mind a specific right protected by
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the Constitution or alleges a pattern of facts that is well within the mainstream of
constitutional litigation.” Id. “[T]he state court system must have been presented
with the same facts and legal theory upon which the petitioner bases his current
assertions.” Ruiz, 460 F.3d at 643. However, new facts which “supplement,” rather
than “fundamentally alter,” a claim presented to the state courts are not sufficient to
render a habeas claim a new, unexhausted claim. Anderson, 338 F.3d at 386-87.
Likewise, “merely putting a claim in a stronger evidentiary posture is not enough” to
make it a new, unexhausted claim. Nelson, 952 F.3d at 671; see also Morris, 413 F.3d
at 491.
Petitioner’s new evidence does not fundamentally alter the nature of the claim
that his counsel failed to adequately investigate and present evidence in mitigation
during sentencing. The only difference is that in this federal habeas case, he bolstered
the claim with some additional expert reports obtained after the Mississippi Supreme
Court rejected his successive petition. Therefore, this claim was exhausted. See
Nelson v. Lumpkin, 72 F.4th 649, 659 (5th Cir. 2023) (asserting more specific
instances of trial counsel’s ineffective assistance regarding mitigation evidence and
argument was not enough to fundamentally alter the claim asserted in state court);
Ward v. Stephens, 777 F.3d 250, 258-59 (5th Cir. 2015) (additional evidence of mental
illness and family history, including expert and lay witness affidavits, was not
sufficient to fundamentally alter the nature of ineffective assistance claim premised
upon failure to adequately investigate and litigate mitigation case by, among other
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things, failing to obtain additional expert opinions), abrogated on other grounds by
Ayestas v. Davis, 584 U.S. ---, 138 S. Ct. 1080, 1092-93, 200 L. Ed. 2d 376 (2018);
Morris, 413 F.3d at 495-96 (new affidavits from experts were not enough to
fundamentally alter Atkins claim that had been previously asserted in state court);
Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir. 2000) (new expert affidavits
regarding mental illness only strengthened ineffective assistance claim premised on
failure to investigate and present a mitigation defense).
b. Procedural Bar
The State argues that Petitioner’s ineffective-assistance claims related to
mitigation are procedurally barred. “Federal review of a habeas claim is procedurally
barred if the last state court to consider the claim expressly and unambiguously based
its denial of relief on a state procedural bar.” Gonzalez, 924 F.3d at 241. The last state
court to address this claim was the Mississippi Supreme Court, addressing
Petitioner’s successive petition for post-conviction relief. See Grayson III, 118 So. 3d
at 141-43. The Mississippi Supreme Court held that the claim was barred by res
judicata. Id. It also held that the claim was time-barred and barred as a successive
petition. Id. at 125, 143 (citing MISS. CODE ANN. §§ 99-39-27(9), 99-39-5(2)).
“A federal habeas claim is barred by procedural default when the state court
has rejected the claim pursuant to a state procedural rule that provides an adequate
basis for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
“If the State has . . . firmly established and regularly followed the rule by the time of
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the relevant state court decision, then the rule is adequate.” Buntion, 31 F.4th at 962.
“If the state court decision clearly and expressly relies on the state rule to deny relief,
or if the decision does not fairly appear to rest primarily on . . . or to be interwoven
with federal law, then the state rule is independent.” Id.
Federal review of a claim denied by a Mississippi court pursuant to Miss. Code
Ann. § 99-39-21(2) is not procedurally barred. See Foster, 293 F.3d at 787 n. 12;
Jackson, 447 F. App’x at 544. However, the Mississippi Supreme Court held that his
claim was barred by res judicata, Grayson III, 118 So. 3d at 133-34 (citing MISS. CODE
ANN. § 99-39-21(2)), as well as time-barred and barred as a successive writ. Id. at 125,
134 (citing MISS. CODE ANN. §§ 99-39-27(9), 99-39-5(2)).
Petitioner has not challenged the adequacy and independence of the
MUPCCRA’s statute of limitations and bar on successive petitions. Regardless, the
Fifth Circuit has specifically held that both the MUPCCRA’s statute of limitations
and bar on successive petitions “are independent and adequate state procedural
grounds” to bar federal habeas review. Spicer, 2021 WL 4465828 at *3; see also Bell,
290 F. App’x at 655; Johnson, 176 F.3d at 815 n.3. Petitioner did not argue that any
exception to the doctrine of procedural default applies. Therefore, the Court finds that
the Mississippi Supreme Court rejected this claim “pursuant to a state procedural
rule that provides an adequate basis for the decision, independent of the merits of the
claim,” Garza, 738 F.3d at 675, and it is barred from federal habeas review.

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c. Relevant Facts
Notwithstanding the procedural bar, the Court will address the merits of this
claim. First, the Court must recount the relevant evidence from the record. Ten
months before trial, Petitioner’s counsel filed a Motion for Authority to Employ Court
Reporter, in which he asked for leave to “employ a Court Reporter for the purpose of
conducting an adequate investigation of the social and medical history in regard to
the Defendant.” Exhibit 34 to Petition [8-2], at 134. The record contains no indication
that the trial court ever addressed the motion.
Several months later, Petitioner’s counsel filed an Ex Parte Motion for
Psychological Evaluation. Trial Record Vol. 1 [153-6], at 34-35. The trial court
initially granted the motion but set the order aside a few days later on the State’s
motion. Trial Record Vol. 1 [153-6], at 49-51. In the motions hearing of March 24,
1997, Petitioner stated that they were seeking a psychological evaluation “to
determine a defense of whether or not our client is competent to stand trial,” and to
determine whether he had “another type of emotional or mental disorder that would
not prohibit him from standing trial, but we would need to take into consideration in
our discussions with him.” Trial Court Vol. 3 [153-8], at 100. The trial court told
Petitioner’s counsel to provide “evidence that there is a need, what the need is, what
it will cost, who you want,” and she would evaluate it. Id. at 104.
In an ex parte hearing on March 27, 1997, Petitioner’s counsel stated: “[M]y
client . . . informed me that he has had psychological problems in the past and he has
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undergone treatment for psychiatric problems. He’s been unable to furnish me the
name of the treating physician or times or dates.” Id. at 110. He requested “an
appointment of a psychiatrist for an evaluation to determine if he is competent
enough to assist in his own defense and whether or not we need to assert mental
incompetence as a defense at trial.” Id. The court granted the motion and authorized
a psychological evaluation by Dr. Roy Deal. Id. at 111.
Deal examined Petitioner on July 22, 1997. Exhibit 51 to Petition [8-2], at 189.
According to Deal, Petitioner said “that he does not trust [his trial counsel] because
‘the state hired him.’ He says that he ‘don’t trust none of them . . . the penitentiary is
full of innocent people.’” Id. Petitioner apparently believed “‘they’ [were] trying to ‘get
him’ and that they [had] been watching him for a while.” Id. Petitioner claimed to
have “loved Aunt Minnie,” and he told Deal that “he ‘wouldn’t let anyone hurt her.’”
Id. “He became almost tearful, though not in a dramatic way.” Id. Deal stated:
Mr. Grayson reports a long history of multiple substance abuse. He used
IV heroin, cocaine, acid, alcohol, “crank” and marijuana at different
times beginning at the age of thirteen or fourteen. He says that he has
experienced frequent blackouts, has overdosed on at least one occasion
and that he gets “wound up” on drugs, though he does not have a history
of random violence.
Id. at 190. Deal concluded:
With regard to Mr. Grayson’s competency, I would question his ability
to make a confession or to understand his rights due to the substances
in his body at the time he was taken into custody. At the time of this
examination he understands the nature of the charges and that the
potential consequences of the judicial proceedings involve the death
penalty.
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Id. Although Deal timely informed Petitioner’s counsel that Petitioner was competent
to stand trial, he did not provide the written report until the third day of Petitioner’s
trial. Trial Record Vol. 9 [153-14], at 20-21.
On August 5, 1997, before opening statements at trial, Petitioner’s counsel told
the trial court:
During the course of our representation, Mr. Grayson had told me on
several occasions . . . that if, in fact, he is convicted, he does not want to
fight the death penalty. Up until yesterday, I had not given this much
consideration. I did not think it was a serious statement, or perhaps one
that he had not thought through. Yesterday, . . . at the close of the day,
we talked extensively. He informed me again he does not want me to
fight the death penalty in any way if in fact he is convicted. It is his
desire, since the only two options at this point are life without parole or
the death penalty, he wishes to be executed. My co-counsel, Mr. Bailey,
and I have talked with him at length about this yesterday. In fact, we
brought his mother and grandmother into the room with us. The four of
us had counseled with him probably for twenty minutes to a half hour
and, at that point in time, he was very adamant about this. I feel that it
is not in his best interest. At this point in time, we are at odds about
what we think is best for Mr. Grayson.
At this point in time, I think that I will necessarily have to fight the
death penalty, even though he does not want me to. I think I would be –
we would be derelict in our duty. But, at the same time, to go against
the wishes of our client puts us in a direct conflict. We wanted to make
the record clear on this. Mr. Grayson is here. He has had an opportunity
to respond to anything that I have said. And the Court may even want
to consider, prior to this, to at least given him an hour or so to counsel
with a third attorney, if the Court thinks that’s necessary.
***
[H]e has put this forward to me since, probably since the first time I
talked to him, which I believe was September of last year. But, until
yesterday, when we actually started the trial, I thought it was
something . . . that he would reconsider. But he’s been adamant about it
all along, and very adamant about it yesterday, even on voir dire, as far
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as our questions about feelings on the death penalty. It’s my
understanding that he did not feel that those were really relevant, since
that was not an issue he wished to contest if he was convicted.
Trial Record Vol. 6 [153-11], at 104-07. Petitioner confirmed to the trial court that he
did not wish to contest the death penalty if convicted: “I have nothing to say. . . . [I]f
I get convicted, . . . I ain’t fixing to do the rest of my days up there, you know. I’d just
rather go ahead and be executed.” Id. at 105-06. The trial court deferred addressing
the issue until the guilt phase had concluded. Id. at 106.
After the State rested its case, Petitioner’s counsel brought the issue up again.
He said:
[W]e had discussed this matter in chambers earlier. In fact, we’ve
discussed it several times during the week. Mr. Grayson has informed
me that if in fact . . . he is convicted during the sentencing phase
tomorrow, he has instructed me that I am not to fight the death penalty
during the sentence phase. Given the choice between death or life
without possibility of parole, it is his option to choose the death penalty.
And he does not want me to interfere in any way in that. Mr. Grayson
has told me that several months ago and he has continued that position
throughout my representation of him. Quite frankly, I thought prior to
trial that he would change his mind. Once the trial began, he still
maintained this position. I spoke with Your Honor about this. We had a
conference in chambers about it. And the matter has still continued on.
As of the break a little while ago, Mr. Bailey and I took Mr. Grayson and
his mother into this room just off the courtroom, we discussed this
matter at length. We explained all of his options for appeal. We
explained all the options and all the possibilities for the outcome of a
jury verdict. He has still informed us that it’s his wish that if he is
convicted in the sentencing phase that we are to do nothing . . . in the
way of defending the death penalty. And he wishes to request the jury
to impose the death penalty.
Due to that, Your Honor, I would request, on behalf of myself and Mr.
Bailey, that the Court appoint a third attorney simply to discuss this
matter with him, so that it is clear that Mr. Bailey and I have not been
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derelict in our duties to our client and have made all of his options clear
to him and make sure that he understands the implications and the
ramifications of what he plans to do tomorrow.
Trial Record Vol. 9 [153-14], at 6-8. The trial court asked Petitioner if he agreed with
what his counsel had said, and Grayson answered, “I ain’t got no problem with what
he said.” Id. at 11.
Petitioner’s counsel also expressed concern that Grayson would damage his
own credibility and/or inflame the jury if he took the stand:
I have explained that if in fact Mr. Grayson wishes to fight the death
penalty, I would not put him on during the guilt phase, because I think
that that would damage his credibility with the jury. It would affect
their opinion of him in the sentencing phase. So he would either have to
make a decision, based on my trial tactics, to testify in one or the other.
If he chose to testify in the guilt phase and then changed his mind and
wished to fight the death penalty, it probably would affect the jury’s
perception of him.
Id. at 11-12.
The court asked Grayson’s mother if she had spoken with him on this topic,
and she said, “Yes, I have.” Id. at 12. The court asked, “Have you done anything to
persuade him one way or the other?” Id. She answered, “No, ma’am. . . . Why should
I? If he has life in prison without parole? No, ma’am. . . . I don’t want him to spend
the rest of his life in prison without parole.” Id. at 12-13. Petitioner’s mother affirmed
that she would prefer he receive the death penalty, and Petitioner’s grandmother
agreed. Id. at 13. They both felt that he understood the ramifications of his decision.
Id. at 14. Petitioner’s grandmother said, “[H]e’s a grown man. He’s got a right to make
a decision about his life,” and his mother said, “Would you want your son . . . to spend
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the rest of their lives in prison, without parole, being abused from other people?” Id.
The Court appointed an independent attorney, Robert Shepard, to speak with
Petitioner alone “concerning this question of waiving a defense on the death penalty
issue, if it gets that far.” Id. at 25-26, 95-97. The next day, the Court asked Petitioner
how long he had met with Shepard, and Petitioner said “[c]lose to an hour.” Id. at 99.
Petitioner confirmed that he had changed his mind, and that he wanted to “fight the
death penalty” if convicted. Id. Petitioner’s trial counsel also confirmed that
Petitioner had “decided to go forward and fight the death penalty.” Id. at 100. He
stated: “Mr. Grayson has allowed me to put forth a defense on this. He’s allowed me
to call his mother and grandmother; however, he has opted not to take the stand in
his own defense, but he will not object to me putting forth a defense and will not
demand me not to do so.” Trial Record Vol. 10 [153-15], at 38.
During the sentencing phase of trial, Petitioner’s counsel called his mother,
Annie O’Bryan, and his grandmother, Mrs. Vermelle Williams. Id. at 50-66. O’Bryan
testified that Petitioner’s father died when Petitioner was only three months old,
while working on an offshore oil rig. Id. at 51-52. She said that she later remarried,
and Petitioner’s stepfather was “very strict on him. He would never let him
participate in any ball games or any sports activities with the other children which
he grew up with. He never allowed anyone to come home with Blayde to have a good
time with or for Blayde to go home with anyone to have a good time.” Id. at 52. They
frequently had verbal conflicts, and Petitioner’s stepfather, a large man, “would
148

either whip [Petitioner] with a belt and he would leave marks on him or he’d pick up
a root or a stick outside in the yard and hit [Petitioner] with it.” Id. at 53, 57. On one
occasion, he beat Petitioner with a water hose. Id. at 53. O’Bryan also testified that
Petitioner’s stepfather verbally abused him: “He would call him a low down, no good
for nothing, worthless bum. And then there was quite a few choice words that I will
not repeat.” Id. She said Petitioner endured this verbal and physical abuse for seven
years – from the age of ten until he moved out when he was seventeen. Id. at 53-54.
O’Bryan said that Petitioner had been rebellious, and that he had problems
with drug abuse. Id. at 54. She said: “[W]hen he didn’t have drugs in him, he was . . .
the best person you ever wanted to be with. But when he had drugs with him, in him,
he was a totally different person. He didn’t want to be around the family when he had
drugs in him, because he knew it wasn’t right.” Id. at 54. According to O’Bryan,
Petitioner overdosed on “LSD and cocaine” in 1993, and he was hospitalized. Id. He
spent sixteen days in a rehab facility, until “[t]he insurance money ran out.” Id. at
54-55. The family was never able to afford additional treatment. Id. at 55. She said
Petitioner never made any other effort to get help for his drug problem. Id. at 59.
Mrs. O’Bryan testified that she could not “believe that he killed Mrs. Minnie
under the fact that, the sight of the blood, he would have blacked out completely.
Because when he . . . had cut his finger really bad and he blacked out.” Id. at 56.
Although he was “a different person” while “under the influence of drugs,” she had
“never seen him to be a violent person.” Id. at 60-61. In the end, she affirmed that she
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“would rather that [he] not have the death penalty.” Id. at 56.
Petitioner’s grandmother, Vermelle Williams, testified that Petitioner’s
stepfather did not permit him to come visit her, although she lived just “up the path”
from them. Id. at 62. She said: “So we’d see each other out in the yard and we’d just
wave and tell each other we loved them.” Id. She also testified that Petitioner’s
stepfather “was all the time shouting at him. He would hit him occasionally, and he
left marks on him.” Id. at 63. She said Petitioner started using drugs around eighth
or ninth grade, and he became “more moody. We couldn’t control him as much.” Id.
However, she said he “was never mean,” and “he didn’t never strike out at us.” Id.
Like O’Bryan, Williams testified that Petitioner overdosed on “LSD and cocaine,” and
they put him in a rehab facility until insurance stopped paying. Id. at 63-64. She said
that there were never any problems with Petitioner when he lived with her after he
moved out of his mother’s house. Id. at 64.
In post-conviction, Petitioner supplemented the contemporaneous trial record
with numerous affidavits. In an affidavit executed on April 14, 2005, Petitioner’s trial
counsel described his mitigation efforts:
I recall that Mr. Bailey and I had obtained records pertaining to
Grayson’s prior offenses and a drug overdose when he was a teenager. I
do not recall seeing any other background records.
***
Prior to trial, I met with Grayson probably about 8-10 times at the
County jail and once or twice at Mr. Bailey’s office. I believe that I had
a good working relationship with Grayson, but he told me from the
beginning that he did not want to fight against the death penalty if he
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was convicted. He was, however, very cooperative in talking with me
about his life, giving me a list of his family members, and answering any
other questions I had concerning the trial or potential mitigation in
sentencing.
***
I met with Grayson’s mother, Annie O’Brien, a number of times. She
would meet with me at my office every two weeks or so. She wanted
Grayson to fight the death penalty.
I also met with Grayson’s grandmother during the trial. I recall that
Grayson’s grandmother wanted him to get the death penalty. I also
recall that she came up to me after the sentencing and asked how soon
he would be executed because she hoped to get his heart for a grandson
who needed a heart transplant. . . .
I did not talk to any of Grayson’s family members outside of his mother
and grandmother. As I recall, I did not talk with his siblings, although I
knew he had at least one or two siblings, because Mr. Bailey informed
me that they were very young when the murder occurred. I did not talk
to any other family members because Mr. Bailey informed me that they
were not capable of assisting us because they were very simple,
uneducated people. They were used to being told what to do and living
with it.
***
Although Grayson had told me from the beginning that he did not want
to present mitigation and argue for life, I never believed that he was
serious and did not allow that to affect our planning. Our strategy
during sentencing was just to present all the available mitigation
evidence and to try to elicit sympathy.
I selected Dr. Deal as the defense psychiatric expert because he was the
only psychiatrist that I knew of in Mississippi who had found a
defendant to meet the McNaughton standard for insanity. I believed
that he was the best chance we had for a finding of incompetence.
I do not recall talking with Dr. Deal about potential mitigation issues
and also do not recall him saying anything helpful on that front. I do not
recall whether I gave Dr. Deal any background records or if he talked to
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any of Grayson’s family. The best I can recall, Grayson may have had a
prior evaluation done and that would have been given to Dr. Deal.
I did not call Dr. Deal as a witness during the trial or sentencing because
he did not find that Grayson was incompetent or insane at the time of
the offenses and because Dr. Deal is not a very good witness. He likes to
play games and joust around with the prosecutors too much and I feared
that he would cause more harm than good in testimony. I was also
concerned that the state would seek to call a rebuttal witness who would
be very harmful.
Just before sentencing, at my request, the judge appointed Robert
Shepard to consult with Grayson concerning his decision not to fight the
death penalty. I may have been present for the first part of his meeting
with Grayson, but was not there for most of it so they could talk
privately. I do not know if Shepard talked to any of Grayson’s family
members.
After Shepard convinced Grayson to allow us to present mitigation
evidence and to argue against the death penalty, I do not recall Grayson
refusing to allow us to call anyone other than his mother and
grandmother to testify. We did not present any additional evidence or
ask for a continuance because that was the only mitigation evidence we
had to present and I did not believe that a continuance would be helpful.
Exhibit 28 to Petition [8-2], at 117-20. The time sheets submitted by Petitioner’s
counsel provide that before trial he spent 7.5 hours in meetings with Petitioner, 3
hours in phone calls with Petitioner’s family, 1.5 hours in phone calls with Dr. Deal,
and 35 hours in “other trial preparation.” Exhibit 27 to Petition [8-2], at 110.
In an affidavit executed on April 15, 2005, Petitioner stated he met with his
attorneys only six to eight times before trial, and “[e]ach of these meetings lasted for
no more than 30 minutes each time.” Exhibit 33 to Petition [8-2], at 131. Concerning
mitigation, he said:
My attorneys never explained to me that the sentencing proceeding was
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a separate proceeding following conviction. They did not explain to me
the types of aggravating and mitigating circumstances that the jury
would be allowed to consider in sentencing. They also did not explain
the numerous appeals and proceedings available even after a person is
sentenced to death.
Although I told Ishee from the beginning that I did not want to oppose
the death penalty if convicted, I did not refuse to discuss any possible
mitigation with my attorneys and answered any questions they asked
about my family and my background. I did not tell my attorneys not to
talk to my family and did not tell my family not to talk to them. My
family did not know of my desires until shortly before trial.
Bailey knew my mother and grandmother personally because he had
represented me on a prior charge. Bailey also knew my aunt, Dulcie,
because she had worked in the courthouse as a bailiff prior to my trial.
I am not aware of either of my attorneys contacting my family or anyone
else to investigate my background or the circumstances of my life prior
to my trial starting. As far as I know they had talked with my mother
on a few occasions but that was only because she contacted them to ask
questions about my case.
During the trial, Ishee finally took me seriously when I said that I did
not want to oppose the death penalty. He then asked that my mother
and grandmother discuss the issue with me. He also asked that another
attorney, Robert Shepard, meet with me. After discussing the issue with
my family and with Shepard, I understood the proceedings much better
and agreed to allow Ishee to argue against the death penalty.
Once I agreed to present mitigation and to argue against the death
penalty, I did not place any restrictions on my attorneys. The decision
to call only my mother and grandmother in mitigation was their
decision, not mine. I think that was done because they simply had not
talked to anyone else or investigated my background.
Exhibit 33 to Petition [8-2], at 131-32.
Robert Shepard also provided an affidavit, in which he described his brief
consultation with Petitioner. He stated:
I met with Grayson for a half hour to an hour. . . . Although I had never
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met Grayson before, I was able to persuade him to allow his attorneys
to present mitigation and to argue against the death penalty. In the
beginning of the meeting, Grayson was adamant that he preferred the
death penalty to life in prison. All I really said to him to get him to
change his mind was that there would be appeals and that you never
know what might happen. I also told him that he could do good in prison
and that he was too young to make the decision to die.
It was my impression that Grayson’s insistence, before my involvement,
that no mitigation or argument be presented in his behalf was not an
informed decision. It was an impulsive action made by a 21-year-old kid
who had not been provided with adequate information to make such a
momentous decision.
Exhibit 52 to Petition [8-2], at 192.
Annie O’Bryan, Petitioner’s mother, also executed an affidavit. She described
Grayson’s childhood in detail, describing how his stepfather mistreated him. Exhibit
35 to Petition [8-2], at 136. The affidavit largely mirrors her testimony at trial, but
with greater detail. She described physical abuse: “Lomax would hit Blayde . . . with
a root, hammer, water hose, wrench, or whatever was available.” Id. She also
described Petitioner’s drug use: “I think Blayde started using drugs around the 9th
grade, but it became really noticeable when he was in the 11th grade. When Blayde
was on drugs he was like a different person.” Id. at 137. She recounted his overdose
and brief stay in a treatment facility. Id. She noted that Petitioner dropped out of
school in the 12th grade. Id. Finally, she described her contact with Petitioner’s
attorneys throughout the case:
I . . . went and talked to his lawyers, although they never contacted me.
Me and my mom visited Mr. Bailey once for about one hour just to find
out what was happening. Mr. Bailey was in poor health at the time. I
also met Mr. Ishee one time before trial for about 30 minutes. Neither
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one of them ever asked about Blayde’s background other than during my
testimony in sentencing. We had never discussed it before and they did
not prepare with me in any way for my testimony.
During the trial, I did talk with Blayde at the courthouse because he
said he did not want to fight the death penalty. I did not disagree with
him because it is his life and he was looking at life without parole as an
alternative. I do not know why he changed his mind and allowed Mr.
Ishee to argue for a life sentence.
Id.
Petitioner’s grandmother, Vermelle Williams, also provided an affidavit, and
it largely mirrors her testimony at trial in all relevant respects, but with greater
detail. She said Petitioner had a “mostly healthy childhood, but he had high fevers at
night pretty often all the way until he started school.” Exhibit 36 to Petition [8-2], at
141. She described the verbal and physical abuse Grayson’s stepfather inflicted on
him: “He constantly told them that they were stupid and dumb. He also beat them
and would leave bruises and marks on them.” Id. She said Petitioner “was a good
student and no trouble at all until he started high school and started using drugs.”
Id. at 142. “After he started using drugs, he was a totally different person. He even
stole from me in order to support his drug habit. He was out of control with drugs and
was even found at one time passed out by the side of the road.” Id. She described
Petitioner’s overdose and brief stay in a treatment facility. Id. Finally, she described
her contact with Petitioner’s attorneys:
After Blayde’s arrest in this case, I saw him within a day or two. I also
met with Mr. Bailey, who I knew because he had represented Blayde
before. I had no real discussion with him though. He just said that he
would do the best he could with what he had. I also met with Mr. Ishee
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and others just before trial when we were all in a room talking to Blayde.
These were the only discussions I had with Blayde’s lawyers or anyone
working with them prior to his arrest. I testified in his sentencing trial,
but they had not otherwise met with me or prepared me for my
testimony.
Id. at 143.
Petitioner also presented affidavits from several other friends and family
members: his aunt, Dulcie Williams; 13 his grandfather, Robert Williams; 14 his aunt,
Melody Riley; 15 his aunt, Daphne Lee; 16 his uncle, Claude Williams; 17 his brother,
Kristopher Grayson; 18 his sister, Margaret Campbell; 19 his aunt, Teresa Goff; 20 his
cousin, Tim Amodeo; 21 his high school guidance counselor, Rodney Byrd; 22 and the
mother of his daughter, Charnelle Prescott. 23 He also presented the unexecuted draft
of an affidavit from Carlton King, the former Constable in George County,
Mississippi. 24 In general, these affidavits described the verbal and physical abuse
inflicted on Petitioner by his stepfather, and Petitioner’s resulting physical and
emotional wounds. They described how he began using drugs and alcohol by the time
he was twelve or thirteen years old, and a couple of family members said that Grayson
had stolen from them to feed his drug habit. Multiple family members noted that
13
14
15
16
17
18
19
20
21
22
23
24

Exhibit 37 to Petition [8-2], at 145-48.
Exhibit 38 to Petition [8-2], at 150-51.
Exhibit 39 to Petition [8-2], at 153-56.
Exhibit 40 to Petition [8-2], at 158-61.
Exhibit 41 to Petition [8-2], at 163-64.
Exhibit 42 to Petition [8-2], at 166-67.
Exhibit 43 to Petition [8-2], at 169.
Exhibit 44 to Petition [8-2], at 171-72.
Exhibit 45 to Petition [8-2], at 174.
Exhibit 53 to Petition [8-2], at 194-95.
Exhibit 55 to Petition [8-2], at 201-03.
Exhibit 54 to Petition [8-2], at 198-99.

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Petitioner would get sick and/or faint at the sight of blood. Overall, Petitioner’s
friends and family described him as good-natured and kind, but they lamented that
he could not control his drug problem or avoid the bad crowd that came with it. Each
affiant stated that Petitioner’s trial counsel did not interview them, but that they
would have testified at sentencing if they had been asked.
d. Evidence Not Presented to State Court
Neither Petitioner nor the State squarely addressed whether all Petitioner’s
exhibits in this federal habeas case had been presented to the Mississippi Supreme
Court for consideration. The State generally asserted that Petitioner had attached
exhibits that were not part of the state-court record without specifying which
exhibits, and Petitioner generally replied that most of his exhibits had, in fact, been
presented in state court. After comparing the state-court record to Petitioner’s
exhibits in this habeas case, the Court concludes that the expert reports and curricula
vitae of Dr. Donna Maddox and Dr. Tora Brawley have never been presented to a
state court. See Exhibits to Motion for Leave to Amend [97-1, 97-2, 97-3, 97-4].
When a federal habeas court addresses a claim that was adjudicated on the
merits in state court, it may not consider any evidence outside the state-court record.
Broadnax, 987 F.3d at 406 (citing Pinholster, 563 U.S. at 180). If the petitioner can
“demonstrate that habeas relief is warranted under § 2254(d) on the state court record
alone, . . . then a federal habeas court may entertain new evidence pursuant to the
limitations of § 2254(e)(2).” Id. at 406-07. However, when a federal habeas court
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addresses a claim that was not adjudicated on the merits in state court, it applies §
2254(e)(2) to determine whether to permit evidentiary development. Id. at 406 n. 3
(emphasis added).
Here, the Mississippi Supreme Court held that Petitioner’s mitigation-related
ineffective-assistance claims were barred by res judicata, time-barred, and barred as
a successive petition. Grayson III, 118 So. 3d at 125, 141-43 (citing MISS. CODE ANN.
§§ 99-39-21(2), 99-39-27(9), 99-39-5(2)). However, it also addressed the claims’ merits.
Id. at 141-43. A state court has adjudicated a claim on the merits when it decides a
case on procedural grounds but alternatively addresses the claim’s merits. Lucio, 987
F.3d at 466-67. Therefore, the Court may not consider any evidence outside the statecourt record, including the Maddox and Brawley affidavits. See Broadnax, 987 F.3d
at 406-07.
Even if the Mississippi Supreme Court had not adjudicated the merits of
Petitioner’s mitigation-related ineffective-assistance claims, the Court still could not
consider the Maddox and Brawley affidavits. AEDPA provides:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that –
(A) The claim relies on –
(i)

a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or

(ii)

a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
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(B)

the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

28 U.S.C. § 2254(e)(2). Petitioner cannot meet this standard because even if the Court
were to consider the Maddox and Brawley affidavits, they are only relevant to
sentencing, and not his conviction on the underlying offense. See 28 U.S.C. §
2254(e)(2)(B); Ford v. Johnson, 263 F.3d 162, 2001 WL 803555, at *4 (5th Cir. June
11, 2001) (§ 2254(e)(2)(B) requires showing of actual innocence); Nobles v. Johnson,
127 F.3d 409, 424 n. 33 (5th Cir. 1997) (describing § 2254(e)(2)(B) as requiring “actual
innocence” showing).
e. Merits Analysis
As stated above, Petitioner claims that his trial counsel was ineffective because
they failed to adequately consult with him and conduct an adequate mitigation
investigation prior to trial, and that the failure to conduct an adequate mitigation
investigation prejudiced his defense in that he was unable to present substantial
mitigation evidence at sentencing.
“The Supreme Court has interpreted the Sixth Amendment to require defense
counsel ‘to make reasonable investigations [into potential mitigating evidence] or to
make a reasonable decision that makes particular investigations unnecessary.’”
Brewer v. Lumpkin, 66 F.4th 558, 565 (5th Cir. 2023) (alteration original) (quoting
Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)). “[T]o
159

succeed on a claim for failure to investigate, a defendant must allege with specificity
what the investigation would have revealed and how it would have altered the
outcome of the trial.” United States v. Bernard, 762 F.3d 467, 477 (5th Cir. 2014).
“Claims that counsel failed to call witnesses are not favored on federal habeas
review because the presentation of witnesses is generally a matter of trial strategy[,]
and speculation about what witnesses would have said on the stand is too uncertain.”
Woodfox, 609 F.3d at 808; see also Robinson v. Whitley, 2 F.3d 562, 571 (5th Cir. 1993)
(“general allegations and speculation” insufficient to support ineffective assistance
claim). Accordingly, “petitioners making claims of ineffective assistance based on
counsel’s failure to call a witness [must] demonstrate prejudice by naming the
witness, demonstrating that the witness was available to testify and would have done
so, setting out the content of the witness’s proposed testimony, and showing that the
testimony would have been favorable to a particular defense.” Woodfox, 609 F.3d at
808.
However, trial counsel’s “failure to present a particular line of argument or
evidence is presumed to have been the result of strategic choice.” Devoe v. Davis, 717
F. App’x 419, 430 (5th Cir. 2018) (quoting Taylor v. Maggio, 727 F.2d 341, 347 (5th
Cir. 1984)) (punctuation omitted). “[A] tactical decision not to pursue and present
potential mitigating evidence on the grounds that it is double-edged in nature is
objectively reasonable, and therefore does not amount to deficient performance.”
Rector v. Johnson, 120 F.3d 551, 564 (5th Cir. 1997). Indeed, “an attorney need not
160

pursue an investigation that would be fruitless, much less one that might be harmful
to the defense.” Bernard, 762 F.3d at 477. Likewise, an attorney’s failure to present
mitigating evidence that is cumulative of that which was presented does not prejudice
the defendant. Brewer, 66 F.4th at 566.
It is undisputed that Petitioner instructed his trial counsel that he did not wish
to fight the death penalty if convicted. Petitioner admitted in his affidavit: “I told
Ishee from the beginning that I did not want to oppose the death penalty if convicted
. . . .” Exhibit 33 to Petition [8-2], at 131. He directly told the trial court: “I ain’t fixing
to do the rest of my days up there, you know. I’d just rather go ahead and be executed.”
Trial Record Vol. 6 [153-11], at 105-06. Petitioner’s own mother and grandmother
agreed with this course of action. Exhibit 35 to Petition [8-2], at 137; Trial Record
Vol. 9 [153-14], at 13-14. Petitioner’s counsel stated at the beginning of trial that
Petitioner had been “adamant . . . all along” that he did not wish to fight the death
penalty if convicted. Trial Record Vol. 6 [153-11], at 107. Robert Shepard, the attorney
who convinced Petitioner to allow his attorneys to put on a mitigation case, said that
Petitioner “was adamant that he preferred the death penalty to life in prison.” Exhibit
52 to Petition [8-2], at 192. Indeed, Petitioner admits in briefing that he instructed
his trial counsel throughout the course of the entire case, up to shortly before the guilt
phase of trial, that he did not wish to fight the death penalty.
This case is similar to Autry v. McKaskle, 727 F.2d 358 (5th Cir. 1984). There,
the petitioner claimed that his attorney provided ineffective assistance by failing “to
161

conduct an independent investigation into possible witnesses at the sentencing
phase,” including “witnesses who might have testified to Autry’s family background.”
Id. at 360. However, the record demonstrated that the petitioner “did not want his
lawyer to fight the death penalty” because he “preferred death to life imprisonment.”
Id. The petitioner told his counsel “prior to ever going to trial . . . , that if he was found
guilty, he wanted to take the stand and tell the jury he wanted the death sentence as
opposed to a life sentence.” Id. at 361. The attorney thought Autry would change his
mind, but although he interviewed a few of Autry’s family members, he did not
conduct any other independent investigation. Id. The Fifth Circuit held, “By no
measure can [a defendant] block his lawyer’s efforts and later claim the resulting
performance was constitutionally deficient,” and Autry’s ineffective-assistance claim
failed. Id.
Additionally, in Dowthitt v. Johnson, the petitioner claimed “that trial counsel
committed constitutional error by not presenting mitigation evidence via family
members during the punishment phase of the trial” which would have demonstrated
his “abusive upbringing, his mental difficulties, and his loving relationship with some
of his children . . . .” 230 F.3d at 748. The Fifth Circuit held: “Counsel will not be
deemed ineffective for following their client’s wishes, so long as the client made an
informed decision.” Id. Dowthitt claimed that “he did not understand the import of
mitigating evidence,” and that his “counsel did not even discuss it with him,” but the
Fifth Circuit found that these assertions did not constitute “clear and convincing
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evidence to rebut the state court’s finding” that he “did not want any of his family
testifying on his behalf.” Id. Accordingly, Dowthitt failed to demonstrate that his trial
counsel provided deficient representation. Id. at 749.
Here, the record contains undisputed evidence that Petitioner specifically
instructed his trial counsel that he did not wish to present a mitigation case if
convicted. The record also contains evidence that Petitioner’s attorneys discussed the
issue with him well before and during trial. 25 Accordingly, the Court finds that the
Mississippi Supreme Court reasonably determined that Petitioner made an informed
decision to forego presentation of a mitigation case if convicted. Moreover, the
Mississippi Supreme Court’s finding that Petitioner’s trial counsel did not provide
deficient representation in this respect was not unreasonable, in light of the Fifth
Circuit’s decisions in Autry and Dowthitt.
The Court also notes that most of the affidavits collected by Petitioner are from
his family members. Petitioner’s trial counsel stated in his affidavit that he “did not
talk to any of Grayson’s family members outside of his mother and grandmother”
because “Mr. Bailey informed me that they were not capable of assisting us because
they were very simple, uneducated people. They were used to being told what to do
and living with it.” Exhibit 28 to Petition [8-2], at 118. He also noted that Petitioner’s

Regardless, the Supreme Court has “never imposed an ‘informed and knowing’ requiring upon a
defendant’s decision not to introduce evidence.” Schriro v. Landrigan, 550 U.S. 465, 479, 127 S. Ct.
1933, 167 L. Ed. 2d 836 (2007). Even if there were such a requirement, Petitioner’s counsel represented
to the trial court, in Petitioner’s presence, that he had “made all of [Petitioner’s] options clear to him
and ma[de] sure that he understands the implications and the ramifications” of the issue. Trial Record
Vol. 9 [153-14], at 6-8.
25

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siblings “were very young when the murder occurred.” Id. Petitioner’s trial counsel
elected to not call Dr. Deal “during the trial or sentencing because he . . . is not a very
good witness. He likes to play games and joust around with the prosecutors too much
and I feared that he would cause more harm than good in testimony.” Id. at 119.
Counsel also did not wish to give the State a chance to call a rebuttal expert. Id.
Accordingly, counsel’s decision to not call these witnesses – including Petitioner’s
family – was a strategic decision entitled to a strong degree of deference. Rhoades,
852 F.3d at 431-32.
Petitioner argues that his counsel had a duty to perform more investigation
and present more mitigation evidence despite his explicit instruction that he did not
wish to present a mitigation case. Most of the cases he cites in support of this
argument are inapposite. In Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L.
Ed. 2d 360 (2005), the habeas petitioner did not explicitly instruct his trial counsel
that he did not want to present any defense against the death penalty. Instead, he
was simply unhelpful. Id. at 381. His “contributions to any mitigation case were
minimal,” and he was “uninterested in helping.” Id. He expressed boredom during
counsel’s visits, and he obstructed counsel’s investigation “by sending counsel off on
false leads.” Id.
Similarly, in Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447, 175 L. Ed. 2d 398
(2009), the habeas petitioner did not explicitly instruct his trial counsel that he did
not wish to fight the death penalty. Rather, he was “fatalistic and uncooperative,”
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and although he instructed trial counsel “not to speak to [his] ex-wife or son,” he “did
not give him any other instruction limiting the witnesses he could interview.” Id. at
40. 26
Even if Petitioner’s counsel had provided deficient representation, the
Mississippi Supreme Court reasonably determined that it did not prejudice
Petitioner’s case. First, the record contains evidence supporting the Mississippi
Supreme Court’s factual determination that Petitioner only allowed his trial counsel
to call his mother and grandmother to testify before presenting a mitigation
argument. See Trial Record Vol. 10 [153-15], at 25, 38. Petitioner has not rebutted
this factual determination with clear and convincing evidence. See 28 U.S.C. §
2254(e)(1). If Petitioner did not allow his trial counsel to present mitigation testimony
from anyone other than his mother and grandmother, counsel’s failure to investigate
and prepare such evidence could not have prejudiced Petitioner’s defense.
The Court also notes that much of the information provided in the affidavits,
described above, is generally cumulative of the evidence already presented at trial,
albeit with more details. Moreover, all the affidavits from Petitioner’s friends and
family mention his drug problems, which could have harmed his defense by

Sonnier v. Quarterman, 476 F.3d 349 (5th Cir. 2007), also cited by Petitioner, is a different story.
There, the habeas petitioner had “refused to cooperate” with his attorneys during their investigation,
and specifically forbade them from offering any evidence in mitigation at his trial. Id. at 357. Despite
the applicable precedents of Autry and Dowthitt, the panel in Sonnier found that Sonnier’s attorneys
had provided deficient representation. Id. at 358. However, they ultimately found that there was no
prejudice because of the weight of the evidence against him. Id. at 360-61. Under the Fifth Circuit’s
rule of orderliness, “a later panel . . . cannot overrule an earlier panel decision.” United States v. Berry,
951 F.3d 632, 636 (5th Cir. 2020). Accordingly, the Court will adhere to the earlier decisions in Autry
and Dowthitt.
26

165

supporting the State’s theory of a burglary motive. In fact, a couple of the affiants
specifically mentioned that Petitioner had previously stolen from them to feed his
drug habit, and a couple stated that he “became another person” when he was on
drugs. This testimony could just as easily have been harmful as helpful, particularly
in light of the weight of evidence against Petitioner, including the brutality of the
murder and his own confession. Cf. Nelson, 72 F.4th at 662 (where counsel had “little
hope” of showing petitioner did not pose a continuing threat to society due to the
nature of the offense and other evidence, there was no prejudice from counsel’s failure
to investigate and present mitigation evidence); Brewer, 66 F.4th at 566-67 (counsel’s
failure to present mitigating evidence was not prejudicial because it likely would not
have influenced the jury given the nature of the crime and the state’s evidence).
Ultimately, “[t]he question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that
determination was unreasonable – a substantially higher threshold.” Chamberlin,
885 F.3d at 837. This Court must determine “whether fairminded jurists could
disagree as to how the Supreme Court’s caselaw applies to the circumstances that the
state court confronted; if so, then [this Court] cannot set aside the state court’s
conclusion.” Engle, 33 F.4th at 790. For the reasons provided above, the Court
concludes that the Mississippi Supreme Court’s adjudication of Petitioner’s claims
related to mitigation was not unreasonable in light of the record.

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11.

Mitigation Argument

Petitioner also argues that his trial counsel provided ineffective assistance by
only making general social and religious arguments against the death penalty, rather
than highlight specific mitigation evidence in his argument. Petitioner contends that
his trial counsel should have discussed the mitigation testimony of his mother and
grandmother, rather than appealing to the jury’s moral and religious sensibilities. In
response, the State argues that this claim is procedurally barred, and that Petitioner
has not demonstrated that his trial counsel provided ineffective assistance.
The Mississippi Supreme Court addressed this claim in Petitioner’s successive
post-conviction proceeding. Grayson III, 118 So. 3d at 143-44. It noted that closing
argument typically “falls under the ambit of defense counsel’s trial strategy.” Id. at
144. Regardless, Petitioner “failed to show that there is a reasonable probability that
the result of the proceedings would have been different” if his trial counsel had altered
his strategy in closing argument. Id. Accordingly, this ineffective-assistance claim
failed, and post-conviction counsel’s failure to raise it in the initial post-conviction
proceeding did not prejudice Petitioner. Id. at 144. Thus, Petitioner did not receive
ineffective assistance in the initial post-conviction proceeding, and the claim was
time-barred and barred as a successive petition. Id. at 125, 144 (citing MISS. CODE
ANN. §§ 99-39-27(9), 99-39-5(2)).
a. Procedural Bar
The State argues that this claim is procedurally barred. As noted above, the
167

Mississippi Supreme Court held that the claim was time-barred and barred as a
successive petition, despite providing an alternative ruling on the claim’s merits. Id.
“A federal habeas claim is barred by procedural default when the state court has
rejected the claim pursuant to a state procedural rule that provides an adequate basis
for the decision, independent of the merits of the claim.” Garza, 738 F.3d at 675.
Petitioner argues that the Mississippi Supreme Court addressed the merits of
the claim and did not reject it pursuant to a procedural rule. Petitioner is mistaken.
The Mississippi Supreme Court addressed the merits of the claim as part of its postconviction ineffective-assistance analysis, to determine if post-conviction counsel’s
deficient performance prejudiced Petitioner. Id. at 125, 144 (citing MISS. CODE ANN.
§§ 99-39-27(9), 99-39-5(2)). Because there was no prejudice, Petitioner was not
excused from complying with Mississippi’s procedural rules governing post-conviction
petitions, and the successive petition was procedurally barred. Id. Regardless, the
Mississippi Supreme Court clearly invoked procedural bars in its dismissal of this
claim, id., and “the fact that the state court alternatively addressed the merits of [a
petitioner’s] claim does not prevent its procedural default determination from being
an independent basis that bars review by the federal courts.” Cotton, 343 F.3d at 754.
The Fifth Circuit has specifically held that both the MUPCCRA’s statute of
limitations and bar on successive petitions “are independent and adequate state
procedural grounds” to bar federal habeas review. Spicer, 2021 WL 4465828 at *3 (as
applied to an ineffective assistance claim); see also Bell, 290 F. App’x at 655; Johnson,
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176 F.3d at 815 n.3. Petitioner did not otherwise argue that any exception to the
doctrine of procedural default applies. Therefore, the Court finds that the Mississippi
Supreme Court rejected this claim “pursuant to a state procedural rule that provides
an adequate basis for the decision, independent of the merits of the claim,” Garza,
738 F.3d at 675, and it is barred from federal habeas review.
b. Merits
Notwithstanding the procedural bar, the Mississippi Supreme Court’s
adjudication of this claim was reasonable. The Court has already thoroughly
discussed the mitigation evidence presented by Petitioner’s trial counsel. In his
sentencing-phase closing argument, Petitioner’s trial counsel argued that life
imprisonment would be a fitting sentence for the crime of which Petitioner was
convicted, and that it would be harsher than a death sentence. Trial Record Vol. [10]
[153-15], at 76-79. In fact, he emphasized throughout the argument that life without
parole was “not a lenient sentence. Not something that anyone in this courtroom
would even want to entertain in their own minds for their own life or their own future.
A punishment that is so great that the rest of civilized society hasn’t even imposed
it.” Id. at 81. He also argued that killing Petitioner would not benefit anyone or bring
Minnie Smith back from death, and that it would only serve the purpose of revenge.
Id. at 77, 80. He cited the Biblical story about Jesus stopping a group of people from
stoning an adulterous woman to death. Id. at 80. 27 He closed with an impassioned

27

See John 8:1-11.

169

plea for the jury to “stop the killing” and to “acknowledge the fact that we are all
human beings and that we’re all God’s children and that we are above that.” Id. at
81-82.
Petitioner’s trial counsel later explained via affidavit that “there were a lot of
fundamentalist people on the jury and they handed down a death verdict. There were,
however, three or four people . . . who were crying after the death sentence had been
handed down and they apologized to me on their way out.” Exhibit 28 to Petition [82], at 119.
“[C]ounsel has wide latitude in deciding how best to represent a client, and
deference to counsel’s tactical decisions in his closing presentation is particularly
important because of the broad range of legitimate defense strategy at that stage.”
Yarborough v. Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). Although,
“[c]losing arguments should sharpen and clarify the issues for resolution by the trier
of fact, . . . which issues to sharpen and how best to clarify them are questions with
many reasonable answers.” Id. “[G]iven the wide range of available strategies,
pleading for mercy or presenting mitigating factors in a closing argument is not
required.” Clark v. Thaler, 673 F.3d 410, 427 (5th Cir. 2012). In fact, “it might
sometimes make sense to forego closing argument altogether,” Yarborough, 540 U.S.
at 6, or to “establish credibility with the jury” by “acknowledge[ing] the defendant’s
culpability and . . . conced[ing] that the jury would be justified in imposing the death
penalty.” Riley v. Cockrell, 339 F.3d 308, 317 (5th Cir. 2003). Therefore, the Court’s
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review of ineffective assistance claims premised upon counsel’s performance in
closing argument is “highly deferential – and doubly deferential when it is conducted
through the lens of federal habeas.” Yarborough, 540 U.S. at 6. A habeas petitioner’s
“desire to have a specific defense theory presented does not amount to ineffective
assistance on federal habeas review.” Ries v. Quarterman, 522 F.3d 517, 529 (5th Cir.
2008).
Considering trial counsel’s observation that the jury had “a lot of
fundamentalist people,” his choice to use Biblical illustrations and argue that life
imprisonment was, in fact, harsher than death was reasonable. Regardless,
Petitioner has not provided any evidence demonstrating that a different strategy
would have resulted in a sentence of life imprisonment without parole. Accordingly,
the Mississippi Supreme Court’s adjudication of this claim was not unreasonable in
light of the record.
12.

Jury Instruction – Mitigation Evidence

Petitioner argues that his trial counsel provided ineffective assistance by
failing to object to the trial court’s failure to instruct the jury to consider all mitigation
evidence, rather than just the statutory mitigating factors. In response, the State
argues that this claim is procedurally barred, and that the Mississippi Supreme
Court’s alternative ruling on the merits was reasonable.
Petitioner first presented this issue to the Mississippi Supreme Court in his
successive post-conviction proceeding. Grayson III, 118 So. 3d at 144. The Mississippi
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Supreme Court held that the jury was not foreclosed from considering all mitigating
circumstances, and, therefore, the claim was meritless. Id. Therefore, post-conviction
counsel’s failure to raise it claim in the initial post-conviction proceeding did not
prejudice Petitioner. Id. at 144. Thus, Petitioner did not receive ineffective assistance
in the initial post-conviction proceeding, and the claim was time-barred and barred
as a successive petition. Id. at 125, 144 (citing MISS. CODE ANN. §§ 99-39-27(9), 9939-5(2)).
a. Procedural Bar
The State argues that this claim is procedurally barred. As noted above, the
Mississippi Supreme Court held that the claim was time-barred and barred as a
successive petition, despite addressing the claim’s merits in the process of
determining whether it was procedurally barred. Id. “A federal habeas claim is barred
by procedural default when the state court has rejected the claim pursuant to a state
procedural rule that provides an adequate basis for the decision, independent of the
merits of the claim.” Garza, 738 F.3d at 675.
Petitioner did not address the procedural bars with respect to this claim.
Regardless, the Mississippi Supreme Court clearly invoked procedural bars in its
dismissal of the claim, Grayson III, 125, 144, and “the fact that the state court
alternatively addressed the merits of [a petitioner’s] claim does not prevent its
procedural default determination from being an independent basis that bars review
by the federal courts.” Cotton, 343 F.3d at 754. Moreover, the Fifth Circuit has
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specifically held that both the MUPCCRA’s statute of limitations and bar on
successive petitions “are independent and adequate state procedural grounds” to bar
federal habeas review. Spicer, 2021 WL 4465828 at *3; see also Bell, 290 F. App’x at
655; Johnson, 176 F.3d at 815 n.3. Petitioner did not otherwise argue that any
exception to the doctrine of procedural default applies. Therefore, the Court finds that
the Mississippi Supreme Court rejected this claim “pursuant to a state procedural
rule that provides an adequate basis for the decision, independent of the merits of the
claim,” Garza, 738 F.3d at 675, and it is barred from federal habeas review.
b. Merits
Notwithstanding the procedural bar, the Mississippi Supreme Court’s
adjudication of this claim was reasonable. As discussed above, the trial court
instructed the jury that they should “apply [their] reasoned judgment as to whether
this situation calls for life imprisonment or whether it requires the imposition of
death, in light of the totality of the circumstances present,” and it instructed the jury
they “may objectively consider . . . the character and record of the Defendant himself,”
in addition to the listed statutory mitigating factors. Trial Record Vol. 2 [153-7], at
18-19. “[J]urors are presumed to follow their instructions.” Sheppard, 967 F.3d at
470. Accordingly, the instructions, when taken as a whole, did not foreclose the jury
from considering all available mitigating evidence. Grayson III, 118 So. 3d at 131-32.
Failure to make a meritless objection is not ineffective assistance, Wood, 503 F.3d at
413, and the Mississippi Supreme Court’s adjudication of this claim was reasonable.
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13.

Jury Instruction – Parole Eligibility

Petitioner argues that his trial counsel provided ineffective assistance by
failing to object to the trial court’s omission of an instruction that, if sentenced to life
imprisonment, he would be ineligible for parole. The State argues that this claim is
procedurally barred, and that the Mississippi Supreme Court’s adjudication of the
claim was reasonable.
Petitioner first presented this claim to the Mississippi Supreme Court in his
successive post-conviction proceeding. Id. at 144-45. The Mississippi Supreme Court
held that the “jury was adequately informed that a life sentence would be without
parole,” and the claim was meritless. Id. at 144. Therefore, post-conviction counsel’s
failure to raise it claim in the initial post-conviction proceeding did not prejudice
Petitioner. Id. at 145. Thus, Petitioner did not receive ineffective assistance in the
initial post-conviction proceeding, and the claim was time-barred and barred as a
successive petition. Id. at 125, 145 (citing MISS. CODE ANN. §§ 99-39-27(9), 99-39-5(2)).
a. Procedural Bar
The State argues that this claim is procedurally barred. As noted above, the
Mississippi Supreme Court held that the claim was time-barred and barred as a
successive petition, despite addressing the claim’s merits in the process of addressing
the procedural bars. Id. “A federal habeas claim is barred by procedural default when
the state court has rejected the claim pursuant to a state procedural rule that
provides an adequate basis for the decision, independent of the merits of the claim.”
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Garza, 738 F.3d at 675.
Petitioner did not address the procedural bars with respect to this claim.
Regardless, the Mississippi Supreme Court clearly invoked procedural bars in its
dismissal of the claim, Grayson III, 125, 145, and “the fact that the state court
alternatively addressed the merits of [a petitioner’s] claim does not prevent its
procedural default determination from being an independent basis that bars review
by the federal courts.” Cotton, 343 F.3d at 754. Moreover, the Fifth Circuit has
specifically held that both the MUPCCRA’s statute of limitations and bar on
successive petitions “are independent and adequate state procedural grounds” to bar
federal habeas review. Spicer, 2021 WL 4465828 at *3; see also Bell, 290 F. App’x at
655; Johnson, 176 F.3d at 815 n.3. Petitioner did not otherwise argue that any
exception to the doctrine of procedural default applies. Therefore, the Court finds that
the Mississippi Supreme Court rejected this claim “pursuant to a state procedural
rule that provides an adequate basis for the decision, independent of the merits of the
claim,” Garza, 738 F.3d at 675, and it is barred from federal habeas review.
b. Merits
Notwithstanding the procedural bar, the Court finds that the claim is
meritless. As discussed above, the trial court instructed the jury that its options were
death or life imprisonment without parole. Trial Record Vol. 2 [153-7], at 24. Also,
throughout closing argument, Petitioner’s trial counsel repeatedly emphasized that
the jury was choosing between death or life imprisonment without parole. Trial
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Record Vol. 10 [153-15], at 76, 78-80. Therefore, the jury was adequately informed
that a sentence of life imprisonment would be without parole, and any objection would
have been meritless. Failure to make such an objection, therefore, was not deficient
performance. Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (failure to raise
meritless objection is not ineffective assistance).
14.

Cumulative Prejudice

Finally, Petitioner argues that his trial counsel provided ineffective assistance
Petitioner argues that all his trial counsel’s deficient conduct cumulatively prejudiced
his defense. In response, the State argues that the Mississippi Supreme Court
correctly determined that this claim is meritless. Petitioner raised this claim in his
successive post-conviction proceeding, and the Mississippi Supreme Court held: “In
order for there to be a cumulative effect of errors, there must first be errors.” Grayson
III, 118 So. 3d at 145. Because Petitioner “failed to prove that he is entitled to any
relief on each of his claims individually,” the Mississippi Supreme Court concluded
that he had “failed to prove that he is entitled to any relief on such claims
cumulatively.” Id.
“The Supreme Court has never squarely held that the cumulative error
doctrine governs ineffective assistance of counsel claims.” Hill, 781 F. App’x at 280.
The Fifth Circuit has observed:
We have reservations with respect to the applicability of cumulative
error in the context of ineffective assistance after the enactment of
AEDPA. This is because in order for there to be constitutional error in
the form of ineffective assistance of counsel, the petitioner must fulfill
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both prongs of Strickland. If either prong is not satisfied, then the
petitioner has not shown constitutional error, much less unreasonable
constitutional error. On the other hand, if a petitioner demonstrates
both prongs of Strickland and an objectively unreasonable
determination in state court, relief is available. There is no need to
cumulate.
Zimmerman v. Cockrell, 69 F. App’x 658, 2003 WL 21356018, at *12 (5th Cir. May
28, 2003). In other words, if a habeas petitioner demonstrates any ineffective
assistance, he can get relief, and there’s no need to cumulate prejudice. However, if
he cannot prove any ineffective assistance, then there is nothing to cumulate.
Therefore, the Court declines to extend the cumulative error doctrine in this manner.
Even if the cumulative error doctrine applied in this context, there is nothing
to cumulate in that each of Petitioner’s ineffective-assistance claims is meritless. See
Pondexter v. Quarterman, 537 F.3d 511, 525 (5th Cir. 2008) (agreeing with district
court ruling that meritless claims cannot be cumulated); Dodson v. Stephens, 611 F.
App’x 168, 179 (5th Cir. 2015) (where there were not “multiple instances of deficient
conduct,” cumulative prejudice argument was meritless). The Mississippi Supreme
Court’s dismissal of this claim was reasonable.
F.

Evidentiary Hearing
Petitioner argues that this Court should hold an evidentiary hearing on his

habeas claims. Respondents argue that AEDPA and applicable case law specifically
forbid the Court from holding an evidentiary hearing.
When a federal habeas court addresses a claim that was adjudicated on the
merits in state court, it may not consider any evidence outside the state-court record.
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Broadnax, 987 F.3d at 406 (citing Pinholster, 563 U.S. at 180). If the petitioner can
“demonstrate that habeas relief is warranted under § 2254(d) on the state court record
alone,” then “a federal habeas court may entertain new evidence pursuant to the
limitations of § 2254(e)(2).” Id. at 406-07. However, when a federal habeas court
addresses a claim that was not adjudicated on the merits in state court, it applies §
2254(e)(2) to determine whether to permit evidentiary development. Id. at 406 n. 3
(emphasis added). A state court has adjudicated a claim on the merits when it decides
a case on procedural grounds but alternatively addresses the claim’s merits. Lucio,
987 F.3d at 466-67.
Even if the Mississippi Supreme Court had not adjudicated the merits of
Petitioner’s claims, the Court still could not permit evidentiary development. AEDPA
provides:
If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that –
(C) The claim relies on –

(D)

(iii)

a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or

(iv)

a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
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28 U.S.C. § 2254(e)(2). Petitioner cannot meet this standard because the only new
evidence he seeks to develop is related to the testimony of two experts, Dr. Donna
Maddox and Dr. Tora Brawley, 28 which is only relevant to sentencing, and not his
conviction on the underlying offense. See Exhibits to Motion for Leave to Amend [971, 97-2, 97-3, 97-4]. Therefore, further evidentiary development is unavailable. See 28
U.S.C. § 2254(e)(2)(B); Ford, 2001 WL 803555 at *4 (§ 2254(e)(2)(B) requires showing
of actual innocence); Nobles, 127 F.3d at 424 n. 33 (describing § 2254(e)(2)(B) as
requiring “actual innocence” showing).
III. CONCLUSION
For all the reasons provided above, the Court denies the Second Amended
Petition [104] and dismisses this case with prejudice.
The Rules Governing § 2254 Proceedings require the Court to issue or deny a
certificate of appealability (“COA”) upon the entry of a final order adverse to the
petitioner, and a petitioner must obtain a COA before appealing this Court’s decision
denying habeas relief. 18 U.S.C. § 2253(c)(1). To obtain a COA, Petitioner must show
“jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). The Court denies a
certificate of appealability.
See Memorandum of Law in Support of Second Amended Petition [119], at 100-01; Reply
Memorandum [136], at 2-3.

28

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SO ORDERED AND ADJUDGED this 21st day of March, 2024.
/s/

Carlton W. Reeves
CARLTON W. REEVES
UNITED STATES DISTRICT JUDGE

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