Justin Underwood v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-DR-00302-SCT
JUSTIN UNDERWOOD
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
DISPOSITION:
05/25/1995
HON. SAMAC S. RICHARDSON
MADISON COUNTY CIRCUIT COURT
JAMES CRAIG
OFFICE OF THE ATTORNEY GENERAL BY:
MARVIN L. WHITE, JR.
JOHN KITCHENS
CIVIL - DEATH PENALTY - POST
CONVICTION
LEAVE TO SEEK POST CONVICTION RELIEF
DENIED - 12/01/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1.
Justin Underwood was indicted by a grand jury in Madison County, Mississippi, in
1994. He was charged with the February 15, 1994, capital murder of Virginia Ann Harris while
engaged in the commission of the crime of kidnapping in violation of Miss. Code Ann. § 97-319(2)(e) (Supp. 1993). Underwood’s trial began on May 22, 1995. On May 24, 1995, a jury
convicted him of capital murder. On May 25, 1995, he was sentenced to death. Underwood
filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for new
trial on June 2, 1995. Both motions were denied on July 24, 1995.
¶2.
Underwood then made a direct appeal to this Court to consider the following ten issues
on direct appeal:
I.
Whether the Trial Court Erred in Quashing the Indictment on the
Ground That Underwood Was at the Time and During Commission
of the Offense Suffering from Insanity;
II.
Whether the Prosecution Strikes for Cause of Jurors Based Solely
upon Their Views on Capital Punishment Systematically Excluded
Blacks from the Jury and Violated Underwood’s Right to a Fair
Trial;
III.
Whether the Trial Court Erred in Admitting the Involuntary
Confession of Underwood into Evidence in Violation of the Fifth
and Sixth Amendments to the United States Constitution;
IV.
Whether the Trial Court Erred, in Violation of the Constitutional
Rights of Appellant, in Allowing into Evidence a Statement Made
by Appellant Underwood That the State upon Charging Him with
Burglary Would Subsequently Charge Him with the Murder of the
Victim;
V.
Whether the Prejudicial Effect of the Introduction of the Videotape
of the Crime Scene Depicting the Victim’s Body Outweighed the
Tape’s Probative Value;
VI.
Whether the Prejudicial Effect of the Introduction of Numerous
Gruesome Photographs Outweighed Their Probative Value and
Constitutes Reversible Error by the Lower Court;
VII.
Whether the Jury’s Finding That the Victim Was Kidnapped by
Appellant Was Against the Overwhelming Weight of the Evidence
and Was Not Established Beyond a Reasonable Doubt;
VIII. Whether the Court Erred in Not Granting Instruction D-4;
IX.
Whether the Court Erred in Refusing to Grant Instruction D-3;
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X.
¶3.
Whether the Application of the Death Penalty Is Discriminatorily
Applied to African-Americans in Violation of the Due Process
Clause and Equal Protection Clause of the Fourteenth Amendment.
On February 12, 1998, Underwood's conviction and death sentence were affirmed by
this Court. See Underwood v. State, 708 So. 2d 18 (Miss. 1998).
The statement of facts
contained in that opinion is sufficient, and we adopt it here for reference purposes.
¶4.
Underwood then sought relief by filing a petition of certiorari with the United States
Supreme Court raising a single question:
Whether the “especially heinous, atrocious, or cruel” aggravating circumstance
of the Mississippi capital sentencing statute, as re-defined on an ad hoc caseby-case basis by the Mississippi Supreme Court, violates the Eighth and
Fourteenth Amendments to the United States Constitution.
The United States Supreme Court returned the petition with instructions to file an affidavit of
indigency and refile the petition within sixty days. The petition was never refiled.
¶5.
On or about February 15, 1999, a “pro se” petition for post-conviction relief was filed
with this Court.
of counsel.
The State filed a motion to remand the case to circuit court for appointment
On February 18, 1999, this Court remanded the case to the Circuit Court of
Madison County for appointment of counsel. On April 5, 1999, the State moved to dismiss
the post-conviction motion. The Court denied that motion on April 12, 1999. On April 23,
1999, the Circuit Court of Madison County appointed Bentley Conner, and Walter Wood, as
counsel. Five motions for time were filed by counsel and on November 23, 1999, counsel for
Underwood moved to withdraw based on lack of qualifications to handle a death penalty postconviction and requested the briefing schedule be suspended pending disposition of the
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motions to withdraw.
On December 7, 1999, this Court entered an order suspending the
deadlines in this case, pending disposition of the motions to withdraw.
¶6.
On December 21, 2000, this Court entered an order finding counsel should be allowed
to withdraw.
The Court also noted the passage of legislation creating the Office of Capital
Post-Conviction Counsel and the amendment of M.R.A.P. 22 dealing with procedures in death
penalty post-conviction matters.
The Court ordered James Craig, as counsel for Underwood,
to file a status report according to Rule 22. Craig filed the status report as ordered on January
5, 2001.
¶7.
On March 7, 2001, this Court entered an order formally appointing Craig as counsel for
Underwood and directing that the post-conviction application be filed within 180 days of the
order.
On July 29, 2003, Underwood filed with this Court, a motion for an extension time
within which to file an amended and restated post-conviction petition.
Presiding Justice
Waller subsequently granted Underwood’s motion and further ordered that the amended
petition was to be filed on or before October 27, 2003. On October 27, 2003, Underwood
filed a motion with this Court requesting an additional extension of time.
Chief Justice Smith
subsequently granted Underwood’s motion and ordered the amended petition to be filed on or
before October 22, 2004.
The amended and restated application for leave to file motion to
vacate conviction and sentence was eventually filed with this Court on October 26, 2004.
Underwood’s petition raises the following issues:
I.
Failure to Raise Batson Claim.
II.
Failure to Utilize Expert Assistance.
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III.
Failure to Object to Comment on Petitioner’s Exercise of His
Privilege Against Self-incrimination.
IV.
Ineffective Representation with Respect to Suppression Hearing.
V.
Failure to Submit Felony-manslaughter Instruction.
VI.
Failure to Challenge “Especially Heinous, Atrocious or Cruel
Aggravating Circumstance.
VII.
Failure to Investigate Guilt Phase Issues.
VIII. Failure to Investigate Mitigation Evidence.
IX.
The Mississippi Supreme Court’s Proportionality Review
Violated Petitioner’s Eighth and Fourteenth Amendment Rights.
¶8.
The State filed its response on February 18, 2005.
¶9.
We find that Underwood failed to file his amended petition on or before October 22,
2004, as ordered by this Court. Thus, this matter is procedurally barred due to Underwood’s
noncompliance with this Court’s order.
Nevertheless, alternatively we will still address the
merits of each issue raised in the present appeal.
¶10.
After due consideration, we find that Issues I-VIII, all dealing with ineffective assistance
of counsel, are without merit. We further find no merit as to Issue IX, Proportionality Review,
under the Eighth and Fourteenth Amendments to the United States Constitution.
Accordingly,
we hold that Underwood’s Petition for Post-Conviction Relief is without merit and is denied.
ANALYSIS
¶11.
Issues I - VIII of Underwood’s petition all claim that the defense counsel rendered
ineffective assistance of counsel during the trial.
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In considering claims of ineffective
assistance of counsel, this Court follows the standard provided in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):
‘The benchmark for judging any claim of ineffectiveness [of counsel] must be
whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.’ Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel’s
performance was deficient and that the deficiency prejudiced the defense of the
case. Id. at 687, 104 S. Ct. 2052. ‘Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from a breakdown
in the adversary process that renders the result unreliable.’ Stringer v. State,
454 So. 2d 468, 477 (Miss.1984) (citing Strickland v. Washington, 466 U.S.
at 687, 104 S. Ct. 2052). The focus of the inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances. Id.
Judicial scrutiny of counsel’s performance must be highly deferential. (citation
omitted) ... A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’ Stringer, 454
So.2d at 477 (citing Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). Defense
counsel is presumed competent.
Knox v. State, 901 So. 2d 1257, 1261-62 (Miss. 2005).
¶12.
To determine the second prong of prejudice to the defense, the standard is "a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991). This means a
“probability sufficient to undermine the confidence in the outcome.”
Id.
The question here
is: “whether there is a reasonable probability that, absent the errors, the sentencer–including
an appellate court, to the extent it independently reweighs the evidence–would have concluded
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that the balance of the aggravating and mitigating circumstances did not warrant death.”
Strickland, 466 U.S. at 695, 104 S. Ct. at 2068.
¶13.
There is no constitutional right to errorless counsel. See Cabello v. State, 524 So.2d
313, 315 (Miss.1988); Mohr v. State, 584 So.2d at 430 (right to effective counsel does not
entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right
to have competent counsel). If the post-conviction application fails on either of the Strickland
prongs, the proceedings end.
Neal v. State, 525 So. 2d 1279, 1281 (Miss. 1987); Mohr v.
State, 584 So. 2d at 430. Therefore, we will examine Issues I - VIII using the standards for
ineffective assistance of counsel set forth above.
I. Failure to Raise Batson Claim.
¶14.
Underwood argues the prosecution in this case exercised its peremptory challenges to
in order to eliminate African-American jurors from the venire.
In addition, he charges that
during the trial his counsel did not preserve or raise any objection to the prosecution’s
challenges under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
and that counsel’s failure to do so constituted ineffective assistance of counsel.
¶15.
The Court in Batson stated that the same equal protection principles that apply to the
selection of venire also “govern the State’s use of peremptory challenges to strike individual
jurors from the petit jury.” Id.
This prohibits the prosecution from excluding members of the
defendant’s race from the jury based solely on their race. In order for the defendant to make
a prima facie case of purposeful discrimination, he must meet the burden laid out by the
Batson Court. He must show that (1) he is a member of a cognizable racial group, (2) that the
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prosecutor has exercised peremptory challenges to remove members of the defendant’s race
from the venire and (3) such facts “and any other relevant circumstances raise an inference”
the prosecutor used those peremptory challenges to exclude potential jurors based on account
of their race. Id. at 80.
¶16. Underwood is clearly a member of a cognizable racial group.
However, as the State
correctly points out here, Underwood has not presented any evidence (such as jury lists or
affidavits) to support this particular claim or given any explanation as to their absence from the
pleading. In their response, the State cites Bishop v. State, 882 So. 2d 135, 146 (Miss. 2004),
which held: “[t]he State argues that this issue must be summarily dismissed because Bishop
failed to allege, with specificity, facts showing ineffective assistance of counsel.
agrees.
This Court
Bishop’s allegation of ineffective assistance of counsel ‘lack[s] the specificity and
detail required to establish a prima facie showing.’” Ford v. State, 708 So. 2d 73, 75 (Miss.
1998) (citing Smith v. State, 434 So. 2d 212, 219 (Miss. 1983); Miss. Code Ann. §§ 99-3911(2) and 99-39-9(1)(c)). See also Wilcher v. State, 863 So. 2d 719, 742 (Miss. 2003).
Underwood has failed to do this; hence he has not meet the burden of proof set forth in Batson.
¶17.
As previously noted, at the beginning of this analysis, Petitioner is actually claiming
ineffective assistance of counsel.
“To establish a claim for ineffective assistance of counsel
a petitioner must prove that under the totality of circumstances (1) the counsel’s performance
was deficient and (2) the deficient performance deprived the defendant of a fair trial.”
Berry
v. State, 882 So. 2d 157, 161 (Miss. 2004) (citing Strickland v. Washington, 466 U.S. at
687).
Since Underwood has not shown specific facts or affidavits which establish that the
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prosecution’s peremptory challenges were racially motivated, there is no evidence that
counsel’s lack of action constituted ineffective assistance of counsel.
Underwood’s claim is
not meritorious.
II.
¶18.
Failure to Utilize Expert Assistance.
During the initial phase of the murder trial, Underwood’s defense counsel stated that
Underwood was incompetent to stand trial and filed a motion for appointment of an
independent psychiatrist.
The circuit court sent Underwood to the Mississippi State Hospital
at Whitfield for examination by mental health experts. Underwood v. State, 708 So. 2d at 25.
After the hearing, the circuit court determined that Underwood’s motion for psychiatric
assistance should be granted and ordered that he be evaluated by a psychiatrist at the Region
8 Mental Health Center of Madison County. Id. However, no report from that facility was ever
tendered to the Court. Id. Underwood claims that because no report was given to the court,
this Court found the appellate claim of incompetence to be without merit. Id. at 27.
¶19.
Citing Brown v. State, 749 So.2d 82, 90-91 (Miss. 1999), Underwood claims that
failure to utilize expert assistance may be grounds for vacating a death sentence.
In Brown,
relief was granted due to the fact that no mitigation evidence from a psychological expert was
provided to the jury.
Id. at 93.
However, this case is distinguished from Brown since
Underwood was given a mental evaluation by the Mississippi State Hospital and was found
competent to stand trial. Underwood, 708 So. 2d at 25. Therefore, a report was furnished to
the court to determine competency. Brown was never given a psychological evaluation.
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¶20.
In its response, the State again refers to this Court’s ruling in Bishop maintaining that
Underwood has not supported his claims with sufficient evidence, in violation of Miss. Code
Ann. § 99-39-9. The State also asserts that the present counsel has had ample time to produce
such supporting evidence but has failed to do so.
¶21.
Underwood has not shown specific facts or affidavits establishing that his trial
counsel’s lack of action constituted ineffective assistance of counsel.
His reliance on the
outcome in Brown is misplaced for the reasons stated above. This issue is without merit.
III.
¶22.
Failure to Object to Comment on Petitioner’s Exercise of His
Privilege Against Self-incrimination.
Underwood did not testify at the trial nor did the defense counsel call any witnesses
during the guilt phase of the trial.
During closing arguments, the prosecution stated: “do not
divert yourselves from the uncontradicted facts that came into this courtroom from those 15
witnesses who came in here and from witnesses who, now, they put on trial.”
¶23.
Underwood argues that this statement brought attention to the fact he did not testify,
in violation of his constitutional right against self-incrimination.
U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
Griffin v. California, 380
Therefore, defense counsel rendered
ineffective assistance by failing to object or move for mistrial during the prosecution’s closing
arguments.
It is also argued that failure to raise this issue on appeal also constituted
ineffective assistance of counsel.
Since the issue of the prosecution’s closing arguments was
not brought at trial or on appeal, the substance of this claim is procedurally barred. Miss. Code
Ann. § 99-39-21 (1) (Supp. 2004) provides:
Failure by a prisoner to raise objections, defenses, claims, questions, issues or
errors either in fact or law which were capable of determination at trial and/or
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on direct appeal, regardless of whether such are based on the laws and the
Constitution of the state of Mississippi or of the United States, shall constitute
a waiver thereof and shall be procedurally barred, but the court may upon a
showing of cause and actual prejudice grant relief from the waiver.
However, we will address the issue of ineffective counsel as it pertains to the claim. The State
cites Howell v. State, 860 So. 2d 704 (Miss. 2003), regarding claims based upon comments
on the failure to testify.
Howell notes that attorneys are given “wide latitude” in developing
their closing arguments and there is an inherent difference between a comment on the
defendant’s failure to testify and a comment on the failure to put on a successful defense. Id.
at 751-52. The State charges that the comment was nothing more than a comment on the lack
of defense so it was not objectionable.
¶24.
The prosecution’s statement during closing arguments was merely a comment on the
State’s witnesses, their testimony and the lack of defense put on by their opponent.
no mention of Underwood at all.
There is
On this issue, Underwood again has failed to establish
evidence of deficient performance by his defense counsel or a resulting prejudice.
Therefore,
this issue is without merit and fails.
IV.
¶25.
Ineffective Representation with Respect to Suppression Hearing.
While Underwood acknowledges that defense counsel adequately challenged the written
statement taken from him regarding the crime with which he was charged, it is argued that
counsel’s failure to have Underwood testify at the suppression hearings was evidence of
ineffective assistance of counsel.
Underwood further contends counsel was ineffective on
appeal to contend that the invocation of counsel on the burglary charge required suppression
of all subsequent statements.
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¶26.
The State argues that Underwood already raised a claim regarding suppression on his
confession on direct appeal.
This Court decided the claim against him holding that his
constitutional rights were not violated since he understood his rights and spoke voluntarily with
law enforcement. See Underwood, 708 So. 2d at 30-31.
¶27.
The State questions the credibility of Underwood’s claim since there is no record that
he requested the presence of an attorney during questioning. In fact, the two officers present
gave sworn testimony that Underwood did not request an attorney during the burglary
interrogation.
The State also challenges Underwood’s claim that he told his attorney he
requested counsel during interrogation.
The State infers that any attorney would recognize
such a clear violation of a defendant’s constitutional right had it been brought to his attention.
¶28.
There is nothing in the record to explain why Underwood’s counsel did not allow him
to testify during the suppression hearing.
strategy.
The decision may have been a deliberate trial
It is likely that defense counsel knew there would be credibility issues with
Underwood’s testimony.
This Court does not like to “second guess” an attorney’s trial
strategy. See Mohr v. State, 584 So. 2d at 430. When evaluating the overall performance of
counsel, it must be considered that counsel makes strategic discretionary decisions including
whether or not to file certain motions, call certain witnesses, ask certain questions, or make
certain objections. See Cole v. State, 666 So. 2d 767, 777 (Miss. 1995). There is also a strong
presumption that the attorney's performance was within the wide range of reasonable,
professional, and acceptable conduct. See Leatherwood v. State, 473 So. 2d 964, 968-69
(Miss. 1985).
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¶29.
Again, Underwood has failed to obtain any evidence, such as an affidavit, confirming
that trial counsel had this information and failed to act on it.
Thus, the record does not
establish that counsel’s actions were deficient.
¶30.
Even if counsel’s action were deficient in any manner, Underwood has failed to show
any resulting prejudice.
Even if allowed to testify regarding his request for counsel, the
credibility of his statement versus the statements of the two police officers would have been
a matter for the court to decide. “The circuit court sits as a fact finder when determining
voluntariness of a confession, and its determination will not be reversed unless manifestly
wrong.” Horne v. State, 825 So. 2d 627, 639 (Miss. 2002) (citing Blue v. State, 674 So. 2d
1184, 1204 (Miss. 1996)).
Since the court allowed the confession to stand, it is unlikely
Underwood’s statement that he requested counsel would have convinced the court to rule
otherwise. Therefore, Underwood’s claim is without merit.
V.
¶31.
Failure to Submit Felony-Manslaughter Instruction.
Defense counsel submitted “heat of passion” manslaughter instructions to the circuit
court (Instruction D-4).
That instruction was denied by the circuit court and on appeal, this
Court affirmed the denial of that instruction. Underwood, 708 So. 2d at 36. Underwood now
claims defense counsel should have also submitted an instruction on the felony-manslaughter
statute that was then in effect. Miss. Code Ann. § 97-3-27.1 He claims the failure to offer this
instruction was ineffective assistance of trial counsel, as was the failure to raise the issue on
1
Underwood mistakenly refers to the felony-manslaughter statute in his petition as Miss. Code
Ann. § 97-5-39(2). The correct statute appears above and went into effect on August 23, 1994.
13
appeal.
He argues if the jury believed the entirety of his alleged statement, it would have
concluded the killing occurred as the result of a request for assisted suicide.
¶32.
The State asserts that Underwood’s theory of the case is an “unbelievable scenario” and
that it is unlikely the jury’s outcome would have changed. The State accurately notes that this
Court has already held on direct appeal that taking Underwood’s confession as true would
support a conviction of murder.
“A lesser-included offense instruction is appropriate only in
those cases where a jury could find the defendant not guilty of the principal charge but guilty
of a lesser offense.” Brown, 749 So. 2d at 89 (citing Evans v. State, 725 So. 2d 613, 664
(Miss. 1997); Davis v. State, 684 So. 2d 643, 656-57 (Miss. 1996)).
¶33.
This claim lacks merit.
VI.
¶34.
Failure to Challenge “Especially Heinous, Atrocious or Cruel”
Aggravating Circumstance.
Underwood alleges that since defense counsel did not object to the jury instruction with
respect to the “especially heinous, atrocious or cruel” aggravating circumstance, nor raise the
issue on appeal, this constituted ineffective assistance of counsel.
This argument is based on
the lack of evidence of how long the victim lived after being shot.
¶35.
Underwood cites the concurring in part and dissenting in part opinion of Justice
Blackmun in Clemons v. Mississippi, 494 U.S. 738, 755-74, 110 S. Ct. 1441, 1452-62, 108
L. Ed. 2d 725 (1990), which concluded that this aggravator was constitutionally invalid because
it was applied without limitation in Mississippi.
¶36.
appeal.
In its reply, the State makes mention of this Court’s review of this issue upon direct
In that opinion, this Court noted that the length of the victim’s life and her
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consciousness is not “dispositive on appeal.” Underwood, 708 So. 2d at 40. “Justice demands
that the focus remain strictly on the defendant. Underwood’s culpability can only be measured
by his own mental state and actions.” Id. at 39.
¶37.
This Court held that the jury properly found the murder to be especially heinous,
atrocious and cruel. Id. There was substantial evidence to support the sentence based on the
aggravating factors, including the fact that the murder was committed during the course of a
kidnapping.
¶38.
Thus, Underwood’s trial counsel was not deficient in failing to object to the instruction.
Additionally, there is also no proof submitted by Underwood that the outcome of the jury
verdict would have been different had his defense counsel objected.
This claim is without
merits.
VII.
¶39.
Failure to Investigate Guilt Phase Issues.
Underwood contends that although defense counsel argued at trial that someone other
than Underwood murdered Mrs. Harris, counsel did not conduct his own investigation into that
theory.
Underwood argues that the failure to do so constituted ineffective assistance of
counsel.
¶40.
Again, the State points out that Underwood submitted no affidavits or facts to support
his claim. The State cites Puckett v. State, 879 So. 2d 920, 936-37 (Miss. 2004), where the
defendant offered nothing in the way of proof that his defense counsel was ineffective other
than a conclusory allegation and this Court found the lack of evidence fatal to the claim. The
State, also referring to Bishop, contends that the Underwood’s allegation that counsel failed
to investigate a defense theory lacked the “specificity and detail” necessary to establish a prima
15
facie showing of ineffective assistance of counsel. 882 So. 2d at 146. This issue is without
merit.
VIII. Failure to Investigate Mitigation Evidence.
¶41.
Underwood claims that defense counsel did not conduct an investigation into the
statutory mitigating circumstances under Mississippi law or investigate any non-statutory
mitigating circumstances.
Underwood also notes that counsel’s failure to use a mental health
expert to assist in the investigation of mitigating circumstances constitutes ineffective
assistance of counsel.
¶42.
The State argues that Underwood has not produced any affidavits, names of witnesses
or any facts to support these conclusory allegations.
The State also mentions the four years
which present counsel had to obtain evidence to support such claims.
The State again cites
Puckett and Bishop to support the dismissal of this claim for lack of support. In addition, the
State points to its comments raised in Issue II noting that the failure to use the mental health
expert appointed by the trial court is also a conclusory allegation and should be summarily
dismissed.
¶43.
We agree that Underwood has not given specific facts or affidavits to adequately show
that counsel’s lack of action constituted ineffective assistance of counsel.
This issue is
without merit.
IX.
¶44.
This Court’s Proportionality Review.
Underwood argues that while this Court conducted a proportionality review of his death
sentence, it improperly did so by applying the “especially heinous, atrocious or cruel”
16
aggravating factor. In doing so, he argues that this Court “violated Petitioner’s rights under the
Eighth and Fourteenth Amendments.”
¶45.
The State argues that the aggravating circumstance was properly submitted to the jury
and again noted that this Court stated in the opinion that the jury properly found the murder to
be “especially heinous, atrocious, or cruel.” Underwood, 708 So. 2d at 39.
¶46.
As stated, Underwood is not entitled to relief under Issue VI and, therefore, the review
of this Court was proper.
This Court did not err in including the
aggravator in making its proportionality analysis.
“especially heinous”
Underwood is entitled to no relief on this
issue.
CONCLUSION
¶47.
“To establish a claim for ineffective assistance of counsel a petitioner must prove that
under the totality of circumstances (1) the counsel’s performance was deficient and (2) the
deficient performance deprived the defendant of a fair trial.” Berry, 882 So. 2d at 161.
Issues
I - VIII all deal with various claims of ineffective assistance of counsel by Underwood.
However, each of these issues is without merit.
¶48.
As to the proportionality review, there is not a violation of Underwood’s rights under
the Eighth and Fourteenth Amendments.
Therefore, this issue is also found to be without
merit.
¶49.
Therefore, Underwood’s Petition for Post-Conviction Relief and his Amended and
Restated Application for Leave to File Motion to Vacate Conviction and Sentence are without
merit and are denied. We deny Underwood him leave to seek post-conviction relief.
¶50.
LEAVE TO SEEK POST-CONVICTION RELIEF DENIED.
17
WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
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