ATTORNEY FOR APPELLANT: C. JACKSON WILLLIAMS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: MARVIN L. WHITE, JR.

DISPOSITION: GRANTED - 08/13/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

¶1. Henry Curtis Jackson, Jr. seeks to have the State provide attorney compensation and reasonable litigation expenses in his attempt to seek post-conviction relief pursuant to Miss. Code Ann. § 99-39-1 (1994), et seq. for his conviction and death sentence. This Court has previously denied all motions in other capital cases requesting similar relief. See Lockett v. State , 614 So. 2d 888 (Miss. 1992). Over the years, it has become apparent that the system is flawed. Valuable time and resources are being wasted in finding representation for death row inmates seeking post-conviction relief, especially since all remedies available under the UPCCRA must be exhausted before federal habeas relief may be sought. We find at this time that recognition of the nature of death penalty litigation in the courts of this state, coupled with the ultimate penalty the State seeks to impose, requires that the motion be granted, that counsel be appointed, and that reasonable expenses of litigation be allowed.

I.

¶2. Henry Curtis Jackson, Jr. was convicted of capital murder and sentenced to death in the stabbing deaths of four nieces and nephews in Leflore County Circuit Court in 1991. See Jackson v. State , 684 So. 2d 1213 (Miss. 1996). Jackson was represented by Johnnie Walls at trial and on direct appeal. After Jackson's conviction and death sentence were affirmed by this Court, Walls failed to file a petition for rehearing on behalf of his client within the allotted time and never moved to withdraw from representing him. Jackson's execution was set for August 21, 1996.

¶3. On August 6, 1996, another attorney, C. Jackson Williams, (1) filed on behalf of Jackson, in this Court, an Entry of Appearance as Jackson's attorney, Motion for Stay of Execution and Application for Leave to File Out of Time Petition for Rehearing and/or for Recall of the Mandate. Jackson's execution was stayed by this Court and the petition for rehearing was filed, considered and denied. A petition for writ of certiorari was filed in the United States Supreme Court March 5, 1997, and denied May 12, 1997. Jackson's execution was then reset by this Court for July 9, 1997, and was stayed by the United States District Court on July 1, 1997. Williams filed Jackson's Application for Post-Conviction Relief in this Court on May 8, 1998.

¶4. Williams has now filed in this Court on behalf of Jackson a Motion for Appointment of Counsel and Payment of Reasonable Litigation Expenses. Williams states that he has raised in the Application issues "that require paid expert assistance and investigation in order to be adequately addressed" and that if supplied with funds he would hire a forensic psychologist or psychiatrist to review the mental evaluations performed on Jackson before his trial to determine whether insanity was a viable defense, which could lead to a claim of ineffective assistance of counsel. See Jackson , 684 So. 2d at 1226 (Jackson abandoned insanity defense during guilt phase of trial). Williams finally asks that this Court "appoint, compensate, and pay reasonable litigation expenses of the undersigned, including the expenses of a forensic psychologist and a forensic psychiatrist, to prepare and file a petition for Post-Conviction Relief on his behalf." This Court ordered that the State respond to the motion, and that response has been filed and considered. We find that Jackson's motion should be granted.

II.

¶5. A judgment of conviction and sentence of death shall be subject to automatic review by this § Court. See Miss. Code Ann. 99-19-101 (4)(1994); 99-19-105 (Supp. 1997). The Constitution of Mississippi requires appointment of counsel pursuant to that automatic review. See also Miss. § Code Ann. 99-15-15 (1994). Where the conviction and sentence of death are affirmed by this Court, the appellant may then file a petition for writ of certiorari with the United States Supreme Court to have it review the conviction and sentence.

¶6. Assuming relief is sought and denied in the United States Supreme Court, the appellant may then apply to this Court for relief under the Uniform Post-Conviction Collateral Relief Act, Miss. Code Ann. § 99-39-1 to -29 (1994)("UPCCRA"). The purpose of the Act is

to revise, streamline and clarify the rules and statutes pertaining to post-conviction collateral relief law and procedures, to resolve any conflicts therein and to provide the courts of this state with an exclusive and uniform procedure for the collateral review of convictions and sentences. Specifically, this chapter repeals the statutory writ of error coram nobis, supersedes Rule 8.07 of the Mississippi Uniform Criminal Rules of Circuit Court Practice and abolishes the common law writs relating to post-conviction collateral relief, including by way of illustration but not limitation, error coram nobis, error coram vobis, and post-conviction habeas corpus, as well as statutory post-conviction habeas corpus. The relief formerly accorded by such writs may be obtained by an appropriate motion under this chapter.

§

Miss. Code Ann. 99-39-3 (1)(1994). The Act provides "a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal." Miss. Code Ann. § 99-39-3 (2)(1994).

¶7. Where a conviction and sentence have been appealed to this Court and affirmed, or the appeal dismissed, an application under the UPCCRA must be filed in this Court. Miss. Code Ann. § 99-39-7 (1994). This Court may grant or deny any or all relief requested in the application or allow the filing of the motion in the trial court. § 99-39-27 (7)(a) & (b)(Supp. 1997). The trial court then reviews the motion and any response and determines if the motion should be dismissed or if an evidentiary hearing should be held. Miss. Code Ann. § 99-39-19 (1)(1994). "If an evidentiary hearing is required the judge may appoint counsel for a petitioner who qualifies for the appointment of counsel under section 99-15-15, Mississippi Code § of 1972." Miss. Code Ann. 99-39-23 (1)(1994)(emphasis added). Nothing in the UPCCRA requires that one seeking relief be furnished counsel, either at the trial level or on appeal. See also Harris v. State , 704 So. 2d 1286 (Miss. 1997)(defendant not entitled to appointed counsel on further discretionary review after direct appeal decided by Court of Appeals).

¶8. The writ of habeas corpus has been a hallmark in the protection of our individual freedoms since being brought to this country by our forefathers from England. It is a civil action brought to test the legalities of confinement and to enforce the civil right of personal liberty. The writ is usually brought by a person who is the subject of a criminal prosecution to enforce his right of liberty. In following the tradition of habeas corpus practice, the Legislature further stated that an application for post-conviction relief "shall be filed as an original civil action in the trial court, except in cases in which the prisoner's conviction and sentence have been appealed to the supreme court of Mississippi and there affirmed or the appeal dismissed." Miss. Code Ann. § 99-39-7 (1994). Though this Court treats this statutory classification with respect, it is obvious that actions under the UPCCRA, which collaterally attack criminal convictions, are a unique kind of civil action. See Johnson v. State , 623 So. 2d 265 (Miss. 1993)(claimant appealing from denial of post-conviction relief may proceed in forma pauperis in contrast to other civil appeals). The reality is that post-conviction efforts, though collateral, have become an appendage, or part, of the death penalty appeal process at the state level. The importance of state post-conviction remedies is heightened by the requirement that, with few exceptions, state remedies must be exhausted before relief can be sought through federal habeas corpus. See 28 U.S.C. § 2254(b)(1994); Coleman v. Thompson , 501 U.S. 722, 731 (1991) .

¶9. Certain issues must often be deferred until the post-conviction stage, such as the claim of ineffective assistance of counsel. Our practice has been, in recent appeals, to deny appellate counsel leave to withdraw from capital cases which have reached the post-conviction stage unless the appellant agrees to proceed pro se or substitute counsel may be found. Obtaining qualified substitute counsel willing to proceed pro bono on this type of specialized, complex and time-consuming litigation is almost impossible. This practice ignores the reality that the state post-conviction stage is particularly important in capital cases, and that having the same counsel represent the condemned in appellate proceedings and post-conviction actions prevents counsel from raising the claim of ineffective assistance of trial or appellate counsel at the post-conviction stage. This practice also ignores the reality that indigent death row inmates are simply not able, on their own, to competently engage in this type of litigation. Applications for post-conviction relief often raise issues which require investigation, analysis and presentation of facts outside the appellate record. The inmate is confined, unable to investigate, and often without training in the law or the mental ability to comprehend the requirements of the UPCCRA. The inmate is in effect denied meaningful access to the courts by lack of funds for this state-provided remedy.

¶10. Though not a criminal case, the United States Supreme Court has recognized that this Court could not deny access to the state appeal process because of lack of funds where a fundamental right was involved in civil litigation. In M.L.B. v. S.L.J., 117 S.Ct. 555 (1996) , the Supreme Court found that this Court could not dismiss an appeal due to the appellant's failure to pay the appeal costs in a civil case where the issue at stake was termination of the appellant's parental rights. "[W]e place decrees forever terminating parental rights in the category of cases in which the State may not 'bolt the door to equal justice.'" M.L.B. , 117 S.Ct. at 568 . Access to equal justice is an even greater interest where the State seeks to impose the penalty of death.

¶11. In Murray v. Giarratano , 492 U.S. 1 (1989) , Chief Justice Rehnquist, joined by three other justices, found that there was no constitutional right to counsel, provided by the state, in post-conviction proceedings. Justice Kennedy concurred in the judgment, saying that "no prisoner on death row in Virginia has been unable to obtain counsel to represent him in post-conviction proceedings, and Virginia's prison system is staffed with institutional lawyers to assist in preparing petitions for post-conviction relief. I am not prepared to say that this scheme violates the Constitution." Murray , 492 U.S. at 14-15 . In Mississippi, repeatedly, since 1995, death row inmates have been unable to obtain counsel or requisite help from institutional lawyers. The Legislature has been aware of this acute problem. In the 1998 session, it took the first step toward the institution of a statewide public defender system. It is strongly urged that the Legislature proceed toward a solution to this serious problem by enacting the program utilized in Virginia or some other system. We can no longer sit idly by. We therefore grant the motion.

III.

¶12. In summary, we find that Henry Curtis Jackson, Jr., as an indigent, is deprived of assistance of counsel and access to the court system in his attempt to obtain state post-conviction relief from his conviction and sentence. We further find that in capital cases, state post-conviction efforts, though collateral, have become part of the death penalty appeal process at the state level. We therefore find that Jackson, as a death row inmate, is entitled to appointed and compensated counsel to represent him in his state post-conviction efforts. This matter is remanded to the Leflore County Circuit Court for appointment of counsel for Jackson and consideration of reasonable litigation expenses. Whether appointed counsel may receive litigation expenses in part to hire a forensic psychiatrist or psychologist depends on the nature of the request, and rests in the discretion of the circuit court.

¶13. MOTION FOR APPOINTMENT OF COUNSEL AND PAYMENT OF REASONABLE LITIGATION EXPENSES GRANTED. REMANDED TO THE LEFLORE COUNTY CIRCUIT COURT FOR APPOINTMENT OF COUNSEL FOR HENRY CURTIS JACKSON, JR. AND CONSIDERATION OF REASONABLE LITIGATION EXPENSES.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS AND WALLER, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY. SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MILLS, J.

SMITH, JUSTICE, DISSENTING:

¶14. The majority, claiming that the death penalty system in Mississippi is "flawed," concludes that Henry Curtis Jackson, Jr., whose conviction and sentence for the mass execution of four of his relatives, and upheld by this Court is now "entitled to appointed counsel and reasonable expenses of litigation." See Jackson v. State , 684 So. 2d 1213 (Miss. 1996). I disagree and accordingly dissent.

¶15. Amazingly, the majority determines that counsel should be appointed, when in fact, Jackson has been represented by counsel since 1996. On August 6, 1996, C. Jackson Williams filed, as Jackson's attorney of record, Jackson's Motion for Stay of Execution and Application for Leave to File Out of Time Petition for Rehearing and/or for Recall of the Mandate. Williams was not trial counsel. Williams was not appointed by the trial court or this Court but apparently was either hired or voluntarily appeared as counsel for Jackson in this Court. This Court allowed attorney Williams' request for Entry of Appearance, stayed the execution, and granted leave to file an out of time petition for rehearing. The Court ultimately denied Jackson's Petition for Rehearing. Subsequent federal relief by Petition for Writ of Certiorari with the United States Supreme Court was filed and denied. (2) This Court reset Jackson's execution and the United States District Court stayed this Court's order of execution on July 1, 1997. See Order Staying Execution, No. 3:97mc24-D (N.D. Miss. July 1, 1997). This stay was granted without Jackson having first exhausted all state remedies. Jackson did not file his Application for PCR in this Court until May 8, 1998. As illustrated previously, Jackson has had C. Jackson Williams as counsel in this Court since 1996. Williams has not filed a motion to withdraw. This Court is not obligated nor should it appoint counsel under the facts of this case.

¶16. The majority bases this decision, in part, upon the fact that "all remedies available under the UPCCRA must be exhausted before federal habeas relief may be sought." In truth and in fact, the federal courts are granting habeas relief in spite of the failure of an inmate convicted of capital murder having not first filed and exhausted all state remedies. In fact the federal district court did just that in Jackson's own case.

¶17. The majority also claims that "our practice has been, in recent appeals, to deny appellate counsel leave to withdraw from capital cases which have reached the post conviction stage unless the appellant agrees to proceed pro se or substitute counsel may be found." In fact, in many of these cases, the reason withdrawal was denied is because the attorneys seeking to withdraw have not complied with our Court rules. §

¶18. First, Miss. Code Ann. 99-39-3 (1) officially known as the Uniform Post-Conviction Collateral Relief Act or PCR, is an act created by the Mississippi Legislature, which is extremely limited in nature. The act requires that the application for relief must be filed in this Court. See Miss. Code Ann. § 99-39-7 (1994). (3) This Court may grant any or all relief requested by the convicted inmate. The Court can also deny any or all such relief, or allow the inmate to file the motion in the lower court. The act then allows the lower court to review a motion and any response and accordingly determine whether the motion is meritorious warranting the granting of an evidentiary hearing or whether it should be summarily dismissed. The act states that the lower court may appoint counsel, if an evidentiary hearing is granted.

¶19. The Legislature has determined that convictions which result in a sentence of death are to § be automatically appealed and reviewed by this Court. Miss. Code Ann. 99-19-101 (4)(1994) § and 99-19-105 (Supp. 1997). As required by our state constitution, appointment of counsel is mandated at trial level and upon the initial appeal to this Court. See also Miss. Code Ann. § 99-15-15 (1994). However, nothing in the PCR act requires that counsel be furnished during post-conviction relief proceedings at the lower court level or on appeal, because this procedure is discretionary review subsequent to the direct appeal decision. In Harris v. State , 704 So. 2d 1286 (Miss. 1997), this Court stated, "[a]ppointed counsel is not required by our constitution, statutes, or rules at the postconviction relief stages of the appellate process, even though there is a right to file such proceedings." Id. at 1292.

¶20. This Court has repeatedly held that there is no right under either the State or Federal constitutions to appointment of counsel or payment of cost on post-conviction review. See Mack v. State , No. 97-DP-00375-SCT, 1998 WL 240123 (Miss. May 14, 1998) . In Lockett v. State , 614 So. 2d 888, 897-98 (Miss. 1992), this Court specifically addressed and rejected the same two identical issues now presented by Jackson, i.e., appointment of counsel and a request for funds for an expert. Additionally, in Neal v. State , 422 So. 2d 747 (Miss. 1982), this Court held that an appellant's right to counsel exists only during the course of his direct appeal, and thus an indigent prisoner seeking post-conviction relief was not entitled to appointed counsel. This Court held in Moore v. State , 587 So. 2d 1193 (Miss. 1991), that "[i]n any event, a criminal defendant has neither a state nor federal constitutional right to appointed counsel in post-conviction proceedings." Id. at 1195 ( citing Pennsylvania v. Finley , 481 U.S. 551 (1987) ; Neal v. State , 422 So. 2d 747 (Miss. 1982); King v. State , 423 So. 2d 121 (Miss. 1982)).

¶21. This Court has also stated that, "[t]he State is not required to subsidize 'fishing expeditions' at the collateral review stage merely because the petitioner is indigent." Lockett , 614 So. 2d at 897 ( quoting Fleming v. State , 553 So.2d 505, 508 (Miss. 1989)). The precedent of this Court is that an inmate is not entitled to appointment of counsel on secondary discretionary appeals. The facts of this case appear to me as but another mere "fishing expedition" at the expense of the taxpayers of Mississippi. This is especially so regarding the majority's mandate for award of funds for an expert based upon Jackson's flimsy allegations.

¶22. More importantly, as this dissenter has so stated on many occasions, the United States Supreme Court has applied the same rule to capital cases as this Court. All that is required is that states provide access to the courts. This has been held to be satisfied by requiring prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries, or to provide adequate assistance from persons trained in the law. See Bounds v. Smith , 430 U.S. 817 (1977) . Agreed, a better procedure would be for the Legislature to establish a death penalty staff of attorneys at the state level, but the prison system has established an adequate law library and many writ writers who aid inmates are well versed in the law, some better than many attorneys who represent death penalty inmates. The current system, though not the best, is clearly adequate from a constitutional standpoint.

¶23. Recently, in Lewis v. Casey , 518 U.S. 343 (1996) , the Supreme Court, citing Murray v. Giarratano , 492 U.S. 1, 10 (1989) , Pennsylvania v. Finley , 481 U.S. 551 (1987) , Bounds v. Smith , 430 U.S. 817 (1977) , Ross v. Moffitt , 417 U.S. 600 (1974) , Preiser v. Rodriguez , 411 U.S. 475 (1973) , Douglas v. California , 372 U.S. 353 (1963) , and Griffin v. Illinois , 351 U.S. 12 (1956) addressed meaningful and equal access to the state court system and held that there is no requirement that the State provide indigents with counsel in discretionary state appeals. Likewise, the Fifth Circuit Court of Appeals has applied the same rule. In Blankenship v. Johnson , 118 F.3d 312 (5 th Cir. 1997) , the Court stated "[w]e acknowledge the well-settled rule that a criminal defendant does not have a right to counsel for the preparation of petitions for discretionary review." Id. at 317 ( citing Ross v. Moffitt , 417 U.S. 600 (1974) ).

¶24. The majority is simply invading the right of the Mississippi Legislature to determine whether or not to require counsel for secondary, discretionary appeals. The Legislature has been fully aware of the collateral nature of these proceedings and thus far apparently decided not to change the existing statute, except to proceed with establishing a type of statewide, unfunded public defender system. The majority is right about one thing, this is indeed a matter that should be left to the Legislature. Yet, in spite of this acknowledgment, the majority nonetheless, rushes head long into requiring what the Legislature, our Constitution, this Court, the Fifth Circuit Court of Appeals, the United States Constitution, or the United States Supreme Court has thus far been unwilling to do -- declare that the equal protection clause requires appointment of counsel for indigent defendants on collateral, discretionary appeals.

¶25. I respectfully dissent.

MILLS, J., JOINS THIS OPINION.

FOOTNOTES

(1) By order dated July 1, 1997, Williams was appointed by the United States District Court for the Northern District of Mississippi (Western Division) to represent Jackson in his petition for habeas corpus pursuant to 28 U.S.C. § 2254, only for the purpose of the federal appeal. Williams also filed Jackson's petition for certiorari with the United States Supreme Court. Johnny Walls, Jackson's trial and appellate attorney, has never filed a motion to withdraw; pursuant to our decision in Harris v. State , 704 So. 2d 1286 (1997), his representation was effectively terminated when the decision was handed down.

(2) C. Jackson Williams, after filing pleadings on August 6, 1996 in this Court as counsel for Jackson, was subsequently appointed as counsel for Jackson by the United States District Court for the Northern District of Mississippi (Western Division), for the limited purpose of filing for habeas corpus relief. Williams also filed before the United States Supreme Court, Jackson's petition for certiorari. §

(3) Miss. Code Ann. 99-39-7 (1994) The motion . . . shall be filed as an original civil action in the trial court, except in cases in which the prisoner's conviction and sentence have been appealed to the supreme court of Mississippi and there affirmed or the appeal dismissed. . . . and an order granted allowing the filing of such motion in the trial court.