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E-Filed Document

Mar 3 2014 11:06:48


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______________________________________________________________________________ RESPONSE IN OPPOSITION TO MOTION TO RESET EXECUTION DATE _____________________________________________________________________________

COMES NOW, Petitioner, Michelle Byrom, by and through counsel, filing this Response in Opposition to the State's Motion to Reset Execution Date, generally denying all the allegations set forth therein, and offering the following specific arguments in opposition to the Motion, stating as follows:

BYROM HAS NOT YET EXHAUSTED STATE REMEDIES 1. The one and only factual predicate of the State’s Motion to Reset Execution is the State’s contention that Michelle Byrom has exhausted all state and federal remedies. Petitioner respectfully submits that this contention is not true, and the Attorney General has acknowledged this fact. 2. On February 24, 2014, Byrom filed a motion for leave to file a successive petition for post-conviction relief. In that petition, she alleges that her prior post-conviction counsel were ineffective for failing to raise two claims: Byrom’s due process rights were violated when the Page 1 of 9

trial judge and the prosecution failed to disclose that prior to trial Edward Byrom, Jr. confessed to a state psychologist that he actually committed the murder and there was no “murder-forhire”; and, trial counsel were ineffective at the guilt phase of the trial. Byrom has also alleged that post-conviction counsel were ineffective for failing to competently investigate and present available evidence to support the claim that Byrom’s trial counsel were ineffective at sentencing. Finally, Byrom has asked this Court to revisit its decision upholding the trial court’s exclusion of Junior’s confession letters to his mother as a discovery sanction in light of an intervening decision of this Court. 3. This Court has recently held that death-sentenced prisoners such as Byrom have the right to the effective assistance of post-conviction counsel, Grayson v. State, 118 So.3d 118, 147 (Miss. 2013), and even more recently granted an evidentiary hearing on a claim of PCR counsel’s ineffectiveness raised in a successive post-conviction petition. Walker v. State, 2013 Miss. LEXIS 640 (Miss. Dec. 10, 2013). Prior to this Court’s decision in Grayson, Byrom would have been procedurally barred from claiming her post-conviction counsel were ineffective. Walker, 2013 Miss. LEXIS 640 at *1-2. Like these individuals, Byrom is entitled to seek this newly created remedy for post-conviction counsel’s ineffectiveness and has invoked that right when she filed her successive petition on February 24, 2014. 4. The State has not only conceded that the remedy of a successive post-conviction claim based on post-conviction counsel’s ineffectiveness is available to Petitioner in this case, but asked the Supreme Court of the United States to deny Byrom’s petition for a writ of certiorari for that very reason. Byrom raised the Brady claim in Claim I of her successive petition for the first time in federal habeas proceedings. Throughout those proceedings, the State insisted that the federal courts were precluded from considering the merits of this claim because it could have Page 2 of 9

been raised in state post-conviction proceedings but was not. The federal courts agreed. 1 While Byrom was on appeal in the Fifth Circuit, the Supreme Court decided Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), which created, for the first time, an equitable remedy based on state post-conviction counsel’s ineffectiveness that was cognizable in federal habeas proceedings. When Byrom asked the Supreme Court to apply this decision to her otherwise defaulted Brady claim, the Attorney General responded that it was not necessary for the U.S. Supreme Court to intervene in Byrom’s case, “[b]ecause petitioner has a remedy under state law to have this claim litigated.” Exhibit A, State’s Brief in Opposition, at 33-34 (emphasis added). The Attorney General explained: The Mississippi Supreme Court has held that a death sentenced postconviction defendant has the right to the effective assistance of post-conviction counsel under state law. See Grayson v. State, 118 So.3d 118, 125-26 (Miss., 2013). The Mississippi Supreme Court has and is allowing the filing of successive petitions for post-conviction relief based on claims of the effective assistance of post-conviction counsel. Therefore, petitioner has a remedy under state law to litigate her claim of ineffective assistance of post-conviction counsel for failing to raise a Brady claim. Therefore, because petitioner can still bring his ineffective assistance of counsel claim in state court neither Martinez nor Thriven v. Thayer [sic], _U.S._, 133 S.Ct. 1911 (2013), apply to her case. Therefore certiorari should be denied. Exhibit A, State’s Brief at 33-34 (emphasis added; footnote omitted). 5. Byrom agrees with the Attorney General. Prior to the filing of the instant Motion to Reset Execution, Byrom filed her Petition for Leave to File Successor Petition for PostConviction Relief (Byrom v. State, 2014-DR-00230SCT), and that petition is still pending. Under these circumstances, Petitioner’s state remedies are not exhausted, and no execution date should

Byrom v. Epps, 817 F.Supp.2d 868, 881-82 (N.D. Miss. 2011)(Petitioner “failed to present the State court with a claim that the information was improperly suppressed or that her postconviction counsel failed to properly assert the issues”); Byrom v. Epps, 518 Fed.Appx. 243, 251-52 (5th Cir. 2013). Page 3 of 9


be set at this time. Miss. Code Ann. § 99-19-106 ("Setting or resetting the date of execution shall be made on motion of the state that all state and federal remedies have been exhausted ....") This Court should deny the State's motion to reset execution date on the grounds that the exhaustion requirement of Section 99-19-106 has not been satisfied.

BYROM HAS PRESENTED POTENTIALLY MERITORIOUS CLAIMS OF INEFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL THAT WARRANT AN EVIDENTIARY HEARING 6. Byrom’s successive petition raises substantial constitutional claims which call into question whether she actually committed the murder-for-hire, the reliability of her death sentence, and the integrity of the prior state court proceedings. 7. For example, Byrom’s first claim alleges that post-conviction counsel were ineffective for failing to raise a claim based on the trial court and the prosecution’s failure to disclose material exculpatory evidence in violation of Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194 (1963). This claim is supported by the affidavit of the State’s psychologist, Dr. Criss Lott, who evaluated all three co-defendants who were indicted for capital murder. See Lott Affidavit, attached as Exhibit 1, Motion for Leave to File Successive Petition. Dr. Lott has sworn that: - - during his psychiatric evaluation of Edward Byrom Jr. in 2000, Junior confessed that he had killed his father for his own reasons; - - he found Junior’s confession credible and the facts about the murder related by Junior were independently confirmed by the co-defendant Joey Gillis during his own psychiatric evaluation; and, - - he shared this information with the trial judge in this case, who ordered him not to disclose information about Junior’s confession prior to Byrom’s trial.

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8. Junior’s confession not only directly contradicts his trial testimony on the central issue in this case – whether a murder-for-hire occurred – but it was corroborated by the physical evidence: Junior had gunpowder residue on his hands; Gillis did not. 9. Byrom has also submitted evidence indicating that, based on Junior’s confession to Lott, the prosecutor allowed Gillis to plead guilty to lesser charges and he was released from prison in 2009. Clearly the prosecutor did not believe that he could convict Gillis as the “triggerman” hired by Michelle Byrom, or that Gillis actually committed the murder. Under the facts presented, Petitioner respectfully submits that there is a reasonable probability Byrom would not have been convicted of hiring Joey Gillis to commit the murder if Junior’s credible confessions were properly disclosed. .

10. The facts in Petitioner’s case give rise to a claim for ineffective assistance of postconviction counsel, because the fact of Junior’s undisclosed confession to Dr. Lott was revealed during direct review proceedings. Post-conviction counsel’s failure to conduct a reasonable investigation into this matter, failure to present the claim in Byrom’s first post-conviction petition and to seek available fact development procedures constituted deficient performance under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052 (1984). See, e.g., Hinton v. Alabama, ___ S.Ct. ___, 2014 WL 684015 (*7), 2014 U.S. LEXIS 1012 (U.S. Feb. 24, 2014)(counsel’s “failure to understand the resources that state law made available to him” to develop defense evidence constitutes deficient performance under Strickland). 11. This claim, and the other claims presented in Byrom’s petition, are worthy of this Court’s thoughtful consideration - - after appropriate discovery and exploration of the facts, and a full briefing on the merits. This cannot be reasonably accomplished if the State proceeds with Page 5 of 9

the execution on March 27, 2014.

OTHER REMEDIES BYROM IS PURSUING LETHAL INJECTION 12. On March 3, 2013 a Complaint will be filed in the First Juridical District of the Chancery Court of Hinds County, Mississippi by the Roderick & Solange MacArthur Justice Center on behalf of Michelle Byrom and other similarly situated death row inmates seeking to compel the Mississippi Department of Corrections to comply with the Mississippi Public Records Act of 1983, Miss. Code Ann. §§ 25-61-1 et seq. by disclosing information about Mississippi’s lethal injection protocol. In this parallel case, Petitioner’s attorneys have exhausted their administrative remedy with the Mississippi Department of Corrections, and now seek judicial review of the State’s refusal to disclose information about the State’s lethal injection protocol. Petitioner should be afforded an adequate opportunity to pursue this information, in order to preserve her rights to due process and access to the courts under the First and Fourteenth Amendments. CLEMENCY 13. Petitioner has an additional remaining state remedy by way of a formal petition for “clemency” that has not been exhausted. The Governor of Mississippi has the right under Article V §124 of the Mississippi Constitution of 1890 to grant Petitioner a reprieve or pardon. The United States Supreme Court has stated, “Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.” Herrera v. Collins, 506 U.S. 390, 411-12 (1993) (footnotes Page 6 of 9

omitted). At this time, Petitioner possesses "a residual life interest" in not being executed. See Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 281 (1998). Moreover, Petitioner has a 14th Amendment due process right to utilize the Mississippi clemency system. Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (citing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 280-81(1998)); Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). Therefore, Michelle Byrom should be given adequate time to exhaust this remaining state remedy, through a complete and meaningful petition for clemency before the Governor, in the event all other relief is denied. 14. The pending motion for leave to file a successive petition for post-conviction relief is a remaining state remedy which must be exhausted before an execution date can be set. Moreover, and in the alternative, even if the successive Petition is denied, Michelle Byrom should be given the full thirty (30) days thereafter under Miss. Code Ann. § 99-39-29 in order to present a petition for clemency to the Governor.

CONCLUSION 15. Michelle Byrom was convicted and sentenced to death for hiring Joey Gillis to kill Edward Byrom, Sr. However, the evidence now clearly shows that Gillis did not commit the murder. 16. On February 24, 2013, Petitioner filed a Motion for leave to file successive petition for post-conviction relief based on claims of post-conviction counsel’s ineffectiveness that were not previously exhausted, and claims that were based on newly discovered evidence. 17. Petitioner’s claims have merit and deserve the usual consideration that is afforded to such claims by this Court. Therefore, Petitioner respectfully requests that this Court deny the Page 7 of 9

request to reset the execution date, and allow the filing of the successive Petition and appropriate discovery on the issues raised therein, so that the issues can receive appropriate consideration from this Court after a full briefing on the merits. 18. The resetting of an execution date at this time would contradict this Court's clearly expressed desire for a full and fair adjudication of all claims relating to the imposition of the death penalty, because such cases deserve “heightened scrutiny” since the penalty of death is qualitatively different from other forms of punishment. Edwards v. Thigpen, 433 So.2d 906, 910 (Miss. 1983). The public has an interest in the fair adjudication of all such claims, in order to safeguard its right to the fair and honest administration of cases, regardless of Petitioner’s innocence or guilt. 19. WHEREFORE, PREMISES CONSIDERED, Michelle Byrom respectfully requests that this Court deny the State's Motion to Reset Execution Date because Petitioner’s state remedies have not yet been exhausted, and because there should be a full adjudication of the claims raised in her Petition to File Successive Post-conviction Petition. If Petitioner has prayed for improper or insufficient relief, then she prays that this Court grant that to which she may be entitled in the premises. RESPECTFULLY SUBMITTED this the 3rd day March, 2014. MICHELLE BYROM, PETITIONER


/s/ David L. Calder David L. Calder, MSB #7686 P. O. Box 1790 Oxford, MS 38655 cell (662) 832-1354 office (662) 915-7394

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fax (866) 474-0923 e-mail:

CERTIFICATE OF SERVICE I, David L. Calder, hereby certify that I have this day via electronic means filed and served a copy of the foregoing Response in Opposition to Motion to Reset Execution to counsel for Respondents: Marvin L. White, Jr. Office of the Attorney General P. O. Box 220 Jackson, MS 39205-0220 e-mail: Jason L. Davis Office of the Attorney General P. O. Box 220 Jackson, MS 39205-0220 e-mail: This the 3rd day of March, 2014. /s/ David L. Calder David L. Calder, MSB #7686

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