IN THE SUPREME COURT OF MISSISSIPPI No. 93-DP-00059-SCT
EARL WESLEY BERRY Appellant
F I LED
OCT f 1 2007
STATE OF MISSISSIPPI Appellee
SUPREME COURT CLERK
This matter is before this Court en bane on the Motion to Reset Execution Date filed by the State ofMississippi and the Response and Motion to Stay Execution Pending Review
by Supreme Court ofthe United States filed by Earl Wesley Berry. After due consideration the Court finds that the Motion to Reset Execution Date is well taken and should be granted. The Motion to Stay Execution Pending Review by Supreme Court of the United States should be denied. A new date for the execution of Earl Wesley Berry should be set under Miss. Code Ann. § 99-39-29 (2007), and no legal impediment exists to setting an execution
date, as the United States Supreme Court denied Berry's petition for writ of certiorari on October 1, 2007,
IT IS THEREFORE ORDERED that the Motion to Reset Execution Date filed by the State ofMississippi is granted, and October 30, 2007, is hereby set as the date for execution of Earl Wesley Berry, in the manner provided by law. It is further ordered that this order
shall serve as the warrant of execution for Earl Wesley Berry.
IT IS FURTHER ORDERED that the Motion to Stay Execution Pending Review by Supreme Court ofthe United States filed by Earl Wesley Berry is denied.
SO ORDERED, this the ~day ofOctober, 2007. WILLIAM L. WALLER, JR., PRE
JUSTICE FOR THE COURT
DIAZ, PJ., WOULD STAY EXECUTION DATR WRITTEN OBJECTION TO FOLLOW.
ORAYES, J., NOT PARTICIPATING.
IN THE SUPREME COURT OF MISSISSIPPI No.2007-DR-01759-SCT
EARL WESLEY BERRY
F' LE 0
OCT 11 2007
STATE OF MISSISSIPPI
SUPREME COURT CLERK
This matter is before the Court sitting en bone on the Motion for Leave to File SuccessorPetitionforPost-ConvictionRelieffiledbyEarlWesleyBerry,theResponse filed by the State of Mississippi and the Reply to Response filed by Berry. The Court notes that Berry previously requested post-conviction reliefin this Court and did not at that time allege thatthelethalinjectionmethod ofexecutionwasunconstitutional. ThisCourtconsideredand denied Berry's application for post-conviction relief. See Berry v. State, RR2 So.?cl 1".7 (Miss. 2004), cert. denied, 544 U.S. 950 (2005). The State argues that Berry's Motion for Leave to File Successor Petition for Post-Conviction Relief is barred as a successive application and is untimely filed. Berry now raises two issues, which the Court considers and decides as follows.
Berry first alleges that his execution by lethal injection, under the current protocol employed by the State ofMississippi, would violate the First and Eighth Amendments to the United States Constitution, along with the Mississippi Constitution and statutory law. More specifically, Berry argues that the protocol violates Miss. Code Ann. § 99-19-51 (2007), in thatone ofthedrugs intheprotocolisnotauthorized by§99-19-51; thatllseofthisprotocol
poses an unreasonable risk of subjecting Berry to excessive pain and suffering; and that because Berry would be paralyzed and unable to speak during the process, his rights under the First Amendment to the United States Constitution would be violated. After due consideration this Court finds that Berry has failed to provide sworn proof, required by Miss. Code Ann. § 99-39-9 (1)(e) (2007), which legitimately questions the lethal injection protocol employed by the State of Mississippi. Jordan v. State, 91 R So.2d 636,662 (Miss. 2005). This issue is procedurally barred pursuant to Miss. Code Ann. §§ 99-39-5(2) & -27(9) (2007), and none of the statutory exceptions are applicable. The United States Supreme Court's grant ofcertiorari in Baze v. Rees, 2007 U.S. LEXIS 9066, 76 U.S.L.W. 3154 (U.S. Sept. 25, 2007), is not an intervening decision under § 99-39-27(9).
Berry next argues that competent defense counsel should have objected to the constitutionality of the State of Mississippi's lethal injection procedure at Berry's trial in 1989, and failure to do so subjected Berry to ineffective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668 (1984). This Court has detennined that the State ofMississippi'slethalinjection procenuredoesnotamounttocruel andunusualpunishment. Jordan, 918 So.2d at 662. There is no reason to believe that this Court would have determined any differently had Berry's counsel raised the issue at trial. Failure to raise the issue at Berry's trial does not amount to deficient conduct byBerry's trial counsel. This issue is procedurally barred pursuant to Miss. CodeAIlIl. §§ 99-39-5(2) & -27(9) (2007), and none of the statutory exceptions are applicable. For these reasons, the Motion for Leave to File Successor Petition for Post-Conviction Relief should be dismissed.
IT IS THEREFORE ORDERED that the Motion for Leave to Filt: Successor Petition for Post-Conviction Relief filed by Earl Wesley Berry is dismissed.
SO ORDERED, this the ',-,l_~__day ofOctober, 2007.
FOR THE COURT
DIAZ. P.l., WOULD GRANT.
WRITTEN OBJECTION TO FOLLOW.
GRAVES, J., NOT PARTICIPATING.
WILLIAM L. WALLER, JR.,