State files rehearing order for Berry in Schwab

Serial: 143332
IN THE SUPREME COURT OF MISSISSIPPI
No. 2007-DR-01759-SCT
EARL WESLEYBERRY
FILED
Appellant
v.
OCT t 82007
OFFICE Of THE C,-H{K
STATE OF MISSISSIPPI
SUPREME COURT COURT Or-P.PPEALS
Appellee
ORDER
This matter is before the Coun on the Motion to Recuse OfficI;; uf the Attorney General and Appoint Special Counsel filed by Earl Wesley Berry and the Response filed by theState ofMississippi. BerryasksthattheOffice oftheAttorneyGeneralberecusedfrom thiscaseandthataspecialprosecutorbeappointeddueto statements oftheAttorneyGeneral as reported in certain newspapers. After due consideration the Court finds that the Motion to Recuse Office ofthe Attorney General and Appoint Special Counsel is not well taken and
should be denied. IT IS THEREFORE ORDERED that the Motion to Recuse Office of the Attorney General and Appoint Special Counsel filed by Earl Wesley Berry is denied.
~
SO ORDERED, this the I IS --day of October, 2007.
GEORGE C. CARLSON, JR., JUSTICE FOR THE COURT
Serial: 143246
IN THE SUPREME COURT OF MISSISSIPPI No. 93-DP-00059-SCT
EARL WESLEY BERRY
FILED
Appellant
v.
OCT 182007
STATE OF MISSISSIPPI
OFFICE OfTHE CLEFI!-(
Appellee
SUPREME COURT
ORDER COURT OF pf'PEALS
This matteris before the Courtenbanc onthe Motionfor Rehearing ofMotion to Stay filed by Earl Wesley Berry and the Response filed by the State of Mississippi. By order dated October 11, 2007, this Court granted the Motion to Reset Execution Date filed by the StateofMississippi amI set October30,2007, as the datc for execution ofEad WesleyBerry. Berry asks for reconsideration of this decision due to the United States Supreme Court's grant of certiorari in Raze v. Rees, 2007 U.S. LEXIS 9066, 76 U.S.L.W. 3154 (Sept. 25, 2007). On October 1,2007, the United States Supreme Court denied Berry's petition for writ ofcertiorari. Berry v. Epps, 2007 U.S. LEXIS 10490,76 U.S.L.W. 3165 (Oct. 1,2007). See also SlJP_ Ct R_ 10, 14. The Supreme Court ofthe United States has not yet indicated that, in cases in this posture, all executions by lethal injection should be stayed. If that Court should stay the execution in this and other similar cases in order to consider the issue raised herein, this Court will certainly comply with such determination and will follow every directive from that Court. After due consideration the Court find" that the Motion for Rehearing ofMotion to Stay is not well taken and should be denied.
IT IS THEREFORE ORDERED that the Motion for Rehearing ofMotion to Stayfiled
by Earl Wesley Berry is denied.
--?Gr
SO ORDERED, this the / S' day ofOctober, 2007.
~~Q~
GEORGE C. CARLSON, JR., JUSTICE FOR THE COURT
DIAZ, PJ., GRAVES AND DICKINSON, n., WOULD GRANT.
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Serial: 143240
IN THE SUPREME COURT OF MISSISSIPPI No. 2007-DR-01759-SCT
EARL WESLEYBERRY Petitioner
FILED
v. OCT 182007
OFFICE or T1"'1;,:,,1{
STATE OF MISSISSIPPI SUPREME CC!i:)1i r Respondent COURT OF p'PFEt,LS ORDER
This matter is before the Court en bane on the Motion for Rehearing Based Largely onRespondent'sFactualStipulationsandtheResponsefiled bytheState ofMississippi. By order dated October 11, 2007, this Court dismissed Berry's Motion for Leave to File Successor Petition for Post-Conviction Relief. Berry now asks for reconsideration of that
decision. Berry argues that the State of Mississippi has stipulated that the lethal injection protocol used hy the State is similar to the protocol used by Kentucky and at issue in Baze
v. Rees, 2007 U.S. LEXIS 9066, 76 U.S.L.W. 3154 (Sept. 25, 2007). Berry argues that ifthe United States Supreme Court finds favorably for Baze, then that decision would also be applicable to Berry. Berry argues that this Court erroneously applied procedural bars in
dismissing the Motion for Leave to File Successor Petition for Post-Conviction Relief
This Court has detennined that the State of Mississippi's lethal injection procedure does not amount to cruel and unusual punishment. Jordan v. State, 918 So.2d 636,662 (Miss. 2005). Neither Berry's allegations, nor the United States Supreme Court's grant of certiorari in Baze v. Rees have altered that detennination.
This Court has allowed prisoners under sentence of death to raise issues before this Court based on intervening decisions, such as Atkins v. Virginia, 536 U.S. 304 (2002). This Court has allowed stays ofthe initial stage ofcapital post-conviction proceedings based on decisions ofthe United States Supreme Court which are anticipated but not yethanded down. Berry comes under neither ofthese scenarios. After due consideration the Court finds that the Motion for Rehearing Based Largely on Respondent's Factual Stipulations is not well taken and should be denied.
IT IS THEREFORE ORDERED that the Motion for Rehearing Based Largely on Respondent's Factual Stipulations filed by Earl Wesley Berry is denied.
c;J~
SO ORDERED, this the / ~ day of October, 2007.
~.gpc_.
GEORGE C. CARLSON, JR., JUSTICE FOR THE COURT
DIAZ, P.J., GRAVES AND DICKINSON, JJ., WOULD GRANT.
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