Mississippi Supreme Court order on successive petition in Earl Berry

Serial: 143144

IN THE SUPREME COURT OF MISSISSIPPI
No.2007-DR-01759-SCT

EARL WESLEY BERRY F' LE 0 Petitioner
v. OCT 11 2007
STATE OF MISSISSIPPI
SUPREME COURT CLERK Respondent
ORDER

This matter is before the Court sitting en bone on the Motion for Leave to File
Successor Petition for Post-Conviction Relief filed by Earl Wesley Berry ,the Response filed
by the State of Mississippi and the Reply to Response filed by Berry. The Court notes that
Berry previously requested post-conviction relief in this Court and did not at that time allege
that the lethalinjection method of execution was unconstitutional. This Court considered and
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 of Mississippi, 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
that one of the drugs in the protocol is notauthorized by §99-19-51; that llse of this protocol
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 determined that the State
of Mississippi's lethal injection procedure does not amount to cruel and unusual punishment.
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 by Berry'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.

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IT IS THEREFORE ORDERED that the Motion for Leave to File Successor Petition
for Post-Conviction Relief filed by Earl Wesley Berry is dismissed.

SO ORDERED, this the ',-,l_~__day ofOctober, 2007.

SIDING
JUSTICE
FOR THE COURT
DIAZ. P.l., WOULD GRANT.
WRITTEN OBJECTION TO FOLLOW.
GRAVES, J., NOT PARTICIPATING.

WILLIAM L. WALLER, JR.,
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