Reply Brief — Charles Ray Crawford, Petitioner v. Mississippi

**EXECUTION SET FOR OCTOBER 15, 2025**

No. 25-385

No. 25A378 (connected case)

IN THE

Supreme Court of the United States

CHARLES RAY CRAWFORD,

Petitioner,

v.

STATE OF MISSISSIPPI,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSISSIPPI

REPLY BRIEF FOR PETITIONER

KRISSY C. NOBILE

S. BETH WINDHAM

MISSISSIPPI OFFICE OF CAPITAL

POST-CONVICTION COUNSEL

239 North Lamar St., Ste. 404

Jackson, MS 39201

(601) 359-5733

knobile@pcc.state.ms.us

bwindham@pcc.state.ms.us

DONALD B. VERRILLI, JR.

Counsel of Record

GINGER D. ANDERS

KYLE A. SCHNEIDER

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001

(202) 220-1100

Donald.Verrilli@mto.com

Ginger.Anders@mto.com

Kyle.Schneider@mto.com

GABRIEL M. BRONSHTEYN

MUNGER, TOLLES & OLSON LLP

560 Mission Street, 27th Floor

San Francisco, CA 94105

(415) 512-4000

Gabriel.Bronshteyn@mto.com

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................... i

TABLE OF AUTHORITIES ........................................ ii

INTRODUCTION ........................................................ 1

ARGUMENT ................................................................ 2

I.

The State’s Brief Confirms the Urgent

Need for This Court’s Review. .......................... 2

II.

This Court Has Jurisdiction. ............................ 7

III.

A Stay of Execution Is Warranted.................. 10

CONCLUSION .......................................................... 12

ii

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Chaidez v. United States,

568 U.S. 342 (2013) ............................................ 3, 7

Crawford v. Epps,

2008 WL 4419347 (N.D. Miss. Sept.

25, 2008).................................................................. 3

Cunningham v. Neagle,

135 U.S. 1 (1890) .................................................. 10

Ford v. Wainwright,

477 U.S. 399 (1986) .............................................. 10

Glossip v. Oklahoma,

604 U.S. 226 (2025) ................................................ 7

Lee v. Kemna,

534 U.S. 362 (2002) ................................................ 9

McCoy v. Louisiana,

584 U.S. 414 (2018) ................................ 1, 3, 5, 6, 7

Michigan v. Long,

463 U.S. 1032 (1983) .............................................. 8

New Hampshire v. Maine,

532 U.S. 742 (2001) ................................................ 8

Teague v. Lane,

489 U.S. 288 (1989) ................................................ 7

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Whorton v. Bockting,

549 U.S. 406 (2007) ................................................ 3

STATE CASES

Bell v. Mississippi,

66 So. 3d 90 (Miss. 2011)........................................ 8

Crawford v. State,

218 So. 3d 1142 (Miss. 2016).................................. 3

Crawford v. State,

867 So. 2d 196 (Miss. 2003).................................... 3

Gilliard v. Mississippi,

614 So. 2d 370 (Miss. 1992).................................... 9

Irving v. Mississippi,

618 So. 2d 58 (Miss. 1992)...................................... 9

STATUTES - OTHER

Miss. Code Ann. § 99-13-7 ........................................... 6

Miss. Code Ann. § 99-39-27(9) ..................................... 8

1

INTRODUCTION

The State now concedes that petitioner is entitled to

the benefit of McCoy v. Louisiana, 584 U.S. 414 (2018),

in postconviction review of his conviction and death

sentence. That concession eliminates any doubt that

petitioner’s conviction was obtained in violation of the

Sixth Amendment: petitioner’s counsel told the jury,

over petitioner’s vehement objection, that petitioner

was “legally responsible” for the charged crimes and

“dangerous to the community.” The State’s concession

also confirms the general importance of definitively establishing that McCoy did not announce a new rule: by

the State’s own admission, the Mississippi Supreme

Court erred on that question, and the State does not

dispute that the lower courts are divided, that the

question is recurring, and that the legitimacy of numerous convictions hinges on resolution of this retroactivity issue. The criteria for certiorari are thus amply satisfied.

The State nonetheless insists that this Court should

not be permitted to consider the petition in the normal

course because petitioner must be executed on October

15. But the weakness of the State’s effort to justify

that outcome only underscores the strength of petitioner’s claims. The State can defend the constitutionality of petitioner’s conviction only by misrepresenting

the factual record and by advancing legal arguments

that fly in the face of McCoy itself.

The State’s jurisdictional arguments are just as

misconceived. Remarkably, the State misrepresents

the Mississippi Supreme Court’s actual holding that

McCoy announced a new rule—no doubt because that

holding is indisputably based on federal law and cannot bar review. The State instead contests jurisdiction

based on the opposite (and false) premise that the

court held that McCoy was not new. Given that the

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State successfully urged the opposite below, judicial

estoppel should bar that argument—especially considering that a man’s life hangs in the balance. In any

event, the argument is wrong on its own terms, as Mississippi courts have often granted relief in similar situations. The bottom line is clear: no adequate and independent state ground bars review.

This Court’s immediate intervention is needed. Petitioner is scheduled to be executed based on a conviction that was obtained in blatant violation of the Sixth

Amendment. The State effectively concedes that the

court below erred in refusing to consider McCoy’s application to petitioner’s case. The question whether

McCoy announced a new rule easily satisfies this

Court’s certiorari criteria. The Court should stay petitioner’s execution in order to consider this case in the

normal course.

ARGUMENT

I.

The State’s Brief Confirms the Urgent

Need for This Court’s Review.

A. In a stunning about-face, the State concedes that

McCoy did not announce a new rule, but rather “reinforce[d] or clarifie[d] existing law.” Opp.15. The State

made precisely the opposite argument to the Mississippi Supreme Court, which adopted it. Mot. to Dismiss at 7. That reversal is a confession of error: the

State now agrees with petitioner that the Mississippi

Supreme Court erred in holding that McCoy should

not “be given retroactive effect.” Pet.App.3a. That

holding necessarily rested on the conclusion that

McCoy in fact announced a new rule of federal law—

otherwise, the court would not have understood the

question before it to be whether McCoy should be given

retroactive effect.

All of that confirms the urgent need for this Court’s

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review. The State now concurs that McCoy “appl[ied]

a settled rule”—which necessarily means that petitioner “may * * * avail [him]self of the decision on collateral review.” Chaidez v. United States, 568 U.S.

342, 347 (2013); Whorton v. Bockting, 549 U.S. 406,

416 (2007); Pet.16-24. And McCoy, applied to petitioner’s case, eliminates any doubt that petitioner’s

conviction was obtained in clear violation of the Sixth

Amendment. Although the State argues otherwise,

Opp.22, its whitewashing of the trial record is easily

refuted. See pp. 4-7, infra. Petitioner’s trial unquestionably violated McCoy: over petitioner’s vociferous

objections, counsel told the jury that petitioner had in

fact committed the offense, and that “[n]o one else is

legally responsible for what happened here.” Tr. 1179

(emphasis added).

It is equally indisputable that McCoy’s clarification

of what the Sixth Amendment requires would have

changed the outcome here. In his postconviction proceedings, petitioner argued that counsel improperly

conceded guilt. The Mississippi courts rejected that

claim, holding that conceding guilt was a “strategic”

judgment committed to counsel. Crawford v. State,

867 So. 2d 196, 212 (Miss. 2003); see also Crawford v.

State, 218 So. 3d 1142, 1165 (Miss. 2016); Crawford v.

Epps, 2008 WL 4419347, at *46 (N.D. Miss. Sept. 25,

2008). That reasoning was, as the State now implicitly

concedes, wrong under then-existing Sixth Amendment precedents. Pet.18-20. In all events, McCoy removed any doubt, by clarifying that whether to concede guilt is not a strategic judgment committed to

counsel, but instead a fundamental decision that is

committed to the defendant himself. 584 U.S. at 422.

Petitioner’s conviction thus violated McCoy’s rule—

a rule that the State now agrees should have applied

in petitioner’s case. The State thus seeks to execute

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petitioner even though his conviction was obtained in

violation of the Sixth Amendment, and even though

the Mississippi courts have consistently disregarded

this Court’s precedents in this case. That result would

be deeply unjust.

The question presented, moreover, has significant

importance beyond this case. The State does not dispute that the Mississippi Supreme Court’s holding

that McCoy is a new rule conflicts with other lowercourt decisions. Pet.23-24. Nor does the State dispute

that the question is recurring. Pet.30. And at least

one state executive branch now agrees that, contrary

to its own supreme court’s view, McCoy applies retroactively. That only confirms that the question presented is one on which disagreements will persist unless this Court intervenes. And given that retroactivity questions consistently recur and can affect the legitimacy of numerous convictions, it is particularly important that this Court grant review to ensure a uniform nationwide rule.

B. Rather than contest McCoy’s applicability to this

case, the State contends that petitioner’s conviction

did not violate McCoy. Opp.22. The State never

pressed that argument below, and the court never addressed it. In all events, the State’s newfound arguments mischaracterize both the record and McCoy.

The State’s lead contention—that, unlike in McCoy,

petitioner supposedly “never told counsel * * * to maintain innocence,” Opp.22—is false. Petitioner’s own

trial counsel stated that “Mr. Crawford objected to the

concession of his guilt and the pursuit of an insanity

defense before and during trial.” Bell Affidavit ¶ 4.

And petitioner’s objections to the trial court could not

have been clearer. See, e.g., Tr. 409 (petitioner objecting that his lawyers “told the jury that I was already

guilty * * * I do not recognize them as my attorneys

5

any more [sic]”); Tr. 819 (moving for mistrial because

counsel said he “didn’t expect that he could prove or

disprove what the * * * prosecution was going to put

on.”); Tr. 819-820 (objecting that counsel “told the jury

that they couldn’t prove that I was innocent. They

might as well been sitting over there with the prosecution.”). Petitioner made his views every bit as clear as

McCoy did. McCoy, 584 U.S. at 419. Nothing more

is—or could be—required.

The State next argues that trial counsel did not concede guilt because counsel pursued an insanity defense. That hairsplitting contention is both inaccurate

and irrelevant. Factually, there is no question that

trial counsel expressly conceded guilt, telling the jury,

“[w]e do not anticipate a defense or that the defense is

going to be able to show or to attack the State’s case

and prevent them from showing that this Defendant

did in fact commit the acts that he is charged with.”

Tr. 309-310 (emphasis added). Moreover, insofar as

the State suggests that counsel conceded factual guilt

but contested petitioner’s legal responsibility, that too

is erroneous. Counsel told the jury that “[n]o one else

is legally responsible for what happened here” and that

petitioner was “still dangerous to the community.” Tr.

1179, 1190 (emphasis added). Those unequivocal concessions are even more damning than those in McCoy,

where counsel merely told the jury it would be persuaded that “McCoy was the cause of these individuals’ death.” 584 U.S. at 419.

Legally, McCoy establishes that counsel’s pursuit of

an insanity defense does not excuse counsel’s concession of guilt. McCoy holds that the defendant has

“[a]utonomy to decide that the objective of the defense

is to assert innocence.” Id. at 422 (emphasis added).

Asserting innocence is a categorically different objective than asserting an insanity defense. The former

6

contends that the defendant did not commit the offense and seeks “exoneration,” id. at 423, while the latter concedes that the defendant committed the offense

but seeks a “not guilty by reason of insanity” verdict

that generally leads to commitment. See Miss. Code

Ann. § 99-13-7. McCoy holds that the defendant has a

Sixth Amendment right to decide “what [his] objectives in fact are”—that is, whether to assert insanity

or to insist that “I was not the murderer.” 584 U.S. at

422, 424. Petitioner sought to do exactly that, “object[ing] to the concession of his guilt and the pursuit

of an insanity defense.” Bell Affidavit ¶ 4. By nonetheless admitting that petitioner was the murderer in

the course of seeking an insanity verdict, trial counsel

plainly overrode petitioner’s right to “decide * * * the

objective of the defense,” 584 U.S. at 422, which here

was to have the trial result in exoneration, see Pet.710.

McCoy thus forecloses the State’s argument that

counsel never “conceded guilt” in the relevant sense,

but instead merely “conceded underlying facts” while

arguing that petitioner was not guilty “by reason of insanity.” Opp.23. Under McCoy, what matters is that

counsel concedes that the defendant committed the

charged acts, even if—as in McCoy itself—counsel simultaneously urges the jury not to convict, including because of the defendant’s mental illness. 584 U.S. at

424 (counsel conceded factual guilt but urged against

conviction); ibid. (citing as example of a Sixth Amendment violation a case where counsel conceded “factual”

guilt but sought a verdict of “guilty but mentally ill”).

In the end, the State’s effort to square petitioner’s

conviction with McCoy must be seen for what it is: a

blatant attempt to cut back on McCoy itself. Just as in

McCoy, petitioner’s counsel unequivocally conceded

that petitioner had committed the charged offenses,

7

while also mounting a defense that sought to avoid

conviction. McCoy, 584 U.S. at 424. Just as in McCoy,

petitioner’s objections were unmistakable. If the State

were correct that petitioner nonetheless has no claim

under McCoy, merely because counsel put on some defense, the McCoy right would be meaningless.

II.

This Court Has Jurisdiction.

This Court has jurisdiction to review the Mississippi

Supreme Court’s federal-law determination that

McCoy does not apply retroactively.

A. The State largely ignores what the Mississippi

Supreme Court said in denying petitioner relief. The

court dismissed the petition as procedurally barred on

the grounds that (1) Mississippi’s “intervening decision” exception to the successive-petition bar does not

apply, because petitioner “ha[d] not shown that McCoy

should be given retroactive effect”; and (2) the petition

was untimely. Pet.App.2a-3a.

The first ground—that McCoy does not count as an

intervening decision because it is not retroactive—

straightforwardly rests on federal law. The court necessarily had to reject petitioner’s argument that

McCoy does apply retroactively because it “did not announce a new rule of federal constitutional law.” Resp.

to Mot. to Dismiss at 13. The State does not dispute

that whether McCoy’s holding constitutes a new federal constitutional rule for retroactivity purposes is a

federal question that turns on construing this Court’s

federal-law precedents. Chaidez, 568 U.S. at 347. The

decision below thus “depend[s] on a federal holding.”

Glossip v. Oklahoma, 604 U.S. 226, 242 (2025). 1

The State’s argument that Mississippi is not bound by Teague v.

Lane, 489 U.S. 288 (1989), is misplaced. Mississippi follows

Teague. Pet.27. Even if it did not, whether this Court’s decision

1

8

The Mississippi Supreme Court’s reliance on the

timeliness bar and the prohibition on successive petitions are entirely dependent on its federal-law McCoy

holding. But cf. Opp.12-13. Under Mississippi law, if

the “intervening decision” exception applies, then neither the timeliness bar nor the second-successive bar

apply. Miss. Code Ann. § 99-39-27(9); Bell v. Mississippi, 66 So. 3d 90, 93 (Miss. 2011). The applicability

of those procedural bars is thus entirely dependent on

the court’s holding that McCoy is not an “intervening

decision,” which in turn rested on its federal-law retroactivity holding. As a result, no independent state

ground precludes this Court’s review.

B. Unable to avoid the straightforwardly federal basis of the Mississippi Supreme Court’s decision, the

State spends most of its brief defending a conclusion

that the court never reached. McCoy, the State argues,

is not a new rule, and so cannot constitute an “intervening decision” under state law. Opp.15-19. That is,

of course, not what the Mississippi Supreme Court

held. It reached the opposite conclusion at the State’s

urging, determining that McCoy is a new rule that

does not apply retroactively. Pet.App.2a-3a; Mot. to

Dismiss at 7. Judicial estoppel therefore bars the

State’s argument. New Hampshire v. Maine, 532 U.S.

742, 749 (2001). In any event, a rationale that the

state court did not adopt cannot provide an adequate

state-law ground precluding this Court’s review. See

Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983).

Regardless, as petitioner has already explained, the

State’s newly minted argument is meritless. The Mississippi Supreme Court has repeatedly applied the intervening-decision exception to decisions of this Court

announces a new rule of constitutional law is necessarily a federal

question.

9

that, like McCoy, clarified existing law rather than announcing new rules. See Gilliard v. Mississippi, 614

So. 2d 370 (Miss. 1992); Irving v. Mississippi, 618 So.

2d 58, 61 (Miss. 1992). The State asserts that those

decisions held that this Court’s recent rulings must

have “changed the legal landscape” to qualify as “intervening” decisions. Opp.17. The opposite is true. In

both, the Mississippi Supreme Court applied the intervening-law exception where this Court’s decisions “did

not ‘break new ground,’” but rather were “controlled

by,” and clarified, this Court’s existing precedent. Gilliard, 614 So. 2d at 374 (emphasis added); see Irving,

618 So. 2d at 61 (intervening-law exception applies to

decisions that “did not constitute ‘new rules’ under Teague”). The same is true here: McCoy makes

clear that petitioner should have been entitled to relief

under then-existing law.

The State’s citation to other Mississippi cases that

have refused to treat clarifying decisions as “intervening decisions,” Opp.15, only reinforces the absence of

an adequate state ground. Mississippi courts’ wildly

inconsistent application of its state procedural rules

(which the State tellingly describes as a “case-by-case”

approach) demonstrates that the “intervening decision” rule does not remotely qualify as the kind of

“firmly established and regularly followed” procedural

rule that can serve as an adequate and independent

state ground. Lee v. Kemna, 534 U.S. 362, 376 (2002).

Finally, the State’s brief vividly illustrates that Mississippi law traps petitioners in an untenable and unjust Catch-22—and therefore cannot constitute an adequate state ground precluding review. Opp.18. As

the State itself puts it, “[i]f this Court were to agree

with petitioner that McCoy did not create a new rule,

then his claim that the intervening-decision exception

should apply to permit his barred claim is doubtful at

10

the least.” Opp.25 (citations omitted). The State thus

argues that even if this Court were to hold that McCoy

applies retroactively, the state courts could disregard

McCoy as not “intervening” under state law, and this

Court would be powerless to review the State’s refusal

to give effect to this Court’s governing precedents.

That underscores the need for this Court to grant review in order to ensure that state courts faithfully apply this Court’s decisions—not only their precise holdings, but their reasoning. See Pet.30-31.

III.

A Stay of Execution Is Warranted.

As petitioner has demonstrated in his stay application, this Court should stay petitioner’s execution to

permit this case to be adjudicated in the normal

course. The State’s contrary arguments are meritless.

The State advances the startling assertion that petitioner will not be irreparably harmed absent a stay.

Opp.27. That flies in the face of this Court’s jurisprudence and common sense. E.g., Ford v. Wainwright,

477 U.S. 399, 411 (1986). The State argues that a capital petitioner suffers no harm from execution where

“[h]is guilt is not in question,” Opp.27—even where he

has meritorious constitutional claims that have not yet

been adjudicated. But it is a bedrock principle of habeas law that factual guilt is irrelevant to a petitioner’s

entitlement to relief upon demonstrating prejudicial

constitutional error. See, e.g., Cunningham v. Neagle,

135 U.S. 1, 69-71 (1890). That, of course, is because

prejudicial constitutional errors raise serious questions about the reliability of the conviction. It therefore cannot be right to say, as the State does, that a

petitioner with meritorious constitutional claims can

never obtain a stay of execution to permit adjudication

of those claims, unless he claims (and proves) actual

innocence. That view is irreconcilable with the rule of

law and the values it exists to serve, as well as the

11

supremacy of federal law. This Court should not countenance it.

The State does not rebut petitioner’s showing that

the equities favor a stay. The State faults petitioner

for bringing emergency litigation, Opp.11, 26-28, but

petitioner diligently filed this claim while still exhausting other remedies. Petitioner sought certiorari

less than three weeks after the decision below issued.

And petitioner cannot be faulted for the Mississippi

Supreme Court’s delay.

All told, the State is rushing to execute petitioner

before this Court can consider his petition in the normal course, while effectively admitting that the court

below erred, and that the question presented is one

that will recur frequently and on which lower courts

have disagreed. And there can be no real question that

petitioner’s conviction violated the Sixth Amendment

as clarified in McCoy. This Court’s intervention is urgently needed.

12

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

KRISSY C. NOBILE

S. BETH WINDHAM

MISSISSIPPI OFFICE OF CAPITAL

POST-CONVICTION COUNSEL

239 North Lamar St., Ste. 404

Jackson, MS 39201

(601) 359-5733

knobile@pcc.state.ms.us

bwindham@pcc.state.ms.us

October 14, 2025

DONALD B. VERRILLI, JR.

Counsel of Record

GINGER D. ANDERS

KYLE A. SCHNEIDER

MUNGER, TOLLES & OLSON LLP

601 Massachusetts Ave. NW

Suite 500E

Washington, DC 20001

(202) 220-1100

Donald.Verrilli@mto.com

Ginger.Anders@mto.com

Kyle.Schneider@mto.com

GABRIEL M. BRONSHTEYN

MUNGER, TOLLES & OLSON LLP

560 Mission Street, 27th Floor

San Francisco, CA 94105

(415) 512-4000

Gabriel.Bronshteyn@mto.com