Petition for Writ of Certiorari — Clyde Wendell Smith, Petitioner v. Mississippi

No. _____

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════════════

CLYDE WENDELL SMITH,

Petitioner,

v.

STATE OF MISSISSIPPI

Respondent.

═════════════════════════════════

ON PETITION FOR WRIT OF CERTIORARI

TO THE MISSISSIPPI SUPREME COURT

═════════════════════════════════

PETITION FOR WRIT OF CERTIORARI

═════════════════════════════════

*KRISSY C. NOBILE

Counsel of Record

Mississippi Office of Capital

Post-Conviction Counsel

239 North Lamar Street, Suite 404

Jackson, MS 39201

Tel: 601-359-5733

knobile@pcc.state.ms.us

MARIE F. DONNELLY

JASON P. MOONEY

Capital Habeas Unit

Office of the Federal Defender

Middle District of Florida

400 North Tampa Street, Suite 2700

Tampa, FL 33602

Tel: 813-228-2715

marie_donnelly@fd.org

CAPITAL CASE

QUESTIONS PRESENTED

Petitioner and his brother were adversely situated

codefendants in two separate felony cases over which the

same judge presided. That judge appointed Wallace

Stuckey to represent petitioner in the underlying capital

trial and to represent the codefendant in the non-capital

trial without addressing the risk of a conflict of interests

caused by Stuckey’s simultaneous representation.

Petitioner was convicted in both cases and was sentenced

to death in the underlying capital case, where his noncapital conviction established his eligibility for the death

penalty.

Petitioner failed to challenge this conflict of interests in

initial state postconviction proceedings.

More than a decade ago, Mississippi recognized a

constitutional right to the effective assistance of capital

postconviction counsel. This created a gateway for

raising claims in a successive postconviction motion that

initial postconviction counsel had failed to raise.

Relying on this right, petitioner raised the conflict claim

in a successive postconviction motion. After raising the

claim, Mississippi ruled in a different case that its

constitution did not guarantee the effective assistance of

postconviction counsel. Applying this new case to

petitioner’s pending motion, the Mississippi Supreme

Court denied the conflict claim as procedurally barred

while also ruling that it lacked merit.

The questions presented are:

1. Whether the Mississippi Supreme Court’s application of

its new rule to petitioner’s pending motion is a state

ground that is adequate to deprive this Court of

jurisdiction over the federal conflict claim.

2. Whether Stuckey’s simultaneous representation of

petitioner and his codefendant violated Holloway v.

Arkansas, 435 U.S. 475 (1978).

i

RELATED PROCEEDINGS

Pursuant to Supreme Court Rule 14.1(b)(iii), the following proceedings are

related to the case at issue in this Petition:

Underlying Trial:

Circuit Court for LeFlore County, Mississippi, No. 22,161:

State of Mississippi v. Clyde Wendell Smith and Jerome Pete Smith ;

(July 1, 1993, Judgment);

Direct Appeal:

Mississippi Supreme Court, No. 93-DP-01470-SCT:

Smith v. State, 729 So. 2d 1191 (Miss. Dec. 10, 1998), reh’g denied,

(Miss. Feb. 25, 1999);

Supreme Court of the United States, No. 98-9567:

Smith v. Mississippi, 527 U.S. 1043 (June 24, 1999), reh’g denied, 527

U.S. 1059 (Aug. 23, 1999);

Initial Postconviction Proceeding:

Mississippi Supreme Court, No. 1999-DR-01394-SCT:

Smith v. State, 877 So. 2d 369 (Miss. May 20, 2004), reh’g denied,

(Miss. July 29, 2004) (granting leave to proceed on intellectual

disability claim under Atkins v. Virginia, 536 U.S. 304 (2002))

(resulting in Oct. 27, 2016, Agreed Order dismissing claim with

prejudice);

Initial Federal Habeas Corpus Proceeding:

United States District Court for the Northern District of Mississippi,

Case No. 4:17-cv-00087-SA:

Smith v. Comm’r, Miss. Dep’t of Corr. (Currently pending. See ECF No.

65);

Successive Postconviction Proceeding:

Mississippi Supreme Court, No. 2019-DR-01492-SCT:

Smith v. State, 410 So. 3d 1066 (Miss. Feb. 4, 2025), reh’g denied,

(June 5, 2025).

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

INDEX TO APPENDIX ................................................................................................. v

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

DECISION BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE....................................................................................... 2

I.

Procedural History ................................................................................... 3

II.

Facts Relevant To The Questions Presented .......................................... 5

A.

Trial counsel’s Holloway conflict. ............................................ 5

B.

Initial postconviction counsel was ineffective for raising the

Holloway claim. ........................................................................ 6

C.

Under Grayson, Clyde timely raised an ineffectiveassistance-of-postconviction-counsel claim for initial

postconviction counsel’s failure to raise the Holloway actual

conflict claim............................................................................. 6

D.

Applying Ronk to Clyde’s pending motion, the Mississippi

Supreme Court erroneously found that the motion was

procedurally barred. ................................................................. 7

REASONS FOR GRANTING THE WRIT .................................................................... 8

I.

Introduction .............................................................................................. 8

iii

II.

Ronk does not rest upon an adequate and independent state

ground. ...................................................................................................... 9

A.

The Mississippi Supreme Court application of Ronk to

Clyde’s motion was untimely. ................................................ 10

B.

The Mississippi Supreme Court’s discretionary application of

Ronk to similarly situated cases was arbitrary. ................... 11

C.

Courts must re-scrutinize state law application close in time

to when the challenge arises. ................................................. 11

D.

The Mississippi Supreme Court’s application of Ronk to

UPCCRA was inadequate to forestall federal review in

Clyde’s case. ............................................................................ 13

III.

Initial postconviction counsel was ineffective. ...................................... 15

IV.

Clyde has a meritorious Sixth Amendment claim that he was denied

the assistance of trial counsel. ............................................................... 17

A.

Stuckey’s Case No. 4698 Strategy: Paint Clyde as the

aggressor. ................................................................................ 18

B.

Stuckey’s Case No. 22191 penalty phase strategy

hamstrung by contradictory 4698 position. .......................... 20

CONCLUSION ..................................................................................................................... 21

iv

INDEX TO APPENDIX

Mississippi Supreme Court Order denying leave to file successive postconviction

motion (Smith III) (Feb. 4, 2025) ........................................................................... A1

Mississippi Supreme Court Order denying motion for rehearing

(June 5, 2025) ........................................................................................................ A2

Mississippi Supreme Court Order affirming conviction/sentence on direct appeal

(Smith I) (Dec. 10, 1998) ....................................................................................... A3

Mississippi Supreme Court Order affirming Jerome Smith’s conviction and

reversing his death sentence on direct appeal (Dec. 10, 1998) ............................ A4

Mississippi Supreme Court Order denying (initial) postconviction relief ( Smith II)

(May 20, 2004) ....................................................................................................... A5

Petition for Writ of Habeas Corpus, U.S. Northern District of Mississippi, Dkt. 3

(Aug. 24, 2017) ....................................................................................................... A6

v

TABLE OF AUTHORITIES

Cases

Page(s)

Atkins v. Virginia, 536 U.S. 304 (2002) ........................................................................ 4

Batson v. Kentucky, 476 U.S. 79 (1986) ..................................................................... 10

Beard v. Kindler, 558 U.S. 53 (2009) .......................................................................... 11

Brown v. State, 306 So. 3d 719 (Miss. 2020) .............................................................. 13

Coleman v. Thompson, 501 U.S. 722 (1991) ................................................................. 9

Crawford v. State, 218 So. 3d 1142 (Miss. 2016) ........................................................ 16

Cruz v. Arizona, 598 U.S. 17 (2023) .................................................................. 9, 12, 14

Cuyler v. Sullivan, 446 U.S. 335 (1980) ...................................................................... 18

Dretke v. Haley, 541 U.S. 386 (2004)............................................................................ 9

Ford v. Georgia, 498 U.S. 411 (1991) ........................................................ 10, 11, 14, 16

Foster v. Chatman, 578 U.S. 488 (2016) ....................................................................... 9

Grayson v. State, 118 So. 3d 118 (Miss. 2013) ....................................... 3-4, 6, 8, 13-16

Guidry v. Lumpkin, 2 F.4th 472 (5th Cir. 2021) ........................................................ 15

Holcombe v. Florida, 142 S.Ct. 955 (2022)............................................................ 20, 21

Holloway v. Arkansas, 435 U.S. 475 (1978) .............................................. 3, 5, 6, 17, 18

Howell v. State, 358 So. 3d 613 (Miss. 2023) .............................................................. 14

Jackson v. Anderson, 112 F.3d 823 (5th Cir. 1997) .................................................... 11

Jackson v. State, 732 Ao. 2d 187 (Miss. 1999) ............................................................ 16

Johnson v. Lee, 578 U.S. 605 (2016) ............................................................................. 9

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Jordan v. Cain, 764 F. Supp. 3d 380 (S.D. Miss. 2024) .............................................. 12

Lee v. Kemna, 534 U.S. 362 (2002). .............................................................................. 9

Messer v. Florida, 834 F.2d 890 (11th Cir. 1987) ................................................... 9, 14

Michigan v. Long, 463 U.S. 1032 (1983) ....................................................................... 9

Mickens v. Taylor, 535 U.S. 162 (2002) ...................................................................... 18

Morales v. Calderon, 85 F.3d 1387 (9th Cir. 1996) .................................................... 10

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ....................................... 12

Prihoda v. McCaughtry, 910 F.2d 1379 (7th Cir. 1990) ............................................. 11

Ronk v. State, 391 So. 3d 785 (Miss. 2024) ........................................... 3, 4, 7-11, 13-15

Russel v. State, 819 So. 2d 117 (Miss. 2001) .............................................................. 16

Smith v. Mississippi, 527 U.S. 1043 (1999) .................................................................. 4

Smith v. State, 729 So. 2d 1191 (Miss. 1998) (Smith I) ........................................ 3-4, 6

Smith v. State, 877 So. 2d 369 (Miss. 2004) (Smith II) ................................................ 4

Smith v. State, 410 So. 3d 1066 (Miss. June 5, 2025) (Smith III) ....................... 1, 5, 8

Spencer v. Zant, 715 F.2d 1562 (11th Cir. 1983) ........................................................ 10

Strickland v. Washington, 466 U.S. 668 (1984).......................................................... 16

Walker v. Att’y Gen., 167 F.3d 1339 (10th Cir. 1999) ................................................ 10

Walker v. Martin, 562 U.S. 307 (2011) ............................................................. 9, 11, 15

Walker v. State, 131 So. 3d 562 (Miss. 2013) ....................................................... 13, 17

vii

TABLE OF AUTHORITIES

Secondary Sources

Page(s)

Wright, A. Miller, & Cooper, Fed. Pract. & Proc. § 4026 (2d ed. 1996) ..................... 11

Statutes

28 U.S.C. § 1257(a) .................................................................................................... 1, 9

28 U.S.C. § 2254 ............................................................................................................. 4

Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA),

Miss. Code Ann. § 99-39-1, et seq. ............................................ 1-2, 4, 7-8, 11, 13-16

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Clyde Wendell Smith1 respectfully urges the Court to issue its writ

of certiorari to review the decision of the Mississippi Supreme Court denying leave

to file a successive postconviction motion.

DECISION BELOW

The opinion of the Mississippi Supreme Court in this cause is captioned

Smith v. State, 410 So. 3d 1066 (Miss. 2025) (Smith III), and is found at Attachment

A1 of the accompanying Appendix.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a). This Petition is

timely. The Mississippi Supreme Court issued its decision on February 4, 2025, and

it denied rehearing on June 5, 2025. The unreported order denying rehearing is

found at Attachment A2. On August 27, 2025, Justice Alito extended the time for

filing the Petition to October 3, 2025 (Case No. 25A230).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment of the Constitution of the United States provides that,

“In all criminal prosecutions, the accused shall enjoy the right to . . . have the

Assistance of Counsel for his defense.” U.S. Const. Amend. VI.

The Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA),

Miss. Code Ann. § 99-39-1, et seq., in relevant part:

1 This petition uses the first names of Clyde and his codefendant/brother Jerome “Pete”

Smith. They are unrelated to Johnny B. Smith, the victim in their capital trial.

1

provide[s] the courts of this state with an exclusive and uniform

procedure for the collateral review of convictions and sentences. . . .

Direct appeal shall be the principal means of reviewing all criminal

convictions and sentences, and the purpose of this article is to provide

prisoners with a procedure, limited in nature, to review those objections,

defenses, claims, questions, issues or errors which in practical reality

could not be or should not have been raised at trial or on direct appeal.

§ 99-39-3(1)-(2).

Failure by a prisoner to raise objections, defenses, claims, questions,

issues or errors either in fact or law which were capable of

determination at trial and/or on direct appeal, regardless of whether

such are based on the laws and the Constitution of the state of

Mississippi or of the United States, shall constitute a waiver thereof and

shall be procedurally barred, but the court may upon a showing of cause

and actual prejudice grant relief from the waiver.

§ 99-39-21.

[A]ny order dismissing the petitioner’s motion or otherwise denying

relief under this article . . . shall be a bar to a second or successive motion

under this article. Excepted from this prohibition . . . are those cases in

which the petitioner can demonstrate . . . that he has evidence, not

reasonably discoverable at the time of trial, which is of such nature that

it would be practically conclusive that, if it had been introduced at trial,

it would caused a different result in the conviction or sentence.

§ 99-39-23(6).

STATEMENT OF THE CASE2

Wallace Stuckey simultaneously represented Clyde in his capital trial and

Clyde’s adversely situated codefendant Jerome in a different felony trial (at which

2 Citations in this petition are as follows: References to the records in Case No. 4698 and

Case No. 22191 are designated as “R-[Case No.].” References to the Case No. 4698

transcript are designated as “T-4698.” Clyde’s state postconviction dockets are designated

as “PCR-2004” and “PCR-2019.” References to petitioner’s § 2254 proceedings, pending

before the United States District Court for the Northern District of Mississippi, Case No.

4:17-cv-00087-SA, are designated as “ECF No.”

2

Clyde was the codefendant). The Honorable Gray Evans presided over both trials

within two months but failed to address the obvious and actual conflict of interest

that Stuckey’s simultaneous representation created. Under Holloway v. Arkansas,

this was reversible error. 435 U.S. 475 (1978).

Appellate and initial postconviction counsel likewise failed to assert this

claim. Clyde therefore raised it in a successive postconviction motion as an

ineffective-assistance-of-postconviction-counsel claim. Clyde relied on Mississippi’s

established law recognizing the constitutional right to the effective assistance of

capital postconviction counsel. Grayson v. State, 118 So. 3d 118, 126 (Miss. 2013).

After Clyde filed his motion, the Mississippi Supreme Court overruled

Grayson, revoking this right. Ronk v. State, 391 So. 3d 785 (Miss. 2024). The

Mississippi Supreme Court haphazardly applied Ronk to similarly situated cases.

Applying it to Clyde’s then-pending case, it found that his claim was procedurally

barred.3 This abuse of discretion offends principles of federalism, comity, and due

process. Clyde urges this Court to grant certiorari.

I. Procedural History

Clyde and Jerome were jointly indicted, convicted of capital murder and

armed robbery, and sentenced to death. R-22191/5-7, 221-28. On direct appeal, the

Mississippi Supreme Court affirmed Clyde’s conviction and death sentence. 4 Smith

3 Alternatively, it ruled that the claim would lose on the merits.

4 Jerome’s death sentence was reversed on direct appeal; he was eventually sentenced to

life in prison.

3

I. This Court denied Clyde’s petition for writ of certiorari. Smith v. Mississippi, 527

U.S. 1043, reh’g denied, 527 U.S. 1059 (Aug. 23, 1999).

Clyde timely moved for state postconviction relief in the Mississippi Supreme

Court. Smith II, at 375. The Mississippi Supreme Court summarily denied relief on

all claims except one.5 Id. at 399. Twelve years later, the evidentiary hearing having

never occurred, Clyde’s initial postconviction counsel agreed to dismiss that claim

with prejudice, concluding Clyde’s state postconviction proceedings. PCR-2004-Ltr,

Oct. 27, 2016.

Clyde timely filed a petition under 28 U.S.C. § 2254, raising for the first time

the (then unexhausted) actual conflict claim, which federal counsel had discovered

upon reviewing the record. ECF No. 3. Clyde moved to stay his federal case while he

exhausted these claims in state court. Id. The district court granted the stay. ECF

No. 55.

The Mississippi Supreme Court appointed Clyde with successive

postconviction counsel. PCR-2019. In accordance with UPCCRA, Clyde timely

applied for leave to file a successive postconviction motion, which claimed that

initial postconviction counsel was ineffective for failing to assert the meritorious

actual conflict issue under Grayson. Id. While Clyde’s application was pending, the

Mississippi Supreme Court decided Ronk, which overruled Grayson in relevant

part. Then, without mentioning Grayson, the Mississippi Supreme Court denied

Clyde’s motion, summarily explaining:

5 It remanded a claim based on

hearing.

Atkins v. Virginia, 536 U.S. 304 (2002), for an evidentiary

4

Each of the three claims presented now either has been raised and

rejected in prior proceedings or was capable of being raised. After a

complete review of Smith’s petition, we find that all of the claims now

before the Court are barred. Additionally, in his petition, Smith made

no attempt to argue that his present claims should be excepted from the

bars. We find that there is no applicable exception under the

circumstances here. Finally, Smith’s claims do not contain merit

entitling him to relief.6

Smith III, at 1067.

II. Facts relevant to the Questions Presented

A. Trial counsel’s Holloway conflict.

Clyde and Jerome were jointly convicted at two separate felony trials held

nine weeks apart. R-4698/113 (Apr. 22, 1993); R-22191/221-22 (June 30, 1993). The

Honorable Gray Evans presided over both trials. Id. In both cases, Judge Evans

appointed counsel to represent each indigent defendant. In Case 4698, on

September 22, 1992, Judge Evans appointed Whitman Mounger to represent Clyde

(at this point, Jerome had not yet been indicted). R-4698/9. In Case 22191, on

November 12, 1992, Judge Evans appointed Mounger and Stuckey to represent

Clyde.7 R-22191/8-13. When the State amended its 4698 indictment to include

charges against Jerome, Judge Evans appointed Stuckey to represent Jerome in

that case. R-4698/29. From that point forward (and continuing through direct

appeals), Stuckey represented Clyde in Case No. 22191 (the murder case) and

Jerome in Case No. 4698 (the aggravated assault case).

6 The Mississippi Supreme Court declined to explain which procedural bars applied to each

of the three claims.

7 Judge Evans appointed Leland Jones and Leman Gandy to represent Jerome. R-22191/1317.

5

In both cases, the codefendants’ strategies were inconsistent and

antagonistic. As the 4698 appellate court summarized:

[Jerome] became involved in a verbal confrontation with Lynn Robinson

in front of Robinson’s residence in Belzoni. [Jerome] left, only to return

shortly thereafter accompanied by [Clyde.] The verbal confrontation

was renewed and ultimately escalated into a physical encounter joined

in progress by Wendell Wright. [Jerome] thereafter devoted his

principal efforts to Wright [while] Clyde continued his attention to

Robinson.

See ECF 53-3. As the Mississippi Supreme Court summarized in Case No. 22191,

[Johnny Smith] was killed in the liquor store he owned in Sidon,

Mississippi, as a result of three gunshot wounds. . . . [An eyewitness had

seen] two black men [that he later identified as Clyde and Jerome] run

toward the store. . . . One of the men went into the store and the other

stayed outside. . . . A latent print and palm print [found at the scene

were] identified as matching [Jerome]. . . . [And two other witnesses saw

Jerome with a pistol before and after the incident].

Smith I, at 1195.

B. Initial postconviction counsel was ineffective for raising the

Holloway claim.

The issue of Stuckey’s multiple representation was not raised at either trial—

by defense counsel, the State, or by Judge Evans, who made no findings on whether

the multiple representation resulted in an actual conflict of interests. Stuckey and

Mounger failed to raise this issue on direct appeal. Id. Initial postconviction counsel

Freedman likewise failed to recognize or assert this claim. Id.

C. Under Grayson, Clyde timely raised an ineffective-assistance-ofpostconviction-counsel claim for initial postconviction counsel’s

failure to raise the Holloway actual conflict claim.

In 2017, Clyde’s federal counsel discovered the claim while reviewing the

record and he finally asserted this claim (Claim XIV). ECF Nos. 2-3. Habeas counsel

6

argued that “he may be able to defend against any alleged procedural defenses

based on post-conviction counsel’s deficient performance in failing to conduct an

adequate investigation and raise this potentially meritorious ineffective assistance

of counsel claim.” ECF No. 3, at 55. The district court stayed the federal case,

allowing Clyde to exhaust this claim in state court. 8 ECF No. 55.

The Mississippi Supreme Court appointed new postconviction counsel for a

successive motion; in accordance with UPCCRA, Clyde sought leave to file a

successive postconviction motion. PCR-2019-3559, 3562, 2761. The motion claimed

that initial postconviction counsel was ineffective for failing to raise the actual

conflict issue due to his failure to adequately investigate the case. Id. Attached to

this motion was the Affidavit of [Initial Postconviction Counsel] Alan Freedman,

who stated in part:

I represented Clyde Wendell Smith in Mississippi capital postconviction proceedings. I filed my Notice of Appearance on March 15,

2001. I filed a post-conviction petition on his behalf and continued to

represent him until October 27, 2016 . . . . I had no strategic or tactical

reason for not raising [the claim that] Wallace Stuckey had an actual

conflict of interest . . . .

Id. (Exhibit 9) (internal numbering omitted).

D. Applying Ronk to Clyde’s pending motion, the Mississippi Supreme

Court erroneously found that the motion was procedurally barred.

After the State had twice moved for filing extensions to respond to Clyde’s

application, the Mississippi Supreme Court decided Ronk.9 391 So. 3d at 785. Ronk

8 That petition remains stayed pending the resolution of this petition. ECF No. 81.

9 Assistant Attorney General Brad A. Smith represented the State in both Clyde’s and

Ronk’s postconviction cases.

7

“overrule[d] Grayson to the extent it crafted an exception for ineffective-assistanceof-post-conviction-counsel claims in death penalty cases.” Id. at 794. After the State

received a third extension to file its response to Clyde’s motion, the State filed an

out-of-time response that raised for the first time an affirmative defense based on

Ronk. Id. Clyde replied. Id. Relying heavily on Ronk, the Mississippi Supreme Court

denied the motion. Smith III, at 1067.

REASONS FOR GRANTING THE WRIT

I. Introduction

Until Ronk, “Mississippi alone recognize[d] a constitutional right to

appointed counsel in state post-conviction proceedings.” Ronk, 391 So. 3d at 794.

Ronk overturned Grayson, under which “death-penalty petitioners’ claims related to

ineffective assistance of post-conviction counsel [we]re unbarred Id. at 792-93.

Grayson thus provided an exception for raising claims that UPCCRA otherwise

barred. Ronk became final long after Clyde had filed his successive motion claiming

that initial postconviction counsel was ineffective for failing to assert a meritorious

actual conflict claim. Although Grayson controlled when Clyde filed his successive

motion, the Mississippi Supreme Court applied Ronk to his pending case. It did so

despite allowing similarly situated cases to proceed to a merits analysis. This

jarring about-face offers a compelling reason for this Court to grant certiorari. See

S.Ct. R. 10(c).

8

II. Ronk does not rest upon an adequate and independent state ground.

This Court may review by writ of certiorari a final judgment rendered by the

highest court of a state where that state’s statute is drawn in question on the

ground of its being repugnant to the Constitution. 28 U.S.C. § 1257. This Court

lacks jurisdiction over state court judgments only when they are based upon

adequate and independent state law grounds. Dretke v. Haley, 541 U.S. 386, 392

(2004); see also Coleman v. Thompson, 501 U.S. 722, 729 (1991) (in direct review of

a state court judgment, doctrine is jurisdictional). This doctrine applies with equal

force to substantive and procedural grounds. Lee v. Kemna, 534 U.S. 362, 375

(2002). A state ground is “independent” when it “does not depend on a federal

holding” and is not “interwoven with the federal law.” Foster v. Chatman, 578 U.S.

488, 498 (2016); Michigan v. Long, 463 U.S. 1032, 1040 (1983). A rule is “adequate”

when it is “firmly established and regularly followed.” Johnson v. Lee, 578 U.S. 605,

606 (2016) (quoting Walker v. Martin, 562 U.S. 307, 216 (2011)) (internal quotation

marks omitted). Applying the independent and adequate state ground doctrine “is

not always easy . . . .” Coleman, 501 U.S. at 732; see also Long, 463 U.S. at 1038

(“[W]e openly admit that we have thus far not developed a satisfying and consistent

approach for resolving this vexing issue.”).

This petition focuses on the adequacy prong. See, e.g., Cruz v. Arizona, 598

U.S. 17, 29 (2023) (movant need only show either adequacy or independency prong

unmet to assure Court’s jurisdiction). State procedural rules that are “only

sporadically applied,” Messer v. Florida, 834 F.2d 890, 892-93 (11th Cir. 1987), or

9

are not “clear, consistently applied, and well-established,” Morales v. Calderon, 85

F.3d 1387, 1393 (9th Cir. 1996), are inadequate to deprive this Court of jurisdiction.

A. The Mississippi Supreme Court application of Ronk to Clyde’s

motion was untimely.

A state procedural ground cannot be adequate when it was not in effect at the

time the alleged default occurred. While states may set procedural rules governing

constitutional claims, those rules “depend[] upon the timely exercise of the local

power to set procedure.” Ford v. Georgia, 498 U.S. 411, 423 (1991). In Ford, this

Court found Georgia’s procedural rule governing the timeliness of raising a Batson

v. Kentucky10 claim was inadequate to bar federal review. Id. at 423-24. Georgia’s

rule, which required a Batson claim to be raised prior to the jury being sworn in,

was announced after Ford’s trial. Id. at 424. This Court found that Georgia’s

application of its new law to Ford’s case “does not even remotely satisfy the

requirement . . . that an adequate and independent state procedural bar to the

entertainment of constitutional claims must have been ‘firmly established and

regularly followed’ by the time as of which it is to be applied.” Id. (internal citation

omitted); see also Walker v. Att’y Gen., 167 F.3d 1339, 1344-45 (10th Cir. 1999)

(“defendant cannot be expected to comply with a procedural rule that does not exist

at the time . . . .”); Spencer v. Zant, 715 F.2d 1562, 1571 (11th Cir. 1983) (no default

occurs when “state applies a new procedural rule . . . without prior notice”).

10

476 U.S. 79 (1986).

10

B. The Mississippi Supreme Court’s discretionary application of Ronk

to similarly situated cases was arbitrary.

A state procedural rule that is a matter of discretion—regardless of how that

discretion was exercised in the particular case—“may be found inadequate when

discretion has been exercised to impose novel and unforeseeable requirements

without fair or substantial support in prior state law . . . .” Walker v. Martin, 562

U.S. 307 (2011) (quoting 16B C., Wright, A. Miller, & Cooper, Fed. Pract. & Proc. §

4026, p. 386 (2d ed. 1996)); id. (quoting Prihoda v. McCaughtry, 910 F.2d 1379, 1383

(7th Cir. 1990)) (discretionary procedural rules inadequate when exercised

“infrequently, unexpectedly, or freakishly”); cf. Beard v. Kindler, 558 U.S. 53 (2009)

(“[A] discretionary state procedural rule can serve as an adequate ground to bar

federal habeas review.”) (emphasis added). Indeed, “the lack of notice and

consistency may show that the state is discriminating against the federal rights

asserted.” Prihoda, 910 F.2d at 1383.

C. Courts must re-scrutinize state law application close in time to

when the challenge arises.

Judicial determination that a state court’s application of a state statute

constituted an adequate and independent state ground is not set in stone. Even

state grounds that have been generally found to be adequate in the past must meet

this requirement near the time at which its application is questioned. Ford v.

Georgia, 498 U.S. at 424. For example, the United States Court of Appeals for the

Fifth Circuit previously found UPCCRA did constitute an adequate and

independent state ground. See, e.g., Jackson v. Anderson, 112 F.3d 823, 829 (5th Cir.

11

1997) (Garza, J., dissenting) (“We have previously determined that § 99-39-5

represents an independent and adequate procedural rule.”). That determination,

however, did not absolve the United States District Court for the Southern District

of Mississippi from scrutinizing the Mississippi Supreme Court’s application of the

statute near in time to the challenged ruling. Jordan v. Cain, 764 F. Supp. 3d 380,

425 (S.D. Miss. 2024) (finding UPCCRA’s res judicata, successive writ, and time

bars inadequate state procedural grounds given the circumstances in which court

found claims to be barred). Indeed, courts must remain vigilant for new

misapplications firmly established and regularly followed procedural rules.

Cruz recently cautioned lower courts to be wary of the exceptional case where

“a generally sound rule [is] applied in a way that renders the state ground

inadequate to stop consideration of a federal question.” 598 U.S. at 26. Cruz

examined a state supreme court decision denying relief of a successive capital

postconviction motion on procedural grounds. Id. at 25-26 (internal citation

omitted). Citing century-old precedent, this Court reasoned that, “Novelty in

procedural requirements cannot be permitted to thwart review in this Court applied

for by those who, in justified reliance upon prior decisions, seek vindication in state

courts of their federal constitutional rights.” Id. at 26 (quoting NAACP v. Alabama

ex rel. Patterson, 357 U.S. 449, 457 (1958)). The state court’s interpretation of its

criminal statute, this Court found, was “entirely new and in conflict with prior

Arizona caselaw.” Id. at 28.

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D. The Mississippi Supreme Court’s application of Ronk to UPCCRA

was inadequate to forestall federal review in Clyde’s case.

When Clyde sought leave to file his successive postconviction motion,

Mississippi was the only state in the union to recognize a constitutional right to the

appointment of postconviction counsel. Under Mississippi’s decade-old precedent,

death-sentenced postconviction petitioners “ha[d] a right to the effective assistance

of PCR counsel.” Grayson v. State, 118 So. 3d 118, 126 (Miss. 2013). Petitioners

have consistently relied on Grayson in their postconviction motions. See, e.g., Brown

v. State, 306 So. 3d 719, 748 (Miss. 2020) (“This [IAC-PCR] claim is not barred.

Under this Court’s decision in Grayson v. State . . . death-penalty petitioners are

entitled to effective assistance of counsel in post-conviction proceedings, and claims

related to ineffective assistance of post-conviction counsel are not subject to the

procedural bars.”); Walker v. State, 131 So. 3d 562, 564 (Miss. 2013).

Grayson was controlling law in 2019, when Clyde sought the appointment of

new postconviction counsel and in 2023, when Clyde sought leave to file a

successive postconviction motion.11 That motion relied upon Grayson’s guarantee of

the right to postconviction counsel to circumvent UPCCRA’s procedural barriers. It

was the law on December 13, 2023 (the State’s initial deadline to respond); on

January 12, 2024 (the State’s first extended deadline); on February 12, 2024 (the

State’s second extended deadline); and on March 13, 2024 (the State’s third

extended deadline). And it was the law on March 18, 2023, when the Mississippi

Supreme Court granted the State’s motion for leave to file its response out of time.

11 § 99-39-1,

et seq.; Jordan, 764 F. Supp. 3d at 412 (Petitioner’s argument).

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Only after the motion and response were filed and while the reply was pending did

Mississippi’s right to postconviction counsel vanish upon the Mississippi Supreme

Court’s mandate in Ronk v. State. 391 So. at 791, reh’g denied, (Miss. July 18,

2024).

In other similarly situated cases decided near in time to Clyde’s, the

Mississippi Supreme Court treated UPCCRA’s procedural bars as entirely

discretionary. For example, Howell v. State overruled the fundamental-rights

exception to postconviction procedural bars. 358 So. 3d 613, 614 (Miss. 2023). But

the Mississippi Court reached the merits of Howell’s claims anyway. Id. at 616-17

(“Because we announce [a partial overruling for the first time], we also address the

merits of the petition . . . .”). Similarly, Ronk reached the merits of is claims that it

found to be procedurally barred. Ronk, 391 So. 3d 785, 796 (“Because we partially

overrule Grayson here for the first time, we will address the merits of Ronk’s

motion.”). It is mere accident that the Mississippi Supreme Court chose to overrule

Grayson in Ronk instead of in Clyde’s or other similarly situated cases.

This “sporadic” application is inadequate to preclude this Court’s jurisdiction.

Messner, 834 F.2d 890, 892-93. Like in Ford, Mississippi’s new application was only

announced after Clyde’s filed his successive motion. 498 U.S. at 423-24. Like in

Cruz—another case involving a procedurally barred successive postconviction

motion-the Mississippi Supreme Court exercised its discretion against Clyde in a

novel way that created unforeseeable requirements. Cruz, 598 U.S. at 26; see also

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Walker, 562 U.S. at 307. Given Mississippi’s arbitrary, ex post facto application of

Ronk to UPCCRA, it cannot deprive this Court of jurisdiction.

III. Initial postconviction counsel was ineffective.

Contrary to the Mississippi Supreme Court’s alternate and summary

determination, Clyde’s ineffective assistance of postconviction counsel and actual

conflict of trial counsel claims have obvious merit. While trial and direct appeal are

the principal means of reviewing criminal convictions and sentences, UPCRRA was

enacted “to provide prisoners with a procedure, limited in nature, to review those

[claims] which in practical reality could not be or should not have been raised at

trial or on direct appeal.” § 99-39-3(2) (emphasis added). Because Stuckey—creator

of the actual conflict—was also Clyde’s direct appeal counsel, this claim could not

“in practical reality” have been raised there. See, e.g., Guidry v. Lumpkin, 2 F.4th

472, 491 (5th Cir. 2021) (“[C]ounsel cannot be expected to argue his own

ineffectiveness.”) (internal citation omitted). This claim should have been raised at

Clyde’s initial postconviction proceedings. As Freedman’s affidavit proves, but for

counsel’s ineffective assistance at that stage, it would have been.

At the time Clyde sought leave to assert this claim in a successive

postconviction motion, Mississippi provided an avenue for doing so: the ineffective

assistance of postconviction counsel exception to UPCCRA’s procedural bars as

announced in Grayson.12 Mississippi’s recognition of this right acknowledged the

realities of representing oneself while on death row. Indigent death row inmates:

12 For reasons discussed below, a subsequent change in law should not foreclose this avenue

for relief upon which Clyde reasonably relied.

15

are simply not able, on their own, to competently engage in

[postconviction litigation, which] often raise[s] issues which require

investigation, analysis and presentation of facts outside the appellate

record. The inmate is confined, unable to investigate, and often without

training in the law or the mental ability to comprehend the

requirements of the UPCCRA.

Jackson v. State, 732 Ao. 2d 187, 190 (Miss. 1999) (abrogated on other grounds).

Clyde must therefore show that (i) postconviction counsel’s representation

“fell below an objective standard of reasonableness”; and that (ii) but for this

deficient performance, “there is a reasonable probability that . . . the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466

U.S. 668, 688, 694 (1984). A UPCCRA movant bears the burden to support his

claims with evidence or risk procedural bar. Russell v. State, 819 So. 2d 1177, 117879 (Miss. 2001). Here, Clyde attached to his successive motion an affidavit from

initial postconviction counsel conceding deficient performance: “I had no strategic or

tactical reason for not raising [the claim] that trial counsel Wallace Stuckey had an

actual conflict of interest. . . .” ECF No. 53-3. Instead, this omission could only have

been caused by postconviction counsel’s failure to adequately investigate the case

and review the record below.

The prejudice prong in an ineffective-assistance-of-postconviction-counsel

claim is proved by the existence of a meritorious trial-level ineffectiveness claim. “If

any [] present claims for relief are meritorious, than [the movant] also suffered

prejudice. If these claims lack merit, then there was no prejudice.” Grayson, 118 So.

3d at 118; see, e.g., Crawford v. State, 218 So. 3d 1142, 1150 (Miss. 2016) (“PCR’s

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counsel deficient performance cannot preclude the petitioner’s opportunity to file

meritorious claims for relief. If this right was violated, then Crawford’s first PCR

motion was a sham, and he was denied an opportunity to present a meritorious PCR

motion.”) (internal citations and quotation marks omitted); Walker v. State, 131 So.

3d 562, 564 (Miss. 2013) (“We further find that Walker’s prior PCR counsel was

ineffective for his failure to raise that issue in his initial petition for post-conviction

relief, and that Walker was prejudiced by that deficient performance if his trial

counsel was, in fact ineffective.”) (emphasis added). The prejudice prong is

established in the following section.

IV. Clyde has a meritorious Sixth Amendment claim that he was denied the

assistance of trial counsel.

“The mere physical presence of an attorney does not fulfill the Sixth

Amendment guarantee when the advocate’s conflicting obligations have effectively

sealed his lips on crucial matters.” Holloway v. Arkansas, 435 U.S. 475, 490 (1978).

Trial counsel Stuckey’s simultaneous representation of Clyde and his codefendant

denied Clyde the effective assistance of counsel. Holloway held that upon

notification by counsel “on the probable risk of a conflict of interests,” the court’s

failure to “appoint separate counsel or to take adequate steps to ascertain whether

the risk was too remote to warrant separate counsel” deprived Holloway of the

guarantee of assistance of counsel. 435 U.S. 475, 484 (1978). This failure is

unsusceptible to a harmless error analysis but instead warrants automatic reversal.

Id. at 489.

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Two years later, Cuyler v. Sullivan clarified Holloway, holding that, “Unless

the trial court knows or reasonably should know that a particular conflict exists, the

court need not initiate an inquiry.” 446 U.S. 335, 347 (1980). Cuyler reasoned that

courts were entitled to “rely in large measure upon the good faith and good

judgment of defense counsel,” who “have an ethical obligation to avoid conflicting

representations and to advise the court promptly when a conflict of interest arises

during the course of trial.” Id. at 346-47. In these circumstances, a non-objecting

defendant “must demonstrate that an actual conflict of interest adversely affected

his lawyer’s performance.” Id. at 348. An actual conflict is one in which “counsel

actively represented conflicting interests.” Id. at 350; see also Mickens v. Taylor,

535 U.S. 162, 170 (2002) (“[W]e think ‘an actual conflict of interest’ meant precisely

a conflict that affected counsel’s performance—as opposed to a mere theoretical

division of loyalties.”).

Clyde’s case thus falls firmly under Holloway rather than Cuyler. Although

Stuckey failed to object to his representation of Clyde once he was appointed to

represent Jerome in the aggravated assault case, Judge Evans required no such

objection. Indeed, he was already aware of—and even helped to create—the

probable risk of a conflict of interests.13

A. Stuckey’s Case No. 4698 Strategy: Paint Clyde as the aggressor.

Here, Clyde’s trial counsel Stuckey was actively representing Clyde’s

codefendant in a different felony case, No. 4698, a case in which Clyde was also a

13 In any case, Clyde nonetheless prevails on an actual conflict claim under

Mickens.

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Cuyler and

codefendant. Stuckey’s Case No. 4698 strategy was to contrast Jerome’s minor role

with Clyde’s, whom Stuckey painted as the primary, weapon-wielding aggressor.

For example:

Stuckey: Clyde is the one with the gun?

Witness: Yes.

Stuckey: That was the only two shots that were fired?

Witness: And, the only shot.

Stuckey: Only person holding the gun was Clyde?

Witness: Yeah, Clyde.

Stuckey: Was [Jerome] holding you down?

Witness: Naw, [Jerome] wasn’t holding me down.

....

Stuckey: And, [Jerome] never hit you with anything that felt like metal,

did it?

Witness: Naw, only thing he hit me with was his fist.

R-4698/48. And:

Stuckey: Did [Jerome] hit Lynn with anything other than his hands?

Did he hit Lynn?

Witness: Yes, he did.

Stuckey: With his hands?

Witness: Yes, sir.

Stuckey: Anything but that?

Witness: Just his hands.

Stuckey: Did Lynn hit him back with his hands?

Witness: No, as Lynn jumped off the porch, that is when Clyde came in

and he hit Lynn first.

Stuckey: Did [Jerome] help hold Lynn down so Clyde could beat up on

him?

A: No, sir.

R-4698/76. Moving for a directed verdict, Stuckey argued that Clyde—not Jerome—

fought the victim and used brass knuckles. R-4698/86-112. Disputing that Jerome

and Clyde acted in concert, Stuckey argued that Clyde alone decided to attack the

victim: “Now what Clyde does after that is Clyde’s problem.” R-4698-90. During

closing argument, Stuckey argued that proof of Jerome’s involvement:

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does not arise beyond a reasonable doubt to connect [Jerome] as an

accomplice with Clyde. . . . [T]here is nothing, if it please the Court, to

show that [Jerome] had knowledge that there was any intent on Clyde’s

part to shoot at anybody or to hit anybody with any brass knucks.

R-4698/112. Finally, Stuckey emphasized Clyde’s larger prior criminal history

compared with Jerome. Stuckey’s strategy worked: Jerome was sentenced far more

leniently than was Clyde. R-4698/130.

B. Stuckey’s Case No. 22191 penalty phase strategy hamstrung by

contradictory 4698 position.

The duty to scrutinize joint representation for an active conflict is a

continuing one. In Holcombe v. Florida, “the trial court properly discharged its

obligation at the outset of proceedings, but failed to fulfill its renewed obligation

after an actual conflict arose.” 142 S.Ct. 955, 957 (2022) (Sotomayor, J., dissenting).

Here, Clyde and Jerome jointly pursued an alibi defense at 22191’s guilt

phase. However, their penalty phase strategies (and the State’s) sharply diverged—

a fact that was already abundantly clear before trial started. Under the State’s

theory of the case, Jerome was the shooter while Clyde was the mastermind. R22191/563, 566.

During the penalty phase, the State introduced evidence of the 4698

convictions to establish that the prior violent felony aggravator applied to both

defendants. R-22191/632. Jerome’s 22191 counsel essentially adopted Stuckey’s

4698 trial strategy, contrasting Jerome with Clyde throughout. R-22191/682. They

painted Jerome as, “A man twenty years old—we call him a man—following his

older brother.” Id. As to the 4698 convictions, Jerome’s counsel highlighted Clyde’s

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primary role—“it involved his brother and he—we both know if somebody gets after

somebody with some brass knuckles, we both can’t do it . . . .” R-22191/681. In

addition to the 4698 conviction, Jerome’s counsel argued, Clyde was convicted of

kidnapping, while Jerome was not. R-22191/654.

In advocating for Clyde, Stuckey hinted at Clyde’s diminished role in 22191,

telling the jury that, “Of the two that sit here Clyde is not the worst of the two. . . .

He was not seen in the store. As a matter of fact, he was on the outside. . . . And he

wasn’t the one with the gun.” R-22191/686. But Stuckey was hamstrung from

arguing that Clyde was a minor participant in 4698. Indeed, just months before he

had publicly taken the opposite position in front of the same judge. See, e.g., R4698/76, 112. As in Holcombe, Judge Evans had a continuing duty to “inquire

further” after it became apparent that the defendants’ strategies diverged. This did

not occur before trial, when the State’s penalty phase strategy was laid bare, and it

did not occur at trial when Clyde’s and Jerome’s interests became decidedly adverse

to each other.

CONCLUSION

Based upon the foregoing, this Court should grant a writ of certiorari to review

the decision of the Mississippi Supreme Court in this case.

/s/ Krissy C. Nobile

KRISSY C. NOBILE

Counsel of Record

Mississippi Office of Capital

Post-Conviction Counsel

239 North Lamar Street, Suite 404

Jackson, MS 39201

Tel: 601-359-5733

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knobile@pcc.state.ms.us

MARIE F. DONNELLY

JASON P. MOONEY

Capital Habeas Unit

Office of the Federal Defender

Middle District of Florida

400 North Tampa Street, Suite 2700

Tampa, FL 33602

Tel: 813-228-2715

marie_donnelly@fd.org

DATED: OCTOBER 3, 2025

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