Opposition Brief — Mississippi v. Berry

Supreme Court, U.S.

k I LED

APR 18 199]

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990 OFPICE OF THE CLERK

No. 90-1494 2

STATE OF MISSISSIPPI :

Petitioner ORIGINAL

Vv.

EARL WESLEY BERRY

Respondent

me ee ee ee ee ee ee ee ee ee ee

CERTIFICATE OF SERVICE OF RESPONDENT'S

OTION TO 9) UPERIS

This is to certify that a true and correct copy of the above

and foregoing Motion to Proceed in Forma Pauperis was this date

posted via first class mail, postage prepaid, to Marvin L. White,

Assistant Attorney General, P.O. Box 220, Jackson, MS 39205,

telephone number (601) 359-3680.

This the 18th day of April, 1991.

og Te

P.O. 510

Jackson, Mississippi 39205

(601) 352-0784

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

No. 90-1494

STATE OF MISSISSIPPI

Petitioner

Vv.

EARL WESLEY BERRY

Respondent

me ee ee ee ee ee ee eee ee ee

OTION TO PROCEED IN FO PAUPERIS

The Respondent, EARL WESLEY BERRY, by and through his

attorneys, James W. craig and David O. Bell, hereby asks leave to

file the attached Opposition to Petition for Writ of Certiorari

without prepayment of costs and to proceed in forma pauperis.

Respondent was granted leave to proceed in forma pauperis on his

appeal to the Mississippi Supreme Court. An affidavit of indigency

meeting the requirements of Form 4, Federal Rules of Civil

Procedure is attached as an exhibit to this Motion.

Dated: April 18, 1991.

| Ly

AVID O.

P.O. Bo 4

Oxford, 38655

(601) 234-5058

JAMES W. CRAIG*

P.O. Box 510

Jackson, MS 39205

(601) 352-0784

Attorneys for Mr. Berry

*Counsel of Record

ore

IN THE SUPREME COURT OF THE UNITED STATES

NO. 90-1494

STATE OF MISSISSIPPI PETITIONER

vs.

EARL WESLEY BERRY RESPONDENT

a V e) SLEY RRY

STATE OF MISSISSIPPI

COUNTY OF SUNFLOWER:

PERSONALLY APPEARED BEFORE ME, the undersigned authority in

and for the jurisdiction aforesaid, the within named EARL WESLEY

BERRY, who being by me first duly sworn, stated as follows:

My name is EARL WESLEY BERRY. I am the respondent in the

above-entitled case. In support of my motion to proceed without

being required to prepay fees, costs, or give security therefor, I

state that because of my poverty I am unable to pay the costs of

said case or to give security therefor; and that I believe that I

was entitled to the relief granted to me by the Mississippi Supreme

Court.

I further swear that the responses which I have made to the

questions and instructions below relating to my ability to pay the

cost of proceeding in this Court are true.

1. Are you presently employed? No.

State the date of your last employment and the amount of

the salary and wages per month which you received:

Duembu (997 -- pp. £90 0/ month

2. Have you received within the last twelve months amy

income from a business, profession, or other form of

self-employment, or in the form of rent payments,

interest, dividends, or other source? /Ve

a. If the answer is yes, describe each source of

income and state the amount received from each

during the last twelve months:

3. Do you own any cash or checking or savings account?.

45

a. If the answer is yes, state the total value of

the items owned: les: tran £10 “pf lten act,

4. Do you own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding

ordinary household furnishings and clothing?) 2

5. List the persons who are dependent upon you for support

and state your relationship to those persons:

, —_

I understand that a false statement or answer to any questions

on this affidavit will subject me to penalties for perjury.

This the !/7f. aay of April, 1991.

“- ,

F rl Ww Uf x 4

EARL WESLEY BERRY

SWORN TO AND SUBSCRIBED before me, this the (2 aay of April,

hed Ane,

NOTARY PUBLIC a

1991.

MY COMMISSION EXPIRES:

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Supreme Court, U. 3.

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IN THE SUPREME COURT OF THE UNITED STATES

Ce

OCTOBER TERM 1990 OFPICE OF THE CLERK

No. 90-1494

STATE OF MISSISSIPPI

Petitioner

Vv.

EARL WESLEY BERRY

Respondent

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CERTIFICATE OF SERVICE OF RESPONDENT'S

ie) ie) 6)

This is to certify that a true and correct copy of the above

and foregoing Opposition to Petition for Writ of Certiorari was

this date posted via first class mail, postage prepaid, to Marvin

L. White, Assistant Attorney General, P.O. Box 220, Jackson,

Mississippi 39205, telephone number (601) 359-3680.

This, the 18th day of April, 1991.

AMES W. Bs

P.O. Bo 510

Jackson, Ssissippi 39205

(601) 352-0784

—_—_—_—

RECEIVED

APR 22 1991

OFFICE OF THE CLERK

|_ SUPREME COURT, U.S.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1990

No.- 90-1494

STATE OF MISSISSIPPI

Petitioner

v.

EARL WESLEY BERRY

Respondent

ee ee ee ee ee ee ee ee ee ee

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

DAVID O. BELL

P.O. Box 1504

Oxford, Mississippi 38655

(601) 234-5058

JAMES W. CRAIG *

P.O. Box 510

Jackson, Mississippi 39205

(601) 352-0784

Attorneys for Mr. Berry

* Counsel of Record

RECEIVED |

APR 22 199)

OFFICE OF THE

SUre CLER

SUrREME COURT, yg

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . « © © © © © © © © © © © © © bd

INTRODUCTION . . . . . . . . . >. . ° . . . . 7 . . . . 1

THE REASONS WHY CERTIORARI SHOULD NOT BE GRANTED... 2

I. THE DECISION BELOW IS PREDICATED ON ADEQUATE

AND INDEPENDENT STATE COURT GROUNDS, SO THAT

ANY GRANT OF CERTIORARI WOULD BE IMPROVIDENT ... . 2

1. The Supreme Court of Mississippi has ruled

that the issue presented by Petitioner

should be resolved on State Law grounds ... . 2

2. Since a distinct issue which was

presented in this case required reversal

of the death sentence, there probably exists

another adequate ground for this decision... 4

II. THERE EXISTS NO CONFLICT IN THE CIRCUITS ON

THIS ISSUE SUCH THAT CERTIORARI SHOULD BE

es ee ee ee ee ee ee ee

CONCLUS I ON . . . . . . . . . . . . . . . . . . . . . . 7

TABLE OF AUTHORITIES

FEDERAL CASES

, 482 U.S. 496, 107 S.Ct. 2529,

96 L.Ed.2d 440 (1987) . . ° . . . . | 7. . . .

, 439 U.S. 1014,

99 S.Ct. 626, 58 L.Ed.2d 687 (1978) .....

, 463 U.S. 992, 103 S.Ct. 3446,

77 L.Ed.2da 1171 (1983) . . . . . . . . . ° .

i, 494 U.S. , 110 S.Ct.

108 L.Ed.2d 725 (1990) . . . « « «© © « « »

, 472 U.S. 846, 105 S.Ct. 2992,

86 L.Ed.2d 664 (1985) . . . «© « «© «© © © © «© «

King v. Lynaugh, 850 F.2d 1055 (5th Cir. 1988),

cert. denied, 488 U.S. 1019, 109 S.Ct. 1564,

162 L.08.36 GOS (2008) . 2. 2 oe ew ew ew ww

, 435 U.S. 333, 98 S.Ct. 1091,

SS L.Ed.2d 319 (1978) . . «© « «© «© © © © ©

, 463 U.S. 1032, 103 S.Ct. 1091,

77 L.BaG.2d 1201 (1983) . . « «© «© «© © © © @

O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983),

: ;

’

cert. denied sub nom.,

465 U.S. 1013, 104 S.Ct. 1015, 79 L.Ed.2d

245 (1984) . . . . . 7. ° 2 . . . . . . . . .

Ohio v. Huertas, 498 U.S. , aan 6.68... i443

L.Ed.2d 837 (1991) * . . . . . . . .

STATE CASES

Berry v. State, 575 So.2d 1 (Miss. 1990) .....

Mackbee v. State, 575 So.2d 16 (Miss. 1990) ...

STATUTES

Miss. Code Ann. § 99-19-81 . . . © . . . - . .

ii

IN THE SUPREME COURT OF THE UNITED STATES

No. 90-1494

STATE OF MISSISSIPPI

Petitioner

Vv.

EARL WESLEY BERRY

Respondent

me ee ee ee ee ee ee ee ee

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

COMES NOW, EARL WESLEY BERRY, and respectfully files the

following opposition to the State of Mississippi's Petition for a

Writ of Certiorari to the Supreme Court of Mississippi (hereinafter

"Petition").

A. INTRODUCTION.

The Supreme Court of Mississippi affirmed Respondent's

conviction for capital murder, but reversed his sentence of death.

See, Berry v. State, 575 So.2d 1 (Miss. 1990). Respondent had been

indicted as an habitual offender, meaning that if he were sentenced

to life in prison he would have to serve life without possibility

of parole. Jd at 13. Miss. Code Ann. § 99-19-81. The Court held

that while, ordinarily, parole is speculative, here, where the

status hearing was held prior to the sentencing phase, there was no

uncertainty as to the defendant's ineligibility for parole and the

jury should have been so informed. Berry at 13.

Petitioner, the State of Mississippi, now seeks review by this

Court. There are a number of reasons why the petition for

certiorari should not be granted.

B. REASONS WHY CERTIORARI SHOULD NOT BE GRANTED.

There are two distinct species of “adequate and independent

state law ground" -- one, where the judgement of the state court is

actually predicated on state law, rather than the federal

constitution. See, e.g., Michigan v. Long, 463 U.S. 1032, 1041-42,

103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Two, where there exist

other reasons why the conviction or sentence was reversed,

rendering the state court ruling on a particular issue unnecessary

to the ultimate decision. See, Ohic v. Huertas, 498 U.S. , 111

S.ct. _— , 112 L.Ed.2d 837 (1991) (declining to review the

continuing vitality of Booth v. Maryland, 482 U.S. 496, 107 S.Ct.

2529, 96 L.Ed.2d 440 (1987)).

The presence of both these "types" of independent ground in

the decision below render the case an inappropriate subject for

certiorari review.

1. The Supreme Court of Mississippi has ruled that the issue

presented by Petitioner should be resolved on

It is true that the lower court failed to make it clear in

Berry whether the decision was predicated on state or federal

grounds. However, in the subsequent decision of Mackbee v. State,

575 So.2d 16 (Miss. 1990), the Mississippi Supreme Court clarified

this ambiguity:

We emphasize that we only refer to federal

authorities for illustrative purposes. The

2

conclusions that we reach are based on the

State Constitution.

Id. at 38, n. 11 (citing Michigan v. Long, 463 U.S. 1032, 1042, 103

S.Ct. 3469, 77 L.Ed.2d 1201 (1983)).

Petitioner properly notes as much in a footnote:

In Mackbee, the court below attempts to evade

review of this question by stating in a

footnote that the federal authorities cited

are for illustrative purposes only and that

the case is decided under’ the state

constitution.

Petition, at 16 n. 3.

Petitioner does not stop there, however. "This statement,"

Petitioner continues, “has no application to the case at bar as the

case sub judice is clearly based solely on federal constitutional

law." JId., at 16, n. 3. This is not the law. As this Court

explicitly stated in Michigan v. Long:

The jurisdictional concern is that we not

“render an advisory opinion, and if the same

judgement would be rendered by the state court

after we corrected its views of federal laws,

our review could amount to nothing more than

an advisory opinion."

Id., at 463 U.S. at 1042 (quoting Herb v. Pitcairn, 324 U.S. 117,

126, 65 S.Ct. 459, 89 L.Ed.2d 789 (1945)).

In discussing whether a jury should be provided accurate

information regarding probation or parole, this Court has held that

"(ijt is elementary that States are free to provide greater

protections in their criminal justice system that the Federal

Constitution requires." California v. Ramos, 463 U.S. 992, 1013,

103 S.Ct 3446, 77 L.Ed.2d 1171 (1983). Whatever the merits of the

federal claim, the Mississippi Supreme Court has accepted the

invitation to decide the case on state law grounds. Thus, no

federal question is presented for review.

2. Since another issue in this case required reversal of the

death sentence, there probably exists another adequate

ground for this decision.

Another issue presented to the court below would, most likely,

have resulted in the reversal of the death sentence regardless of

the disposition of the habitual offender issue. "If there is one

doctrine more deeply rooted than any other in the process of

constitutional adjudication, it is that we ought not to pass on

questions of constitutionality . . . unless such adjudication is

unavoidable." Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992,

86 L.Ed.2d 664 (1985) (quoting Spector Motor Co. v. McLaughlin, 323

U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 664 (1944)).

In the instant case, the jury was given the aggravating

circumstance "especially heinous, atrocious or cruel," but it was

unaccompanied by a limiting definition. This, the lower court

stated, "fail{ed] to adequately channel the jury's discretion [in

violation of] Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853,

100 L.Ed.2d 372 (1988)." Berry, at 14. While the Mississippi

Supreme Court has not yet made clear whether this error will result

in a resentencing trial', absent some ruling on this question, this

" See, Clemons v. Mississippi, 494 U.S. ___, 110 S.Ct. 1441,

108 L.Ed.2d 725 (1990) (remanding for a determination whether,

under state law, the court will conduct a reweighing of the

evidence, excluding an invalid aggravating circumstance) .

4

Court's exercise of jurisdiction in this case may well prove

futile.

II. THERE EXISTS NO CONFLICT IN THE CIRCUITS ON THIS ISSUE

SUCH THAT CERTIORARI SHOULD BE GRANTED.

In an effort to fabricate a conflict in the lower courts,

Petitioner cites O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983),

cert. denied sub nom. O'Bryan v. McKaskle, 465 U.S. 1013, 104 S.Ct.

1015, 79 L.Ed.2d 245 (1984), as the antithesis of the holding in

e Vv e. Under even passing scrutiny, it is apparent that

the cases are not in conflict. In O'Bryan, the Texas trial court

had instructed the jury in no uncertain terms not to take parole

into consideration. Id. at 388 n. 21. This was, perhaps, the most

the defense could hope for since there was no allegation that the

defendant would not have been eligible for parole in the future.

Under these circumstances, the Fifth Circuit held that there

was no need for an instruction "about the law governing the Board

of Pardons and Paroles in relation to inmates sentenced to life

imprisonment ... ." Id. at 388. If an accurate instruction had

told the jury that the defendant would be eligible for parole at

some future date, the instruction would not have done the defense

much of a favor. To the contrary, it is clear that the defendant

woule benefit from an accurate, categorical statement that he will

never be considered for pardon or parole.

In the other case cited by Petitioner, the en banc Fifth

Circuit found itself procedurally barred from considering the issue

presented in O'Bryan. See King v. Lynaugh, 850 F.2d 1055, 1056 n.

1 (5th Cir. 1988) (en banc), cert. denied, 488 U.S. 1019, 109 S.Ct.

5

1564, 102 L.Ed.2d 809 (1989). Thus, the Fifth Circuit has not been

asked to consider the issue presented in this case. Before taking

the question on certiorari, this Court should wait to see if a bona

fide conflict ever actually arises, rather than accept the

chimerical "conflict" offered by Petitioner.

To be sure, a conflict between the federal courts of appeal

and the state high courts may occasionally provide the basis for

certiorari jurisdiction. See, e.g., Lakeside v. Oregon, 435 U.S.

333, 336 n. 3, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978) (decisions of

three circuits in conflict with decisions of two circuits and four

state courts). Nevertheless, this Court does not have the time or

the resources merely to mollify dissatisfied litigants who feel --

perhaps wrongly -- that a state court erroneously decided an issue;

certiorari must be reserved for the "conflict[{] among jurisdictions

over an issue which imperatively demand[s] a single uniform rule

[and therefore] commands this Court's immediate attention." own

Transportation Corp. v. Atkon, 439 U.S. 1014, 99 S.Ct. 626, 58

L.Ed.2d 687 (1987) (citation omitted; emphasis supplied) (White and

Blackmun, JJ. dissenting from denial of certiorari).

CONCLUSION

Wherefore, Mr. Berry respectfully suggests that it would be

improvident to grant certiorari in this case.

Respectfully submitted,

en Wig .,

P.O. Bo 04

Oxford, Mississippi 38655

(601) 234-5058

JAMES W. CRAIG *

P.O. Box 510

Jackson, Mississippi 39205

(601) 352-0784

Attorneys for Mr. Berry

* Counsel of Record

CAPITAL DEFENSE RESOURCE CENTER

123 East Griffith Street

Jackson, Mississippi 39202

P.O Box 510 (601) 352-0784

Jackson, Mississippi 39205 (601)352-0785

Fax (601) 352-0612 1-800-844-1022

April 18, 1991

Hon. William K. Suter

Clerk, U.S. Supreme Court

1 First Street, N.E.

Washington, D.C. 20543

Re: Mississippi v. Berry, No. 90-1494

Dear Sir:

Enclosed for filing in the above styled case please find the

original and one copy of Respondent's Opposition to Petition for

Writ of Certiorari and Respondent's Motion for Leave to Proceed in

Forma Pauperis, together with the appropriate certificates of

service therefor.

Thank you for filing these documents.

Sincerely,

(Kerێs

Attorney fe arl Berry

RECEIVED

APR 22 1991

OFFICE OF THE CLERK

SUPREME COURT, U.S.