# Opposition Brief — Mississippi v. Berry

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1845%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 928

## Text

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

>

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:
ie oe 994

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

me ee ee ee ee ee ee ee ee ee ee”
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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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1845%3A2. Public record. Not legal advice.