Opinion
No. 2017-DR-01207-SCT
2024-07-24
James Cobb HUTTO, III a/k/a James C. Hutto, III a/k/a James C. Hutto a/k/a James Hutto, III a/k/a James Hutto a/k/a Jamie Hutto a/k/a The Hitman a/k/a James Cobb Hutto, Petitioner v. STATE of Mississippi, Respondent
EN BANC ORDER
ROBERT P. CHAMBERLIN, JUSTICE FOR THE COURT
This matter is before the Court, en banc, on the Motion for Leave to File Successive Petition for Post-Conviction Relief filed by James Cobb Hutto, III. The State of Mississippi has filed a Response and Hutto has filed a Reply.
Hutto was convicted of capital murder and sentenced to death. This Court affirmed his conviction and sentence in Hutto v. State (Hutto I), 227 So. 3d 963 (Miss. 2017). We denied Hutto’s first, timely application for leave to file a motion for postconviction relief. Hutto v. State (Hutto II), 286 So. 3d 653 (Miss. 2019). Hutto petitioned the United States District Court for the Southern District of Mississippi for a writ of habeas corpus. The district court stayed Hutto’s federal habeas proceedings to allow him to exhaust certain claims not previously raised in state court. Memorandum Opinion and Order on Motion to Stay, Hutto v. Cain, No. 3:20-CV-98-DPJ (S.D. Miss. Nov. 10, 2021). Hutto filed the instant motion on May 8, 2023. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), the Court will grant leave to proceed "only if the application, motion, exhibits, and prior record show that the claims are not … barred and that they ‘present a substantial showing of the denial of a state or federal right.’ " Ronk v. State, 267 So. 3d 1239, 1247 (Miss. 2019) (quoting Miss. Code Ann. § 99-39-27(5) (Rev. 2015)). The mandate in Hutto’s direct appeal issued on August 17, 2017. The instant motion was filed on May 8, 2023, and is subject to the one-year time bar. Miss. Code Ann. § 99-39-5(2) (Rev. 2020). The motion is subject to the successive writ bar set forth in Mississippi Code Section 99-39-27(9) (Rev. 2020).
[1] Hutto raises four claims that his prior post-conviction counsel rendered constitutionally ineffective assistance. He argues also that he is incompetent to assist his present attorneys with the instant motion. Hutto asserts that his ineffective-assistance claims are unbarred under Grayson v. State, 118 So. 3d 118, 126 (Miss. 2013), which held that a death-penalty petitioner’s meritorious claim of ineffective assistance of post-conviction counsel is excepted from statutory bars that otherwise would prohibit its consideration. On January 11, 2024, this Court "overrule[d] Grayson to the extent it crafted an exception for ineffective-assistance-of-post-conviction-counsel claims in death-penalty cases." Ronk v. State, No. 2021-DR-00269-SCT, 391 So.3d 785, 794 (Miss. Jan. 11, 2024). Ronks holding rested on this Court’s recent decision in Howell v. State, 358 So. 3d 613 (Miss. 2023). Ronk overruled Grayson’s exception "because Howell supports that no judicially crafted exception—even for fundamental rights—applies to the UPCCRA’s substantive, constitutional bars …. " Ronk, 391 So.3d at 794.
Because Ronk overruled Grayson's exception to the bars of the UPCCRA, Hutto’s claims of ineffective assistance of postconviction counsel, which are based solely on Grayson, are barred. Notwithstanding that the claims are barred, Hutto has shown no entitlement to relief. Hutto has not shown that post-conviction counsel’s performance was deficient or that the defense was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
[2] Hutto argues that post-conviction counsel rendered deficient performance by not raising trial counsel’s failure to present expert testimony in mitigation establishing a biological explanation for his inappropriate and disruptive behavior during the proceedings. In support, he has submitted a report from a neuropsychologist, Dr. Robert Ouaou, opining that Hutto has deficits in his executive functioning and learning and memory deficits associated with damage to or diminished development of the frontal lobe and associated with general neurological disorders. Hutto argues that, if such evidence had been presented in mitigation, a reasonable probability exists that at least one juror would have voted against the death penalty.
The State responds that the claim is barred by res judicata. Hutto refused to participate fully in two pretrial psychological evaluations. Hutto I, 227 So. 3d at 973. In Hutto II, this Court held that, regarding trial counsel’s attempts to develop expert psychological evidence, " ‘counsel did all that they could, within the limitations placed on them by’ Hutto [,]" Hutto II, 286 So. 3d at 662 (quoting Bishop v. State, 882 So. 2d 135, 143 (Miss. 2004)), and Hutto had failed to show that testimony from "any other psychologist" would have made a difference. Id. at 660. Because this Court held in Hutto II that trial counsel did all they could to procure expert psychological evaluations of Hutto but were blocked in those efforts by Hutto himself and because this Court held that additional psychological testimony would not have affected the outcome, we find that Hutto cannot now relitigate the issue. Brown v. State, 306 So. 3d 719, 734 (Miss. 2020) (holding that claims that were raised and rejected in prior PCR proceedings are barred by the doctrine of res judicata). The issue is barred by res judicata.
[3] Hutto argues that his trial counsel was ineffective for failing to object to the prosecutor’s "send a message" closing argument "so it could be raised as an issue on appeal." He contends that "PCR counsel rendered ineffective assistance of counsel by failing to raise this claim during Petitioner’s initial PCR case." Because the record shows that trial counsel did object and the objection was overruled, Hutto cannot show deficient performance by trial counsel. To the extent that Hutto argues that his appellate counsel was ineffective for not raising the issue on appeal as plain error, the claim fails. Because this Court has held that the State’s use of a send-a-message argument in the sentencing phase is appropriate, Hutto cannot show deficient performance or prejudice. Thorson v. State, 895 So. 2d 85, 113 (Miss. 2004) (quoting King v. State, 784 So. 2d 884, 890 (Miss. 2001)).
[4–8] Hutto contends that the prosecutor’s closing argument that there was no nexus between Hutto’s childhood abuse and his crime had the effect of instructing the jury not to consider all of the mitigation evidence in violation of Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L.Ed. 2d 316 (1990), and Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 71 L.Ed. 2d 1 (1982). Therefore, he argues, trial counsel was deficient by failing to object to the argument, and post-conviction counsel was ineffective for not raising the issue. When a defendant claims that a prosecutor’s closing arguments influenced the jury’s interpretation of the sentencing-phase jury instructions, the standard is "whether there is a reasonable likelihood that the jury has applied the instructions in a way that prevents it from considering constitutionally relevant evidence." O’Brien v. Dretke, 156 F. App’x 724, 736 (5th Cir. 2005) (citing Boyde, 494 U.S. at 380, 110 S.Ct. 1190). Jurors are presumed to have followed the court’s instructions. Evans v. State, 226 So. 3d 1, 26 (Miss. 2017) (citing Johnson v. State, 475 So. 2d 1136, 1142 (Miss. 1985)). We find that Hutto has not shown a reasonable likelihood that the jury did not follow its instructions due to the prosecutor’s "nexus" argument. Further, "[c]omplaints concerning counsel’s failure to file certain motions, call certain witnesses, ask certain questions, and make certain objections fall within the ambit of trial strategy." Cole v. State, 666 So. 2d 767, 777 (Miss. 1995) (quoting Murray v. Maggio, 736 F.2d 279 (5th Cir. 1984)). Hutto’s trial counsel objected four times during the initial closing argument and may well have made a "strategic decision to avoid additional comment." Cabello v. State, 524 So. 2d 313, 318 (Miss. 1988).
[9] Hutto argues that his trial counsel rendered ineffective assistance by not exercising a peremptory challenge on Juror Glenn Miller. He asserts that Miller’s answers in his juror questionnaire and during voir dire showed that he would have imposed the death penalty automatically upon a finding that Hutto was guilty of capital murder. See Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 119 L.Ed. 2d 492 (1992). The record shows that, during Miller’s questioning by the trial court, the prosecutor, and defense counsel, he repeatedly affirmed that he would not vote for death automatically upon a finding of guilt but would consider and weigh the mitigating evidence. Hutto has not shown that trial counsel did not act strategically in declining to challenge Miller, nor has he shown prejudice.
Hutto’s final argument is that he is incompetent to proceed with these post-conviction proceedings. Because, after Ronk, Hutto’s claims of ineffective assistance of post-conviction counsel are barred, the issue of Hutto’s competency to bring those claims is moot. Moreover, Hutto has no right of competency in post-conviction proceedings. Powers v. State, 371 So. 3d 629, 643 (Miss. 2023) (quoting Corrected En Banc Order, Powers v. State, No. 2017-DR-00696-SCT, at *1-2 (Miss. June 21, 2022)).
After a full review of Hutto’s motion, we find that his claims of ineffective assistance of post-conviction counsel are statutorily barred. Notwithstanding the bars, they are without merit. Hutto’s competency claim is moot; further, he has no right of competency in post-conviction proceedings. We find that Hutto’s motion for leave to proceed should be denied.
IT IS THEREFORE ORDERED that the Motion for Leave to File Successive Petition for Post-Conviction Relief filed by James Cobb Hutto, III, is denied.
SO ORDERED, this the 24 day of July, 2024.
AGREE: RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
KITCHENS, P.J., AGREES TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KING, P.J.
KITCHENS, PRESIDING JUSTICE, AGREEING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
I agree that Hutto’s motion should be denied. I write separately to clarify that I would deny because his arguments are without merit. I would not find that his claims are barred from consideration. See Ronk v. State, No. 2021-DR-00269-SCT, 391 So.3d 785, 815–16 (Miss. Jan. 11, 2024) (Kitchens, P.J., dissenting) (disagreeing with the Court’s partial overruling of Grayson v. State, 118 So. 3d 118 (Miss. 2013)); Howell v. State, 358 So. 3d 613, 617 (Miss. 2023) (Kitchens, P.J., dissenting) (disagreeing with the Court’s elimination of the fundamental rights exception articulated in Rowland v. State, 42 So. 3d 503, 506 (Miss. 2010)); Powers v. State, 371 So. 3d 629, 719 (Miss. 2023) (Kitchens, P.J., dissenting) (disagreeing with the Court’s determination that a defendant is not entitled to competency during post-conviction proceedings).
KING, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.