Opinion
2015-DR-01378-SCT
12-16-2021
JUSTIN UNDERWOOD A/K/A JUSTIN H. UNDERWOOD v. STATE OF MISSISSIPPI
EN BANC ORDER
JAMES W. KITCHENS, PRESIDING JUSTICE
This matter is before the Court on the Petition for Post-Conviction Relief filed by Justin Underwood. Underwood was convicted of capital murder in Madison County in 1995. He was sentenced to death. His direct appeal was affirmed in Underwood v. State, 708 So.2d 18 (Miss. 1998). This Court thereafter denied Underwood's first petition for postconviction relief. Underwood v. State, 919 So.2d 931 (Miss. 2005). His second petition for post-conviction relief also was denied. Underwood v. State, 37 So.3d 10 (Miss. 2010).
Before the Court is Underwood's third petition for post-conviction relief. Underwood raises numerous issues in his petition. In response, the State argues that many of those claims are procedurally barred.
Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), this Court will grant leave to proceed only if Underwood's petition, exhibits, and the prior record show that his claims are not procedurally barred and that they "present a substantial showing of the denial of a state or federal right." Miss. Code Ann. § 99-39-27(5) (Rev. 2020); see also 1 Grayson v. State, 118 So.3d 118, 125 (Miss. 2013). "Direct appeal [is] the principal means of reviewing all criminal convictions and sentences . . ." Miss. Code Ann. § 99-39-3(2) (Rev. 2020). Review at this stage, with certain exceptions, is limited to issues that could not or should not have been reviewed at trial and in the direct appeal. Miss. Code Ann. § 99-39-3(2); Brawn v. State, 798 So.2d 481, 491 (Miss. 2001). "In capital cases, non-procedurally barred claims are reviewed using "'heightened scrutiny" under which all bona fide doubts are resolved in favor of the accused.'" Ronk v. State, 267 So.3d 1239, 1247 (Miss. 2019) (quoting Crawford v. State, 218 So.3d 1142, 1150 (Miss. 2016)).
Underwood must overcome several procedural bars. First, the mandate in the direct appeal issued on April 16, 1998. This successive petition was filed in March of 2020 and is subject to the one-year time bar. Miss. Code Ann. § 99-39-5(2) (Rev. 2020); see also Brown v. State, 306 So.3d 719, 729 (Miss. 2020) (citing Jordan v. State, 213 So.3d 40, 42 (Miss. 2016); Havard v. State, 86 So.3d 896, 899 (Miss. 2012)). A failure to raise post-conviction claims within the limitations period results in a waiver of potential relief unless the petitioner meets an exception to the time bar. M.R.A.P. 22(c)(5)(i); Jordan, 213 So.3d at 42. Unless Underwood can show that his claims are excepted, the petition is barred.
Second, Underwood has filed two previous petitions for post-conviction relief. Both were denied. This petition is subject to the successive writ bar set forth in Mississippi Code Section 99-39-27(9) (Rev. 2020). Absent an applicable exception, a successive motion for post-conviction relief is procedurally barred. Rowland v. State, 42 So.3d 503, 507 (Miss. 2010). 2
Third, Underwood is prohibited from raising claims which have been addressed in prior proceedings.
"Rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural bar of res judicata. The Petitioner carries the burden of demonstrating that his claim is not procedurally barred." Howard v. State, 945 So.2d 326, 353 (Miss. 2006) (quoting Jackson v. State, 860 So.2d 653, 660-61 (Miss. 2003); Lockett v. State, 614 So.2d 888, 893 (Miss. 1992)). In Grayson v. State, 118 So.3d 118 (Miss. 2013), the Court held that the petitioner's second attempt to argue that trial counsel had been ineffective in presenting in the sentencing phase "has been considered and rejected and, therefore, his claims are barred by the doctrine of res judicata." Id. at 141. In Brawner v. State, 166 So.3d 22, 23 (Miss. 2012), the Court declined to revisit claims that previously had been addressed. The Court held that "these claims have been substantially reviewed in prior proceedings and are now procedurally barred and barred by the doctrine of res judicata."Jordan, 213 So.3d at 42. "Res judicata also extends to those claims that could have been raised in prior proceedings but were not." Brown, 306 So.3d at 730 (citing Ronk, 267 So.3d at 1288); Miss. Code Ann. § 99-39-21(3) (Rev. 2020).
Under Mississippi Code Section 99-39-21(1),
[f]ailure 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.Miss. Code Ann. § 99-39-21(1) (Rev. 2020).
Mississippi Code Section 99-39-21(2) (Rev. 2020) provides that "[t]he litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue . . . ." Reframing an issue that previously has been 3 considered and rejected is not allowed. Can v. State, 873 So.2d 991, 1002 (Miss. 2004). "[A]ny relief sought... upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice." Miss. Code Ann. § 99-39-21(2).
After a full review of Underwood's petition, we find that the majority of his claims are procedurally barred and, notwithstanding the procedural bars, they are without merit. Underwood's remaining claims are without merit.
I. Newly Discovered Evidence Claims
Underwood raises several claims of newly discovered evidence. Newly discovered evidence claims, under certain circumstances, can be excepted from the procedural bars. See Miss. Code Ann. § 99-39-5(2)(a)(i) (Rev. 2020) (exception to time bar for newly discovered evidence); Miss. Code Ann. § 99-39-23(6) (Rev. 2020) (exception to successive-writ bar for newly discovered evidence).
For purposes of the post-conviction relief statutes, newly discovered evidence is "evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence." Miss. Code Ann. § 99-39-5(2)(a)(i); see also Miss. Code Ann. § 99-39-23(6) (Rev. 2020). At this stage, Underwood must show that "(1) the new evidence was discovered after the trial; (2) it could not by due diligence have been discovered before trial; (3) it is material to the issue and not merely cumulative or 4 impeaching; and (4) it would probably produce a different result or verdict in the new trial." Brown, 306 So.3d at 744 (citing Crawford v. State, 867 So.2d 196, 203-04 (Miss. 2003)).
Underwood claims that there is new evidence that Lindsay Harris, the victim's husband, could have been the actual killer and that there is new evidence about how the murder weapon was located. At trial, the defense attempted to blame Harris as the perpetrator and raised questions about how officers had obtained the gun. Underwood also argued in his first two petitions for post-conviction relief that Harris was the true murderer. At this stage, Underwood has not shown that this evidence could not have been discovered before the trial or before the filing of his first two petitions. And he has not shown that the result would have been different.
Underwood next argues that there is new evidence of advancements in firearms science shown by a 2009 National Academy of Sciences report and a 2013 FBI letter. He contends that those documents establish a scientific consensus that examiners may not present as fact that a particular gun fired a particular bullet. He argues that, if the State's firearms expert had been prohibited from testifying that the bullets recovered from the victim's body were fired in the gun recovered from Underwood's car or had been cross-examined about the scientific consensus, the result would have been different. The Supreme Court of Florida has found that the 2009 National Academy of Sciences Report does not meet the test for newly discovered evidence. Johnston v. State, 27 So.3d 11, 21 (Fla. 2010). We agree. And in light of Underwood's confessions that he used the gun to kill the victim, we cannot say that the State's presentation of less conclusive forensic testimony identifying the 5 gun as the murder weapon probably would have produced a different result or verdict. See Brewer v. State, 819 So.2d 1169, 1172 (Miss. 2002). We hold that Underwood's claims of newly discovered evidence do not meet the newly discovered evidence exceptions to the time bar and the successive writ bar of the UPCCRA.
II. Claims of Improperly Suppressed Evidence
Underwood claims also that the State improperly suppressed evidence that would have been favorable to him. He makes little attempt to argue that those claims could not have been discovered and raised in prior proceedings over the last twenty-five years.
To establish a discovery violation under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215, 218 (1963), a defendant must show:
(1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.Howell v. State, 163 So.3d 240, 250 (Miss. 2014) (quoting King v. State, 656 So.2d 1168, 1174 (Miss. 1995)).
Underwood argues that the State suppressed: (1) a witness's statement that he had seen the victim in the husband's car headed toward the scene on the morning of the killing; (2)worksheets completed during the firearms expert's examination of the murder weapon; (3) serology worksheets dealing with blood found on the victim's house shoes; and (4) Deputy Sheriff Nate Johnson's testimony. 6
Underwood's claims are subject to the time bar, the successive writ bar, and the waiver and res judicata bars. Notwithstanding the procedural bars, Underwood has not shown that the State suppressed any of this evidence or that with the evidence the outcome of the trial would have been different.
III. Claims that the State Presented False Testimony
Underwood argues that his right to due process of law under the Fourteenth Amendment to the United States Constitution was violated by the State's presentation of false testimony relating to his confessions in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). To establish a federal due process violation, the defendant must show "(1) that a witness for the State testified falsely; (2) that such testimony was material; and (3) that the prosecution knew that the testimony was false." Knox v. Johnson, 224 F.3d 470, 477 (5th Cir. 2000) (citing Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)).
Any claim challenging the admission of Underwood's confessions could have been brought at trial, in the direct appeal, and in either of the first two petitions for post-conviction relief. Underwood's challenge to the admission of his confessions is subject to the time bar, the successive writ bar, and the bars of waiver, different theories, and res judicata.
At trial, the State presented evidence of two typewritten confessions that had been signed by Underwood. In the first, Underwood admitted that he had broken into his uncle's home and had stolen a revolver. In the second, he confessed that he had used that revolver to kill the victim. Underwood now claims that he never confessed and that officers had him 7 sign blank forms, which were filled in later. But Underwood's present claim that he did not confess at all is contrary to his previous positions taken at the suppression hearing, in the direct appeal, and in the initial petition for post-conviction relief. Before now, Underwood never claimed that both statements were fabricated from blank pages that he had signed. Underwood's present claim that he told his previous lawyers that the documents had been fabricated is not only procedurally barred but, notwithstanding the procedural bars, is not credible and is bereft of merit.
Underwood claims also that the State presented false testimony about how the murder weapon was recovered. As above, this claim could have been raised in prior proceedings and is barred by the time bar, the successive writ bar, and the bars of res judicata and waiver. Notwithstanding the procedural bars, we find that no relief is warranted on the merits.
IV. Ineffective Assistance of Counsel
The petitioner was represented by Attorney Edward Blackmon at trial and on appeal. He raises several claims of ineffective assistance of counsel concerning Attorney Blackmon's representation at the guilt and penalty phases. In his initial petition for post-conviction relief, Underwood argued that Attorney Blackmon had been ineffective. After reviewing those claims, this Court concluded that Underwood had not shown that Attorney Blackmon had been ineffective. Underwood, 919 So.2d at 943. Underwood's current claims of ineffective assistance are untimely, successive, and barred by res judicata. He has not shown that the present claims meet any exception to the procedural bars. Each claim either was raised in prior petitions or could have been brought in the prior proceedings. Those claims include (1) 8 that trial counsel failed to prepare for trial and failed to investigate Underwood's claim of innocence; (2) that trial counsel failed to investigate Lindsay Harris's possible guilt and to pursue certain trial strategies positing that Harris was the perpetrator; (3) that trial counsel failed to argue that Robert Bradford was the perpetrator; (4) that trial counsel's challenge to the confessions was deficient; (5) that trial counsel did not make an objection to the State's use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79, 93, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (6) that trial counsel's penalty phase investigation and preparation of mitigation witnesses was deficient. Notwithstanding the procedural bars, we find that Underwood has not shown that Blackmon's representation 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).
Underwood argues also that he received ineffective assistance from prior postconviction counsel. "PCR petitioners who are under a sentence of death do have a right to the effective assistance of PCR counsel." Grayson v. State, 118 So.3d at 126 (citing Jackson v. State, 732 So.2d 187, 191 (Miss. 1999)). If, due to post-conviction counsel's ineffectiveness, the first post-conviction motion was "a sham," then the petitioner effectively was denied the right to file "a meritorious PCR motion." Id. Underwood argues that, due to post-conviction counsel's failure to investigate, his earlier post-conviction relief motions were a sham. Notably, Underwood's prior post-conviction counsel filed not one, but two prior post-conviction motions, both of which render the present filing successive. On full 9 review of the record and the exhibits provided by Underwood, we find that he has failed to show that prior post-conviction counsel rendered deficient performance that prejudiced him.
V. Sixth Amendment Claims
Underwood next presents affidavits he contends show that the jury improperly relied on racial stereotypes in reaching its decision. The State argues that the affidavits should not be considered as they are prohibited by Mississippi Rule of Evidence 606(b), which provides generally that a juror is not allowed to impeach the verdict. We agree that the affidavits are improper.
Underwood argues that Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 863, 197 L.Ed.2d 107 (2017), permits consideration of his affidavits under “a constitutional exception to the no-impeachment rule for instances of racial bias/5 We conclude that the alleged juror comments here do not rise to the level of the juror's misconduct in that case. Nothing indicates that the jurors relied on racial stereotypes or racial animus in reaching their guilty verdicts. See Pena-Rodriguez, 137 S.Ct. at 869. The comments here do not show racial animus such that confidence in the fairness and impartiality of the deliberations and verdict is diminished. See id. Pena-Rogriguez does not afford Underwood relief from the no-impeachment rule.
VI. Forensic testing request
Underwood next requests forensic testing of several items collected at or near the location at which the body was found. Under Mississippi Code Section 99-39-5(1)(f) (Rev. 2020), Underwood must show that the items of evidence he seeks to test are available for 10 analysis. He admits that he has not been able to locate those items. Further, he seeks permission to test the murder weapon, which is available. But the time for the defense to have tested the weapon was before trial, and the defense chose not to test it at that point. Additionally, this claim could have been raised in previous proceedings. This claim is subject to the time bar, the successive writ bar, and the waiver and res judicata bars.
VII. Actual Innocence Claim
Underwood maintains that he is actually innocent. This Court has recognized that actual innocence is a recognized exception to procedurally defaulted federal habeas claims. Howard v. State, 945 So.2d at 369. But the UPCCRA does not provide an exception to the procedural bars for a claim of actual innocence. Underwood's claim is subject to the time bar, the successive writ bar, and res judicata. Notwithstanding the procedural bars, it is without merit. The murder weapon was found in Underwood's car. He confessed that he had stolen it. Then he separately confessed that he had used that gun to kill the victim. After a review of all evidence presented at trial and all exhibits produced since, we find that Underwood has not shown that he is entitled to relief based on his claim of actual innocence.
VII. Intervening Case Law
We further find that Underwood has not shown that the United States Supreme Court's decision in Bosse v. Oklahoma, 137 S.Ct. 1, 196 L.Ed.2d 1(2016), qualifies as an intervening decision allowing him to circumvent the procedural bars regarding witness testimony for the State at the mitigation phase. See Miss. Code Ann. § 99-39-5(2)(a)(i). 11 Therefore, Underwood's witness testimony claim is subject to the time bar, the successive writ bar, and the waiver and res judicata bars.
VIII. Eighth Amendment Claim
Finally, we decline to extend Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed. 1 (2005), to apply to Underwood, who was twenty years old at the time of the crime.
After a full review of Underwood's claims, we conclude that most are procedurally barred and not within an exception and, notwithstanding the procedural bars, are without merit. Underwood's other claims are without merit.
IT IS THEREFORE ORDERED that the Petition for Post-Conviction Relief filed by Justin Underwood is denied.
SO ORDERED.
ALL JUSTICES AGREE. 12