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HOWARD MONTEVILLE NEAL v. STATE OF MISSISSIPPI

SEPTEMBER 23, 1987

HOWARD MONTEVILLE NEAL
v.
STATE OF MISSISSIPPI



EN BANC

DAN M. LEE, JUSTICE, FOR THE COURT:

I.

We have before us this day the familiar application for post-conviction relief by one convicted of capital murder and sentenced to death. Prominent among the claims asserted are ineffective assistance of trial counsel and a claim that Petitioner was denied the right to take the witness stand in his own defense. Petitioner also presents a number of already-rejected constitutional challenges to his conviction and sentence - exhaustion of state remedies it is called, *fn1 although exhaustion of state judges would be a more accurate label.

 We have reviewed carefully petitioner's application, his supporting affidavits, and the prior course of proceedings in this case. With respect to the claim that he was denied his right of allocution, petitioner has presented a substantial showing of the denial of a state or federal right. We remand for an evidentiary hearing. All other claims have been previously decided and are precluded from relitigation here, except the claim for ineffective assistance of counsel which we deny for want of a substantial showing of merit.

 II.

 Prior proceedings in the case of Howard Monteville Neal reflect that on January 24, 1981, Amanda Joy Neal was murdered in Lawrence County, Mississippi. On February 4, 1982, following a change of venue to Lamar County, Neal was found guilty by a Circuit Court jury of the capital murder of Amanda Joy. On that same day the jury imposed a sentence of death.

 Neal appealed, attacking both his conviction and sentence. On May 23, 1984, this Court affirmed with a written opinion. Neal v. State, 451 So.2d 743 (Miss. 1984). On July 11, 1984, Neal's petition for rehearing was denied. Thereafter, Neal applied to the Supreme Court of the United States for a writ of certiorari, which application was denied on December 10, 1984. Neal v. Mississippi, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984).

 The matter is now before the Court upon Neal's application for relief under the Mississippi Uniform Post-Conviction Collateral Relief Act. Miss. Code Ann. 99-39-1 et seq. (Supp.1986). The Attorney General, of course, denies facial merit to Neal's application.

 Our procedural posture is analogous to that when a defendant in a civil action moves to dismiss for failure to state a claim. See Rule 12(b)(6), Miss.R.Civ.P.; Stanton & Associates, Inc. v. Bryant Construction Company, Inc., 464 So.2d 499, 504-06 (Miss.1985). Functionally, Section 99-39-9 is substituted for the pleadings requirements of Rule 8(a) and (e), Miss.R.Civ.P. In relevant part, Section 99-39-9 requires that an application for post-conviction relief contain

 (c) A concise statement of the claims or grounds upon which the motion is based.

 (d) A separate statement of the specific facts which are within the personal knowledge of the prisoner and which shall be sworn to by the prisoner.

 (e) A specific statement of the facts which are not within the prisoner's personal knowledge. The motion shall state how or by whom said facts will be proven. Affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion. The affidavits of other persons and the copies of documents

 and records may be excused upon a showing, which shall be specifically detailed in the motion, of good cause why they cannot be obtained. This showing shall state what the prisoner has done to attempt to obtain the affidavits, records and documents, the production of which he requests the court to excuse.

 Notions of notice pleading have no place in post-conviction applications, the very name of which implies that there has been a final judgment of conviction. Respect for the integrity of the judicial process mandates that we require of such applicants a far more substantial and detailed threshold showing, far in excess of that we deem necessary in the case of a plaintiff in a civil action or, for that matter, in the case of the prosecution in a criminal indictment. In this context we understand Section 99-39-9 to suggest a regime of sworn, fact pleadings, based upon personal knowledge. The Court upon examination of the application has the authority to dismiss it outright,

 if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief. . . .

 Miss. Code Ann. 99-39-11(2).

 On the other hand, if the application meets these pleading requirements and presents a claim procedurally alive "substantial[ly] showing denial of a state or federal right," the petitioner is entitled to an in court opportunity to prove his claims. *fn2 Miss.Code Ann. 99-39-27(5) (Supp.1986). Against this backdrop, we consider the allegations of Neal's application.

 III.

 A.

 Neal's primary charge in the present proceeding is that he was denied effective assistance of counsel at his trial. This is a claim which is not procedurally barred. Miss. Code Ann. 99-39-27(5) (Supp.1986); Perkins v. State, 487 So.2d 791, 792-93 (Miss.1986); Leatherwood v. State, 473 So.2d 964 (Miss.1985); Read v. State, 430 So.2d 832, 836-42 (Miss.1983).

 An ineffective assistance claim by its very nature refers to the totality of counsel's pre-trial and trial performance. Neal so complains here of his court-appointed attorneys and

 points to some three specifics. First, he urges that his attorneys failed to conduct an adequate investigation prior to both the guilt phase and sentencing phase of his trial thereby denying him the opportunity to present an adequate defense. Second, he urges that one of his attorneys, Joe Dale Walker, had a conflict of interest in that he had represented one of Neal's alleged murder victims, Bobby Neal, less than two months before the latter was killed. Third, Neal alleges that his attorneys refused to permit him to take the stand in his own defense at his trial.

 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) furnishes the legal standards by which we consider a claim of ineffective assistance of counsel, whether that claim be asserted under the Sixth and Fourteenth Amendments to the Constitution of the United States or under Article III, 26 of the Mississippi Constitution of 1890. Washington mandates a two-fold inquiry: (1) whether counsel's performance was deficient, and, if so, (2) whether the deficient performance was prejudicial to the defendant in the sense that our confidence in the correctness of the outcome is undermined.

 We have accepted the Washington standards on a number of occasions. See, e.g., Ferguson v. State, 507 So.2d 94, 95-97 (Miss.1987); Waldrop v. State, 506 So.2d 273, 275-76 (Miss.1987): Alexander v. State, 503 So.2d 235, 240-41 (Miss.1987); King v. State, 503 So.2d 271, 273-76 (Miss.1987); Leatherwood v. State, 473 So.2d 964 (Miss.1985); Stringer v. State, 454 So.2d 468 (Miss.1984). We emphasize that these standards are objective ones. They apply everywhere. As life and liberty are at stake, there is no place for a locality rule in right to counsel jurisprudence. Cf. Hall v. Hilbun, 466 So.2d 856 (Miss.1985).

 In the present posture of the matter, we are considering whether Neal's showing in his application for post-conviction relief and attached affidavits, coupled with the record made at his trial, render it sufficiently likely that he received ineffective assistance of counsel that we should order an evidentiary hearing regarding the matter. Put otherwise, on the papers and record before us, can we say with confidence that at any evidentiary hearing Neal will not be able to show that he has been denied effective assistance of counsel? If his application fails on either of the two prongs of Washington, we must terminate the proceedings here.

 B.

 Neal's charges of ineffective assistance of counsel are

 summarized in his post-conviction application as follows:

 Neal charges that his court-appointed counsel failed to conduct an adequate investigation prior to trial and prior to the separate sentencing proceeding, thereby denying him the opportunity to present an adequate defense. Specifically, Neal alleges that his attorneys failed to interview members of the professional staff at the State School at Ellisville and the State Hospital at Whitfield, where he had been institutionalized for a large portion of his life; and that they failed to obtain his Oklahoma prison records or ...


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