The opinion of the court was delivered by: Smith, Justice
DATE OF JUDGMENT: 01/20/90
TRIAL JUDGE: HON. DARWIN M. MAPLES
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - POST CONVICTION RELIEF DISPOSITION: DENIED - 9/17/98
MOTION FOR REHEARING FILED: MANDATE
¶1. Jesse Derrell Williams was tried in 1983 for capital murder while engaged in the commission of a kidnaping. The facts showed that, following a night of alcohol and drug use, Williams tackled Karen Ann Pierce and dragged her into a wooded area where he slashed her throat with a hunting knife and excised her anus and vagina while she was still alive. Williams was found guilty and sentenced to death. On direct appeal, the conviction for capital murder was affirmed but the case was remanded for a new trial on the sentencing phase. Williams v. State, 544 So. 2d 782 (Miss. 1987). On remand, a jury again found that Williams should receive the death penalty. The death sentence was affirmed on direct appeal. Williams v. State, 684 So. 2d 1179 (Miss. 1996). Execution was stayed by the United States District Court after Williams filed a motion for federal habeas relief.
¶2.As to the underlying conviction, Williams filed an application to seek post-conviction relief which was denied by this Court. Williams v. State, 669 So. 2d 44 (Miss. 1996). On November 17, 1997, Williams filed another application for leave to seek post-conviction relief. This petition alleges ineffective assistance of counsel at trial. Tom Fortner represented Williams at trial and on direct appeal. Fortner also filed the initial motion for post-conviction relief. The present motion alleges that Fortner rendered ineffective assistance of counsel for failure to raise certain objections such that the issues were procedurally barred from reconsideration. The motion also asserts that Fortner committed other professional errors not readily apparent from the record.
¶3. We find no merit to any of these assertions and therefore deny the application for leave to seek post-conviction relief and the accompanying motion for leave to proceed in forma pauperis.
¶4. One who claims ineffective assistance of counsel must show not only the deficiency of counsel's performance but also that any such deficiency constituted prejudice to the defense. Walker v. State, 703 So. 2d 266, 268 (Miss. 1997). The test is adopted from the federal case of Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a "rebuttable presumption that counsel's performance falls within the broad spectrum of reasonable professional assistance." Moody v. State, 644 So. 2d 451, 456 (Miss. 1994)(quoting Stringer v. State, 627 So. 2d 326,328-29 (Miss. 1993)).
I. COUNSEL FAILED TO OBJECT AT TRIAL OR IN HIS MOTION FOR A NEW TRIAL TO THE FAILURE OF THE TRIAL COURT TO INSTRUCT THE SENTENCING ...