JAMES W. KITCHENS, JUSTICE.
This matter is before the Court, en banc, on Alan Dale Walker's Motion for Leave to File Successive Petition for Post-Conviction Relief, whereby he seeks to file a petition for post-conviction relief in the trial court. Alan Dale Walker was convicted in August 1991 of the capital murder of Konya Rebecca Edwards. His trial was conducted in Warren County on change of venue from the First Judicial District of Harrison County. Walker also was convicted in the same trial of the rape and kidnapping of Edwards. Walker's conviction and death sentence were affirmed by this Court in Walker v. State, 671 So.2d 581 (Miss. 1995) (Walker I), cert. denied, Walker v. Mississippi, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 406 (1996).
Walker contends that his post-conviction (PCR) counsel in 2003, Robert Ryan of the Mississippi Office of Capital Post-Conviction Counsel, was ineffective. This Court recently held that convicts under a sentence of death have a right to the effective assistance of post-conviction counsel. Grayson v. State, 118 So.3d 118, 147 (Miss. 2013). Prior to that decision, Walker would have been barred procedurally from claiming that his PCR counsel was ineffective. Accordingly, if he now is able to show (1) deficient conduct of counsel and (2) prejudice that resulted to him on account of ineffective PCR counsel,  then he should be granted leave to proceed in the trial court on that issue.
Walker avers that his trial counsel was ineffective because he failed to conduct research into Walker's background in an effort to identify mitigation evidence for presentation at the penalty phase of his 1991 trial. He has attached extensive affidavits and other evidence demonstrating the type of proof that effective trial counsel would have found and presented at the mitigation phase. Walker claims that the outcome of his sentencing hearing would have been different if his trial counsel had effectively presented the mitigation evidence that was then available. He further claims that Robert Ryan was ineffective at the PCR stage for failing to make a claim that his trial counsel was ineffective in the mitigation phase of his trial.
We find that the mitigation evidence Walker has presented in his petition shows that he potentially was prejudiced by trial counsel's deficient performance at the penalty stage. We further find that Walker's prior PCR counsel was ineffective for his failure to raise that issue in his initial petition for post-conviction relief, and that Walker was prejudiced by that deficient performance if his trial counsel was, in fact, ineffective. Walker has shown (1) deficient conduct and (2) prejudice that resulted from ineffective assistance of PCR counsel sufficient to warrant a hearing on this issue. Walker's claim of ineffective assistance of post-conviction counsel is sufficient to overcome the procedural bars and allow this Court to reach the merits of his claim.
IT IS THEREFORE ORDERED that Alan Dale Walker's Motion for Leave to File Successive Petition for Post-Conviction Relief should be, and it is hereby, granted.
IT IS FURTHER ORDERED that the Circuit Court of the First Judicial District of Harrison County shall conduct a hearing to determine whether Alan Dale Walker's trial counsel was ineffective in searching for and presenting mitigation evidence during the penalty phase of his trial, and whether Walker suffered prejudice from such deficient performance, if any, "sufficient to undermine the confidence in the outcome actually reached at sentencing." Doss v. State, 19 So.3d 690, 708 (Miss. 2009) (quoting Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (internal quotation omitted)).
IT IS FURTHER ORDERED that if the circuit court finds that Alan Dale Walker was prejudiced by trial counsel's deficient performance at the penalty phase, then it shall vacate Walker's sentence of death and conduct a new sentencing hearing.
TO GRANT: DICKINSON, P.J., KITCHENS, CHANDLER, KING AND COLEMAN, JJ. WALLER, C.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ.
WALLER, CHIEF JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
¶1. In this successive petition for post-conviction relief, Walker asserts that his trial counsel was ineffective for failing to produce adequate mitigation evidence during the penalty phase of his trial. Walker then claims that his prior post-conviction counsel was ineffective for failing to raise this issue in his first petition for post-conviction relief.Having reviewed the materials presented in support of Walker's petition, I would deny Walker's petition, as he failed to show that he was prejudiced by his post-conviction counsel's failure to raise this issue in his first petition for post-conviction relief.
¶2. This Court recently recognized the right to effective post-conviction counsel. See Grayson v. State, 118 So.3d 118, 147 (Miss. 2013). To make a claim of ineffective assistance of post-conviction counsel, Walker must first prove that his post-conviction counsel's performance was deficient, meaning that "counsel made errors so serious that [he or she] was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, Walker must prove that such deficient performance resulted in prejudice to his defense, meaning that the "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Absent both showings, Walker's claim cannot prevail. Id.
¶3. During the penalty phase of Walker's trial, Walker offered four mitigation witnesses – Mike Maniscalco, Walker's former employer; Leon Frederick, Walker's half-brother; Amanda Frederick, Walker's half-sister; and Anita ...