CURTIS GIOVANNI FLOWERS A/K/A CURTIS FLOWERS A/K/A CURTIS G. FLOWERS Petitioner
STATE OF MISSISSIPPI Respondent
DENNIS COLEMAN, JUSTICE.
before the Court, en banc, is the Motion to Extend Stay of
Post-Conviction Proceedings filed by Petitioner and the
Response filed by Respondent. Petitioner asks that
consideration of his Petition for Post-Conviction Relief be
stayed until the Court issues its decision on
Petitioner's direct appeal in light of Flowers v.
Mississippi, 578 U.S., 136 S.Ct. 2157 (Mem.) (2016).
After due consideration, the Court finds that the Motion to
Extend Stay of Post-Conviction Proceedings is well taken and
should be granted.
THEREFORE ORDERED that the Motion to Extend Stay of
Post-Conviction Proceedings filed by Petitioner is granted.
Proceedings in Petitioner's post-conviction case are
stayed until this Court issues its decision on
Petitioner's direct appeal.
GRANT: WALLER, C.J., DICKINSON AND RANDOLPH, P.J., LAMAR,
KITCHENS, KING, COLEMAN, MAXWELL AND BEAM, JJ.
RANDOLPH, PRESIDING JUSTICE, CONCURS WITH SEPARATE WRITTEN
I offer no objection to this Court's order granting
Curtis Giovanni Flowers's Motion to Extend Stay of
Post-Conviction Proceedings. With all due respect, I write
separately because I am uncertain that all of the justices of
the U.S. Supreme Court fully appreciate how Mississippi and
this state's Supreme Court administer and adjudicate
post-conviction relief (PCR) proceedings. The Mississippi
Uniform Post-Conviction Collateral Relief Act (Miss. Code
Ann. §§ 99-39-1 to 99-39-119 (Rev. 2015)) and
Mississippi Rule of Appellate Procedure 22 are more generous
in many ways than the Act's federal counterpart, the
Antiterrorism and Effective Death Penalty Act (AEDPA) (28
U.S.C.A. § 2244).
In Flowers v. Mississippi, U.S., 136 S.Ct. 2157,
L.Ed.2d (2016), the U.S. Supreme Court granted Flowers's
petition for certiorari in his direct appeal, vacated this
Court's well-reasoned judgment, and remanded his case
with instructions to further consider Flowers's
Batson claims in light of Foster v.
Chatman, 578 U.S., 136 S.Ct. 1737, 1742, 195 L.Ed.2d 1
(2016). Flowers, 136 S.Ct. 2157. In my humble
opinion, Flowers's petition was not ripe for review for a
putative Foster violation. Foster was based
on case-specific factors that are not present in
Flowers's direct appeal, although those factors might be
developed in his PCR action which is being delayed by their
decision. I agree with Justices Alito and Thomas who stated
that the Supreme Court "misuse[d] the GVR vehicle" in
this case. Flowers, 136 S.Ct. at 2158. "Our
decision in Foster postdated the decision of the
Supreme Court of Mississippi in the present case, but
Foster did not change or clarify the Batson
rule in any way." Flowers, 136 S.Ct. at 2158.
In its one-paragraph opinion, the U.S. Supreme Court failed
to identify a "compelling reason" why certiorari
was granted. The U.S. Supreme Court failed to identify any
error by this Court in vacating this Court's decision in
Flowers v. State, 158 So.3d 1009, 1057-58 (Miss.
2014), reh'g denied (Mar. 26, 2015), cert.
granted, judgment vacated, 136 S.Ct. 2157 (2016).
Finally, the U.S. Supreme Court failed to identify a single
conflict with a prior decision by either the U.S. Supreme
Court or this Court of last resort, and/or any
"erroneous factual findings or . . . misapplication of a
properly stated rule of law" by this Court. See
Sup. Ct. R. 10. Every member of this Court has fully
studied and considered the record presented in Flowers's
direct appeal, and the majority of this Court found
insufficient grounds to overturn the learned trial
judge's findings that the contested strikes were not the
result of purposeful discrimination. Flowers, 158
So.3d at 1057-58.
The Supreme Court's directive in Flowers v.
Mississippi injects an unnecessary delay in
Flowers's attempt to advance his PCR claims and leaves
the proverbial Sword of Damocles dangling over his head. The
U.S. Supreme Court should not require this Court to cast
aside Mississippi's statutory scheme or carve out an
exception for Flowers. The U.S. Supreme Court's command
to review in light of Foster reveals a lack of
appreciation of how the Mississippi Legislature has
established protections, enforced regularly by this Court,
for persons under the sentence of death. Under our body of
law, it is inappropriate to consider evidence outside the
record on a direct appeal. This Court is limited to the
record presented on direct appeal. The record evidence which
was before this Court on Flowers's direct appeal did not
include any prosecutorial notes, as were produced in
Foster. Such notes allowed Foster to factually
demonstrate purposeful discrimination. Flowers offered
no prosecutorial notes or any other evidence of purposeful
discrimination during his direct appeal, but Flowers is not
foreclosed from acquiring evidence and providing proof of
purposeful discrimination in his PCR.
In the absence of identifying any error that would call for a
reversal and vacation of our judgment of his direct appeal,
the most direct path for Flowers to be afforded relief is for
his direct appeal to be completed, so that he may proceed
with discovery for Foster evidence through his PCR.
Should he establish such evidence demonstrating purposeful
discrimination, he would be entitled to relief. However, he
cannot get to that phase until this direct appeal is
Everyone on this Court understands his or duties,
responsibilities, and obligations. In the absence of a
justice on this Court desiring to change his or her vote, I
would enter an order post haste that this Court stands by its
judgment in Flowers v. State. I also would ask the
U.S. Supreme Court to consider recalling its opinion, as
Foster did not change any law, as recognized in the
dissent to the opinion. See Flowers v. Mississippi,
136 S.Ct. at 2158 (Alito, J., dissenting).