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Loden v. State

Supreme Court of Mississippi, En Banc

December 6, 2018

THOMAS EDWIN LODEN, JR.
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 09/21/2001

          ITAWAMBA COUNTY CIRCUIT COURT HON. THOMAS J. GARDNER, III TRIAL JUDGE

          ATTORNEY FOR PETITIONER: STACY FERRARO

          ATTORNEY FOR RESPONDENT: OFFICE OF THE ATTORNEY GENERAL BY: JASON L. DAVIS

          RANDOLPH, PRESIDING JUSTICE.

         ¶1. Before the Court is Thomas Edwin Loden Jr.'s fourth[1] petition for post-conviction relief. Loden challenges the Mississippi Department of Corrections' use of midazolam in its lethal-injection protocol. He claims that midazolam is not an "appropriate anesthetic or sedative" that, "if properly administered in a sufficient quantity, is likely to render the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain" under Mississippi Code Section 99-19-51 (Supp. 2018). Loden requests this Court to enter an order forbidding the State from using any drug, including midazolam, as the first drug in its lethal-injection series that is not "likely to render the condemned inmate unconscious," or, in the alternative, to grant him an evidentiary hearing to prove that midazolam is not "an appropriate anesthetic or sedative" under Mississippi Code Section 99-19-51.

         ¶2. First, our review of Loden's filings and affidavits on the critical issue-that is, whether a 500-milligram dose of midazolam meets Mississippi's statutory definition of an "appropriate anesthetic or sedative," reveals that Loden has offered no more than the ipse dixit arguments of his expert, Craig W. Stevens, Ph.D. Loden has failed to carry his burden of proof in presenting a substantial showing of the denial of a state or federal right as required by Mississippi Code Section 99-39-27 (Rev. 2015), for the portions of his affidavits related to the efficacy of a 500-milligram dose of midazolam are a "sham" and are not supported by established medical literature. Gable v. State, 748 So.2d 703, 706 (Miss. 1999) (quoting Young v. State, 731 So.2d 1120, 1122-23 (Miss. 1999)).

         ¶3. Moreover, the State responds that, in Glossip v. Gross, the United States Supreme Court considered the same arguments presented in Loden's petition and rejected them, affirming the United States Court of Appeals for the Tenth Circuit's and a United States District Court's finding that a 500-milligram dose of midazolam-the same dosage that MDOC requires in its lethal-injection protocol-is capable of placing a person at a sufficient level of unconsciousness so that the recipient is unable to feel pain. Glossip v. Gross, 135 S.Ct. 2726, 2739-41, 192 L.Ed.2d 761, 83 U.S.L.W. 4656 (2015). In addition to Loden's failure to present a substantial showing of the denial of a state or federal right, the holding in Glossip is relevant to the outcome of this petition. Accordingly, his petition for PCR is denied.

         FACTS AND PROCEDURAL HISTORY

         ¶4. On June 22, 2000, Loden discovered Leesa Marie Gray's car stranded on the side of the road with a flat tire. Loden v. State, 971 So.2d 548, 552 (Miss. 2007) (Loden I). According to an interview of Loden, Loden stopped, asked Leesa what was wrong, and told her "Don't worry. I'm a Marine. We do this kind of stuff." Id. Loden then asked Leesa if she had ever considered becoming a Marine. Id. Leesa responded that "that'd be the last thing I want to do with my life." Id. Loden became so angry that he ordered Leesa to get in his van. Id. Then, "[o]ver the next four hours, Loden repeatedly raped and sexually battered Leesa, videotaping portions of the sadistic acts, before murdering her by way of suffocation and manual strangulation." Id. at 551.

         ¶5. Loden was indicted for capital murder, rape, and four counts of sexual battery. Id. Loden voluntarily waived his right to a jury for both trial and sentencing and pleaded guilty to all six counts in the indictment. Id. at 551-52. "The Circuit Court of Itawamba County, Mississippi, accepted those pleas and adjudged Loden guilty on each count." Id. at 552. "At the sentencing hearing, Loden elected to waive cross-examination of all of the State's witnesses, to waive objection to all exhibits presented by the State, and not to offer any mitigation evidence on his own behalf." Id. Loden then chose to address the court and Leesa's friends and family by stating, "I hope you may have some sense of justice when you leave here today." Id. The circuit court then considered the four factors required by Mississippi Code Section 99-19-101(7) (Rev. 2015) and found that each factor was satisfied, "that sufficient aggravating circumstances existed, and 'that the mitigating circumstances do not outweigh the aggravating circumstances and that the death penalty should be imposed.'" Id.

         ¶6. Loden was also sentenced to thirty years' imprisonment for the rape conviction on Count II of the indictment; thirty years' imprisonment for the sexual battery conviction on Count III; thirty years' imprisonment for the sexual battery conviction on Count IV; thirty years' imprisonment for the sexual battery on Count V; and thirty years' imprisonment for the sexual battery conviction on Count VI; all sentences were ordered to run consecutively to all other sentences imposed. Id. at 575.

         ¶7. Loden's direct appeal was found meritless. Id. at 575. In addition, Loden's three previous petitions for PCR have all either been denied or dismissed. Id.; Loden v. State, 43 So.3d 365, 376 (Miss. 2010) (Loden II); Loden v. State, 222 So.3d 312, 313 (Miss. 2017) (Loden III). Loden is also currently a petitioner in a pending federal civil action challenging Mississippi's lethal injection protocol. Jordan v. Hall, No. 3:15CV295HTW-LRA, 2018 WL 1546632 (S.D.Miss. March 29, 2018).

         ¶8. In this fourth petition for post-conviction relief, Loden now argues that MDOC's current lethal-injection protocol[2] violates Mississippi Code Section 99-19-51(1), amended in April 2017, which provides,

The manner of inflicting the punishment of death shall be by the sequential intravenous administration of a lethal quantity of the following combination of substances: (a) an appropriate anesthetic or sedative; (b) a chemical paralytic agent; and (c) potassium chloride, or other similarly effective substance, until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice. As used in this section, the term "appropriate anesthetic or sedative" means any substance that, if properly administered in a sufficient quantity, is likely to render the condemned inmate unconscious, so that the execution process should not entail a substantial risk of severe pain.

Miss. Code Ann. § 99-19-51(1) (Supp. 2018) (emphasis added). Loden argues that midazolam is not "an appropriate anesthetic or sedative" that is "likely to render the condemned inmate unconscious . . . ." Id.

         ISSUE

         I. WHETHER MIDAZOLAM IS AN "APPROPRIATE ANESTHETIC OR SEDATIVE" AS DEFINED BY MISSISSIPPI CODE SECTION 99-19-51(1).

         STANDARD OF REVIEW

         ¶9. Mississippi Code Section 99-39-27(5) provides that,

[u]nless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by those documents are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application.

Miss. Code Ann. § 99-39-27(5) (Rev. 2015). Mississippi Code Section 99-39-27(7) further provides that the Court, in its discretion, may,

(a) Where sufficient facts exist from the face of the application, motion, exhibits, the prior record and the state's response, together with any exhibits submitted with those documents, or upon stipulation of the parties, grant or deny any or all relief requested in the attached motion.
(b) Allow the filing of the motion in the trial court for further proceedings under Sections 99-39-13 through 99-39-23.

Miss. Code Ann. § 99-39-27(7) (Rev. 2015).

         ¶10. Post-conviction proceedings afford the Court an opportunity "to review those matters which, in practical reality, could not or should not have been raised at trial or on direct appeal." Brown v. State, 798 So.2d 481, 491 (Miss. 2001) (quoting Turner v. State, 590 So.2d 871, 874 (Miss. 1991)). Loden's petition involves the revised lethal-injection protocol promulgated by MDOC on July 28, 2015, and amended again in November 2017, as well as the revised method-of-execution statute amended in April 2017. Accordingly, the Court may consider Loden's petition because the issue raised in it could not have been raised at trial or on direct appeal. Loden "bears the burden of proof by preponderance of the evidence that he is entitled to post-conviction relief." Lambert v. State, 941 So.2d 804, 811 (Miss. 2006) (internal quotations omitted) (quoting McClendon v. State, 539 So.2d 1375, 1377 (Miss. 1989).

         ¶11. In cases in which a petitioner and the State produce contradictory affidavits in post-conviction proceedings, this Court has held that, "where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court ...


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