OF JUDGMENT: 09/25/2017
QUITMAN COUNTY CIRCUIT COURT HON. CHARLES E. WEBSTER TRIAL
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION
BY: ALEXANDER KASSOFF JAMILA ALEXANDER
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
JASON L. DAVIS LADONNA C. HOLLAND
The United States Supreme Court has held that the Eighth
Amendment to the United States Constitution prohibits the
execution of intellectually disabled persons. On September
20, 2017, the Circuit Court of Quitman County denied Anthony
Carr's petition for post-conviction relief
("PCR"), finding that Carr did not prove that he
was intellectually disabled. Carr appealed the trial
court's decision. We affirm.
AND PROCEDURAL HISTORY
Anthony Carr was convicted of four counts of capital murder
and sentenced to death for each. Carr v. State, 655
So.2d 824, 830 (Miss. 1995) ("Carr I
"). In Carr I, we affirmed Carr's
conviction. Id. at 858.
In 2004, we granted Carr leave to proceed in the circuit
court on his PCR claim that he is intellectually disabled
and, thus, ineligible for the death penalty under Atkins
v. Virginia. Carr v. State, 873 So.2d 991
(Miss. 2004) ("Carr II "). The trial court
later denied Carr's petition for PCR (the "original
order"), and Carr appealed. Carr v. State, 196
So.3d 926 (Miss. 2016) ("Carr III").
In Carr III, we reversed and remanded with
directions for the trial court to make "new factual
findings applying the correct legal standard."
Id. at 944. Following the Carr III
decision, the trial court entered a revised order, again
denying Carr's petition for PCR (the "revised
order"). The trial court entered the revised order more
than a year after remand. In the interim, the trial court did
not hold an additional hearing, and the parties did not
request one. Carr timely appealed.
On appeal, Carr raises three issues. The State raises four
issues. For the sake of clarity, we restate the issues as
I. Whether the trial court erred by failing to hold a new
II. Whether the trial court erred in holding that Carr did
not prove by a preponderance of the evidence that he suffers
from an intellectual disability that manifested prior to age
The standard of review in the instant appeal is mixed.
"[W]here questions of law are raised the applicable
standard of review is de novo." Brown v.
State, 731 So.2d 595, 598 (Miss. 1998) (citing Bank
of Miss. v. S. Mem'l Park, Inc., 677 So.2d 186, 191
(Miss. 1996)). When addressing whether the trial court and
the Court in Carr III applied the correct legal
standard, a de novo standard is applied. On the
other hand, the Court "will not reverse the factual
findings of the trial court unless they are clearly
erroneous." Walker v. State, 230 So.3d 703, 704
(Miss. 2017) (citing Brown v. State, 731 So.2d 595,
598 (Miss. 1999).
Whether the trial court erred by failing to hold a
new evidentiary hearing.
Carr argues that the trial court erred by failing to hold a
new evidentiary hearing. In support of his arguments, Carr
presents evidence gathered from a new investigation that he
would like to present in a new evidentiary hearing, including
expert evidence from Dr. William Kallman. Carr maintains that
the new evidence does not constitute new arguments. Carr
argues that the United States Supreme Court's decision in
Moore v. Texas, 137 S.Ct. 1039, 197 L.Ed.2d 416
(2017) ("Moore I"), and the Court's
decision in State v. Russell, 238 So.3d 1105 (Miss.
2017), have "wrought significant changes to
Atkins jurisprudence," that "[t]he 2013
hearing was conducted under a different regime" and that
Carr is therefore entitled to a new hearing.
In response, the State argues that Carr waived the issue by
not raising it in the trial court. The State asserts that
Carr's argument is an attempt to relitigate the entirety
of his intellectual-disability claim. Further, the State
argues that Carr is procedurally limited to the issues that
were the subject of Carr III's remand.
Mississippi Code Section 99-39-21 addresses waiver in PCR
proceedings. It reads,
(1) Failure by a prisoner to raise objections, defenses,
claims, questions, issues or errors either in fact or law
which were capable of determination at trial and/or on direct
appeal, regardless of whether such are based on the laws and
the Constitution of the state of Mississippi or of the United
States, shall constitute a waiver thereof and shall be
procedurally barred, but the court may upon a showing of
cause and actual prejudice grant relief from the waiver.
(2) The litigation of a factual issue at trial and on direct
appeal of a specific state or federal legal theory or
theories shall constitute a waiver of all other state or
federal legal theories which could have been raised under
said factual issue; and any relief sought under this article
upon said facts but upon different state or federal legal
theories shall be procedurally barred absent a showing of
cause and actual prejudice.
(3) The doctrine of res judicata shall apply to all issues,
both factual and legal, decided at trial and on direct
(4) The term "cause" as used in this section shall
be defined and limited to those cases where the legal
foundation upon which the claim for relief is based could not
have been discovered with reasonable diligence at the time of
trial or direct appeal.
(5) The term "actual prejudice" as used in this
section shall be defined and limited to those errors which
would have actually adversely affected the ultimate outcome
of the conviction or sentence.
(6) The burden is upon the prisoner to allege in his motion
such facts as are necessary to demonstrate that his claims
are not procedurally barred under this section.
Miss. Code. Ann. § 99-39-21 (Rev. 2015).
The Court analyzes this issue in three parts.
Carr did not request a new hearing and thus waived the issue
Carr failed to timely request a new hearing in a motion
before the trial court after Carr III. Further, Carr
failed to timely raise the need for a new hearing in a motion
for reconsideration after the trial court entered its revised
order. Therefore, Carr has waived the issue on
appeal under Mississippi Code Section 99-39-21(1).
See Miss. Code Ann. § 99-39-21(1) (Rev. 2015).
We next consider whether Carr has shown the requisite
"cause" and "actual prejudice" necessary
to overcome the waiver.
Carr has not shown "cause" and "actual
prejudice" to overcome the waiver.
Section 99-39-21(1) requires "a showing of cause
and actual prejudice." Miss. Code Ann. §
99-39-21(1) (emphasis added). Carr claims that caselaw handed
down since the 2013 hearing and original order has
significantly changed the landscape of Atkins
jurisprudence, thus requiring a new hearing. We address only
the requirement of "actual prejudice," as it is
Hall v. Florida was decided in May 2014. Hall v.
Florida, 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007
(2014). In Hall, the United States Supreme Court
reevaluated its Atkins jurisprudence and held that
Florida's bright-line IQ score cutoff "bars
consideration of evidence that must be considered in
determining whether a defendant in a capital case has
intellectual disability." Id. at 723.
Hall made clear that an interrelated analysis was
required: "when a defendant's IQ test score falls
within the test's acknowledged and inherent margin of
error, the defendant must be able to present additional
evidence of intellectual disability, including testimony
regarding adaptive deficits." Id.
Here, in its revised order, the trial court noted that
Carr's IQ scores-ranging from 70 to 75 -"all fall on
or within the margin of error applicable to the test."
The trial court then analyzed the testimony of multiple
experts and witnesses about Carr's adaptive deficits. In
sum, the trial court conducted an interrelated analysis
between Carr's IQ score and his adaptive-skill deficits.
An interrelated analysis is what Hall requires.
Id. Moreover, the trial court examined and relied on
our opinion in Carr III, which discusses
Hall at length. Carr III, 196 So.3d at
933-35. Thus, the trial court complied with Hall,
and Carr is not entitled to a new hearing.
Moore I was decided in March 2017. Moore I,
137 S.Ct. at 1039. Moore I examined the Texas Court
of Criminal Appeals' use of certain factors in its
Atkins determinations. Id. at 1044. The
Moore I Court reiterated that "adjudications of
intellectual disability should be 'informed by the views
of medical experts'" and that the factors used by
the Texas Court of Criminal Appeals "'creat[e] an
unacceptable risk that persons with ...