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Carr v. State

Supreme Court of Mississippi, En Banc

June 6, 2019

ANTHONY CARR
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 09/25/2017

          QUITMAN COUNTY CIRCUIT COURT HON. CHARLES E. WEBSTER TRIAL JUDGE.

          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

          CHAMBERLIN, JUSTICE.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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 ").[1] In Carr I, we affirmed Carr's conviction. Id. at 858.

         ¶3. 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.[2] 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").

         ¶4. 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.[3]

         STATEMENT OF ISSUES

         ¶5. On appeal, Carr raises three issues. The State raises four issues. For the sake of clarity, we restate the issues as follows:

I. Whether the trial court erred by failing to hold a new evidentiary hearing.
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 eighteen.

         STANDARD OF REVIEW

         ¶6. 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).

         ANALYSIS

         I. Whether the trial court erred by failing to hold a new evidentiary hearing.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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 appeal.
(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).

         ¶10. The Court analyzes this issue in three parts.

         A. Carr did not request a new hearing and thus waived the issue on appeal.

         ¶11. 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.[4] 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.

         B. Carr has not shown "cause" and "actual prejudice" to overcome the waiver.

         ¶12. 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 dispositive.

         ¶13. 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.

         ¶14. 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.

         ¶15. 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 ...


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