Kenneth Leon Davis
was convicted of capital murder in the shooting death of Bobby Joe
Biggert, an off-duty polieman, during a robbery in Jackson,
Mississippi, on February 23, 1989.
Mississippi Supreme Court
Davis. v State
Kenneth Leon DAVIS v. STATE of Mississippi.
July 01, 2004
Office of Capital Post-Conviction Counsel by David
Paul Voisin, Robert M. Ryan, attorneys for appellant.Office of the
Attorney General by Marvin L. White, Jr., attorney for appellee.
¶ 1. Kenneth Leon Davis was convicted of capital
murder in the shooting death of Bobby Joe Biggert. A Hinds County
jury sentenced him to death. His direct appeal was affirmed by this
Court in 1991. Davis v. State, 660 So.2d 1228 (Miss.1995). The
United States Supreme Court denied certiorari, Davis v. Mississippi,
517 U.S. 1192, 116 S.Ct. 1684, 134 L.Ed.2d 785 (1996), and rehearing.
Davis v. Mississippi, 518 U.S. 1039, 117 S.Ct. 7, 135 L.Ed.2d 1102
¶ 2. Thereafter, Davis sought post-conviction
relief by filing a petition in the Mississippi Supreme Court. This
Court granted Davis permission to file his petition for
post-conviction relief in the Circuit Court of Hinds County. Davis
was allowed to present several specific claims of ineffective
assistance of counsel. All other claims were dismissed. After a
hearing, the trial judge determined that Davis had not shown any
constitutional deprivation of effective assistance of counsel. The
request for post-conviction relief was denied. Davis's appeal from
that order is before the Court.1
¶ 3. After a full review of the record at trial,
the transcript of the hearing on the post-conviction relief
proceedings and the briefs filed in this matter, the Court finds that
Davis received effective assistance of counsel and that the petition
for post-conviction relief was properly denied.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 4. The facts are thoroughly set out in Davis v.
State, 660 So.2d 1228 (Miss.1995). At approximately four o'clock in
the afternoon on February 23, 1989, Tammy Slaton was at work at Dr.
Duck's Pawn Shop in Jackson. Kenneth Davis entered the store,
pointed a pistol at her, and demanded that she give him the store's
cash. Davis also demanded the keys to Slaton's car which was parked
outside. Slaton gave Davis approximately $400 in cash and her keys.
Davis then forced her at gunpoint into a storeroom where he tied her
hands with a piece of bed sheet. While Davis was with Slaton in the
storeroom, Bobby Joe Biggert, an off-duty policeman, entered the
pawnshop as a customer. Biggert found no one in the main part of the
store and came into the storage area looking for assistance. Davis
immediately confronted Biggert with the pistol. Shortly thereafter,
Davis fired one shot from the small caliber pistol. The shot struck
Biggert in the head, and Biggert fell to the ground. Slaton asked
Davis not to hurt her, and Davis told her that he was not going to
hurt her. He fled the scene in Slaton's 1980 maroon Camaro. Slaton
was able to untie her wrists and call for help. Emergency personnel
rushed Biggert to the hospital but his wound proved to be fatal.
Biggert died two days after the shooting.
¶ 5. Law enforcement authorities immediately began
searching for the maroon Camaro. The car was found in a wooded area
near Lake Dockery in the Byram area. A search of the area around the
location of the automobile was conducted. Officers found a .22
caliber pistol, a box of .22 caliber ammunition, a hunting knife, a
knife scabbard, a pair of faded red overalls, a denim jacket, a
baseball type cap, and a hood. One identifiable fingerprint was
found on the knife. Authorities matched that fingerprint to a print
of Davis's which the F.B.I. had on file. The pistol was traced
through A.T.F. records to a house burglary in Jackson which occurred
the day before Biggert's shooting. After further investigation of
the burglary and after determining that Davis's fingerprint was on the
knife found near the stolen car, officers named Kenneth Davis as a
suspect in both the house burglary and the pawn shop shooting.
Pursuant to a warrant, officers performed a search of Davis's trailer
in Rankin County. Inside the trailer, officers found a white bed
sheet with a floral pattern. Part of the sheet had been torn or cut
away. The floral patterned sheet found in the trailer matched the
piece of sheet with which Slaton's hands had been tied. Officers
also found items stolen in the home burglary in Davis's trailer.
¶ 6. Police officers canvassed businesses in the
area around the pawn shop. At trial, two employees of the Dairy
Queen, located across the street from the pawn shop, testified that
Davis had been in the restaurant immediately prior to the robbery.
Two Dairy Queen customers also identified Davis and stated that Davis
had been in the Dairy Queen shortly before the shooting.
Additionally, a motorist on the street outside the pawn shop testified
that he saw Davis cross the street in front of him and walk into Dr.
Duck's. Perhaps the most damaging testimony to Davis was Slaton's
positive identification of him at trial as the robber and killer.
¶ 7. Davis was convicted of capital murder and was
sentenced to death. This Court affirmed the conviction and sentence.
Davis v. State, 660 So.2d 1228 (Miss.1995). Pursuant to Miss.Code
Ann. §§ 99-39-1 et seq., Davis sought post-conviction relief in this
Court. By order entered on June 26, 1997, this Court granted Davis
permission to pursue his petition for post-conviction relief in the
trial court. An order of clarification was entered by this Court on
September 11, 1997. In that order, this Court determined that Davis
could present five specific claims of ineffective assistance of
counsel in post-conviction proceedings. The Court determined that
all other claims raised in the petition for post-conviction relief
¶ 8. The Circuit Court of Hinds County held a
hearing on Davis's petition for post-conviction relief in December of
2001. At that hearing, Davis presented claims that his trial and
appellate attorneys had been ineffective. After the conclusion of
the hearing, the trial court denied Davis's request for
post-conviction relief, and this appeal ensued.
¶ 9. On appeal, Davis presents three issues related
to his claim that he did not receive effective assistance of counsel.
Davis was represented at trial and on appeal by William Kirksey and
Merrida Coxwell. At the time of their representation of Davis, both
attorneys had extensive criminal defense experience in both capital
and non-capital cases.
¶ 10. The standard for determining if a defendant
received effective assistance of counsel is well established. “The
benchmark for judging any claim of ineffectiveness [of counsel] must
be whether counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 466 U.S. 668, 686,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate
that his attorney's actions were deficient and that the deficiency
prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052.
“Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.” Stringer v.
State, 454 So.2d 468, 477 (Miss.1984), citing Strickland v.
Washington, 466 U.S. at 687, 104 S.Ct. 2052. The focus of the
inquiry must be whether counsel's assistance was reasonable
considering all the circumstances. Id.
Judicial scrutiny of counsel's performance must be
highly deferential. (citation omitted) ․ A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’
Stringer, 454 So.2d at 477; citing Strickland, 466
U.S. at 689, 104 S.Ct. 2052. Defense counsel is presumed competent.
Washington v. State, 620 So.2d 966 (Miss.1993).
Then, to determine the second prong of prejudice to
the defense, the standard is “a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991).
This means a “probability sufficient to undermine the confidence in
the outcome.” Id. The question here is
whether there is a reasonable probability that,
absent the errors, the sentencer-including an appellate court, to the
extent it independently reweighs the evidence-would have concluded
that the balance of the aggravating and mitigating circumstances did
not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.
There is no constitutional right then to errorless
counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v.
State, 584 So.2d 426, 430 (Miss.1991) (right to effective counsel does
not entitle defendant to have an attorney who makes no mistakes at
trial; defendant just has right to have competent counsel). If the
post-conviction application fails on either of the Strickland prongs,
the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987);
Mohr v. State, 584 So.2d 426 (Miss.1991).
Davis v. State, 743 So.2d 326, 334 (Miss.1999),
citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996).
¶ 11. Davis's claims of ineffective assistance of
I. Trial counsel was ineffective in failing to
“use an F.B.I. crime lab report to demonstrate that hair belonging to
someone else, not petitioner, was found on items of clothing
supposedly worn by the perpetrator.”
¶ 12. At trial, Slaton witnesses testified that
the perpetrator of the robbery and homicide had been wearing faded red
or orange overalls, a cap, and a hood. Several of the Dairy Queen
witnesses and Joe Larimore, who had seen Davis on the street as he
went into the pawn shop, also identified the red overalls, cap and
hood. Those three items were discovered by law enforcement officers
in the wooded area near where Slaton's Camaro was found. All three
were submitted to the FBI for hair and fiber analysis. The FBI
report notes that “No hairs like the known hairs of the suspect ․ were
found on or in specimen Q52 [the hood] ․ No hairs of value for
comparison purposes were found on the Q53 cap ․ [N]o hairs were found
on Q51 [the coveralls].”
¶ 13. The implication from the report is that no
hairs at all were found on the cap or the coveralls but that a hair or
hairs that did not match Davis's hair were found on the hood. Davis
now maintains that his attorneys at trial were ineffective in failing
to point out to the jury that someone else's hairs apparently were
found on the hood.
¶ 14. At trial, one of Davis's attorneys
cross-examined a Jackson homicide detective about the F.B.I. hair
Q. So the hood, the baseball cap, and the pair of
coveralls was submitted to the FBI? That's what this report says?
A. Yes. That's what that one says.
Q. And the request was for-for you or for the
bureau to do a hair and fiber examination; is that correct? That's
what these reports say; isn't it?
A. That's correct.
Q. Is it safe to say, or since you and I do this a
lot, that when you make these requests, Mr. Crisco, is what they do is
they take the known hair and-known hair from a defendant, examine any
fibers or hairs that they get from the evidence submitted, and see if
there's any matching or similar to character-characteristics? Isn't
that what they do?
A. That's correct.
Q. And then if there is a match they will send you
back a report saying: On known sample K1, being a hat, or whatever
the item is, we find that this-this item contains hair of a similar
character as that of the suspect provided as known exhibit two?
A. Yes. Yes.
Q. That's basically what they do?
Q. Did you ever receive any report from the Bureau,
FBI Bureau, Federal Bureau of investigation, in Washington, D.C.,
telling you that there were any hairs from these items that matched
that of the Defendant in this case, to your knowledge?
A. To my knowledge, we did not receive a report
from the FBI in regards to that information.
Davis's trial attorney adequately demonstrated to
the jury that no hair found on the hood matched Davis's hair. Davis
claims, however, that his attorneys failed to elicit testimony from
the witness that there were hairs on the hood that belonged to someone
other than the defendant.
¶ 15. Both of Davis's trial attorneys were
questioned on this issue at the post-conviction relief hearing. Both
testified that they felt that the cross-examination had been
sufficient and that any issue regarding hair on the hood, cap, or
coveralls had been adequately covered. We agree. Exculpatory
information was imparted to the jury through the defense's examination
of the witness in question. The F.B.I. report was admitted into
evidence and was available for the jury's review. The jury was
informed that Davis's hairs were not found on any of the items
submitted to the F.B.I. for analysis. Although in hindsight, the
attorneys might have been well advised to ask the subsequent questions
about other persons' hairs, we do not find that the failure to ask
those questions amounted to ineffective assistance of counsel.
Perfect representation in hindsight is not the standard, and the
accused is not entitled to errorless counsel. Stringer v. State, 454
So.2d at 476. “The Sixth Amendment guarantees reasonable competence,
not perfect advocacy judged with the benefit of hindsight.”
Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 4, 157 L.Ed.2d 1
(2003), citing Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152
L.Ed.2d 914 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382, 106
S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, 466 U.S. at 689, 104
S.Ct. 2052; United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct.
2039, 80 L.Ed.2d 657 (1984).
¶ 16. To establish ineffectiveness, Davis must
show that his attorneys' representation fell below an objective
standard of reasonableness. To establish prejudice he must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the trial would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Williams v. Taylor, 529 U.S.
362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), citing
Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052. The question is
whether the defendant's attorneys made errors so serious that the
attorneys failed to function as “counsel” guaranteed by the Sixth
Amendment and that the deficiencies in the representation actually
prejudiced the defense such that but for counsel's deficient
performance the result of the proceeding would have been different.
Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
¶ 17. After hearing the testimony offered by
Davis at the hearing on the petition for post-conviction relief, the
trial court determined that the attorneys' performance had not been
deficient and that Davis had suffered no prejudice. This Court
reviews a trial court's findings on ineffective assistance of counsel
on a clearly erroneous standard. State v. Pittman, 744 So.2d 781, 786
¶ 18. Davis's attorneys were presented with a
difficult case to defend. Their client had been positively
identified by Slaton. Five other eyewitnesses placed Davis near the
scene of the crime shortly before the crime occurred. The piece of
floral bed sheet used to bind Slaton's hands during the robbery came
from a sheet in the trailer where Davis was living. Davis's
fingerprint was found on the knife discovered near Slaton's abandoned
car. Items taken in the same burglary in which the murder weapon was
stolen were found in Davis's house. Under the totality of the
circumstances and after reviewing the entire trial transcript, we find
that Davis has not shown that his trial and appellate attorneys were
¶ 19. We find that under no objectively
reasonable basis could it be shown that Davis was not afforded
effective assistance of counsel in relation to the hair and fiber
evidence. The detective was cross-examined vigorously by Davis's
attorneys. Through the F.B.I. report, the attorneys showed that no
hair of Davis's was found on any item of clothing in evidence. We
agree with the trial court and find that the representation received
by Davis here was more than adequate under the standards set out
II. Davis's trial attorneys were ineffective in
failing to adequately object to false evidence concerning the
aggravating circumstance that “the capital offense was committed by a
person under sentence of imprisonment.”
¶ 20. During the sentencing phase, the State
attempted to prove several statutory aggravating factors. The State
offered evidence that Davis had been on parole and under sentence of
imprisonment at the time of Biggert's killing. The State offered
proof that Davis had been convicted of two counts of burglary in
Louisiana in 1983. The State also showed that Davis had been
convicted of burglary in Scott County in 1985. Finally, the State
showed that Davis had convictions for possession of a concealed
firearm by a convicted felon and felony escape from Forrest County in
1985. The State alleged that Davis was still under parole conditions
for each of those five convictions and thus met the requirements for
the aggravator of being under a sentence of imprisonment. The jury
found that the murder had been committed while Davis was under
sentence of imprisonment and that aggravating factor was used as a
basis for the penalty of death. Davis now claims that he should not
have been considered to have been on parole for the two Forrest County
convictions for aggravator purposes and that his attorneys did not
sufficiently contest that issue at trial and on appeal.
¶ 21. During the sentencing phase, the State
called the Assistant Director for the Louisiana Division of Probation
and Parole who testified unequivocally that Davis was on parole in
Louisiana for the two burglary convictions he had there. The State
also called a Field Officer with the Mississippi Department of
Corrections who testified that Davis had been paroled in 1988. He
was paroled after serving a portion of the three consecutive sentences
he was then serving.
¶ 22. Davis faults his attorneys for failing to
make an adequate objection to the State's use of the two Forrest
County convictions. He claims that the two year sentence for
carrying a concealed weapon and the three year sentence for escape
were expired by the time of the crime and that they should not have
been presented to the jury as a basis for a finding that the killing
was done while Davis was on parole. The attorneys actually objected
repeatedly to any use of the Forrest County sentences as support for
the “under sentence of imprisonment” aggravator. They then raised
that issue on appeal. In the appellant's brief in the direct appeal,
his attorneys argued that:
Mr. Davis was not on parole for escape, i.e., not
“under sentence of imprisonment for escape” ․ In objecting to the
admission of this conviction the defense illustrated that Davis had
served the time on both the three-year sentence for escape and a
consecutive two-year sentence [the carrying a concealed weapon
conviction] handed down the same day. The defense argued that
because Davis was sentenced to these charges prior to the seven-year
sentence from Scott County, he would serve those sentences before he
started serving the seven-year sentence. The trial court overruled
this objection. That ruling was clearly erroneous. Milam v. State,
578 So.2d 272 (Miss.1991) (where person is sentenced to consecutive
terms, “imprisonment on the second, or subsequent conviction, shall
commence at the completion of the service of the term for the
¶ 23. The issue therefore was substantially
raised in the direct appeal by Davis's attorneys. This Court
explicitly found that the State's commenting on the escape conviction
was not improper. Davis, 660 So.2d at 1228-29.
¶ 24. At trial, Davis's attorneys made specific
objections to the use of the Forrest County convictions. Those
objections were overruled. The issue was raised on appeal but this
Court affirmed the conviction and sentence. Davis maintains that his
attorneys should have offered additional argument on purportedly
relevant cases and statutes. Again, mere hindsight is insufficient
to establish a claim of ineffective assistance. The fact remains
that the claim was raised repeatedly before the circuit judge and was
brought before this Court on appeal. We find no ineffective
assistance of counsel where the attorneys raised the claims at trial
and on appeal.
¶ 25. Additionally, even if the Forrest County
convictions were improperly used as support for the aggravating
circumstance of commission of the crime while under sentence of
imprisonment, the State still more than amply produced evidence that
Davis was in fact under sentence of imprisonment when he shot and
killed Bobby Joe Biggert. It was unrefuted that Davis was still on
parole in Louisiana at the time of the crime. He also was on parole
from his Scott County burglary conviction. The “while under sentence
of imprisonment” aggravator applied even if the escape and concealed
weapon convictions had not been used. The jury had more than
sufficient proof to find that that aggravating circumstance existed
even in the absence of the escape and concealed weapon convictions.
¶ 26. Finally, Davis's jury found two separate
aggravating circumstances. The jury found that the capital murder
was committed intentionally while Davis was engaged in the commission
of armed robbery or flight after committing the armed robbery and that
the capital murder was committed for pecuniary gain. In McGilberry
v. State, 843 So.2d 21, 29 (Miss.2003), this Court held that “[i]f one
aggravator is found to be invalid, we are authorized to reweigh the
remaining aggravators against the mitigating circumstances and affirm,
hold the error to be harmless, or remand for a new sentencing hearing.
Miss.Code Ann. § 99-19-105(5)(b) (Rev.2000).” Here, even if the
aggravating circumstance related to commission of the crime while
under sentence of imprisonment were discarded, the Court finds that
the sentence of death should be affirmed. The jury found that the
killing occurred in the course of the pawn shop robbery and that the
killing was done for pecuniary gain. Given the evidence at trial,
those findings are unassailable. Even if the aggravating factor at
issue were thrown out, after reweighing the remaining factors, the
Court would affirm Davis's death penalty. We find no error here.
III. Conflict of interest.
¶ 27. William Kirksey and Merrida Coxwell
represented Davis at trial and on appeal. Bobby Delaughter,
Assistant District Attorney for Hinds County, prosecuted the case for
the State. Kirksey, along with another lawyer, had represented
Delaughter in Delaughter's divorce proceedings. Davis claims that
Kirksey represented him while under a conflict of interest and that he
is entitled to a new trial with new counsel.
¶ 28. Kirksey testified at the post-conviction
relief hearing that Davis had been informed of Kirksey's
representation of Delaughter in the divorce case and that Davis had
voiced no objection to continued representation by Kirksey. While
there was no on-the-record waiver by Davis of any conflict, Kirksey's
testimony that Davis was informed about the nature of Kirksey's
relationship with Delaughter was fully explained to Davis and that
Davis had posed no objection was not contradicted at the
post-conviction relief hearing. Kirksey also testified that another
attorney was primarily responsible for handling Delaughter's divorce.
Kirksey testified that the fact that he knew Delaughter and had
represented him is “never going to change what I do inside the rail.
My loyalty is to the oath I took and to do the best I could do inside
the rail for my client. And I, quite frankly, don't care who's on
the other side period ․ If anything, my knowledge of Bobby Delaughter
would have aided and assisted me in the defense of Kenny Davis because
I anticipated what Bobby Delaughter might do.”
¶ 29. Judge William Coleman, former Hinds County
circuit judge who presided over Davis's trial, testified in the
post-conviction proceedings that Delaughter and Kirksey were often on
opposing sides in criminal trials and that he had not observed any
“pulled punches” from either lawyer. Judge Coleman testified that in
his opinion “Mr. Kirksey wanted to win every case he walked in in the
¶ 30. The United States Supreme Court has stated
that “[p]rejudice is presumed only if the defendant demonstrates that
counsel ‘actively represented conflicting interests' and that an
‘actual conflict of interest adversely affected his lawyer's
performance.’ ” Strickland v. Washington, 466 U.S. at 692, 104 S.Ct.
2052 (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64
L.Ed.2d 333 (1980)).
¶ 31. In Simmons v. State, 805 So.2d 452
(Miss.2001), one of the defendant's attorneys had apparently
represented one of the State's witnesses and that witness's father in
unrelated matters prior to Simmons's trial. This Court held that
“[t]here is no evidence in the record to suggest that defense counsel
acted in some manner other than capabl[y]. Id. at 480.
¶ 32. In Simmons, even though there might have
been a facial conflict of interest, this Court found that there had
been no showing of any ineffective assistance of counsel. The
defendant there failed to present any evidence that his defense had
been harmed by the purported conflict. We make the same finding
here. A thorough review of the trial record reveals that Davis
received zealous representation from Kirksey and Coxwell. There is
nothing in the record which indicates a lack of full loyalty to Davis
and his defense. Davis has not shown that his defense suffered any
prejudice whatsoever as a result of Kirksey's representation of
Delaughter in Delaughter's divorce proceedings. As discussed above,
the evidence against Davis was close to overwhelming. The victim of
the robbery testified that Davis had done it. The strip of sheeting
used to tie Slaton's hands matched the sheet in Davis's trailer.
Five eyewitnesses saw Davis in the area near the time of the crime.
As there is absolutely no resulting prejudice, the claim for relief
based on the conflict of interest is without merit.
IV. The trial judge's rulings.
¶ 33. Davis complains that various trial court
rulings during the post-conviction proceedings unfairly limited his
right to seek relief. He primarily complains that the trial judge
denied his attempts to broaden the scope of the proceedings and that
the trial judge did not allow his post-conviction attorneys sufficient
time in which to present and prepare for the hearing on his
post-conviction petition. He admits in his brief that those rulings
do not entitle him to any relief. With that in mind, we treat this
issue somewhat cursorily.
¶ 34. This Court remanded this matter for a
limited hearing on five specific claims of ineffective assistance of
counsel. The scope of the trial court's proceedings was therefore
limited to matters specifically noted in this Court's order. Davis
apparently abandoned two of those claims and pursued the three
outlined above. The petitioner also sought to amend the petition in
the trial court to include various issues related to Batson v.
Kentucky, the seating of juror Margie Dill, ineffectiveness of counsel
in failing to object to prosecutorial misconduct, and claims related
to alleged duplicative aggravating factors. Those claims were not
among the claims specifically authorized for hearing in this Court's
order dated September 11, 1997. Some, if not all of those claims are
presently before the Court in pleadings discussed in footnote one.
This Court finds that the trial judge did not err in declining to
allow Davis to amend his petition to add new claims for relief. This
Court's prior order explicitly limited the scope of the lower court
proceedings to five specific claims. The trial court had no
jurisdiction to address any claims outside those specifically
addressed in this Court's remand order. See Culberson v. State, 456
So.2d 697 (Miss.1984). The trial court therefore did not err in
declining to broaden the scope of the hearing or to allow a proffer on
the proposed new claims. Davis apparently recognized that the proper
forum to file those amended claims was this Court. He filed a
request to pursue amended post-conviction claims here. The new
claims will be addressed in due course.
¶ 35. Davis claims that he was prejudiced by the
State's failure to produce discovery in a timely manner. He admits,
however, that the State's discovery was produced in March of 2001.
The hearing was not held for another eight and a half months. Davis
also maintains that he had insufficient time to review Kirksey's file
but he makes no substantive showing of any prejudice whatsoever. The
Court finds no prejudicial error here. Davis had more than
sufficient time to review the discovery material prior to the hearing
in December of 2001.
¶ 36. Davis also claims that the trial judge
unfairly required him to proceed without sufficient time to prepare.
The hearing was held on December 3, 2001. In October of 2000, C.
Jackson Williams, the former director of the Office of Capital
Post-Conviction Counsel was appointed to assist Davis, who initially
elected to proceed pro se. In June of 2001, Williams was allowed to
withdraw from his advisory counsel position after a Louisiana lawyer
entered an appearance on behalf of Davis. On August 22, 2001, the
Louisiana attorney was allowed to withdraw, and Williams was again
appointed to represent Davis. At that time, the parties agreed that
the hearing on Davis's petition for post-conviction relief would be
held on December 3, 2001. At the hearing in August of 2001, Williams
sought a hearing in late November or early December. In accordance
with Williams's wishes, the hearing was set for December. Williams
and another attorney from the Office of Capital Post-Conviction
Counsel appeared on behalf of Davis at the hearing on December 3,
2001. They sought additional time for the Court to consider their
attempt to amend the petition and to prepare a proffer of proof after
the amendment was denied. It does not appear that counsel for Davis
at the post-conviction hearing requested additional time in which to
prepare for the hearing itself. The only request was for additional
time to prepare the proffer or to allow the State time to respond to
the proffer. In light of the fact that counsel had been appointed
three and a half months prior to the hearing after having already
served a stint as counsel for Davis, that counsel for Davis agreed to
the hearing date, and that counsel did not seek additional time to
prepare for the hearing, the Court finds no error in the denial of the
motion for continuance.
¶ 37. The bulk of the claim here is outside the
scope of the remand order entered by this Court. Therefore, no
relief is warranted. The Court finds no trial court error in the
administration of the post-conviction proceedings.
¶ 38. After a complete review of the trial and
appellate record in the underlying case, the Court finds that Davis
has made no showing that he received ineffective assistance of
counsel. Davis was represented by two very capable attorneys who,
from the face of the record, diligently and zealously represented
their client in an uphill fight. The Court further finds no error in
the trial court's decisions to decline to expand the hearing outside
the explicit authorization provided in this Court's order and to deny
Davis's request for continuance. Therefore, we affirm the circuit
court's order denying post-conviction relief.
¶ 39. AFFIRMED.
has also filed motions to amend his post-conviction pleadings and
other motions. The only matters addressed herein are those raised in
the appeal from the circuit court's denial of Davis's petition for
post-conviction relief. The other motions will be decided in due
WALLER, Presiding Justice, for the Court.
COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. SMITH, C.J., AND DIAZ, J., NOT PARTICIPATING.
Kenneth Leon Davis