                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2003-DR-01317-SCT

WILLIAM L. WILEY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                               2/3/1995
TRIAL JUDGE:                                    HON. ANDREW C. BAKER
COURT FROM WHICH APPEALED:                      DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                        JAMES McLAUGHLIN
                                                ROBERT B. McDUFF
                                                MARK E. FELDMAN
                                                TIMOTHY C. HESTER
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
                                                BY: MARVIN L. WHITE, JR.
NATURE OF THE CASE:                             CIVIL - DEATH PENALTY - POST
                                                CONVICTION
DISPOSITION:                                    WILLIAM L. WILEY'S APPLICATION FOR
                                                LEAVE TO FILE MOTION TO VACATE DEATH
                                                SENTENCE ON THE BASIS OF ATKINS V.
                                                VIRGINIA, 536 U.S. 304 (2002), DENIED -
                                                08/26/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       EASLEY, JUSTICE, FOR THE COURT:

                                  STATEMENT OF THE CASE

¶1.    William L. Wiley (Wiley) was charged with capital murder in a DeSoto County robbery that left

store owner J.B. Turner dead and his daughter seriously injured as well as blind.1 Wiley lay in wait for



       1
        The complete factual scenario is set out in Wiley v. State, 449 So.2d 756 (Miss. 1984).
some time outside the store for Turner and his daughter and then shot and robbed them as they were

closing the store. The sawed-off shotgun used in the murder was traced to Wiley, who was later arrested

and subsequently confessed. Wiley was tried, convicted, and sentenced to death in 1982.

¶2.    On direct appeal his conviction was affirmed by this Court, but the case was remanded for re-

sentencing because of comments made by the prosecutor regarding appellate review. Wiley v. State,

449 So.2d 756 (Miss. 1984). Wiley was again sentenced to death in 1984, and this Court affirmed the

case. Wiley v. State, 484 So.2d 339 (Miss. 1986). His petition for rehearing was denied by this Court

as was his petition for writ of certiorari to the United States Supreme Court. Wiley v. Mississippi, 479

U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278, reh'g denied, 479 U.S. 999, 107 S.Ct. 604, 93 L.Ed.2d

604 (1986). Thereafter, Wiley filed a petition for post-conviction relief that was denied by this Court.

Wiley v. State, 517 So.2d 1373 (Miss. 1987). His motion for rehearing was denied, and again the

United States Supreme Court declined review of the case. Wiley v. Mississippi, 486 U.S. 1036, 108

S.Ct. 2024, 100 L.Ed.2d 610, reh'g denied, 487 U.S. 1246, 109 S.Ct. 6, 101 L.Ed.2d 957 (1988).

¶3.    Wiley then filed a petition for a writ of habeas corpus that was denied by the U.S. District Court

via unpublished opinion. He appealed to the U.S. Court of Appeals for the Fifth Circuit which held that

Wiley's death sentence was improper because the sentencing jury was improperly instructed as to the

"especially heinous, atrocious or cruel" aggravating circumstance. Wiley v. Puckett, 969 F.2d 86 (5th

Cir. 1992). This Court remanded for a new sentencing hearing. Wiley v. State, 635 So.2d 802 (Miss.

1993). In 1995, Wiley was again sentenced to death. Wiley appealed, and this Court affirmed. Wiley

v. State, 691 So.2d 959 (Miss. 1997), reh'g denied, 693 So.2d 384 (Miss. 1997)(motion for




                                                   2
substitution of counsel granted),cert. denied, Wiley v. Mississippi, 522 U.S. 886, 118 S.Ct. 219, 139

L.Ed.2d 153 (1997).

¶4.     Also in 1997, Wiley filed a pro se motion to stay execution and to appoint an attorney in the

United States District Court. The district court denied the motion in an unpublished order. He appealed

to the Fifth Circuit, which entered an unpublished order staying the execution and remanding the case to

the district court. On January 16, 1998, the district court appointed Thomas Levidiotis (Levidiotis) as

counsel and ordered that the habeas petition be filed within sixty (60) days. Shortly thereafter, Robert B.

McDuff (McDuff), present counsel, filed a motion to vacate the appointment of Levidiotis and substitute

himself as counsel without payment which was granted by the district court.

¶5.     McDuff and Timothy C. Hester, Brian Miller and Anthony Picarello, Jr., of the Washington, D.C.,

firmof Covington & Burling, then filed a motion for post-conviction relief on Wiley's behalf that was denied

by this Court in June of 1999. Wiley v. State, 750 So.2d 1193 (Miss. 1999). His motion for rehearing

was denied, and the United States Supreme Court denied certiorari. Wiley v. Mississippi, 530 U.S.

1275, 120 S.Ct. 2742, 147 L. Ed. 2d 1007 (2000). Also in June of 1999, McDuff and counsel filed a

motion for appointment of compensated counsel and funding for litigation expenses, but it was denied by

this Court in January of 2000. Wiley then filed an Application for Leave to file Motion to Vacate Death

Sentence seeking collateral review of the denial of his motion for appointment of compensated counsel and

litigation funding, and asking for leave to present new claims of ineffective assistance of counsel. This Court

denied the application. Wiley v. State, 842 So.2d 1280 (Miss. 2003). Wiley apparently still has a

petition for habeas corpus pending in the U.S. District Court.

¶6.     On June 19, 2003, Wiley filed a successive application for leave to file a motion to vacate the death

sentence based on the U.S. Supreme Court decision in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.

                                                      3
2242, 153 L. Ed. 2d 335 (2002). Wiley asserts that Atkins is an intervening decision affecting a

fundamental right and allows him to seek relief on the basis that he is mentally retarded and no longer

eligible for imposition of the death penalty. We find that Wiley’s claim is without merit and that the

application should be denied.

                                                 ANALYSIS

¶7.     In Atkins, 122 S. Ct. 2242, the United States Supreme Court determined that imposition of the

death penalty on mentally retarded inmates constituted cruel and unusual punishment in violation of the

Eighth Amendment to the United States Constitution. The Atkins decision did not define who is or is not

mentally retarded for purposes of eligibility for a death sentence but instead "leave[s] to the State[s] the task

of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences."

122 S. Ct at 2250.

¶8.     In Foster v. State, 848 So.2d 172 (Miss. 2003), it was alleged that Ron Chris Foster had an IQ

score of 80 from a test done at Whitfield in 1990, but the source of this score could not be found in the

appeal record. This Court found that IQ alone was not determinative under Atkins. Foster had the

following scores on the Wechsler test in December 2002, just before his scheduled execution: verbal IQ

of 68, performance score of 59 and a full scale score is 62. He further produced evidence to the effect that

he had always been in special or remedial classes. Dr. Marc Zimmerman, who administered the tests,

stated that the results were "consistent with a diagnosis of mental retardation." Foster, 848 So.2d at 174.

This Court granted leave to proceed in the trial court on the issue of mental retardation and provided the

following standards:

        To that end the standard or definition of mental retardation shall be that enunciated by the
        Supreme Court in Atkins, especially the American Psychiatric Association's definition of
        mental retardation. American Psychiatric Association, Diagnostic and Statistical Manual

                                                       4
        of Mental Disorders IV 39-46 (4th ed.1994). We further hold that the Minnesota
        Multiphasic Personality Inventory-II (MMPI-II) is to be administered since its associated
        validity scales make the test best suited to detect malingering. See id. at 683 (defining
        malingering as the "intentional production of false or grossly exaggerated physical or
        psychological symptoms, motivated by external incentives such as avoiding military duty,
        avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining
        drugs"). See also United States v. Battle, 235 F.Supp.2d 1301, 1307 (N.D.Ga.2001)
        (explaining MMPI and its validity scales and stating that "[t]he MMPI is generally agreed
        to be difficult to cheat on without getting caught"). Foster must prove that he meets the
        applicable standard by a preponderance of the evidence pursuant to Miss. Code Ann. §§
        99-39-23(7). This issue will be considered and decided by the circuit court without a jury.

Foster, 848 So.2d at 175.

¶9.     Mental retardation is defined by the American Psychiatric Association as significantly sub-average

general intellectual functioning accompanied by significant limitations in adaptive functioning in two skill

areas, such as communication, self-care, home living, social/interpersonal skills, use of community

resources, self-direction, functional academic skills, work, leisure, health and safety.2 The onset of this must

occur before age 18. The American Psychiatric Association also provides that mild mental retardation is

typically used to describe someone in the IQ range of approximately 50 to 70.3

¶10.    In Russell v. State, 849 So.2d 95 (Miss. 2003), Willie Russell was found by one doctor to have

a full scale IQ of 68, which indicated that Russell was functioning within the upper range of the mildly

mentally retarded category of intelligence. Another doctor testified that Russell's IQ was 76, "borderline

to low normal," and that he was not retarded. Evidence was also presented concerning Russell's life before

and during his imprisonment. Russell too was granted leave to proceed on this lone issue.




        2
        American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41 (4th
ed. 2000).
        3
         Id. at 42-43.

                                                       5
¶11.    In Goodin v. State, 856 So.2d 267 (Miss. 2003), Howard Goodin relied on evidence which

showed that he had a verbal IQ of 65, a performance IQ of 60, for a full scale IQ 60 on the Wechsler Test.

On the Shipley test, Goodin had obtained an estimated IQ of 50, within the mildly mentally retarded range.

Goodin could read at a second grade level and do math at a first grade level. The trial court reported

Goodin's intelligence level was "low (IQ below 70)." Goodin produced school records showing poor

performance and affidavits from relatives discussing his strange behavior. The State relied on evidence

showing that Goodin had intentionally not done as well as he was capable on the IQ tests, that he had no

significant neuropsychological problems, and that his behavior during the shooting/robbery at issue and on

the witness stand at trial undermined his claim of retardation. This Court nonetheless granted Goodin leave

to proceed in the trial court on this issue.

¶12.    More recently, this Court remanded Carr v. State, 873 So.2d 991 (Miss. 2004), to the trial

court for an evidentiary hearing to determined whether Carr is still eligible for the death penalty. Carr

scored in the mildly mentally retarded range on the WAIS-R (Performance IQ=63; Verbal IQ=72; Full

Scale IQ=70). However, the Court also held that the trial court has discretion to limit the scope of the

evidentiary hearing based on the thoroughness of a prior evaluation.

¶13.    In Chase v. State, 873 So.2d 1013 (Miss. 2004), this Court granted Chase’s application to

proceed in the trial court on the issue of his alleged mental retardation. In doing so, this Court held:

        [N]o defendant may be adjudged mentally retarded for purposes of the Eighth
        Amendment, unless such defendant produces, at a minimum, an expert who
        expresses an opinion, to a reasonable degree of certainty, that:

        1.       The defendant is mentally retarded, as that term is defined by the American
                 Association on Mental Retardation and/or The American Psychiatric Association;
        2.       The defendant has completed the Minnesota Multiphasic Personality Inventory-II
                 (MMPI-II) and/or other similar tests, and the defendant is not malingering.


                                                     6
Chase, 873 So.2d at 1028 (emphasis added). Chase scored a Performance IQ of 64, a Verbal IQ of

77 and a Full Scale IQ of 71. Chase also submitted an affidavit from a psychiatrist stating that he suffers

from mild mental retardation.

¶14.    In the case sub judice, Wiley asserts that in May of 2003 he was tested by Dr. Daniel Grant and

scored a Performance IQ of 68, a Verbal IQ of 73 and a Full Scale IQ of 68 on the Wechsler Adult

Intelligence Scale - III (WAIS-III). He attaches an affidavit from Dr. Grant that his Full Scale IQ of 68

places his level of intelligence within the mentally retarded range. Dr. Grant further asserts that Wiley meets

the other two definitional criteria for mental retardation in that he has deficits in adaptive behavior in at least

two defined areas and that the manifestation of mental retardation was by age 18. Wiley asserts that he

has severe deficits in adaptive behavior in communication, functional academics and health and safety.

¶15.    Prior to 2003, Wiley was tested in 1987 and 1994 under the Wechsler Adult Intelligence Scale -

Revised (WAIS-R) exam by Dr. Billy R. Fox. Wiley asserts that in 1987 he scored a Verbal IQ of 75,

a Performance IQ of 72 and a Full Scale IQ of 73. Dr. Fox concluded that Wiley’s Full Scale score

placed him in the borderline mentally retarded range. In 1994, Wiley scored a Verbal IQ of 74, a

Performance IQ of 83 and a Full Scale IQ of 78. Dr. Fox concluded that Wiley was “within the borderline

mentally retarded range with slightly better developed and/or functioning performance than verbal abilities.”

¶16.    Wiley attaches school records indicating that he performed poorly throughout school, that he

repeated the fifth and sixth grades and that he dropped out after the eighth grade. Wiley asserts that these

school records establish the manifestation of mental retardation by age 18. However, the school records

also indicate that Wiley had a very poor attendance record, missing 59 days in one year, 36 in another and

still 31 in another, and that he actually repeated the sixth grade because he dropped out the first time.

Wiley’s attendance record reflects that his best academic performance occurred in the sixth grade when

                                                        7
he had only ten absences, which was the least number of his academic career. Further, there is no

indication that Wiley was in special education classes. Also, there is an affidavit from Wiley’s grandmother,

JoAnn Butler, with whom he lived and who characterizes Wiley’s academic achievements by saying he did

“pretty well in school.” Both Wiley and Butler represent that Wiley quit school to go to work.

¶17.    The State does not contest that Atkins is an intervening decision, but asserts that Wiley does not

meet the test set out by this Court to determine whether he is mentally retarded and therefore not subject

to the death penalty. The State asserts that any test done post-Atkins should automatically be suspect

when prior test results did not demonstrate retardation. The State also questions the credentials of Dr.

Grant and attaches an article detailing a scandal involving one of the organizations granting him certification.

The State asserts that the affidavits and reports reviewed by Dr. Grant are already on file with this Court

as attachments to pleadings in 1987 and 1993 and that they totally discredit the notion that Wiley is

retarded. The affidavits of Wiley’s friends and relatives assert that Wiley was a good husband, father, son

and grandson, that he was a good, reliable worker with steady employment at various employers, that he

performed household maintenance, repaired automobiles, babysat children, ran errands, supported his

family and did numerous other things. Wiley was also in the Army until injuring his leg and getting honorably

discharged. The State asserts that the affidavits do not allege or establish that Wiley is mentally retarded.

We agree.

¶18.    In his last motion for post-conviction relief, Wiley argued that he received ineffective assistance of

counsel because his attorney did not present certain mitigating evidence.4 Wiley did assert that his counsel

failed to present evidence of various mitigating factors, including that he had suffered a head injury, been



        4
         Wiley v. State, 842 So.2d 1280 (Miss. 2003).

                                                       8
exposed to traumatic events, and did poorly in school. However, there was no suggestion that his counsel

failed to present mitigating evidence that Wiley is mentally retarded and ineligible for the death penalty. This

Court found that issue to be without merit and that any relevant testimony was introduced by other

witnesses. There was also evidence introduced that Wiley spends a great deal of his prison time studying

the Bible, reading and writing to pen pals.

¶19.    In an earlier motion for post-conviction relief, Wiley argued that the trial court erred in failing to

instruct the jury on the mitigating factor of diminished capacity.5 Wiley asserted:

        The evidence in this case provided more than sufficient basis for a rational jury to infer, by
        a mere preponderance of the evidence, that Wiley suffered from diminished capacity at the
        time of the shooting: Wiley had suffered head injuries as a child, had an I.Q. below 80, and
        had been drinking and taking drugs soon before the shooting.

Wiley had previously raised this same argument on direct appeal, and this Court rejected it.

¶20.    Now Wiley apparently wants this Court to disregard the prior evidence and find that he is mentally

retarded. The prior evidence does not support Wiley’s claim that he is retarded, and we agree with the

State’s following characterization:

        These reports, affidavits and testimonies do not paint the picture of a retarded person.
        Simply because retarded people do not operate heavy machinery, retarded people do not
        drive tractors, retarded people do not hold jobs for much longer than a year at a time,
        much less work two jobs at a time, retarded people are not admitted to the radio operator
        school of the Army, retarded people do not get drivers licenses, buy cars and drive cars.
        Further, retarded people do not support families and see to it that all the bills are paid,
        retarded people do not see to the care of others and make sure they have enough money,
        a nice house, and school clothes.




        5
         Wiley v. State, 750 So.2d 1193 (Miss. 1999).

                                                       9
¶21.    This Court spoke of evolving standards in Chase, 873 So.2d at 1024. We now find it necessary

to expand on the procedure to be used in reaching a determination of mental retardation by holding that

this Court will consider the entire record before it in deciding whether to grant an Atkins hearing.

¶22.    The standard set out by this Court in Chase, 873 So.2d at 1028, and cited herein establishes the

minimumrequirements for a person to be adjudged mentally retarded. This Court said “[n]o defendant may

be adjudged mentally retarded. . . unless” that defendant produces an expert opinion that the defendant

is retarded and has completed the MMPI-II. That does not mean that every defendant who submits an

expert opinion to this Court and has completed the MMPI-II will be adjudged mentally retarded for the

purposes of Atkins. Further, Wiley does not even assert that he has completed the MMPI-II or some

similar test to show that he is not malingering. There is a mention of the MMPI-II in the 1987 affidavit of

Dr. Fox, but nothing in this most recent motion.

¶23.    As stated previously, mental retardation is defined as significantly sub-average general intellectual

functioning accompanied by significant limitations in adaptive functioning in two skill areas, the onset of

which occurred before age 18. At best, Wiley and his experts allege borderline mental retardation. Wiley

also asserts significant limitations in adaptive functioning. However, the affidavits, testimony and statements

of Wiley and his friends and family, overwhelmingly dispute such an assertion. Wiley asserts that the onset

of his mental retardation occurred before age 18. However, Wiley was first tested in 1987 when he was

almost 33 years old. Wiley argues that his school records establish manifestation before age 18. We find

that Wiley’s school records are not sufficient to establish mental retardation. Further, we find that the

overwhelming weight of the evidence resolves the issue of borderline intelligence and shows that Wiley was

not mentally retarded before age 18. The record shows that Wiley was a normal, productive citizen, who



                                                     10
was never characterized as “mentally retarded” until such time as being mentally retarded became critically

important in the realm of post-conviction relief.

                                            CONCLUSION

¶24.    Wileypresents insufficient evidence that he suffers from significantly sub-average general intellectual

functioning accompanied by significant limitations in adaptive functioning in two skill areas, the onset of

which occurred before age 18. Accordingly, we deny William Wiley's Application for Leave to File

Motion to Vacate Death Sentence on the basis of Atkins v. Virginia, 536 U.S. 304 (2002).

¶25. WILLIAM WILEY'S APPLICATION FOR LEAVE TO FILE MOTION TO
VACATE DEATH SENTENCE ON THE BASIS OF ATKINS V. VIRGINIA, 536 U.S. 304
(2002), DENIED.

     SMITH, C.J., WALLER, P.J., CARLSON AND RANDOLPH, JJ., CONCUR.
COBB, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION JOINED BY DICKINSON, J. DIAZ AND GRAVES, JJ., NOT
PARTICIPATING.


     COBB, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:


¶26.    I agree with the majority’s position that this Court will always consider the entire record before it

in deciding whether to grant an Atkins/Chase evidentiary hearing. I also agree that in certain cases there

may exist overwhelming weight of the evidence which would enable us to resolve the issue of mental

retardation without granting such a hearing. However, in my view, the present case simply is not such a

case.

¶27.    I write separately to note my disagreement with the majority’s conclusion that, based on the record

before us, the overwhelming weight of the evidence compels this Court to find that Wiley is not mentally

retarded, thus conclusively denying his motion to vacate his death sentence. In essence, the majority

                                                     11
abandons our carefully written standards and procedures set forth in Chase v. State, 873 So. 2d 1013

(Miss. 2004), and goes too far in substituting the Court’s evaluation of the evidence and determination that

Wiley is not mentally retarded, for the evaluation and determination to the contrary by professional

psychologists trained in psychological and mental retardation evaluation procedures.

¶28.    In Chase, this Court said:

                 We hold that no defendant may be adjudged mentally retarded for purposes of the
        Eighth Amendment, unless such defendant produces, at a minimum, an expert who
        expresses an opinion, to a reasonable degree of certainty, that: 1. The defendant is
        mentally retarded, as that term is defined by the American Association on Mental
        Retardation and/or The American Psychiatric Association; [and] 2. [t]he defendant has
        completed the Minnesota Multi phasic Personality Inventory-II (MMPI-II) and/or other
        similar tests, and the defendant is not malingering.

Id. at 1029.

¶29.    Further, we said that as a prerequisite to an evidentiary hearing on the issue of mental retardation,

the defendant must attach to his motion (or petition, as the case may be) an affidavit from at least one

expert, “qualified as an expert in the field of assessing mental retardation, and further qualified as an expert

in the administration and interpretation of tests, and in the evaluation of persons, for purposes of determining

mental retardation.” See id. (¶75). This affidavit shall state “to a reasonable degree of certainty, that: (1)

the defendant has a combined Intelligence Quotient (“IQ”) of 75 or below, and; (2) in the opinion of the

expert there is a reasonable basis to believe that, upon further testing, the defendant will be found to be

mentally retarded, as defined [in ¶¶ 69-70].” Id. (¶79).

¶30.    Wiley’s motion relies in large part upon two affidavits, one presented by Dr. Daniel H. Grant, a

licensed psychologist, who has an Ed. D. in school psychology from the University of Georgia in 1981,

with minors in mental retardation and reading. The other was presented by Billy R. Fox, Ph.D., a licensed

clinical/counseling psychologist who has been practicing for 24 years. While Dr. Grant addressed to some

                                                      12
degree all the Atkins/Chase requirements, Dr. Fox only mentioned the IQ tests he had administered to

Wiley in 1987 and 1994. Both his examinations of Wiley were only for purposes of determining IQ, using

the Wechsler Adult Intelligence Scale-Revised (WAIS-R), the then prevalent Wechsler IQ test, which was

supplanted in 1997 by the WAIS-III test administered by Dr. Grant.

¶31.    Dr. Grant interviewed and tested Wiley at the state penitentiary at Parchman, over a period of two

days, in May 2003, assessing his level of intelligence, adaptive functioning, language skills and memory

functioning. His affidavit states that “[i]t is my opinion, to a reasonable degree of psychological certainty,

that Mr. Wiley’s level of general intellectual functioning is significantly subaverage and falls within the

mentally retarded range of intelligence.” He also determined that “Wiley exhibits deficits in adaptive

behavior in at least three areas expressly recognized in the clinical criteria set forth in the Atkins decision:

communications, functional academics, and health and safety” as well as in the area of money concepts.

Finally, Dr. Grant’s acknowledged in his affidavit that the third element for mental retardation under the

clinical definitions is manifestation by age 18. However, he only reviewed Wiley’s school records to reach

his determination that Wiley demonstrated “an early manifestation of mental retardation.” Notwithstanding

the absence of any IQ testing during Wiley’s school years, Dr. Grant concluded that Wiley’s “consistently

poor performance” and “extremely poor grades at such a basic level of education strongly indicate severe

deficits in intellectual functioning consistent with mental retardation.” However, neither Dr. Grant nor Dr.

Fox ever affirmatively stated, much less proved, that Wiley’s mental retardation had manifested by age 18.

Further, neither administered the “MMPI-II and/or other similar tests” to determine that Wiley was not

malingering during the testing procedures.




                                                      13
¶32.   Because the affidavits presented by Drs. Grant and Fox do not fully comply with the requirements

of Chase, I would deny Wiley’s application. However, should Wiley timely refile his application in

conformity with Chase, it should be considered by this Court.

¶33.   I therefore respectfully concur in part and dissent in part.

       DICKINSON, J., JOINS THIS OPINION.




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