                         IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2003-DR-01337-SCT

RONNIE LEE CONNER

v.

STATE OF MISSISSIPPI


                                ON MOTION FOR REHEARING

DATE OF JUDGMENT:                                7/27/1990
TRIAL JUDGE:                                     HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:                       LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          CYNTHIA A. STEWART
ATTORNEY FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL BY:
                                                 MARVIN L. WHITE, JR.
NATURE OF THE CASE:                              CIVIL - DEATH PENALTY - POST
                                                 CONVICTION
DISPOSITION:                                     LEAVE TO SEEK POST-CONVICTION RELIEF,
                                                 GRANTED - 10/07/2004
MOTION FOR REHEARING FILED:                      07/01/2004
MANDATE ISSUED:

        EN BANC.

        DICKINSON, JUSTICE, FOR THE COURT:

¶1.     The motion for rehearing is granted. The original opinion is withdrawn, and this opinion is

substituted therefor.

¶2.     In 2002, the United States Supreme Court held that the Eighth Amendment of the United States

Constitution prohibited the execution of mentally retarded persons.1




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            Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L.Ed. 2d 335 (2002).
However, the Court provided virtually no guidance on the implementation of its decision. Since Atkins,

this state has struggled with implementation of that decision. Numerous death row inmates, whose trials

concluded many years ago, have asked this Court to set aside their sentences of death. The only remedy

available to such inmates before this Court is permission to proceed in the trial court with a hearing to

determine whether they are mentally retarded. Not every inmate who requests a hearing is entitled to one.

Hearings are granted only to those who provide us with a sufficient basis to conclude that they might be

mentally retarded. We established the inmate’s burden for obtaining such a hearing in Chase v. State,

873 So. 2d 1013(Miss. 2004) The case before us today involves an inmate who has met the test and is

entitled to a hearing so that the trial court may determine whether he is, or is not, mentally retarded. If the

trial court determines that he is, his sentence will be converted to life. If he is not, he will be executed.

¶3.     Ronnie Lee Conner's 1990 capital murder conviction was affirmed by this Court on direct appeal,

see Conner v. State, 632 So.2d 1239 (Miss. 1993), and his petition for writ of certiorari was denied by

the United States Supreme Court. See Conner v. Mississippi, 513 U.S. 927, 115 S.C. 314, 130 L.

Ed. 2d 276 (1994).

¶4.     Thereafter, this Court denied Conner’s application for post-conviction relief, Conner v. State,

684 So.2d 608 (Miss. 1996), and federal habeas corpus relief was denied by the United States District

Court and the United States Court of Appeals for the Fifth Circuit, Conner v. Puckett, 271 F. Supp. 2d

909 (S.D. Miss. 2001), aff'd mem. sub nom. Conner v. Epps, 54 Fed. Appx. 791 (5th Cir. 2002).

Certiorari was denied by the United States Supreme Court. Conner v. Epps, 124 S. Ct. 115, 157 L.

Ed. 2d 79 (2003).




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¶5.     Conner now brings before this Court a successive application to seek leave to file motion to vacate

death sentence, claiming that he is mentally retarded and, therefore, exempt by Atkins from execution.

Since Atkins was not decided until 2002, it constitutes an “intervening decision” of the United States

Supreme Court, saving Conner's petition before this Court from being procedurally barred. Miss. Code

Ann. § 99-39-5(2)(Supp. 2004). See also Foster v. State, 848 So.2d 172 (Miss. 2003).

¶6.     Pursuant to Chase, Conner can obtain a hearing only by presenting this Court with an affidavit

from an expert which states, to a reasonable degree of probability/certainty, that Conner has an IQ of 75

or below and that, in the expert's opinion, there is a reasonable basis to believe that – upon further testing

– he will be found mentally retarded.

¶7.     Conner has provided such an affidavit from Dr. Mark Zimmerman, who opined to a reasonable

degree of medical certainty, based on his review of medical and psychiatric records and his examination

of Conner, that Conner has a combined IQ of 65, and that he has a reasonable basis to believe that upon

further testing, Conner will be found to be mentally retarded.

¶8.     Therefore, based on the requirements of Atkins and his having met our requirements as set forth

in Chase, we find that Conner is constitutionally entitled to a hearing before the trial court to determine

whether he is mentally retarded, and we grant him leave to seek post-conviction relief on that issue.

¶9.     LEAVE TO SEEK POST-CONVICTION RELIEF, GRANTED.

     SMITH, C.J., WALLER AND COBB, P.JJ., AND CARLSON, J., CONCUR.
EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, GRAVES
AND RANDOLPH, JJ., NOT PARTICIPATING.




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