                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2002-DR-01727-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:                           ROBERT B. McDUFF
                                                   JAMES McLAUGHLIN
                                                   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:                                       POST-CONVICTION RELIEF DENIED -
                                                   04/17/2003
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 (Turner) dead and his daughter seriously injured as well as blind. Wiley laid in wait

for 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 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 a 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 (PCR) 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 United States District

Court via unpublished opinion. He appealed to the United States Court of Appeals for the Fifth Circuit

whichheld 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 the

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

1997)(motion for substitution of counsel granted), cert. denied, Wiley v. Mississippi, 522 U.S. 886,

118 S.Ct. 219, 139 L.Ed.2d 153 (1997).




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¶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 the habeas petition be filed within sixty (60) days. Shortly thereafter, Robert 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 Hester, Brian Miller and Anthony Picarello, Jr., of the Washington, D.C., firm

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

this Court in June 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 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 2000. Wiley's most recent petition for habeas corpus filed in the United States District Court

is apparently still pending. Subsequently, he filed the present Application for Leave to file Motion to Vacate

Death Sentence.

¶6.     Wiley is seeking collateral review of the denial of his motion for appointment of compensated

counsel and litigation funding, and he is asking for leave to present new claims of ineffective assistance of

counsel. We find that Wiley's claims are without merit, barred by the doctrine of res judicata, procedurally

barred as a successive writ under Miss. Code Ann. § 99-39-27(9) (Supp. 2002), and time barred pursuant

to Miss. Code Ann. § 99-39-5(2). Accordingly, this motion is denied.

                                               ANALYSIS

                                                      3
¶7.     As Wiley presents substantially similar arguments in both of the first two issues he raises, they are

combined for discussion.

        I.      Whether the Mississippi Supreme Court's Denial of Funds for an
                Investigation Violated Wiley's Rights Under Mississippi Law and
                the Eighth and Fourteenth Amendments to the United States
                Constitution.

        II.     Whether the Denial of Funding Independently Violated Wiley's
                Fourteenth Amendment Right to Due Process.

¶8.     Wiley asserts that his claims are not procedurally barred and meet the requirements for successive

post-conviction relief motions under Miss. Code Ann. § 99-39-23(6), which states in relevant part:



        The order as provided in subsection (5) of this section or any order dismissing the
        prisoner's motion or otherwise denying relief under this chapter is a final judgment and shall
        be conclusive until reversed. It shall be a bar to a second or successive motion under this
        chapter. . . . Likewise excepted from this prohibition are those cases in which the prisoner
        can demonstrate either that there has been an intervening decision of the Supreme Court
        of either the State of Mississippi or the United States which would have actually adversely
        affected the outcome of his conviction or sentence or that he has evidence, not reasonably
        discoverable at the time of trial, which is of such nature that it would be practically
        conclusive that had such been introduced at trial it would have caused a different result in
        the conviction or sentence.

¶9.     Wiley also cites Miss. Code Ann. § 99-39-27(9), which reiterates the language above with

reference to an application for leave to proceed in the trial court, and Miss. Code Ann. § 99-39-5(1)(a),

which states:

        (1)     Any prisoner in custody under sentence of a court of record of the State of
                Mississippi who claims:
                (a)     That the conviction or the sentence was imposed in violation of
                        the Constitution of the United States or the Constitution or laws
                        of Mississippi;
                ...




                                                      4
                (e)      That there exists evidence of material facts, not previously
                         presented and heard, that requires vacation of the conviction or
                         sentence in the interest of justice;

¶10.    The State counters that Wiley's claims are indeed barred. We agree. Wiley has not demonstrated

compliance with either exception of an intervening decision or new evidence, nor has he shown that his

conviction or sentence is a violation of any constitutional right. Additionally, the State asserts that absent

procedural bars Wiley failed to comply with the three-year statute of limitations pursuant to Miss. Code

Ann. § 99-39-5(2) as set out at the time of his conviction. The statute was amended in 2000 to provide

an exception for capital cases requiring post-conviction filings to be made within one (1) year after

conviction. However, a discussion of the merits is included nonetheless.

¶11.    As stated previously, Wiley's present counsel, McDuff, filed a motion to vacate the appointment

of Levidiotis and substitute himself as counsel "without payment" in the United States District Court in 1998.

Present counsel also represented Wiley on his last PCR in this Court, which was denied June 3, 1999. The

motion for rehearing was denied February 3, 2000. Wiley centers much of his argument around Jackson

v. State, 732 So. 2d 187 (Miss. 1999), which allowed appointment of counsel and consideration of

reasonable litigation expenses. However, the motion in Jackson was granted January 28, 1999, which

was prior to the denial of both Wiley's PCR and his motion for rehearing. Wiley has already raised the

argument of this "intervening decision" with this Court via his motion for rehearing and separate motion for

appointment of counsel and for litigation expenses; now he is essentially seeking a rehearing of that motion

under the guise of a post-conviction claim by combining it with a "new" claim of ineffective assistance of

counsel. The State asserts that M.R.A.P. 27(h) prohibits such a rehearing. We agree.

¶12.    In denying Wiley's prior motion, by order filed February 3, 2000, this Court said:




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           Wiley has had the benefit of pro bono counsel during his post-conviction proceedings, and
           now asks this Court to remand his case to the DeSoto County Circuit Court for
           appointment of counsel and determination of compensation under Jackson v. State, 732
           So. 2d 187 (Miss. 1999). After due consideration the Court finds that the motion is not
           well taken and should be denied.

Wiley was at that time and continues to be represented by McDuff and various members of Covington &

Burling.

¶13.       Wiley asserts that he is entitled to funds for "investigation, analysis, and presentation of facts outside

of the appellate record," under Mississippi law as set out in Jackson despite that the right to counsel in

post-conviction proceedings is discretionary. He relies on this Court's comments regarding Murray v.

Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989), in his argument that he is entitled to

litigation expenses and compensated counsel. The United States Supreme Court found in Murray that

there was no constitutional right to counsel provided by the state in post-conviction proceedings.             See

also Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). As Murray

dealt with a Virginia case, this Court in Jackson found that Mississippi inmates have been unable to obtain

counsel or help from institutional lawyers, and that Jackson was entitled to compensated counsel. 732

So.2d at 191.         The petitioner in Jackson suffered because of his inability to obtain adequate

representation, i.e., his attorney's failure to file a motion for rehearing. The record indicates that Wiley has

been adequately represented by different lawyers at every stage of the process. Furthermore, he is

represented by the same counsel who represented him on his last PCR. Surely the assertion is not now

that counsel will do a better job the second time around if compensated.

¶14.       Also, Wiley's assertion that Jackson required payment of litigation expenses is incorrect as this

Court remanded that issue to the trial court for consideration. Additionally, the request for litigation



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expenses in Jackson was specific as to the hiring of a forensic psychiatrist or psychologist, whereas here

Wiley makes a broad prayer for funds without giving any indication the funds are necessary or for what

purpose they would be used. In fact, Wiley demonstrates no "new factual, legal, and constitutional grounds

that merit vacating Wiley's death sentence or, in the alternative, granting funds for additional investigation."

There is no right to litigation funds for a fishing expedition, especially when there is no indication of any

fish to be caught. This is Wiley's second post-conviction petition. He has already been heard on the issues

he now seeks to raise yet again.

¶15.    Notwithstanding the procedural bar, this case is distinguishable from Jackson. There this Court

said:

        Obtaining qualified substitute counsel willing to proceed pro bono on this type of
        specialized, complex and time-consuming litigation is almost impossible. This practice
        ignores the reality that the state post-conviction stage is particularly important in capital
        cases, and that having the same counsel represent the condemned in appellate proceedings
        and post-conviction actions prevents counsel from raising the claim of ineffective assistance
        of trial or appellate counsel at the post-conviction stage. This practice also ignores the
        reality that indigent death row inmates are simply not able, on their own, to competently
        engage in this type of litigation. Applications for post-conviction relief often raise issues
        which require investigation, analysis and presentation of facts outside the appellate record.


Jackson, 732 So.2d at 190. As stated previously, Wiley was able to obtain arguably very "qualified

substitute counsel willing to proceed pro bono," counsel was not the same counsel to represent him at trial

or on direct appeal, and he has not raised any issues requiring investigation. Also, this Court's holding in

Jackson does not specifically establish a constitutional right to compensated counsel. As previously set

out, the United States Supreme Court held in Murray that there is no constitutional right to counsel in state

post-conviction proceedings. As such, there is no liberty interest created and no constitutional violation.

¶16.    We find that not only are these issue procedurally barred, but they are also without merit.


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        III.     Whether even a Cursory Investigation, Conducted Without the
                 Benefit of Constitutionally Mandated Funds, Reveals That Counsel
                 was Ineffective.

¶17.    Wiley raised ineffective assistance of counsel in his previous PCR, and he provides no new

evidence that was not or could not have been raised then. In analyzing Wiley's previous ineffective

assistance of counsel claims, this Court found no merit and denied his petition for post-conviction relief.

¶18.    Wiley asserts that a limited investigation "reveals that Wiley's trial counsel failed to investigate,

identify, or present a substantial volume of evidence that would have been central to any informed decision

by the jury regarding the imposition of the death penalty." Wiley argues that although trial counsel

presented 15 witnesses on his behalf during the sentencing trial, their testimony was not sufficient because

it was presented in a "cursory and superficial manner." Wiley cites Collier v. Turpin, 177 F.3d 1184

(11th Cir. 1999), for this proposition. Wiley attaches affidavits and sets out the following specific examples:

        1.       Joe Annie Butler

¶19.    Joe Annie Butler (Butler), Wiley's grandmother, raised him and could have testified about his

mental and physical deficiencies, his exposure to traumatic events such as the deaths of his brother and

grandfather, and his quiet and loving nature. However, the transcript indicates that Wiley's assertion is

without merit. Butler was called as a witness for Wiley and gave specific testimony as to raising Wiley,

the grandfather's death, Wiley's nature, his schooling, and his work history. The other statements in the

affidavit regarding uncorroborated medical conditions, such as Wiley's hand curling up one time as a child

and later returning to normal or the headaches he denied having, do not appear to this Court to add any

element of mitigation. Additionally, Dr. Gary Mooers, a professor of social work at the University of

Mississippi, testified extensively as to Wiley's background, including deaths of relatives, abuse as a small

child, injuries, schooling, and drug and alcohol use/abuse.

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        2.      Diane Wiley

¶20.    Diane Wiley (Diane), Wiley's wife, could have testified as to the deaths of his grandfather and

brother, head injuries, attempted suicide, and his qualities as a husband and father. Diane was not called

as a witness, however, her affidavit does not establish that she could have provided any relevant testimony

not set out by other witnesses. Additionally, Butler's affidavit indicates that Wiley and Diane had been

separated for many years at the time of his arrest.

        3.      John Thacker

¶21.    John Thacker (Thacker), Wiley's lifelong friend and his wife's uncle, could have testified as to

Wiley's generous and kind character and about the time Wiley "saved my life" by riding up and slowing

down Thacker's runaway horse. Again, Thacker's affidavit does not establish that he could have provided

any relevant testimony not set out by other witnesses.

¶22.    Wiley asserts "[i]t was objectively deficient for counsel to fail to investigate and present this

mitigation evidence, and to rely solely on the testimony of far less important figures such as Wiley's mother-

in-law and several casual acquaintances." However, the record reflects that among the other witnesses

called by the defense were Wiley's sons, Kelvin and Columbus; a sheriff's department employee who

termed Wiley a "model" prisoner; a school employee; two childhood friends; a family friend who had

known Wiley since childhood; an administrator; chaplain and records custodian from the Mississippi

Department of Corrections; a neuropsychiatrist and a psychologist. Additionally, the record indicates that

Wiley's children lived with his mother-in-law who also testified, a majority of the time after he and Diane

separated and that she had known him since he was a child.

¶23.    Wiley cites cases that found ineffective assistance of counsel for failure to present mitigation

evidence of a "nightmarish childhood," violent and unstable upbringing, head injuries as a child, limited


                                                      9
schooling, etc. There is no suggestion that any significant evidence, such as a violent or unstable upbringing,

was not introduced. The record reflects that evidence of all of the mitigating factors Wiley alludes to was

introduced during the sentencing trial by other witnesses and that there was no need for cumulative

testimony.

¶24.    Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

Wiley must show (1) a deficiency of counsel's performance that is (2) sufficient to constitute prejudice to

his defense. Additionally, Wiley is not constitutionally entitled to errorless counsel. Cabello v. State,

524 So. 2d 313, 315 (Miss. 1988). There is also a presumption that counsel's decision not to call a

particular witness is a strategic one. Strickland, 104 S.Ct at 2065-2066. See also Cole v. State, 666

So. 2d 767, 777 (Miss. 1995). Wiley has not proven his counsel was deficient or that he suffered any

prejudice, and the record indicates this issue is without merit.




                                             CONCLUSION

¶25.    Wiley has had more than one opportunity to present an argument under Jackson, thus defeating

any "intervening decision" claim. Additionally, he has not presented any new evidence that was "not

reasonably discoverable" at trial or that would have caused a different result if introduced, nor has he

provided evidence of any violation of any fundamental rights. Furthermore, Wiley has failed to demonstrate

that his claims are not procedurally barred pursuant to Miss. Code Ann. § 99-39-21(6), and he has failed

to prove ineffective assistance of counsel. Accordingly, we deny Wiley's application for post-conviction

relief and application for leave to file motion to vacate death sentence.

¶26.    POST-CONVICTION RELIEF DENIED.

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       PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB AND GRAVES,
JJ., CONCUR. DIAZ AND CARLSON, JJ., NOT PARTICIPATING.




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