Mary Bounds, age 56, was reported missing on November 29, 1987. A
few days later her vehicle was located in Houston, Mississippi.
Inspection of the vehicle revealed spattered blood around the
driver’s side door.
Her body was found nearby. She had
been severely beaten. It was later determined that she died of head
injuries from repeated blows. Earl Wesley Berry’s confession
provided the details of what transpired.
On the evening of November 29,
1987, while driving through Houston in his grandmother’s vehicle,
Berry saw Mary Bounds near a church. As she was preparing to enter
her vehicle, he approached and forced her into his vehicle,
ultimately driving to a wooded area out of town.
Mary pleaded with Berry, but he
beat her with his fists and forearm. Afterwards, he carried her
further into the woods and left her. Berry's brother called the
police after he witnessed suspicious behavior.
Berry was arrested at his
grandmother’s home and soon confessed to the crime. Police found the
mismatched tennis shoes Berry had discarded in a pond, along with
Berry v. State, 575 So.2d 1 (Miss. 1990) (Direct Appeal).
Berry v. State, 703 So.2d 269 (Miss. 1997) (Direct Appeal
Berry v. State, 802 So.2d 1033 (Miss. 2001) (After Remand).
Berry v. State, 882 So.2d 157 (Miss. 2004) (PCR).
Berry v. Epps, 506 F.3d 402 (5th Cir. 2007) (Habeas).
Barbecue pork chops, barbecue pork sausages, buttered toast, salad (heavy
on the onion), mashed potatoes and gravy, pecan pie, and any juice.
For breakfast he had two biscuits, sausage, rice and coffee.
"No comment. It's in God's hands now."
Convicted Killer Executed; Family Has
By Kathleen Baydala - Jackson Clarion Ledger
May 21, 2008
Convicted killer Earl Wesley Berry uttered his
last words — "no comment" — just minutes before he was pronounced
dead at 6:15 p.m. today at Parchman. Berry, who wore red pants, a
white T-shirt and socks, was strapped to a metal table. He received
a lethal cocktail of drugs and died. His death comes more than 20
years since he was convicted of beating 56-year-old Mary Bounds to
death in Houston, Miss. in 1987.
Following the execution, Bounds' husband, Charles
Bounds, spoke to reporters. "I don't have much to say. I just think
it took too long," he said. "I have had this on my mind for 20 years,
and it really takes a lot out of me." Bounds then spoke harshly to
Mississippi Department of Corrections Commission Chris Epps, though
Epps was not the one who halted the execution. Tonight, they hugged.
"Justice has just now been brought to bear against the man who
admitted killing (Mary Bounds)," Epps said.
Bounds' daughter, Jena Watson, also spoke, saying
her mother would have wanted people to forgive Berry. "Tonight, we
feel that we have received justice for what was done," she said.
Just hours before his execution, Epps described
Berry as somber and serious, realizing his death was imminent and
giving up hope that the U.S. Supreme Court was going to grant either
of his last-minute appeals. “I used to be his case manager. So, I’ve
been knowing him for a while,” Epps said. “He’s pretty serious now.
He’s not grinning like he was in October.” The U.S. Supreme Court
denied both Berry's appeals of his execution earlier this afternoon.
Berry, 49, was convicted in 1988 of beating 56-year-old
Mary Bounds to death and leaving her body in a wooded area of
Chickasaw County in 1987. Epps said he stood in front Berry's cell
this afternoon and said, "Inmate Berry do you have any remorse for
what you did to Mrs. Bounds? "He said he had no remorse and felt
that after 21 years he had paid for it," Epps continued. "He
understood the question and that was the answer he gave."
Berry finished his last meal about 4:35 p.m. and
was given a sedative. He elected not to take his last shower and has
not made any phone calls today. However, his mother, brother, sister-in-law
and two friends visited him earlier today.
In October, when Berry originally was scheduled
to die by lethal injection, his execution was halted at the last
minute. Berry said today "he is 99.9 percent sure he will be
executed," Epps said.
Berry’s attorneys have argued that Berry should
have been spared because he is mentally retarded and because
Mississippi’s lethal injection process is cruel.
Earlier today, Daryl Neely, policy adviser for
Gov. Haley Barbour, read Berry the governor's letter denying a stay
of execution. "I find no justification to grant your clemency," a
portion of the letter said. Berry "visibly shook" and was close to
tears, Neely said.
Berry had said he did not want any of his family
members to witness his execution, but he later changed his mind,
Epps said. His brothers, William Wallace Berry and Daniel Ross Berry,
were approved to view the death, though they declined to do so. "It
appears there will not be anybody there from the inmate's family,"
Epps said. Roughly 40 members of Bounds' family also will be at
Parchman, though only two were to witness the execution: Bounds'
daughter and granddaughter.
Following Berry's execution, his body was to be
released to Wise Funeral Home in Eupora.
Half a dozen anti-death penalty and one pro-death
penalty activist were at Parchman today. Tom O’Flaherty, a former
defense attorney from Iowa City, Iowa, said he came out to speak
against state-ordered executions partly because he doubts the
judicial system’s infallibility. “People are represented by lawyers,
and they make mistakes. Judges and juries make mistakes,” he said.
“None of us can know for sure if a person deserves that penalty.”
Several yards away, Ann Pace of Jackson stood
alone with a sign bearing pictures of her daughter who was killed by
a man named Derrick Todd Lee in 2002. Charlotte Murray Pace was 22.
Her mother described her four years, so far, of waiting for Lee’s
execution as “hideous.” While she said Lee’s death may not bring
closure, she thinks it may bring peace. “I have this constant
awareness of him breathing air, visiting with his family, doing all
those things that he denied so many people, that he denied my
daughter,” Pace said. “(Once he is dead), he will not be at my table.
He will not be in my head. Then, it will be all about Murray and not
The last time Charles Bounds and his family came
to Parchman, they left upset. Berry's execution, which had been
scheduled for October 2007, was halted just 19 minutes before he was
Mississippi Executes Convicted Murderer
By Matthew Bigg.
Wed May 21, 2008
ATLANTA (Reuters) - Mississippi put a convicted
murderer to death by lethal injection on Wednesday in the second U.S.
execution since the Supreme Court lifted an unofficial moratorium on
the death penalty last month. Courts rejected final appeals by Earl
Wesley Berry's lawyers who argued he was mentally retarded and that
the cocktail of three drugs used in the lethal injection method
represented cruelty banned under the Constitution.
Berry, 49, was convicted in 1988 of beating 56-year-old
Mary Bounds to death. He kidnapped Bounds outside her Houston,
Mississippi, church in November 1987, killed her and dumped her body
in a wooded area. He later confessed to the crime. He was pronounced
dead at 6:15 p.m. local time at Parchman prison, said Tara Booth,
spokeswoman for the Mississippi Department of Corrections.
Berry had been scheduled to be executed last
October but he received a last-minute stay because of the national
moratorium on executions effectively in place after the U.S. Supreme
Court said in September it would hear an appeal by two death row
inmates in Kentucky against the use of the lethal drugs. The court
on April 16 rejected a challenge to the three-drug cocktail used in
most U.S. executions, which opponents claimed inflicted unnecessary
pain. Georgia then conducted an execution on May 5. Last year, 42
people were executed, the lowest number since 1994 when 31 were put
to death. The number would have been higher but for the Supreme
"Inmate Berry is observed to be in a talkative
mood in the sense that he is reflecting on what has transpired since
his stay of execution in October," said prison officials a few hours
before his death. It was Mississippi's eighth execution since the
Supreme Court restored the death penalty in 1976.
Mississippi Department of
Corrections - Death Row
Inmate: Earl Berry
Offender Number: 34939
Date Of Birth: 05/05/1959
Height: Weight: 6'01" 255
FBI Number: 795357V3
Hair Color: BROWN
Eye Color: Blue
Entry Date: 04/22/88:
Commitments: Simple Assault 09/24/1980 Oktibbeha County 5 Years;
Escape 05/20/1982 Webster County 2 Years, Homicide 10/27/1988
Chickasaw County Death.
Date: October 30, 2007
Contact: Tara Booth
Earl Wesley Berry Granted a Stay of Execution
Parchman, Ms. - The Mississippi Department of
Corrections (MDOC) has received the official ruling at 5:41 p.m.
today of the United States Supreme Court granting death row inmate
Earl Wesley Berry a stay of execution.
Now that the United States Supreme Court has
deemed the method of execution needs to be reviewed, the state will
await the final order of the court. The agency will work within any
newly established guidelines to ensure that executions are carried
out in a constitutional manner.
“I commend the staff of the Mississippi State
Penitentiary, MSP Superintendent Lawrence Kelly, and Deputy
Commissioner of Institutions Emmitt Sparkman for the professionalism
they have demonstrated as we prepared for the execution,” said MDOC
Corrections Commissioner Chris Epps.
Missouri Department of
Corrections - Media Kit
• State Death Row Inmate Earl Wesley Berry, MDOC
• White Male • DOB – 05/05/1959
Factual Background of the Case
• Mary Bounds, age 56, was reported missing on
November 29, 1987.
• A few days later, on December 1, her vehicle
was located in Houston, Mississippi. Inspection of the vehicle
revealed spattered blood around the driver’s side door.
• Mary Bounds’ body was found nearby; she had
been severely beaten. It was later determined that she died of head
injuries from repeated blows.
• Earl Wesley Berry’s confession provided the
details of what transpired.
• On the evening of November 29, 1987, while
driving through Houston in his grandmother’s vehicle, Berry saw Mary
Bounds near a church. As she was preparing to enter her vehicle, he
approached, and hit her and forced her into his vehicle. Berry then
drove out of town. Berry took Mary Bounds into a wooded area and
ordered her to lie down, intending to rape her. Berry did not do so;
he took her back to the vehicle, telling her they would return to
• Instead, Berry drove to another wooded area
where they exited the vehicle. Mary Bounds pleaded with Berry, but
he beat her with his fists and forearm. Afterwards, he carried her
further into the woods and left her.
• Berry drove to his grandmother’s house,
disposing of a pair of mismatched tennis shoes along the way. At his
grandmother’s house, he burned his bloodied clothes and wiped the
vehicle he had used of any blood stains with a towel, which he threw
into a nearby pond.
• Berry’s brother, who was at the house,
witnessed some of this suspicious behavior. On December 5, 1987, he
called investigators and told them what he had observed.
• The next day, Berry was arrested at his
grandmother’s home and soon confessed to the crime. Police found the
mismatched tennis shoes Berry had discarded; in the above-referenced
pond, they found a bloodied towel.
• Berry was indicted for the murder and
kidnapping of Mary Bounds, and as a habitual criminal, on March 1,
1988. In a bifurcated (guilt/innocence and punishment phases) jury
trial (first trial), he was convicted of capital murder.
Execution by Lethal Injection
In 1998, the Mississippi Legislature amended
Section 99-19-51, Mississippi Code of 1972, as follows: 99-19-51.
***The manner of inflicting the punishment of death shall be by
continuous intravenous administration of a lethal quantity of an
ultra short-acting barbiturate or other similar drug in combination
with a chemical paralytic agent until death is pronounced by the
county coroner where the execution takes place or by a licensed
physician according to accepted standards of medical practice.
Contents of Syringes for Lethal Injection
•Anesthetic - Sodium Pentothal – 2.0 Gm.
•Normal Saline – 10-15 cc.
•Pavulon – 50 mgm per 50 cc.
•Potassium chloride – 50 milequiv. per 50 cc.
Lethal Injection History
Lethal injection is the world’s newest method of
execution. While the concept of lethal injection was first proposed
in 1888, it was not until 1977 that Oklahoma became the first state
to adopt lethal-injection legislation. Five years later in 1982,
Texas performed the first execution by lethal injection. Lethal
injection has quickly become the most common method of execution in
the United States. Thirty-five of thirty-six states that have a
death penalty use lethal injection as the primary form of execution.
The U.S. federal government and U.S. military also use lethal
injection. According to data from the U.S. Department of Justice, 41
of 42 people executed in the United States in 2007 died by lethal
While lethal injection initially gained
popularity as a more humane form of execution, in recent years there
has been increasing opposition to lethal injection with opponents
arguing that instead of being humane it results in an extremely
painful death for the inmate. In September 2007 the United States
Supreme Court agreed to hear the case of Baze v. Rees to determine
whether or not Kentucky’s three drug-protocol for lethal injections
amounts to cruel and unusual punishment in violation of the Eighth
Amendment to the United State Constitution.
As a result of the Supreme Court’s decision to
hear this case, executions in the United States came to a brief halt
in late September 2007. On October 30, 2007, the Court granted
Mississippi death row inmate Earl Wesley Berry a last minute
reprieve, staying his execution until the Baze case was decided.
On April 16, 2008, the Supreme Court ruled in
Baze holding that Kentucky’s three-drug protocol for administering
lethal injections does not violate the Eighth Amendment. The result
of this ruling was to lift the de facto moratorium on executions in
the United States. The State of Georgia became the first state to
carry out an execution since the Court’s Baze decision when William
Earl Lynd was executed by lethal injection on May 6, 2008.
Chronological Sequence of Events of Execution
48 Hours Prior to Execution The condemned inmate
shall be transferred to a holding cell adjacent to the execution
24 Hours Prior to Execution Institution is placed in emergency/lockdown
1200 Hours Day of Execution Designated media center at institution
1500 Hours Day of Execution Inmate’s attorney of record and chaplain
allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed
1630 Hours Day of Execution MDOC clergy allowed to visit upon
request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to
Witnesses are escorted into observation room.
1900 Hours Day of Execution A post execution briefing is conducted
with media witnesses.
2030 Hours Day of Execution Designated media center at institution
Death Row Executions
Since Mississippi joined the Union in 1817,
several forms of execution have been used. Hanging was the first
form of execution used in Mississippi. The state continued to
execute prisoners sentenced to die by hanging until October 11,
1940, when Hilton Fortenberry, convicted of capital murder in
Jefferson Davis County, became the first prisoner to be executed in
the electric chair. Between 1940 and February 5, 1952, the old oak
electric chair was moved from county to county to conduct executions.
During the 12-year span, 75 prisoners were
executed for offenses punishable by death. In 1954, the gas chamber
was installed at the Mississippi State Penitentiary, in Parchman,
Miss. It replaced the electric chair, which today is on display at
the Mississippi Law Enforcement Training Academy. Gearald A. Gallego
became the first prisoner to be executed by lethal gas on March 3,
1955. During the course of the next 34 years, 35 death row inmates
were executed in the gas chamber. Leo Edwards became the last person
to be executed in the gas chamber at the Mississippi State
Penitentiary on June 21, 1989.
On July 1, 1984, the Mississippi Legislature
partially amended lethal gas as the state’s form of execution in §
99-19-51 of the Mississippi Code. The new amendment provided that
individuals who committed capital punishment crimes after the
effective date of the new law and who were subsequently sentenced to
death thereafter would be executed by lethal injection. On March 18,
1998, the Mississippi Legislature amended the manner of execution by
removing the provision lethal gas as a form of execution.
INMATES EXECUTED IN THE MISSISSIPPI GAS
Name Race-Sex Offense Date Executed
Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89
PRISONERS EXECUTED BY LETHAL INJECTION
Name Race-Sex Offense Date Executed
Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02
Bobby G. Wilcher White Male Murder 10-18-06
MISSISSIPPI STATE PENETENTIARY
• The Mississippi State Penitentiary (MSP) is
Mississippi’s oldest of the state’s three institutions and is
located on approximately 18,000 acres in Parchman, Miss., in
• In 1900, the Mississippi Legislature appropriated $80,000 for the
purchase of 3,789 acres known as the Parchman Plantation.
• The Superintendent of the Mississippi State Penitentiary is
• There are approximately 1,239 employees at MSP.
Current Death Row Facts: 65 Inmates on Death Row,
3 Female, 62 Male, 32 White, 32 Black, 1 Asian,
Youngest on Death Row: Terry Pitchford, MDOC #117778, age 22
Oldest On Death Row: Gerald Holland, MDOC #46631, age 70
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 (March
2, 1977: Thirty-One Years)
Source: Mississippi Department of Corrections,
Mississippi State Penitentiary, May 2008
Berry Executed for Murder
Mississippi Daily Journal
May 22, 2008
PARCHMAN - Earl Wesley Berry was declared dead by
lethal injection at 6:15 p.m. Wednesday - a quieter death than was
afforded Mary Bounds.
Berry was executed for the 1987 kidnapping and
murder of Bounds, a Houston woman, who was attacked and abducted as
she left church. Sheriff Jimmy Simmons, who was a deputy when he
investigated the crime, said footprints were still visible on her
face from the brutal beating that killed her.
Death penalty opponents protested and prayed
outside the media center at Parchman. After the execution, Bounds'
daughter answered their opposition when she spoke to the media. "I
kept thinking how much more humane capital punishment is than what
my mother suffered," said Jena Watson, who witnessed the execution.
"He was just lying there and went to sleep.
Berry was already strapped onto a table when
Watson, her daughter, state and local officials and media witnesses
entered adjacent rooms about 6 p.m. He never opened his eyes and
never moved except to speak twice. When told he had five minutes to
say anything, he answered, "No comment." Daryl Neely, a spokesman
with Gov. Haley Barbour's office, was one of several people in the
execution chamber and added that Berry had said before the procedure
began, "It's in God's hands now."
Officials reported that Berry was unremorseful to
the end. Corrections Commissioner Chris Epps said, "I asked him, him
looking into my eyes, Inmate Berry, do you have any remorse for what
you did to Mrs. Bounds?' He said, No, and I think after 21 years,
I've paid enough.'"
Attorney General Jim Hood said minutes after the
pronouncement of death that Berry had "played us" until the end. "All
day he'd been entirely lucid," Hood said. "When I walked in and
informed him that all his appeals were exhausted, he started acting
crazy. He was trying to fake us again."
Berry's mother, one of his five brothers, a
sister-in-law, two family friends and two attorneys visited him on
his final day. Of that group, only the attorneys witnessed his death.
None spoke to the media. Berry's body will be returned for burial in
the family plot at a rural Webster County cemetery.
Last fall, Berry had been less than 20 minutes
from a scheduled execution when the U.S. Supreme Court issued a stay
to consider whether lethal injection might constitute cruel and
unusual punishment. "What was clearly inhumane about the stay was
what the victim's family went through," Neely said before the
execution. "It's a hardship in what it puts on the victims' families.
We think it would be very inhumane for them to gather here again at
6 p.m. after a stay."
Before 5 p.m., the Fifth Circuit Court of Appeals
and the U.S. Supreme Court had rejected Berry's last appeals, and
Gov. Barbour had earlier denied a request for clemency. In his
letter to Berry, Barbour said, "May God have mercy on your soul and
grant you forgiveness."
Earl Wesley Berry (5 May
1959-21 May 2008) was a convicted kidnapper and
murderer from the United States. He was on
Mississippi's death row with 64 others but was
issued a stay of execution in October 2007 by the
U.S. Supreme Court. He was ultimately executed on
May 21, 2008.
Based on court testimony, Berry
was a disturbed suicidal young man (reportedly
attempting to swallow razor blades on one occasion).
He had spent time in mental
institutions including treatment for paranoid
schizophrenia. He lived with his grandmother and had
an IQ that doctors estimated to be well below
Berry's convictions between 1979
and 1981 included simple assault on a law
enforcement officer, grand larceny, perjury,
burglary and escape.
Murder, kidnapping, prosecution, convictions, death
sentence, lack of remorse
Berry was convicted and sentenced
to death by a Chickasaw County jury for the 29
November 1987 murder of Mary Bounds. The victim was
kidnapped and beaten to death after leaving her
weekly church choir practice, and her body was found
just off a Chickasaw County road near Houston,
Mississippi. Berry admitted to the killing, and the
confession was used against him at trial. He had
admitted that he intended to commit rape but had
changed his mind. He also changed his mind after
telling her she would be freed and drove her to a
second wooded location and used his fists to beat
her to death. The victim died as a result of
repeated blows to the head.
Berry used his grandmother’s car
and later drove to her house, disposed of a pair of
mismatched tennis shoes along the way, burned his
bloodied clothes, and wiped the vehicle he had used
of any blood stains with a towel, which he threw
into a nearby pond. Berry’s brother, who was at the
house, witnessed some of this suspicious behavior.
On 5 December 1987, he called investigators and told
them what he had observed. The next day, Berry was
arrested at his grandmother’s home and soon
confessed to the crime.
Police found the tennis shoes
that Berry had discarded and also recovered the
bloodied towel from the pond. Berry was indicted for
the murder and kidnapping of Mary Bounds, and as a
habitual criminal on 1 March 1988.
Berry had stated in 2007 that he
has no remorse for the crime.
He was subsequently scheduled to
die by lethal injection on 30 October 2007 at the
Mississippi State Penitentiary in Parchman.
Though the 5th U.S. Circuit Court
of Appeals denied Berry's request to stop his
execution (citing exceeded time limits to challenge
the constitutionality of lethal injection), the U.S.
Supreme Court ordered a stay of execution minutes
prior to Berry's scheduled execution at the
Mississippi State Penitentiary in Parchman. This
effectively delayed but did not commute Berry's
sentence. The order to delay execution was due to a
pending Kentucky case before the court regarding the
constitutionality of lethal injection.
Dissenting justices Samuel A.
Alito, Jr. and Antonin Scalia noted that they would
have denied the application to put off the execution
which was scheduled for 6 pm. The Court's delay
order came about 15 minutes before Berry was to be
put to death by lethal injection.
The U.S. Supreme Court denied
both Berry's appeals of his execution on 21 May
Just hours before his execution,
Mississippi Department of Corrections Commissioner
Chris Epps described Berry as somber and serious,
realizing his death was imminent and giving up hope
that the U.S. Supreme Court was going to grant
either of his last-minute appeals.
"I used to be his case manager.
So, I've been knowing him for a while," Epps said. "He's
pretty serious now. He's not grinning like he was in
Epps said he stood in front
Berry's cell this afternoon and said, "Inmate Berry
do you have any remorse for what you did to Mrs.
"He said he had no remorse and
felt that after 21 years he had paid for it," Epps
continued. "He understood the question and that was
the answer he gave."
Berry finished his last meal
about 4:35 pm and was given a sedative. He elected
not to take his last shower and did not make any
phone calls. However, his mother, brother, sister-in-law
and two friends visited him on the day of his
Berry was pronounced dead at
6:15pm on 21 May 2008.
Mary Bounds was reported missing on November 29,
1987. A few days later, on December 1, her vehicle was located in
Houston, Mississippi. Inspection of the vehicle revealed spattered
blood around the driver’s side door. Mary Bounds’ body was found
nearby; she had been severely beaten. It was later determined that
she died of head injuries from repeated blows. Berry’s confession
provided the details of what transpired.
On the evening of November
29, 1987, while driving through Houston in his grandmother’s vehicle,
Berry saw Mary Bounds near a church. As she was preparing to enter
her vehicle, he approached, and hit, her and forced her into his
vehicle. Berry then drove out of town. Berry took Mary Bounds into a
wooded area and ordered her to lie down, intending to rape her.
Berry did not do so; he took her back to the vehicle, telling her
they would return to town.
Instead, Berry drove to another wooded
area where they exited the vehicle. Mary Bounds pleaded with Berry,
but he beat her with his fists and forearm. Afterwards, he carried
her further into the woods and left her. Berry drove to his
grandmother’s house, disposing of a pair of mismatched tennis shoes
along the way. At his grandmother’s house, he burned his bloodied
clothes and wiped the vehicle he had used of any blood stains with a
towel, which he threw into a nearby pond. Berry’s brother, who was
at the house, witnessed some of this suspicious behavior.
December 5, 1987, he called investigators and told them what he had
observed. The next day, Berry was arrested at his grandmother’s home
and soon confessed to the crime. Police found the mismatched tennis
shoes Berry had discarded; in the above-referenced pond, they found
a bloodied towel.
The following is an excerpt from the Clarion-Ledger
Berry was convicted of murder and first sentenced
to die in 1988. He originally had been scheduled to die in October,
but his execution was halted just 19 minutes before he was to have
received the lethal dose. The U.S. Supreme Court had decided to
review challenges to Kentucky's lethal injection method. Last month,
when the nation's highest court upheld lethal injection, Berry's
execution was rescheduled. Wednesday he became the second person in
the U.S. to be executed following the court's decision. He also
became the fifth death-row inmate in Mississippi to die by lethal
Berry's execution went smoothly and by the book,
Mississippi Department of Corrections Commissioner Chris Epps said.
The U.S. Supreme Court late Wednesday denied Berry's appeals.
Berry's attorneys had argued that Berry should have been spared
because he was mentally retarded and because Mississippi's lethal
injection process is unconstitutionally cruel. Epps said Berry was
somber and serious in the hours leading to his execution. "I used to
be his case manager. So, I've been knowing him for a while," Epps
said before the execution. "He's pretty serious now. He's not
grinning like he was in October."
Though Berry had requested that two of his
brothers witness his execution, no one from his family did. His
mother, another brother and sister-in-law visited him earlier in the
day. No one from Berry's family spoke to the media. Several dozen
members of Bounds' family, however, were at Parchman. Chickasaw
County Sheriff Jimmy Simmons was a deputy investigating Bound's
death. "He knew exactly what he was doing," said Simmons, who
witnessed the execution. The sheriff is still haunted by the killing.
"Anybody who seen that lady up there with a shoeprint still in the
side of her face ... ," he later said. "I can still see it like it
Gov. Haley Barbour, who denied Berry clemency,
said after Berry died, "Justice has finally been rendered for this
horrible crime." Berry uttered his last words - "no comment" - just
minutes before he was pronounced dead at 6:15 p.m. Though Berry had
confessed, Epps said he never expressed any remorse for the crime.
Epps said he stood in front of Berry's cell Wednesday afternoon and
asked, "Inmate Berry, do you have any remorse for what you did to
Mrs. Bounds? "He said he had no remorse and felt that after 21 years,
he had paid for it," Epps continued. "He understood the question,
and that was the answer he gave." Following the execution, Bounds'
widower, Charles Bounds, spoke to reporters. "I don't have much to
say. I just think it took too long," he said. "I have had this on my
mind for 20 years, and it really takes a lot out of me."
13 May 2008
USA (Mississippi) Earl Wesley Berry (m), white, aged 49
Earl Berry is scheduled to be executed in
Mississippi at 6pm local time on 21 May 2008. He was sentenced to
death for the murder of Mary Bounds in 1987. His lawyers have
provided the courts with evidence that he has mental retardation
which, if the case, would render his execution unconstitutional.
However because his former lawyers had failed to file the requisite
expert evidence in timely fashion, he has not had an evidentiary
hearing on this claim and has been held to be barred on procedural
grounds from such judicial review.
Mary Bounds was reported missing on 29 November
1987. Her car was found on 1 December near the First Baptist Church
she attended in Houston, Mississippi. Her body was found the next
day in nearby woods. She had died of head injuries as a result of
blows to the head. On 6 December, 28-year-old Earl Berry was
arrested at his grandmother’s house, and confessed to the crime. He
rejected an offer from the prosecution of a life sentence in return
for a guilty plea. After a jury trial, he was sentenced to death on
28 October 1988.
The death sentence was overturned by the state
Supreme Court which found fault with the instructions given to the
jury, and a resentencing was held in June 1992. At this hearing, the
defense presented mitigating evidence, including testimony from a
neuropsychologist about Earl Berry’s low intellectual functioning
and possible brain damage. A psychologist also testified that, in
his opinion, Berry suffered from paranoid schizophrenia.
For his part, the prosecutor resorted to
potentially inflammatory comments in seeking a death sentence. For
example, he made what amounted to little more than a call for
vengeance in a speech based around the notion of “justice.” He asked
“where is the justice and mitigation and mercy of being a faithful
member of the First Baptist Church, a member of the choir, taught
Sunday school, there when the doors are open?…This woman was there
every time the doors were open, at night, Sunday night. She missed
choir practice that night. No doubt about that… [T]here is only one
verdict in my opinion. That is this man receive the death penalty,
the same penalty Mary Bounds got without hearing by jury or a trial.
That man acted as judge, jury, and executioner all in a matter of
minutes. She didn’t have any of the benefits of any justice or
mitigation or mercy; and there is none due here in my humble opinion.”
The prosecutor also injected Biblical references
into the proceedings when urging the jury to vote for the death
penalty, arguing for example, that “it’s authorized by Mississippi,
and it’s been authorized by scriptural law for a long time.” Earl Berry’s lawyers have challenged his death sentence with the
claim that he has mental retardation.
The US Supreme Court banned the execution of
people with mental retardation in Atkins v. Virginia in 2002. In
Chase v. State in 2004, the Mississippi Supreme Court announced the
criteria for determining which inmates sentenced to death in
Mississippi before the Atkins decision should receive an evidentiary
hearing on a claim of mental retardation.
Under this test, the condemned prisoner must
provide on appeal an affidavit from a qualified expert to the effect
that the inmate has an IQ of 75 or below, and 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.” For
reasons that are unclear, but possibly due to lack of funding for,
and the sheer workload on, the understaffed public defender office
representing Earl Berry at that time – Berry’s claim of retardation
was not supplemented by the requisite expert affidavit after the
In August 2004, the state Supreme Court ruled
that Berry had failed to comply with the Chase criteria and denied
him an evidentiary hearing. On 24 April 2008, a psychologist with
expertise in mental retardation signed an affidavit stating that his
review of the materials relating to Earl Berry had led him to the
conclusion that Berry had an IQ of 75 or lower and/or “significantly
sub-average intellectual functioning,” and “to a reasonable degree
of psychological certainty that further testing will demonstrate
that Mr. Berry meets the criteria established by the American
Psychiatric Association and the American Association on Mental
Retardation to be classified as mentally retarded.”
Among other things, he noted that during Berry’s
school years his IQ was assessed as low as 72, and when the 25-year-old
Berry was discharged from a Mississippi Department of Corrections
prison hospital on 24 April 1985 following an apparent suicide
attempt, the final diagnosis was “suicidal gestures / mentally
Other affidavits – from Earl Berry’s mother,
other relatives, and people who knew Berry – describe Berry’s slow
development as a child, childhood head injuries he sustained as a
boy, and the fact that even as an adult he never lived independently.
His mother said that he attempted suicide six or seven times.
On 5 May 2008, despite this new Chase-compliant
expert affidavit, the Mississippi Supreme Court ruled that Earl
Berry’s claim of retardation was procedurally barred. The Presiding
Justice of the Court dissented: “As an indigent defendant sentenced
to the ultimate and final punishment, Berry is entitled to appointed
competent and conscientious counsel to assist him with his pursuit
of post-conviction relief. He has now presented this Court with
substantial evidence that but for his post-conviction attorney’s
deficient performance, he would have been granted an opportunity to
pursue his claim that he is mentally incompetent pursuant to Atkins…
Whatever the reasons for his prior counsel’s deficient performance,
it is clear that Berry was not allowed a meaningful opportunity to
present his mental retardation claim to this Court…
When appointed counsel fails to provide the Court
with the relevant facts, the system designed to ensure due process
as well as a timely end to the appellate process, ceases to function.
In the end, justice fails for all of those involved.”
Since the USA resumed executions in 1977, 1,100
prisoners have been put to death, eight of them in Mississippi.
Discrimination, arbitrariness and error have been hallmarks of US
capital justice. Amnesty International opposes the death penalty in
all cases, unconditionally. There is no such thing as a humane,
fair, reliable or useful death penalty system (see ‘The pointless
and needless extinction of life.’ USA should now look beyond lethal
injection issue to wider death penalty).
Condemned killer Earl Berry executed
By Jack Elliott, Jr.
AP May. 22, 2008
PARCHMAN -- Earl Wesley Berry was executed
Wednesday for the abduction and beating death of a Mississippi woman
more than two decades ago. Berry, 49, is the second inmate executed
in the nation since the U.S. Supreme Court upheld Kentucky's lethal-injection
procedure in April. Before the decision, executions had been on hold
across the nation for seven months.
Berry had hoped for a last-minute stay from the
U.S. Supreme Court. But Justice Antonin Scalia, then the full court,
denied his appeal requests, and he was put to death at 6:15 p.m. by
lethal injection for killing Mary Bounds in 1987.
Corrections Commissioner Chris Epps told
reporters at the Mississippi State Penitentiary in Parchman that
Berry was in a much more somber mood before the execution than he
had been in October when the Supreme Court granted him a stay. Epps
asked Berry, who took a sedative after his final meal Wednesday, if
he had any remorse. "He said he didn't have any remorse," Epps said.
"He said he felt he had served 21 years and that's enough." Berry
confessed to abducting Bounds as she left choir practice at First
Baptist Church of Houston, Miss., beating her to death and dumping
her body on a road.
Velma Berry, the inmate's mother, a brother and
sister-in-law and two friends visited with Berry during the
afternoon. Family members decided against viewing the execution and
left Berry around 4 p.m.
Berry made some phone calls during the day. He
ate a last meal of barbecued pork chops, barbecued pork sausages,
toast, salad, mashed potatoes and gravy, pecan pie and juice.
Berry's body will be released to a Eupora funeral home. Two members
of the victim's family - Mary Bounds' daughter, Jena Watson, and
Rebecca Blissard, a granddaughter - were to witness the execution.
Berry v. State, 575 So.2d 1 (Miss.
1990) (Direct Appeal)
Defendant was convicted of capital murder and
sentenced to death following bifurcated jury trial in the Circuit
Court, Chickasaw County, R. Kenneth Coleman, J. Defendant appealed.
The Supreme Court, Blass, J., held that: (1) defendant's written
confession was voluntary and knowing; (2) defendant waived his right
to counsel; (3) defendant was not entitled to change of venue; (4)
failure to remove juror did not deprive defendant of fair trial; (5)
photographs of victim were admissible; (6) defendant waived right to
continuance; (7) defendant was not entitled to lesser included
offense for noncapital crime; (8) indictment sufficiently gave
defendant notice of crime charged; and (9) jury should have been
informed that defendant was habitual offender who was not entitled
to parole or probation. Affirmed as to guilt; reversed and remanded
for sentencing trial. Roy Noble Lee, C.J., dissented and filed
opinion in which Pittman, J., joined. Pittman, J., concurred in part
and dissented in part and filed opinion in which Roy Noble Lee, C.J.,
BLASS, Justice, for the court:
On March 1, 1988, the grand jury of Chickasaw County indicted Earl
Wesley Berry for the murder and kidnapping of Mary Bounds, and as an
habitual criminal. Miss.Code Ann. § 97-3-19(2)(e) (Supp.1990);
Miss.Code Ann. § 97-19-81 (Supp.1990). In a bifurcated trial, Berry
was found guilty of capital murder and sentenced to death.
From the judgment, sentence, and denial of post-trial
motions, Berry appeals, citing twenty-one errors. Finding no merit
in the errors raised as to the guilt phase, we affirm the conviction
for murder and kidnapping. We vacate the sentence of death and
remand for a new sentencing trial.
Mary Bounds was reported missing around midnight,
Sunday, November 29, 1987. Authorities located her automobile in
Houston, near the Baptist Church. Blood was splattered around the
driver's door of the car, and Mary Bounds' earrings were found near
the car Tuesday morning. Cecil Woodard, Jr. found a pair of woman's
shoes by the side of a road Monday morning. On learning that a woman
was missing, he directed authorities to the place where he found
them. Nearby, authorities discovered Mary Bounds' body.
We know details of the murder only from Earl
Berry's own statements, corroborated by the physical evidence. Earl
Berry, after leaving a friend's apartment, drove through Houston,
Mississippi, at approximately 7:00 p.m., Sunday, November 29, 1987.
He saw Mary Bounds near the Baptist Church, and approached her. As
Berry reached for her, she screamed, he hit her and forced her into
his car, after which he left town.
The first time Berry stopped, he took Mary Bounds
into the woods, lifted her over a fence, and ordered her to lie down,
intent on raping her. For reasons unknown, he did not actually
commit the rape, but took his victim back to his car, telling her
they would return to town. Once in the car, Berry drove, not into
town, but south and turned off once again into another wooded area.
Mary Bounds begged, for what, Berry could not say. Berry beat her
with his fist and forearm, after which he carried her over a fence
and deeper into the woods. At one point she was forced to the ground
and he lay over her as a car approached. He carried her deeper into
the woods, where he left her.
Berry drove south, eventually arriving at his
grandmother's house, disposing of a mismatched pair of tennis shoes
he was wearing on the way. On arrival he burned his bloodied clothes,
then cleaned the blood from his car with a towel which he threw into
the pond near the house.
A blue pajama top and dish towel were found in
the pond behind Berry's house. Berry's knuckles were skinned when he
was arrested. The mismatched tennis shoes were located with Berry's
assistance. Mary Bounds' body bore wounds consistent with a beating,
and her legs were badly scratched. She died of head injuries from
After the jury had retired to consider whether
Berry should be sentenced to death, a hearing was held on the
habitual offender portion of Berry's indictment. The state offered
proof of seven prior convictions: two escapes; two grand larceny
convictions; perjury; burglary; and simple assault on a law
enforcement officer. The court found that the requirements of
Miss.Code Ann. § 99-19-81 were met and adjudged Berry an habitual
criminal, ineligible for probation or parole. Shortly thereafter the
jury returned from its deliberation and delivered the sentence of
death, having never been informed that Berry could never be paroled,
if given a life sentence.
We can see no reason why the jury should not be
informed that “life” means, “life, without probation or parole.”
Indeed, we can see compelling reasons to require that the jury know
this before sentencing a man to die. Consequently, in any case in
which the imposition of the death penalty is possible, the habitual
offender hearing should be held prior to jury deliberations on the
death penalty. Here, any element of speculation or uncertainty as to
Berry's status as an habitual criminal and whether he could be
placed on probation or paroled was removed before the jury sentenced
him to death. Mhoon v. State, 464 So.2d 77 (Miss.1985).
The jury should have been informed on this point
before considering its sentencing options. We find the reasoning of
the Supreme Court of New Mexico in State v. Henderson, 109 N.M. 655,
789 P.2d 603, 606-07 (1990) on this issue to be compelling, and
hereby adopt the following:
We base our decision herein on the fundamental
fairness, due process and eighth amendment rationales implicit in
the decision in California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446,
77 L.Ed.2d 1171 (1983), to the effect that “ ‘the jury [must] have
before it all possible relevant information about the individual
defendant whose fate it must determine,’ ” *14 id. at 1003, 103 S.Ct.
at 3454 (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950,
2958, 49 L.Ed.2d 929 (1976)), and in McCleskey v. Kemp, 481 U.S.
279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), to the effect that
states cannot limit the sentencer's consideration of any relevant
circumstance that could “cause it to decline to impose the death
sentence.” Id. at 304, 107 S.Ct. at 1773.
The “qualitative difference of death from all
other punishments”, Caldwell v. Mississippi, 472 U.S. 320, 329, 105
S.Ct. 2633, 2639, 86 L.Ed.2d 231, 239 (1985) (quoting California v.
Ramos, 463 U.S. at 998-99, 103 S.Ct. at 3452), has resulted in many
limitations on the imposition of capital punishment which are rooted
in a concern that the sentencing process should facilitate the
responsible and reliable exercise of sentencing discretion. Caldwell,
472 U.S. at 329, 105 S.Ct. at 2639, 86 L.Ed.2d at 239. Accurately
informing the jury that the alternative to the death penalty is life,
without benefit of probation or parole, can only enhance the
sentencing process, insuring that excessive punishment shall not be
inflicted. U.S. Const. amend. VIII, XIV; Miss. Const. art. 3 § 27.
On remand, the jury is to be informed that Berry
has been adjudged an habitual criminal.
We address only those errors raised by Berry
which are likely recur on remand.
Berry argues that the aggravating circumstance,
“previous conviction of a felony involving the use or threat of
violence to the person” is invalid. The prosecution offered a
certified copy of the judgment which was received as evidence
without objection. The asserted reason for the invalidity is not
that the underlying prior conviction was reversed or vacated, but
that Berry was awarded damages in the amount of $15,000 as the
result of a successful civil suit against the police officer who
shot Berry. Despite these disturbing facts, the trial court cannot
retry all prior convictions; thus, we have held the trial judge is
not required to look beyond the prior conviction, valid on its face.
Nixon v. State, 533 So.2d at 1099.
The aggravating circumstance instruction
regarding an “especially heinous, atrocious or cruel” offense was
presented for jury consideration without the limiting instruction,
mandated in Coleman v. State, 378 So.2d 640 (Miss.1979). Absent this
limiting instruction the charge fails to adequately channel the
jury's discretion. Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct.
1853, 100 L.Ed.2d 372 (1988).
On remand, the jury is to be given the limiting
instruction. Further, if the question is again presented, the court
may address anew the question of a change of venue.
AFFIRMED AS TO GUILT. REVERSED AND REMANDED FOR A
SENTENCING TRIAL CONDUCTED IN ACCORDANCE WITH THIS OPINION.
Berry v. State, 703 So.2d 269 (Miss.
1997) (Direct Appeal After Remand).
Defendant was convicted in the Circuit Court,
Chickasaw County, R. Kenneth Coleman, J., of capital murder and
sentenced to death following bifurcated jury trial. Defendant
appealed. The Supreme Court, Blass, J., 575 So.2d 1, affirmed as to
guilt and reversed and remanded as to sentencing. On remand, the
Circuit Court, William R. Lamb, entered death sentence. Defendant
In part one, the Supreme Court, Mills, J., held
that: (1) evidentiary rulings were proper; (2) prosecutor's comments
and actions did not prejudice defendant's right to fair trial; (3)
instructions regarding mitigating factors were proper; (4) jury
verdict form, although potentially confusing for jury, did not
warrant reversal; (5) defendant was not entitled to individual
sequestered voir dire due to content of pretrial publicity; (6)
court did not abuse its discretion in striking juror for cause; and
(7) defendant's death sentence was not disproportionate due to his
In part two, the Court, Pittman, J., held that
court's reversible error in determining that Batson test did not
apply to prosecutor's actions in striking all black jury members in
prosecution involving white defendant required remand for Batson
hearing. Affirmed in part and remanded in part. In part one, Prather,
P.J., concurred in part. In part two, McRae, J., concurred in result
only and Mills, J., filed dissenting opinion in which Dan Lee, C.J.,
James L. Roberts, Jr. and Smith, JJ., joined.
Berry v. State, 802 So.2d 1033 (Miss.
2001) (After Remand).
Defendant was convicted in the Circuit Court,
Chickasaw County, R. Kenneth Coleman, J., of capital murder and
sentenced to death following bifurcated jury trial. Defendant
appealed. The Supreme Court, 575 So.2d 1, affirmed as to guilt and
reversed and remanded as to sentencing.
On remand, the Circuit Court, William R. Lamb,
J., entered death sentence. Defendant appealed. The Supreme Court,
703 So.2d 269, affirmed in part and remanded in part for a hearing
on whether Batson criteria were violated by the prosecution in
exercising its peremptory challenges. The Circuit Court, R. Kenneth
Coleman, J., denied relief. Defendant appealed. The Supreme Court,
Pittman, C.J., held that: (1) state offered race neutral reasons for
its peremptory strikes of five black prospective jurors; (2) any
error in state basing its peremptory strike of black prospective
juror on juror's stated religious preference was harmless; and (3)
trial court's blanket findings on Batson issue did not require
remand. Affirmed. Banks, P.J., concurred in result only.
Berry v. State, 882 So.2d 157 (Miss.
Background: Defendant was convicted in the
Circuit Court, Chickasaw County, R. Kenneth Coleman, J., of capital
murder, and was sentenced to death. The Supreme Court, 575 So.2d 1,
affirmed conviction and remanded for resentencing. After venue was
changed on remand, the Circuit Court, Union County, William R. Lamb,
J., sentenced defendant to death. The Supreme Court, 703 So.2d 269,
affirmed in part and remanded for Batson hearing. After
determination that no Batson violation had been shown was affirmed,
802 So.2d 1033, defendant filed application for leave to file
petition for postconviction relief.
Holdings: The Supreme Court, Waller, P.J., held
(1) counsel's allegedly deficient performance in failing to obtain a
change of venue did not result in prejudice;
(2) counsel was not ineffective in failing to object to State's
allegedly improper remarks on credibility of prosecution witness;
(3) counsel was not ineffective in failing to request either a
continuance or a mistrial;
(4) results of DNA testing were not exculpatory evidence subject to
disclosure under Brady;
(5) Aggravating factors elevating charge against to a capital
offense were not constitutionally required to be included in
(6) determination of whether defendant was not mentally retarded was
not required to be submitted to jury; and
(7) defendant was not entitled to Atkins hearing. Application for
leave of file petition for postconviction relief denied. Graves, J.,
concurred in the result only.
WALLER, Presiding Justice, for the Court.
Earl Wesley Berry was convicted of capital murder in the Circuit
Court of Chickasaw County and sentenced as a habitual offender to
death for the kidnaping and murder of Mary Bounds. On appeal, we
affirmed the jury's verdict of guilty but vacated the death sentence
and remanded for resentencing. Berry v. State, 575 So.2d 1
(Miss.1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2042, 114 L.Ed.2d
126 (1991) (“ Berry I ”).
On resentencing, due to the nature and the extent
of pretrial publicity, venue was changed to the Circuit Court of
Union County. Again he was sentenced to death. Berry v. State, 703
So.2d 269, 273 (Miss.1997) (“ Berry II ”). On appeal, we affirmed
the sentence on all grounds except for the issue of jury selection
under Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411
(1991), and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986). Berry II, 703 So.2d at 295. We remanded the case for a
hearing on whether in exercising its peremptory challenges the State
Following the Batson hearing, the circuit court
held that Berry failed to establish a prima facie case of purposeful
discrimination and that the strikes made by the State were race
neutral. We affirmed the circuit court's findings and denial of
Berry's Batson motion. Berry v. State, 802 So.2d 1033, 1036
(Miss.2001) (” Berry III ).
Subsequently Berry filed with this Court the
instant Application for Leave to File Petition for Post-Conviction
Relief. We find that the application is not well taken.
APPLICATION FOR LEAVE TO FILE PETITION FOR POST-CONVICTION
Berry v. Epps, 506 F.3d 402 (5th Cir.
Background: Following affirmance of his
conviction for capital murder, 575 So.2d 1, and death sentence, 802
So.2d 1033, state inmate brought § 1983 action challenging the
protocol for lethal injection in Mississippi. The United States
District Court for the Northern District of Mississippi, W. Allen
Pepper, Jr., J., denied stay of execution and granted the State's
motion to dismiss. Defendant appealed and moved for injunction and/or
a stay of execution pending appeal.
Holdings: The Court of Appeals held that: (1)
inmate's delay in bringing challenge warranted dismissal, and (2)
inmate was not entitled to stay of execution pending United States
Supreme Court's decision in case also involving challenge to method
of execution. Judgment affirmed; injunction and stay denied.
This action by Earl Wesley Berry, scheduled to be executed by lethal
injection on 30 October 2007, challenges the protocol for lethal
injection in Mississippi. Along that line, Berry appeals the
dismissal of his 42 U.S.C. § 1983 complaint as well as the denial of
his request for an injunction. He has also filed with this court an
emergency application for an injunction and/or a stay of execution
Berry is presently under a sentence of death for
a murder committed 20 years ago, on 29 November 1987. In 1988, he
was tried, convicted, and sentenced to death in Mississippi state
court. Berry appealed his conviction and sentence to the Mississippi
Supreme Court, which affirmed the conviction but vacated the
sentence and remanded for resentencing. See Berry v. State, 575
So.2d 1 (Miss.1990).
On remand, Berry, in June 1992, was again
sentenced to death. The Mississippi Supreme Court affirmed the
sentence in part and remanded in part for an evidentiary hearing on
whether there had been a violation of Batson v. Kentucky, 476 U.S.
79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding peremptory
challenges may not be based solely on a juror's race).
Following the Batson hearing in January 1998, the
trial court held against Berry. The Mississippi Supreme Court
affirmed. Berry v. State, 802 So.2d 1033 (Miss.2001). Berry's
petition for writ of certiorari to the United States Supreme Court
was denied. Berry v. Mississippi, 537 U.S. 828, 123 S.Ct. 125, 154
L.Ed.2d 42 (2002).
Berry began post-conviction relief proceedings in
December 2002 by filing a request with the Mississippi Supreme Court,
asserting multiple grounds for relief. Relief was denied. Berry v.
State, 882 So.2d 157 (Miss.2004). The United States Supreme Court
denied certiorari. Berry v. Mississippi, 544 U.S. 950, 125 S.Ct.
1694, 161 L.Ed.2d 528 (2005).
Berry began federal habeas proceedings in October
2005, seeking relief from his conviction and sentence. The district
court denied relief. Berry v. Epps, No. 1:04CV328, 2006 WL 2865064 (N.D.
Miss. 5 Oct. 2006). It also denied Berry's request for a certificate
of appealability (COA). Berry v. Epps, No. 1:04CV328, 2006 WL
3147724 (N.D. Miss. 2 Nov. 2006). His request for a COA from this
court was denied on 24 April 2007. Berry v. Epps, 230 Fed.Appx. 386
(5th Cir.2007). On the first day of this month, Berry's petition for
writ of certiorari to the United States Supreme Court was denied.
Berry v. Epps, No. 07-5466, 2007 WL 2113574, --- U.S. ----, 128 S.Ct.
277, --- L.Ed.2d ---- (2007).
Accordingly, on 1 October, the State of
Mississippi moved to reset Berry's execution date. He responded on 4
October, including moving for leave to file a successive petition
for post-conviction relief, seeking to challenge the protocol used
by the State of Mississippi in conducting an execution by lethal
injection. On 11 October, the Mississippi Supreme Court: set Berry's
execution for 30 October 2007; and dismissed his motion for leave to
file a successive petition. Berry v. Mississippi, No. 93-DP-00059-SCT
(Miss. 11 Oct. 2007). Berry immediately moved for rehearing on both
issues. On 18 October, *404 the Mississippi Supreme Court denied
rehearing. Berry v. Mississippi, No. 93-DP-00059-SCT (Miss. 18 Oct.
On 24 October, Berry petitioned the United States
Supreme Court for a writ of certiorari. Petition for Writ of
Certiorari, Berry v. Mississippi, No. 07-7275 (24 Oct. 2007). He
simultaneously applied to the Court for a stay of execution and
death sentence. Motion for Stay of Execution, Berry v. Mississippi,
No. 07A334 (24 Oct. 2007). The State of Mississippi responded the
following day. The petition for certiorari and motion for stay are
pending before that Court.
On 18 October, the day rehearing was denied by
the Mississippi Supreme Court, Berry and four other death-sentenced
inmates filed this action in federal court, pursuant to 42 U.S.C. §
1983, seeking equitable and injunctive relief. Complaint, Walker v.
Epps, No. 4:07CV176 (N.D. Miss. 18 Oct. 2007). The complaint
requests “temporary, preliminary, and permanent injunctive relief to
prevent the defendants from executing [plaintiffs] by means of
lethal injection, as that method of execution is currently used in
Mississippi”. The complaint alleges lethal injection “unnecessarily
risks infliction of pain and suffering”. The State moved on 19
October to dismiss the action as to Berry.
The district court heard arguments on that motion
on 23 October. The next day, it denied injunctive relief and
dismissed the complaint as to Berry. Walker v. Epps, No. 4:07CV176
(Miss. N.D. 24 Oct. 2007). The court properly characterized part of
the relief requested by Berry as a motion for stay of execution, see,
e.g., White v. Johnson, 429 F.3d 572, 574 (5th Cir.2005), and
recognized this court's long-standing refusal to grant dilatory
requests for such stays. Addressing Berry's reliance on the United
States Supreme Court's recent grant of certiorari in Baze v. Rees,
No. 07-5439, 2007 WL 2075334, --- U.S. ----, 128 S.Ct. 34, 168 L.Ed.2d
809 (2007) (challenging the constitutionality of lethal injection),
the district court explained that grant “has no impact on
established law”. Berry immediately filed this appeal (24 October).
Well-established fifth circuit precedent is clear:
death-sentenced inmates may not wait until execution is imminent
before filing an action to enjoin a State's method of carrying it
out. See, e.g., Harris v. Johnson, 376 F.3d 414, 416-17 (5th
Cir.2004). Such claims are dilatory and should be dismissed. See
Smith v. Johnson, 440 F.3d 262, 263 (5th Cir.2006). In Harris, our
“[T]he mere fact that an inmate states a
cognizable § 1983 claim does not warrant the entry of a stay as a
matter of right ... [a] court may consider the last-minute nature of
an application to stay execution in deciding whether to grant
We do not decide whether Harris properly states a
claim under § 1983, because even if he does, he is not entitled to
the equitable relief he seeks. Harris has been on death row for
eighteen years, yet has chosen only this moment, with his execution
imminent, to challenge a procedure for lethal injection that the
state has used for an even longer period of time .... Harris cannot
excuse his delaying until the eleventh hour on the ground that he
was unaware of the state's intention to execute him by injecting the
three chemicals he now challenges. Harris, 376 F.3d at 416-17 (emphasis
added) (alteration in original) (citations omitted) (quoting Nelson
v. Campbell, 541 U.S. 637, 649, 124 S.Ct. 2117, 158 L.Ed.2d 924
A similar analysis is applicable to the claim at
hand. Berry was convicted of murder 19 years ago and resentenced to
death over 15 years ago. His conviction and sentence became final
upon the 7 October 2002 denial of certiorari by the United States
Supreme Court. Only now, mere days before his scheduled execution,
does Berry first challenge the execution protocol used in
Mississippi. Our precedent requires the dismissal of “eleventh hour”
dilatory claims such as Berry's. See, e.g., Brown v. Livingston, 457
F.3d 390 (5th Cir.), cert. denied, --- U.S. ----, 127 S.Ct. 10, 165
L.Ed.2d 991 (2006); Reese v. Livingston, 453 F.3d 289 (5th
Cir.2006); Smith v. Johnson, 440 F.3d 262 (5th Cir.2006); White v.
Johnson, 429 F.3d 572 (5th Cir.2005); Harris, 376 F.3d at 414.
Notwithstanding such precedent, Berry relies
heavily on the Supreme Court's grant of certiorari in Baze, 2007 WL
2075334, --- U.S. ----, 128 S.Ct. 34 (challenging the
constitutionality of lethal injection), and the recent stays of
execution ordered and affirmed by that Court and others. Regardless,
this court has repeatedly explained: fifth circuit precedent
“remains binding until the Supreme Court provides contrary guidance”.
Neville v. Johnson, 440 F.3d 221, 222 (5th Cir.2006).
Accordingly, we need not reach the merits of his
§ 1983 claim. Likewise, Berry's application for an emergency
injunction and stay of execution is denied.
For the foregoing reasons, the denial of
injunctive relief and dismissal of the complaint as to Berry is
AFFIRMED. The application for injunctive relief and a stay of
execution is DENIED. JUDGMENT AFFIRMED; INJUNCTION AND STAY DENIED.