Wilcher v. Epps

239 F.R.D. 463, 2006 U.S. Dist. LEXIS 77475, 2006 WL 2973054
CourtDistrict Court, S.D. Mississippi
DecidedOctober 16, 2006
DocketCivil Action No. 3:98-CV-236WS
StatusPublished
Cited by4 cases

This text of 239 F.R.D. 463 (Wilcher v. Epps) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilcher v. Epps, 239 F.R.D. 463, 2006 U.S. Dist. LEXIS 77475, 2006 WL 2973054 (S.D. Miss. 2006).

Opinion

MEMORANDUM OPINION1

WINGATE, Chief Judge.

Before this court is Bobby Wilcher’s “Emergency Motion To Reinstate Petition For Writ Of Habeas Corpus, To Withdraw Petitioner’s Pro Se Motion, And To Reinstate Stay Of Execution.” Bobby Wilcher, petitioner, is a death-row inmate at the Mississippi State Penitentiary at Parchman, Mississippi, who is scheduled to be executed by lethal injection a few days from now, on October 18, 2006, at 6:00 o’clock p.m.

Wilcher, through his attorney, Cliff Johnson, filed this motion on October 5, 2006. The State of Mississippi, represented by Marvin L. White, Jr., promptly filed a response in opposition thereto. On Friday, October 13, 2006, at approximately 11:30 o’clock a.m., this court gathered the parties, including Wilcher, and heard oral argument. The court also heard from one witness, Leonard Vincent, in-house attorney for the Mississippi Department of Corrections, called by the State of Mississippi.2

Wilcher resides on death-row because two separate juries convicted him of the capital murders of Velma Odell Noblin and Katie Belle Moore. The killings occurred on the night of March 5,1982. Since his 1982 trials, Wilcher has pursued various appeals before the state and federal courts, appeals which have attacked virtually every aspect of the two trial proceedings which resulted in two separate juries imposing the death penalty.

On June 8, 2006, this court addressed Wil-cher’s motion asking this court to allow him to abandon all further appeals and to submit himself for immediate execution. At the time, Wilcher still had pending before this court his Petition For Habeas Corpus3 by which he raises a challenge to the propriety of the trial judge’s presiding over the trials, challenge to the competency of his defense attorneys, and challenge to the prosecutor’s conduct at trial. He also in that Petition For Habeas Corpus attacks the conduct of the jury-

As earlier stated, notwithstanding this outstanding Petition for Habeas Corpus, Wil-cher, in open court, on June 8, 2006, advised this court that he did not desire to prosecute his appeal any further. Thereafter, this court conducted a thorough inquiry relative to Wilcher’s state of mind, motivation and understanding of his predicament. The court also probed whether Wilcher’s surpris[465]*465ing request was the result of any force, coercion or threat.

Pursuant to the guideposts set out in Rees v. Peyton, 384 U.S. 312, 313, 86 S.Ct. 1505, 16 L.Ed.2d 583 (1966), Gilmore v. Utah,, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976); Smith v. Armontrout, 812 F.2d 1050, 1056 (8th Cir.1987), Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir.1985), and Hays v. Murphy, 663 F.2d 1004 (10th Cir.1981) this court found that Wilcher’s request was freely-made and the product of a sane, competent mind. Wilcher celebrated when the court agreed with him that his, not his attorney’s, decision controlled whether he could take this drastic act and move to submit himself to the fate two juries had found he deserved.

Now, Wilcher says he has changed his mind. Now, he says he wants to live. Now, he says he wants to further his appeals. Seated in court throughout these proceedings of October 13, 2006, Wilcher did not himself address the court as he had done on June 8, 2006, but allowed Mr. Johnson to offer his argument. At the hearing held on June 8, 2006, Wilcher had stated that he wanted some distance between him and his attorneys because he did not want them trying to talk him out of his decision to abandon. Showing a mature understanding of the appellate process, Wilcher stated to the court that he did not want them excused from further representing him because the State would not allow him to die without any representation, that the court would later have to appoint new attorneys, who then would ask that the execution be postponed so that new counsel could become familiar with the record.

Wilcher’s defense counsel points to the extraordinary circumstances of this matter, in the balance the possible execution of his client. His entreaty, in this regard, was unnecessary. This court certainly recognizes the gravity of this matter, the potential finality this decision could occasion.

Wilcher surely appreciated these circumstances also. By now, Wilcher would understand the consequences of requested meetings and open statements. At trial, the State’s proof was that Wilcher had requested to meet with the Sheriff, and at that meeting had confessed to the murders. At trial, the State’s proof had been that Wilcher had invited a journalist to interview him, and during that interview had signed releases and confessed to the crimes. Supposedly, Wil-cher stated to this journalist that when he was killing the women, “It felt good.” At Wilcher’s trial, witnesses testifying to Wil-cher’s detriment repeated what Wilcher allegedly had said. So, by now Wilcher surely appreciates the possible consequence which may result from a criminal defendant’s volunteered comments on his criminal charges.

Now, Wilcher wants to retract his earlier-granted abandonment of appeals. At the time he did so, he says, he was in the grip of hopelessness, frustration and at a low point in his life. He offers nothing else.

When he decided to renounce his position on abandonment and to embrace a thirst for life is unclear to this court. Although his affidavit of July 7 purportedly seeks to reinstate his habeas petition, his conduct thereafter, at the time of the originally scheduled execution on July 11, 2006, may suggest otherwise. This dispute, however, does not affect this court’s legal analysis of this matter.

His lawyer argues that he should be able to renounce that request, owing to the above factors and the sainted purpose of the Great Writ. Wilcher’s attorney makes the following arguments in support of Wilcher’s motion: that he previously was discouraged and believed his appeals to be a waste of time; that Wilcher now realizes that he made a drastic decision due his feelings of frustration and hopelessness; that Wilcher is entitled to the protections of the Great Writ; because Rule 60(b)(6)4 compels this court to [466]*466grant the relief requested; and because the death penalty is final, thereby requiring every review.

In opposition, the government argues that: Wilcher’s request is tantamount to a successive petition and that Rule 60(b)(6) is being used merely to submit new claims which would not otherwise be permitted; if not a successive petition, the government argues that relief under Rule 60(b)(6) requires a showing of extraordinary circumstances not presented here, and that Wilcher is seeking relief not from some imposition of this court, but because of his own voluntary actions.

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Bluebook (online)
239 F.R.D. 463, 2006 U.S. Dist. LEXIS 77475, 2006 WL 2973054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcher-v-epps-mssd-2006.