166 So. 3d 22 - Brawner v. State

¶1 CORRECTED ORDER

GEORGE C. CARLSON, JR., Presiding Justice,

¶2for the Court.

¶3This matter is before the Court on the Motion for Leave to File Successive Peti*23tion for Post-Conviction Relief filed by counsel for Jan Michael Brawner, Jr. Also before the Court is the Response filed by the State of Mississippi and the Rebuttal filed by Brawner.

¶4Brawner was convicted of four counts of capital murder and was sentenced to death. This Court affirmed the conviction and sentence in Brawner v. State, 872 So.2d 1 (Miss.2004). Brawner’s initial petition for post-conviction relief was denied. Brawner v. State, 947 So.2d 254 (Miss.2006). Brawner’s federal habeas concluded when the United States Supreme Court denied certiorari on May 14, 2012. Brawner v. Epps, — U.S. —, 182 S.Ct. 2375, 182 L.Ed.2d 1025.

¶5In this successive petition, Brawner asserts that trial counsel was ineffective for not presenting evidence in mitigation of sentence and for failing to transcribe the full record. He further asserts that his waiver of mitigation evidence was not knowing, intelligent and voluntary. He also asserts that trial counsel failed to foster an attorney-client relationship and that he was denied effective assistance of post-conviction counsel. These issues have all been previously litigated before in this Court on post-conviction review and in federal habeas corpus proceedings. Brawner v. Epps, 2010 WL 883734 (N.D.Miss.2010). Therefore, the Court finds that these claims have been substantially reviewed in prior proceedings and are now procedurally barred and barred by the doctrine of res judicata.

¶6IT IS THEREFORE ORDERED that the Motion for Leave to File Successive Petition for Post-Conviction Relief filed by counsel for Jan Michael Brawner, Jr., is denied.

¶7SO ORDERED.

TO DENY: WALLER, C.J., CARLSON AND DICKINSON, P JJ, RANDOLPH AND PIERCE, JJ. CHANDLER, J, OBJECTS WITH SEPARATE WRITTEN STATEMENT, JOINED BY KITCHENS AND KING, JJ. NOT PARTICIPATING: LAMAR, J. CHANDLER, Justice,

¶8objecting to the order with separate written statement:

¶9Because the issue of whether a non-lawyer’s purported representation of Brawner during critical stages of the proceedings never has been addressed by this Court and the issue is now clearly before the Court, we would allow Brawner to file a successive motion for post-conviction relief on this issue.

¶10KITCHENS AND KING, JJ, JOIN THIS SEPARATE WRITTEN STATEMENT.