IN THE SUPREME COURT OF MISSISSIPPI

MICHELLE BYROM,

Appellant

versus

NO. 2001-DP-00529-SCT

STATE OF MISSISSIPPI

Appellee

MOTION TO RESET EXECUTION DATE _____________________________________

COMES NOW , the State of Mississippi, by Jim Hood, Attorney General, and Marvin L. White, Jr., Assistant Attorney General, and respectfully moves this Court to set a new execution date for the imposition of the sentence of death in the above styled and numbered case and as grounds therefor, would show unto the Court the following facts: I. Michelle Byrom is presently under a sentence of death for the murder of her husband, Edward Louis Bryom, Sr., on June 4, 1999, in a murder for hire scheme to collect his insurance proceeds in violation of M ISS. C ODE A NN. 97-3-19 (2)(d). The facts as recited by this Court in the direct appeal opinion can be found in, Byrom v. State , 863 So.2d 836, 845-46, 2-8. II . This case originated in the Circuit Court of Tishomingo County, Mississippi, wherein Michelle Byrom was convicted of the crime of capital murder and sentenced to death for the

murder of her husband, Edward Byrom, Sr. Byrom was indicted during a vacation term of the Tishomingo County Circuit Court on October 21, 1999, for violation of M ISS. C ODE A NN. 97-3-19 (2)(d). A jury trial commenced November 13, 2000, before the Circuit Court of Tishomingo County, Mississippi. On November 17, 2000, the jury returned a verdict of guilty of capital murder. Thereafter, Byrom petitioned for a sentencing hearing before the judge, without a jury. The State agreed to this procedure in writing as is required by M ISS. C ODE A NN. 99-19101(1). The trial court conducted a hearing on this issue and questioned petitioner regarding the rights she was waiving. Being satisfied that Byrom actually desired to waive the sentencing jury the circuit court granted the motion for a bench trial. The trial court then conducted a sentencing hearing, without a jury, making the following findings: In considering the sentence to be imposed the Court considered those factors set out in Section 99-19-101 (7) M ISS C ODE A NN. 1972, and finds beyond a reasonable doubt that the Defendant intended that the killing of Edward Byrom, Sr., take place and that the defendant contemplated that lethal force would be employed in this crime. The Court further considered the matter of mitigating and aggravating circumstances. Specifically, the Court found and does find beyond a reasonable doubt that the aggravating circumstance of the capital offense having been committed for pecuniary gain as provided for by Section 99-19101 (5) (f) M ISS C ODE 1972 Ann. existed in this case at the time of the commission of the said capital murder. Further, the Court considered as mitigating circumstances the fact that the Defendant, Michelle Byrom, had no history of prior criminal activity and whether or not the Defendant was acting under the influence of extreme mental or emotional disturbance at the time of the commission of the crime. The Court, having considered each of the mitigating factors suggested by the Defendant and all other mitigating circumstances concerning the Defendants 2

character and history and the circumstance of the offense which might be considered mitigating on behalf of the Defendant, and having weighed the aggravating factor against the mitigating factors finds that the mitigating factors do not outweigh or overcome the aggravating circumstances and that the death penalty should be imposed. Petitioners post-trial motions were denied February 7, 2001. In her automatic appeal to this Court she raised fifteen issues for consideration. This Court rejected Petitioners claims and affirmed her conviction and sentence of death on October 16, 2003, rehearing was denied January 29, 2004. See Byrom v. State , 863 So.2d 836 (Miss. 2003). Certiorari was denied by the United States Supreme Court. See Byrom v. Mississippi, 543 U.S. 826 (2004). No petition for rehearing was filed. Byrom then filed an application for leave to file a motion for post-conviction relief in the trial court with this Court. In that application petitioner raised seven claims. On January 19, 2006, this Court denied the application for post-conviction and later denied a petition for rehearing on May 11, 2006. See Byrom v. State , 927 So.2d 709 (Miss. 2006). Certiorari was again denied by the United States Supreme Court on November 27, 2006. See Byrom v. Mississippi, 549 U.S. 1056 (2006). No petition for rehearing was filed. Prior to the denial of the petition for writ of certiorari, petitioner filed a petition for writ of habeas corpus with the United States District Court for the Northern District of Mississippi on September 8, 2006. On July 5, 2011, the district court issued an opinion denying habeas corpus relief. Petitioner then filed a motion to alter or amend on August 1, 2011. On August 22, 2011, the district court withdrew the original opinion filed an amended opinion denying habeas relief. See Byrom v. Epps , 817 F.Supp.2d 868 (N.D.Miss.,2011). 3

The district court granted a COA on five claims. Id. at 917-18. Petitioner filed a second motion to alter or amend, which was denied on August 29, 2011. Petitioner then took her appeal to the United States Court of Appeals for the Fifth Circuit where she raised claims upon which COA had been granted and also filed a petition requesting the Fifth Circuit to expand the grant of COA on two additional claims. On March 28, 2013, the Fifth Circuit rendered its unpublished per curium opinion denying the motion for expanded COA, affirming the judgment of the district court and denying habeas relief. See Byrom v. Epps, 518 Fed.Appx. 243 (5th Cir. 2013). Petitioners petition for rehearing en banc was denied on May 23, 2013. From this action by the Fifth Circuit, Byrom filed a petition for writ of certiorari with the United States Supreme Court challenging the rulings of the lower federal courts. On February 24, 2014, the United States Supreme Court denied the petition for writ of certiorari. See Byrom v.Epps , ___ U.S. ___, 2014 WL 684161 (Feb. 24, 2014). III. It is the States position that the denial of the petition for writ of certiorari brings to a conclusion the challenges by Byrom in state and federal court to his conviction and sentence of death. In support of this assertion the State would invite the Courts attention to Rule 16.3, Rules of the Supreme Court of the United States, which states: 3. Whenever the Court denies a petition for a writ of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment was sought to be reviewed. The order of denial will not be suspended pending disposition of a petition for rehearing except by order of the Court or a Justice . [Emphasis 4

added.] In R OBERT L. S TERN ET AL., S UPREME C OURT P RACTICE (7th ed.1993), we find the following: When the Court denies a petition for certiorari, no judgment or mandate to that effect issues to the lower court. Instead, Rule 16.3 directs the Clerk to enter an order of denial and forthwith to notify the court below and counsel of record as to the Courts action. The notification to the court below consists of a letter to the lower court clerk, advising him of the denial and enclosing a certified copy of the order denying certiorari. The petitioner has 25 days from the date of the order in which to file a petition for rehearing of the order denying certiorari. Rule 44.2. But the notification to the lower court and to counsel that certiorari has been denied is in no way withheld, stayed, or suspended during this 25-day period or during the ensuing time necessary for the Court to consider and dispose of the petition for rehearing . Ordinarily the Clerk notifies counsel by letter on the same day that the orders of denial are entered, while the letters to the lower court clerks, enclosing copies of the orders, are mailed within two or three days thereafter. Rule 16.3 further provides that the order of denial will not be suspended pending the disposition of a petition for rehearing except by order of the Court or a Justice. This means that the order of denial is legally effective as of the time of its entry by the Supreme Court and that lower courts may take further appropriate action in light of the denial as they see fit, although such action usually awaits receipt of the letter of notification and the certified copy of the order of denial. On occasion, counsel may wish to forestall any adverse or prejudicial action by a lower court pending the filing and disposition of a petition for rehearing of an order denying certiorari. In that event, as Rule 16.3 indicates, counsel must apply to the Court or to the appropriate Circuit Justice for an order suspending the effectiveness of the order denying certiorari. The motion to that effect can be submitted as soon as practicable at any time during the 25day rehearing period, even after the lower court has been notified of the denial of certiorari. Counsel will of course want to apply for a suspension order before the lower court has taken further action in reliance on the denial of certiorari. If the application is granted, the Clerk will notify both counsel and 5

the lower court that the effectiveness of the order of denial has been suspended pending the filing and disposition of a petition for rehearing. If the petition for rehearing is subsequently denied, the suspension of the order denying certiorari immediately terminates and the original order of denial is simultaneously reinstated. ... In Richmond v. Arizona , 434 U.S. 1323 (1977), Justice Rehnquist in chambers, after consultation with my colleagues, denied an application to suspend an order denying certiorari in a capital case upon the ground that the accompanying petition for rehearing seems to me to demonstrate nothing that would indicate any reasonable likelihood of this Courts reversing its previous decision and granting certiorari. Most of the applicants rehearing contentions had been rejected previously. And there was not showing that the factors that the applicant argued must be considered in imposing a death sentence his age or his prior criminal history would be relevant in his case, since he had not alleged that he was a minor, and the record showed that he had previously been convicted of kidnapping. Sec. 6.43, at 383-84. [Emphasis added.] Later, we find the following: However, in cases where certiorari has been denied and no judgment or mandate will therefore issue, Rule 16.3 provides that the Clerk shall forthwith notify the court below of the denial and that the order of denial will not be suspended pending the disposition of a petition for rehearing except by order of the Court or a Justice. A separate application or motion, addressed to the appropriate Circuit Justice, requesting a suspension of the order of denial may be filed at any time during the 25-day rehearing period. See Sec. 6.43, supra . Then-Justice Rehnquists in-chambers opinion in Richmond v. Arizona , 434 U.S. 1323, 1325-26 (1977), states the applicable standard: A motion for rehearing of an order denying certiorari does not automatically suspend the order during the Term, unlike a petition for rehearing after full consideration of the case on the merits. The petitioner must apply to an individual Justice for a suspension of the order denying certiorari. * * * The question under such circumstances must be whether there is any reasonable likelihood of the Courts changing its position and granting certiorari. Sec. 15.2 at 614. [Emphasis added.]

In Richmond v. Arizona , 434 U.S. 1323, 98 S.Ct. 8, 54 L.Ed.2d 34 (1977) (Rehnquist, J., in chambers), we find the following direction as to when a case becomes final. ThenJustice Rehnquist, opined: A motion for rehearing of an order denying certiorari does not automatically suspend the order during the Term, unlike a petition for rehearing after full consideration of the case on the merits. The prisoner must apply to an individual Justice for a suspension of the order denying certiorari. Cf. this Courts Rules 25(2) and 59(2). The question under such circumstances must be whether there is any reasonable likelihood of the Courts changing its position and granting certiorari. As elaborated above there does not seem to me to be any such likelihood here. The application for a suspension of our order denying certiorari or, in the alternative, a stay of execution is therefore denied. 434 U.S. at 1325-26. [Emphasis added.] Certiorari has been denied in this case. According to the rules of the United States Supreme Court, the order of denial is legally effective as of the time of its entry by the Supreme Court and this Court may take further appropriate action in light of the denial. Therefore, the State of Mississippi asserts, as required by M ISS. C ODE A NN. 99-19106, that all state and federal remedies have been exhausted . . . . Therefore, a date of execution should be set in accord with M ISS. C ODE A NN. 99-3929, which reads in part: If, however, a stay has been entered either by a state or federal court and post-conviction collateral relief is denied, the Supreme Court of Mississippi shall forthwith fix a day, not more than thirty (30) days distant from the date of said denial or the vacating of any stay entered by any federal court, for the execution of the sentence, and a warrant shall forthwith issue accordingly. There has been not stay of execution in force since the denial of the writ of habeas corpus

by the United States District Court for the Southern District of Mississippi on March 30, 2009. Therefore, there are no stays of execution in effect from any court at this time. The State therefore request the date for the execution of the sentence of death be set on or before March 27, 2014.1 Further, M ISS. C ODE A NN. 99-19-55 (1), reads in part: Whenever any person shall be condemned to suffer death for any crime for which such person shall have been convicted in any court of any county of this state, such punishment shall be inflicted at 6:00 p.m. or as soon as possible thereafter within the next twenty-four (24) hours at an appropriate place designated by the Commissioner of Corrections on the premises of the Mississippi State Penitentiary at Parchman, Mississippi. [Emphasis added.] Since the time for carrying out the execution could encompass more than one calendar day, the order setting the execution date should contain some reference to the time frame in which the execution should take place. Further, the State would point out that M ISS. C ODE A NN. 99-19-105 (7), has been repealed. This statute was the only statute that made reference to the order of this Court setting an execution date serving as the warrant for executing the death sentenced prisoner. Therefore, this Court should also state in its order setting the date of execution that the order shall serve as the warrant for executing Michelle Byrom. WHEREFORE, PREMISES CONSIDERED, the State respectfully moves the Court to set the execution date in this case as no legal impediment exists to deter the setting

The State is aware that this date is 31 days distant. However, it is requesting an execution date in the earlier case of Crawford v. State, No. 94DP01016SCT, be carried out on March 26, 2014. 8

of this execution date. The State, therefore, requests that a new execution date be set forthwith in this case according to law to be imposed on or before March 27, 2014. Respectfully submitted, JIM HOOD ATTORNEY GENERAL STATE OF MISSISSIPPI JASON L. DAVIS SPECIAL ASSISTANT ATTORNEY GENERAL MARVIN L. WHITE, JR. SPECIAL ASSISTANT ATTORNEY GENERAL Miss. Bar No. 7149 Counsel of Record BY: O FFICE OF THE A TTORNEY G ENERAL Post Office Box 220 Jackson, Mississippi 39205 Telephone: (601) 359-3680 Telefax: (601) 359-3185 swhit@ago.state.ms.us

s/ Marvin L. White, Jr.

CERTIFICATE OF SERVICE This is to certify that I, Marvin White, Special Assistant Attorney General for the State of Mississippi, have electronically filed, this MOTION TO RESET EXECUTION DATE to the following: Davis L. Calder, Esquire P.O. Box 1799 Oxford, Mississippi 38655 This, the 24th day of February, 2014. Respectfully submitted,

s/ Marvin L. White, Jr.

SPECIAL ASSISTANT ATTORNEY GENERAL Miss. Bar No. 7149 O FFICE OF THE A TTORNEY G ENERAL Post Office Box 220 Jackson, Mississippi 39205 Telephone: (601) 359-3680 Facsimile: (601) 359-3796 Email: swhit@ago.state.ms.us

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