Executed May 21, 2008 at 6:15 p.m. by Lethal Injection in Mississippi
2nd murderer executed in U.S. in 2008
1101st murderer executed in U.S. since 1976
1st murderer executed in Mississippi in 2008
9th murderer executed in Mississippi since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Earl Wesley Berry
W / M / 28 - 49
W / F / 56
Berry v. State, 575 So.2d 1 (Miss. 1990) (Direct Appeal).
Berry v. State, 703 So.2d 269 (Miss. 1997) (Direct Appeal After Reversal).
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."
Jackson Clarion-Ledger"Convicted Killer Executed; Family Has Received Justice," by Kathleen Baydala. (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 about him.”
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 to die.
"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 Court case.
"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 RowInmate: Earl Berry
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.
Mississippi Department of Corrections - Media Kit
• State Death Row Inmate Earl Wesley Berry, MDOC #34939
• 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 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. 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 injection.
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 room.
24 Hours Prior to Execution Institution is placed in emergency/lockdown status.
1200 Hours Day of Execution Designated media center at institution opens.
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 to shower.
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 execution room.
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 is closed.
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 CHAMBER
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 Sunflower County.
• 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 Lawrence Kelly.
• 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
Northeast Mississippi Daily Journal
"Berry Executed for Murder," by Errol Castens. (5/22/2008)
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."
ProDeathPenalty.comMary 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. 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.
The following is an excerpt from the Clarion-Ledger (Jackson, Mississippi):
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 injection.
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 was yesterday."
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."
National Coalition to Abolish the Death Penalty / Amnesty International
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.”
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 retarded.”
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
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible: - expressing sympathy for any family of Mary Bounds, and explaining that you are not seeking to excuse the manner of her death or to downplay the suffering it will have caused; - opposing the execution of Earl Wesley Berry; - noting evidence that Earl Berry has mental retardation, and expressing concern that he has not even had an evidentiary hearing on this issue as a result of his prior counsel’s failure to file the necessary affidavit; - pointing out that the power of executive clemency is not restricted by the sort of technical procedural rules that may leave courts unwilling or unable to prevent injustices; - urging the Governor to grant clemency to Earl Berry.
"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., concurred.
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 blows.
* * *
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 appealed. 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 mental conditions. 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. 2004) (PCR).
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 that:
(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 indictment;
(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 violated Batson.
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 RELIEF DENIED.
Berry v. Epps, 506 F.3d 402 (5th Cir. 2007) (Habeas).
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 pending appeal.
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. 2007).
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 court stated:
“[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 equitable relief.”
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 (2004)).
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.