Knox v. State

Full title: STEVE KNOX a/k/a STEVE MICHAEL KNOX Petitioner v. STATE OF MISSISSIPPI…

Court: Supreme Court of Mississippi

Date published: Mar 10, 2022

No. 2014-DR-00849-SCT (Miss. Mar. 10, 2022)

Opinion

2014-DR-00849-SCT

03-10-2022

STEVE KNOX a/k/a STEVE MICHAEL KNOX Petitioner v. STATE OF MISSISSIPPI Respondent

DAWN H. BEAM, JUSTICE FOR THE COURT.

EN BANC ORDER

DAWN H. BEAM, JUSTICE FOR THE COURT.

Now before the Court is Steve Knox's Second Amended Motion for Leave to File Successor Petition for Post Conviction Relief Knox was convicted of capital murder in Amite County in 1999 for the strangulation death of Ella Mae Spears committed during the commission of a robbery, and he was sentenced to death. Knox's direct appeal was affirmed in Knox v. State, 805 So.2d 527 (Miss. 2002).¹ Knox sought post-conviction relief, which this Court denied. Knox v. State, 901 So.2d 1257 (Miss. 2005).

1 This Court unanimously found that the elements of robbery were clearly established and proved beyond a reasonable doubt. Knox, 805 So.2d at 532. This Court also found that the proof demonstrated that the victim suffered a slow and painful death prior to being stuffed in the trunk of her car, thereby warranting a jury instruction on the aggravating circumstance that the victim's murder was especially heinous, atrocious, or cruel. Id. at 533-34.

In Knox's second petition for post-conviction relief, he asks this Court for leave to proceed in the trial court on the grounds that he received ineffective assistance of trial counsel and ineffective assistance of first post-conviction relief counsel, that the State should be barred from seeking the death penalty against him due to his severe mental disorder and traumatic brain injury, and that cumulative error warranted relief. In response to Knox's petition, the State argues that Knox's claims are procedurally barred.

While direct appeal is "the principal means of reviewing all criminal convictions and sentences," the purpose of post-conviction proceedings is to provide prisoners with a limited procedure "to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal." Miss. Code Ann. § 99-39-3(2) (Rev. 2020). Pursuant to Mississippi Code Section 99-39-27(5) (Rev. 2020), leave to proceed should only be granted if Knox's petition, exhibits, and prior record show that the claims presented are not procedurally barred under Mississippi Code Section 99-39-21 (Rev. 2020), and they "present a substantial showing of the denial of a state or federal right[.]"

Knox must also demonstrate that his claims should be excepted from the procedural bars. First, Mississippi Code Section 99-39-5(2)(b) (Rev. 2020) provides, in part, that motions for post-conviction relief in capital cases must be brought within one year after the conviction. Knox was convicted in 1999, and the mandate from his direct appeal issued in February 2002. Knox's current motion was filed well outside of the one-year period, so he must show that his claims are excepted from the procedural bar. Additionally, as this is Knox's second motion seeking post-conviction relief, this motion is subject to the successive-writ bar unless an applicable exception applies. Miss. Code Ann. § 99-39-27(9) (Rev. 2020). Next, Knox is prohibited by the procedural bar of res judicata from raising claims that have been addressed already in prior proceedings. Miss. Code Ann. § 99-39-21(3) (Rev. 2020). Similarly, the litigation of an issue at trial and on direct appeal of a specific legal theory constitutes waiver of all other legal theories "which could have been raised under said factual issue5' and will be procedurally barred "absent a showing of cause and actual prejudice.55 Miss. Code Ann. § 99-39-21(2) (Rev. 2020). Lastly, the failure by a prisoner to raise an objection, defense, claim, question, issue or error "which were capable of determination at trial and/or on direct appeal . . . shall constitute a waiver . . . and shall be procedurally barred55 unless this Court finds cause and actual prejudice. Miss. Code Ann. § 99-39-21(1) (Rev. 2020).

After a full review of Knox's motion and supporting documents, we find that the claims he raises are procedurally barred without applicable exceptions.²

2 On June 24, 2014, Knox filed a Motion for Leave to file Successive Petition for Post-Conviction Relief, and on November 14, 2018, he filed a First Amended Motion for Leave to File Successor Petition for Post-Conviction Relief. These prior motions are superseded by the instant motion; therefore, these prior motions are hereby dismissed.

I. Ineffective Assistance of Counsel

Knox raises several claims of ineffective assistance of counsel by his trial counsel and his first post-conviction relief counsel. At trial, Knox was represented by Gus Sermos and Leonard Rosenthal. He claims that they were ineffective for failing to investigate mitigating evidence to present at his sentencing, for failing to challenge the State's proffered nondiscriminatory reasons for striking Black venire members and female venire members, and for failing to present any defense on Knox's behalf. He also argues that Robert Ryan, his first post-conviction relief counsel, was ineffective for superficially raising a claim of ineffective assistance of trial counsel without conducting any investigation into mitigation evidence and not presenting the Court with any evidence that would have justified granting the first motion for post-conviction relief.

In effective-assistance-of-counsel claims in capital cases are subject to the procedural bars, unless the claims meets an exception to the procedural bars. Grayson v. State, 118 So.3d 118, 125 (Miss. 2013). Here, Knox's claims of ineffective assistance of counsel do not warrant an exception to the procedural bars. The same ineffective-assistance-of-trial-counsel claims were raised by Knox's first post-conviction relief counsel and addressed by this Court in Knox, 901 So.2d at 1262-66. While this Court has recognized the right to effective assistance of post-conviction relief counsel in death-penalty cases, Grayson, 118 So.3d at 126, Knox has failed to demonstrate constitutionally deficient performance by original post-conviction relief counsel.

II. Intellectual and Mental Disability

Knox also argues that he is in a class of persons who should be excepted from death-penalty eligibility due to his intellectual disabilities and a traumatic brain injury he suffered when he was younger. This claim is barred by the procedural bars and does not fall within any exception to the procedural bars.

III. Cumulative Error

Lastly, Knox argues that cumulative error warrants that he receive a new sentencing hearing. When individual errors standing alone do not constitute reversible error, there is an avenue to obtain relief through applying the cumulative-error standard. There, we look to whether the cumulative effect of all errors deprived a defendant of a fundamentally fair and impartial trial. McFee v. State, 511 So.2d 130 (Miss. 1987). Knox presented no argument as to why this claim should be excepted from the procedural bars.

Because the claims raised by Knox are procedurally barred and not excepted, this Court finds that Knox's motion should be denied.

IT IS THEREFORE ORDERED that Steve Knox's Second Amended Motion for Leave to File Successor Petition for Post-Conviction Relief is hereby denied.

SO ORDERED.

AGREE: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ.

DISAGREE: KITCHENS AND KING, P.JJ., ISHEE AND GRIFFIS, JJ.

KITCHENS, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KING, P.J., ISHEE AND GRIFFIS, JJ.

KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶1. Justice is denied today. Knox's successive application for leave to proceed with a motion for post-conviction relief substantially shows a denial of his state and federal rights to the effective assistance of counsel at the guilt and penalty phases of his death penalty trial. U.S. Const, amend. VI; U.S. Const, amend. XIV; Miss. Const, art. 3, § 26. The majority wrongly, and without explanation, finds that his claims are procedurally barred. Because Knox has shown substantially that he received ineffective assistance from post-conviction counsel, his claims are excepted from the procedural bars ordinarily applicable to a successive petition, and he is entitled to an evidentiary hearing. Grayson v. State, 118 So.3d 118, 126 (Miss. 2013). Knox has supported his application thoroughly with affidavits and other evidence as required by the Uniform Post-Conviction Collateral Relief Act (UPCCRA). Miss. Code Ann. § 99-39-9 (Rev. 2020). The evidence that Knox presents is quite similar to that supporting ineffective assistance claims brought by other death-sentenced petitioners for which this Court has ordered further inquiry in the trial court. En Banc Order, Le v. State, No. 2013-DR-00327-SCT (Miss. Jan. 29, 2016); Walker v. State, 131 So.3d 562 (Miss. 2013). Puzzlingly, although Knox's petition is comparable to those in which the Court has granted relief, the majority denies Knox's successive application for leave to file a motion for post-conviction relief. With respect, I cannot agree.

¶2. The record of Knox's trial and the attachments to his post-conviction application disclose the most egregious case of ineptitude and neglect by defense counsel in a death penalty case that this justice has ever seen. Perhaps that is somewhat understandable considering that Knox's lead counsel, Gus Sermos, was a new member of the Bar who never had tried a capital case. Sermos's co-counsel, Leonard Rosenthal, likewise had not tried a capital case. Instead of making his final preparations for the trial, Sermos spent the weekend before the Monday trial attending a seminar entitled "Litigating a Death-Penalty Post-Conviction Case in Mississippi." There, he met the directors of the Mississippi Post-Conviction Counsel Project who, upon discovering that Sermos was about to try his first capital case, became alarmed and prepared numerous motions for Sermos to file, including but not limited to motions for a continuance, for discovery of DNA evidence, and for funds for a psychiatrist, a fingerprint expert, and a DNA expert. Attorney Sermos and Attorney Rosenthal filed none of the motions. They mishandled a Batson ¹ hearing. Astoundingly, they presented no evidence whatsoever in Knox's defense.

1 Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶3. In the penalty phase, defense counsels' mitigation investigation was limited to interviewing a few of Knox's local relatives, despite the fact that most of Knox's childhood had been spent with other relatives in the state of New York. Attorney Rosenthal is deceased and Attorney Sermos's affidavit reveals no strategic reason for such a limited investigation. At trial nothing was offered regarding Knox's mental health problems except for his denied Social Security disability application, which was admitted without a sponsoring witness and no explanation of its significance from a psychological or a psychiatric standpoint. Knox's mitigation case at the penalty phase consisted of no more than pleas for mercy from his mother and from an aunt who testified that she barely knew him.

¶4. Now, Knox's present lawyers have presented evidence that he suffered two closed head injuries, one from being struck in the head with a backhoe mere months before the capital crime. Attorney Sermos and Attorney Rosenthal performed no investigation of their client's mental problems beyond locating the Social Security application. Knox has shown that his trial attorneys neglected to discover that he had longstanding mental limitations dating back to childhood, including episodes of seizures and blackouts. He has shown that considerable evidence was available in the form of public records, medical records, and extensive information from Knox's family that would have illuminated his history of mental deficits and traumatic head injuries. Further, defense counsel did not find available evidence about the deleterious environment in which Knox had grown up, circumstances so awful that he asked to be, and was, removed from his family and placed in state custody. Knox's evidence shows that in this case, as in Amdms v. Texas, 140 S.Ct. 1875, 1882, 207 L.Ed.2d 335 (2020), "[a]lthough counsel nominally put on a case in mitigation in that counsel in fact called witnesses to the stand after the prosecution rested, ... counsel's investigation to support that case was an empty exercise."

¶5. Knox had an opportunity to seek redress for trial counsel's ineffectiveness during his initial post-conviction proceedings. But post-conviction counsel squandered that opportunity. Knox was represented by the Mississippi Office of Capital Post-Conviction Counsel. The office's director, Bob Ryan₅ executed an affidavit swearing that, for reasons including a lack of funds, the denial of motions for extensions of time₅ and a backlog of cases, counsel did not file an adequately investigated, researched, or supported post-conviction motion for Knox or for several other petitioners. In an outcome foreseeable given the admitted deficiencies of post-conviction counsel, Knox's post-conviction motion was denied. Knox v. State, 901 So.2d 1257 (Miss. 2005).

¶6. In prior cases, this Court has found that the very same affidavit executed by Ryan sufficiently showed deficient performance by post-conviction counsel, allowing the petitioner to proceed with a successive motion for post-conviction relief Walker, 131 So.3d 562; see also Grayson, 118 So.3d 118. No rational explanation exists for this Court's not finding it adequate for that purpose in Knox's case. At this stage, Knox does not have to meet his burden to prove that trial counsel or post-conviction counsel were constitutionally ineffective. All he has to do is make a substantial showing of their ineffectiveness. Miss. Code Ann. § 99-39-27(5) (Rev. 2020). Because Knox has made a substantial showing of the denial of his state and federal rights to the effective assistance of trial counsel and postconviction counsel, I would grant Knox's application for leave to proceed with a motion for post-conviction relief on his claims of ineffective assistance of counsel.

1. Knox substantially has shown that he received ineffective assistance of post-conviction counsel in litigating the ineffectiveness of trial counsel in the penalty phase.

¶7. Knox argues that his claim of ineffective assistance of trial counsel in the penalty phase is not procedurally barred because his first post-conviction (PCR) counsel, Ryan, rendered ineffective assistance. This Court has established firmly that "PCR petitioners who are under a sentence of death do have a right to the effective assistance of PCR counsel." Grayson, 118 So.3d at 126 (citing Jackson v. State, 732 So.2d 187, 191 (Miss. 1999); Chambertin v. State, 55 So.3d 1046, 1049 (Miss. 2010)). Under the two-prong test for ineffective assistance of counsel from Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner has the burden to show that counsel's performance was deficient and that the deficient performance was prejudicial. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. Deficient performance is shown if "counsel's representation fell below an objective standard of reasonableness." Id. at 688. If the Court determines that counsel's performance was deficient, it then must determine whether the deficiency had a "reasonable probability" of affecting the outcome of the case. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

¶ 8. Knox has attached the five-page affidavit of Bob Ryan, who was the director of the Office of Capital Post-Conviction Counsel during the relevant times. In the affidavit, Ryan outlined the workings of the office from the time of his appointment as director. The affidavit describes in detail how the office was burdened with overwhelming case loads, insufficient staffing, lack of access to funding with which to hire experts, and denials of extensions of time. Ryan averred that those problems affected the office's ability to provide effective representation in numerous post-conviction cases. He described the impact on Knox's case in particular:

Three of these cases, Grayson, Simmons, and Knox were filed on the same day, February 14, 2003, with me having to rely on transcript summaries because I did not have time to even go back and read the transcripts again. I also did not have time to file funding requests, conduct a full investigation, or adequately research the issues. I did the best I could on these cases (and all of my cases) but I was boxed in with no money to contract private counsel, no staff available to relieve the burden due to the crush of the numerous cases assigned to the office, and not enough hours in the days to even remotely begin to do a complete and thorough job on all of these cases.

¶9. In Knox5 s first PCR, Ryan argued that Knox's trial attorneys, Sermos and Rosenthal, had rendered ineffective assistance in the penalty phase of his trial. Knox, 901 So.2d at 1264. Ryan made much the same claim that Knox makes now in his successive PCR-that, although a great deal of mitigating evidence was out there, trial counsel called only two witnesses in the sentencing phase and introduced a copy of Knox's denied Social Security disability application detailing a head injury.² Id. at 1264-65. But Ryan's only support for the claim consisted of affidavits from two paralegals with the Office of Capital Post-Conviction Counsel. Id. at 1265. In the affidavits, the paralegals said they had interviewed Knox's mother over the phone. Id. According to the paralegals, Knox's mother had told them that he had been a slow child, that he had wet his pants until age ten, that he would wake up some days reporting that he could not see, and that he had "seemed to have mental problems ... [that] worsened when [he] was struck in the head with a baekhoe" Id. at 1265. The State submitted an affidavit from Attorney Sermos averring that he had interviewed Knox's family members before trial and that Knox's sanity and competency had not been issues in question during the proceedings. Id. at 1266. Ryan argued that Sermos and Rosenthal should have uncovered the available information from Knox's mother about his mental problems and that her information should have prompted them to have investigated his mental health further. Id. at 1265.

2 The Social Security disability application was denied because, due to Knox's arrest for capital murder, he missed the psychiatric examination that the Office of Disability Determination Services had scheduled for him for the purpose of evaluating his claim.

¶ 10. But Ryan himself did not investigate Knox's mental health further. Glaringly, he did not seek a mental evaluation of Knox to support his claim of what trial counsel should have done. Instead, Ryan's sole evidence of what a reasonable investigation by trial counsel would have yielded were statements of two paralegals who relayed what Knox's mother had told them. Id. at 1265. Predictably, this Court rejected the paralegals' affidavits as containing hearsay and double hearsay. Id. Ultimately, the Court denied Knox's claim of penalty-phase ineffectiveness because the Office of Capital Post-Conviction Counsel "has supplied little or nothing as to what an effective attorney performing a proper investigation would or should have found in the way of mitigating testimony." Id. at 1266. The Court characterized Ryan's argument that defense counsel had not investigated adequately as "merely an unfounded allegation." Id. So this Court based its denial of relief on this issue in Knox's first PCR on Ryan's less-than-shallow presentation, the truth of which Ryan candidly acknowledged in his subsequent affidavit. Ryan's argument on penalty-phase ineffectiveness was denied due to the lack of any competent evidence supporting the claim that trial counsel's performance had been deficient or had prejudiced Knox. Id.

¶11. Now, in his successive PCR, Knox forcefully argues that Ryan's performance was deficient. He points to Ryan's admissions of deficient performance. He has submitted evidence that he alleges a competent PCR lawyer would have developed, including numerous witness affidavits attesting to Knox's mental health troubles, public records documenting his mental health problems and two traumatic head injuries, and a neuropsychological evaluation by Dr. Robert Shaffer finding that Knox has a seizure spectrum disorder, traumatic brain injury, and temporal lobe impairment. Knox argues that Ryan's deficient performance at the PCR stage prejudiced him because Ryan did not adequately investigate all available evidence concerning his background, his head injuries, and his longstanding mental health problems. Knox now presents this evidence and contends that, had Ryan presented it in the first PCR, a reasonable probability exists that the outcome of the first PCR would have been different.

¶12. This Court previously has reviewed claims of ineffective assistance of Bob Ryan and found that, based on the same affidavit submitted in this case, Ryan had rendered deficient performance. In fact, the right to the effective assistance of post-conviction counsel was established in one of those cases. We recognized in Grayson that a death penalty petitioner is "entitled to appointed competent and conscientious counsel to assist him with his pursuit of post-conviction relief." Grayson, 118 So.3d at 126 (internal quotation marks omitted) (quoting Puckett v. State, 834 So.2d 676, 680 (Miss. 2002)). If the petitioner shows that PCR counsel's deficient performance denied him the opportunity to present a meritorious PCR, then the right was violated. Id. The Court found from the record, the prior PCR proceedings, and the exhibits attached to Grayson's successive motion, including precisely the same affidavit from Ryan submitted in this case, that Ryan's performance had been deficient. Id. at 128. The Court relied on Ryan's description of his deficiencies in preparing Grayson's case and quoted the very paragraph now cited by Knox that applies to both Grayson and Knox:

Three of these cases, Grayson, Simmons, and Knox were filed on the same day, February 14, 2003, with me having to rely on transcript summaries because 1 did not have time to even go back and read the transcripts again. I also did not have time to file funding requests, conduct a full investigation, or adequately research the issues. ...

Grayson, 118 So.3d at 127. Grayson attached affidavits from other employees of the office.

The Court found that the affidavits evinced that "minimal investigation" had been done on his claims, consisting of phoning a few jurors and briefly interviewing and securing affidavits from four of Grayson's family members. Id. at 128. The office had not sought expert assistance, interviewed trial counsel, or obtained files from the prosecutor, law enforcement, or the State's experts. Id.

¶13. The Grayson Court found that Ryan had rendered deficient performance. Id. Then, the Court turned to the question of prejudice: whether a reasonable probability existed that, but for the unprofessional errors, the result would have been different. Id. The Court held that a petitioner makes a showing of ineffectiveness of PCR counsel if any of the successive PCR claims are meritorious. Id. ("If any of Grayson's present claims for relief are meritorious, then he suffered prejudice."). But if the successive claims lack merit, "then there was no prejudice." Id. Because the Court found that none of Grayson's successive claims were meritorious, it found that he had suffered no prejudice from PCR counsel's failure to raise them in the initial PCR. Id. at 147. Therefore, the Court found that Grayson had not shown any prejudice from PCR counsel's deficient performance. Id.

¶14. In Walker v. State, 131 So.3d 562 (Miss. 2013), the Court considered a successive PCR filed by another petitioner whose first PCR had been prepared by Bob Ryan. Walker attached the same affidavit provided by Knox in this case in which Ryan described the office's inability to have rendered effective post-conviction representation to numerous petitioners including Walker and Knox. Walker argued that PCR counsel had failed to investigate mitigating evidence and had not made an argument that trial counsel's failure to investigate mitigating evidence was ineffective assistance. Id. at 564. The Court applied the standard from Grayson and found not only that Walker had shown that PCR counsel had rendered deficient performance, but also that Walker had made a sufficient showing of prejudice to be entitled to an evidentiary hearing at which the issue of prejudice would be adjudicated. Walker, 131 So.3d at 564 ("We find that the mitigation evidence Walker has presented in his petition shows that he potentially was prejudiced by trial counsel's deficient performance at the penalty stage.55). "Walker was prejudiced by that deficient performance if his trial counsel was, in feet, ineffective." Id. The Court ordered an evidentiary hearing after which "if the circuit court finds that Alan Dale Walker was prejudiced by trial counsel's deficient performance at the penalty phase, then it shall vacate Walker's sentence of death and conduct a new sentencing hearing." Id.

¶5. Knox's factual presentation concerning the alleged ineffectiveness of Bob Ryan, his PCR counsel, is consistent with the facts of Grayson and Walker in which this Court found that deficient performance had been shown. In all three cases, the petitioner submitted an affidavit in which Ryan outlined his inability to render effective assistance in preparing each petitioner's PCR. The Court in Grayson did not question the credibility of the affidavit, but accepted its allegations as proof of deficient performance. In all three cases, the facts that were established surrounding Ryan's performance support the allegations in his affidavit. Little was done to prepare each PCR filing. The office performed slight investigation and secured no expert assistance. As in Knox's case, in Grayson, the office's investigation consisted of speaking with a few witnesses. Grayson, 118 So.3d at 128. No "independent discovery or investigation" was accomplished. Id. Walker's record reflected the same lack of diligence in Ryan's development of PCR claims.

¶ 16. In another similar case, En Banc Order, Le v. State, 2013-DR-00327-SCT (Miss. Jan. 29, 2016), the petitioner had been represented by Bob Ryan in initial post-conviction proceedings. Le filed a successive application for leave to proceed with a motion for postconviction relief. He argued that, "[d]espite the fact that trial counsel performed almost no penalty phase investigation, and presented no evidence at the penalty phase, post-conviction counsel failed to raise in this Court a claim of ineffective assistance of counsel related to the penalty phase." The record did not contain the Ryan affidavit submitted here by Knox. But it did contain several motions filed by Ryan seeking extensions of time. Nothing showed that Ryan or other attorneys from the office ever had interviewed mitigation witnesses in preparation for filing Le's post-conviction relief motion. Along with his successive application, Le submitted affidavits from the witnesses whom he alleged should have been interviewed by Ryan and by trial counsel, and he claimed that, due to Ryan's deficient performance his application was not procedurally barred and that he should be allowed to proceed with a motion for post-conviction relief on the ineffectiveness of trial counsel. In yet another recognition of Ryan's deficiency as post-conviction counsel, this Court entered an order granting leave to proceed with a successive motion for post-conviction relief on the issue of trial counsel's "failing to investigate and present mitigation evidence." Id.

¶ 17. Goodin v. State, 102 So.3d 1102 (Miss. 2012), is another case in which this Court has recognized Ryan's ineffectiveness as post-conviction counsel. In 2004, the year after the time period covered by Ryan's affidavit, he represented Goodin during an evidentiary hearing ordered to determine whether Goodin was intellectually disabled. This Court had "granted Goodin's Application for Leave to File Petition for Post-Conviction Relief on the following issues: (1) whether he was mentally retarded; (2) whether his trial counsel had been ineffective on the issue of Goodin's alleged mental illness; and (3) whether trial counsel had been ineffective on the issue of competency. "Id. at 1107 (citing Goodin v. State, 856 So.2d 267, 284-85 (Miss. 2003), overruled on other grounds by Lynch v. State, 951 So.2d 549 (Miss. 2007)). Notwithstanding an abundance of available evidence of Goodin's mental deficits, Ryan called a single witness, and the trial court denied relief. Id. at 1107-08. On appeal,

this Court found that, "through no fault of the trial court, this Court's mandate in Goodin has not been carried out." We vacated the dismissal of Goodin's petition for post-conviction relief and remanded for a full evidentiary hearing on the issues of (1) mental retardation, (2) ineffective assistance of counsel on the issue of mental illness, and (3) ineffective assistance of counsel on the issue of competency.

Id. at 1108. Goodin provides yet another example of this Court's order of successive proceedings in cases involving Ryan.

¶ 18. It is true that, in Grayson, Walker, and Le, Ryan wholly failed to raise the issues that were raised in the successive PCRs. In Knox, Ryan did raise the ineffectiveness of trial counsel's performance in the penalty phase, and he argued specifically that trial counsel should have investigated Knox's mental health history. But the claim rested entirely on mere allegations, and Ryan neglected to support the claim with any evidence, though much existed. Recognizing that "Knox has supplied little or nothing," the Court denied the claim as unsupported. Knox, 901 So.2d at 1266. In the post-conviction realm, a petitioner arguing ineffectiveness at the penalty phase must produce the evidence that he alleges trial counsel did not, but should have, presented in mitigation. Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2020) (absent a showing of good cause, "[affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion." (emphasis added)). The petitioner cannot stand on mere allegations. Id. All Ryan produced on Knox's behalf was two affidavits containing hearsay statements by Knox's mother and others; Ryan did not obtain any competent evidence from Knox's relatives, identify and interview other, more knowledgeable witnesses, obtain any public records, or request funding for a mental evaluation of Knox. So although Ryan argued in the first PCR that trial counsel should have investigated and presented mitigating evidence of Knox's mental health problems, he failed to support that claim with any of the competent evidence that was available. Knox has submitted an affidavit in which Ryan explains his inability to perform competently on Knox's behalf. By any measure, Knox has shown deficient performance of PCR counsel. Logic dictates that post-conviction counsel renders deficient performance not only by failing to raise a meritorious claim, but also by raising a claim but failing to support it in a minimally competent manner that enables meaningful review.

¶19. In Crawford v. State, 218 So.3d 1142, 1154 (Miss. 2016), this Court rejected an argument that post-conviction counsel had ineffectively attacked trial counsel's performance in the penalty phase. A review of Crawford reveals sharp differences with Knox's case. Crawford had been represented in post-conviction proceedings by the Office of Capital Post-Conviction Counsel along with private counsel Id. at 1152. He argued that post-conviction counsel did not adequately investigate his background and neglected to have him evaluated by any mental health experts. Id* at 1151. In stark contrast with today's order summarily denying Knox's successive filing, the Court issued a long and detailed opinion that left no doubt as to why Crawford's claims were insufficient to warrant a hearing.

¶20. Knox's case involves several key factors that distinguish it from Crawford. A critical factor is that in Crawford, post-conviction counsel had filed a motion for expert funding for a complete mental health evaluation of Crawford, but the trial court had denied the motion. Id. at 1152. Therefore, the Court held, the failure to obtain an expert mental health evaluation was no fault of post-conviction counsels', who had done all they could have to secure funding. Id. at 1154. In contrast, Ryan has acknowledged that he never filed a motion for funds to have Knox's mental health evaluated. Thus, in Knox. that deficiency clearly was attributable to post-conviction counsel, namely, Ryan.

¶21. Crawford held that, because post-conviction counsel had not been deficient, the issue of trial counsel's ineffectiveness was procedurally barred. Id. at 1160. Nonetheless, the Court analyzed the merits and in the process highlighted another critical difference between this case and Crawford's, which is that "[a]t least five experts had evaluated Crawford['s mental health] before trial." Id. at 1147. During the guilt and penalty phases, Crawford had presented expert testimony supporting an insanity defense. Id. at 1156. At the sentencing hearing, the jury heard that Crawford had a history of head injuries and a diagnosis of bipolar disorder, depression, and psychogenic amnesia. Id. at 1157. The State had presented two penalty-phase experts who testified that he had no major mental illness and had been malingering regarding his memory problems. Id.

¶22. The Court rejected Crawford's argument that the new mental health evaluations submitted with his successive petition would have changed the outcome at trial The Court found that, although Crawford had not been subjected to all of the pretrial testing that he claimed had been necessary, he had undergone extensive mental health testing before trial; additionally, testing showed that he had been malingering. Id. at 1158-59. In contrast, Dr. Shaffer's tests of Knox showed no malingering. Also unlike Knox, whose head injuries were documented, "not one of [Crawford's] supposed injuries was documented by medical records." Id. at 1158. The Court held that "Crawford has not shown how the[] additional evaluations would have changed the result here, especially considering that the jury had the benefit of cumulative testimony, both at the guilt phase and the penalty phase, of his mental illness." Id. at 1159.

¶23. Knox has made a substantial showing that, had Ryan presented the evidence that Knox now adduces in his successive PCR, the first PCR would have been granted. Knox has made a prima facie case that trial counsels' failure to have had his mental health evaluated and those attorneys' failure to uncover available mitigating evidence about Knox's background constituted deficient performance. Although this Court gives deference to trial counsel's chosen strategies, "at a minimum, counsel has a duty to interview potential witnesses and to make independent investigation of the facts and circumstances of the case." Ross v. State, 954 So.2d 968, 1005 (Miss. 2007) (internal quotation marks omitted) (quoting Ferguson v. State, 507 So.2d 94, 96 (Miss. 1987)). Counsel has a duty either "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 1005 (internal quotation marks omitted) (quoting Strickland, 466 U.S. at 691). In particular, "[p]sychiatrie and psychological evidence is crucial to the defense of a capital murder case." Crawford, 218 So.3d at 1155 (internal quotation marks omitted) (quoting State v. Tokman, 564 So.2d 1339, 1343 (Miss. 1990)). "[T]here is a critical interrelation between expert psychiatric assistance and minimally effective representation." Id. (internal quotation marks omitted) (quoting Tokman, 564 So.2d at 1343). Once counsel adopts a defense strategy relying on the defendant's mental health deficiencies, counsel's failure "to follow through on the chosen strategy" by obtaining psychological evidence is unreasonable. Id. (internal quotation marks omitted) (quoting Tokman, 564 So.2d at 1344).

¶24. In Ross, 954 So.2d at 1006, the Court found that trial counsel had been ineffective for failing to investigate mitigation evidence. Trial counsel had presented testimony of Ross's mother, grandmother, daughter, minister at the jail, the sheriff who previously had arrested Ross for another crime, and Ross himself. Id. at 1005. Most of the testimony concerned Ross's good character, which the State was able to challenge easily based on Ross's prior prison infractions. Id. This Court explained that in Ross's PCR application, he "undoubtedly alleges facts which demonstrate a need to develop mitigating evidence based on potential psychological problems[, ]" including a psychological evaluation conducted by the Mississippi State Hospital at Whitfield, which uncovered a number of potential mitigation factors.³ Id. at 1006. Counsel's explanation was that he did not investigate further because Ross maintained he was not "crazy." Id. (internal quotation marks omitted). This Court found that the attorney's failure to investigate based only on that statement by the accused was not reasonable and constituted deficient performance. Id. We concluded that

3 Those factors were accounts of physical and sexual abuse, possible substance abuse, accounts of visual and auditory hallucinations, deaths of his ex-wife and his four children in a car accident, the brutal murder of his sister, and the prescription and use of antipsychotic medications. Ross, 954 So.2d at 1006. Mississippi's main public hospital for mental health problems is located at Whitfield.

[g]iven the severity of the charge against Ross, defense counsel's failure to investigate Ross's psychological problems and his disciplinary record in prison substantially undermines our faith in Ross's sentence, and therefore constitutes ineffective assistance of counsel for the sentencing phase of the trial.

Id.

¶25. In Knox's case, Attorney Sermos and Attorney Rosenthal did not seem to grasp that, in preparing to defend Knox, it had been their responsibility to identify and develop the relevant issues. Trial counsels' mitigation presentation was meager at best and consisted mainly of brief pleas for mercy from Knox's mother and an aunt who testified that she hardly knew him. The record contains affidavits of the mother and aunt saying that defense counsel did not contact them in advance of the trial to discuss their testimony. According to Attorney Sermos's affidavit, during his trial preparation he had believed that Knox's competency and sanity were not at issue. But several things should have alerted defense counsel of the need to investigate Knox's mental health for mitigation purposes. First, Knox had no recollection of the crime, which is consistent with his later diagnosis of dissociative episodes and the evidence from Knox and his family that he had suffered from such incidents throughout his life. Second, the affidavit of Debra Press, the former co-director of the Mississippi Post-Conviction Counsel Project, casts substantial doubt upon Sermos's assessment of Knox's mental health. Press related that, out of concern for the adequacy of Knox's representation, she visited Knox at the jail. According to Press,

[d]uring that visit, Steve Knox exhibited signs of psychosis. He was obviously out of touch with reality. He repeated over and over again that God was with him and God would save him. While many if not most Americans profess a belief in God and have a regular religious practice, Mr. Knox's statements about God were qualitatively different from those of normal people. His demeanor was distant, as if he were in another world. He said he had not committed any crimes and that if God wanted him in jail, there must be some purpose to it. He repeated this numerous times.

Mr. Knox did not convey a meaningful understanding of the charges against him or of the consequences of going to trial. During my visit with Steve Knox, he did not seem to understand that he could be put to death should he receive the death penalty. Indeed, he did not seem to grasp the concept of death.

Press said that she had been shocked by Sermos's lack of preparation for the guilt and penalty phases:

At Charles Press['s] and my request, Mr. Sermos brought his files to the seminar [the weekend before Knox's trial]. We examined them, as did Clive Stafford Smith. I was shocked to see that he had done almost nothing to prepare for either the guilt or penalty phases of Mr. Knox's trial. I was especially struck by the fact that the DNA evidence was not conclusive, which directly contradicted what Mr. Sermos told me on the telephone when we first spoke. I became deeply concerned that Mr. Knox might be both innocent and mentally ill.

¶26. Press's affidavit supports Knox's claim that defense counsel should have been moved to investigate their client's mental health. Certainly, Attorney Sermos should have been tipped off by Knox's Social Security disability application, in which Knox had claimed that he had difficulty functioning mentally due to deficits that developed after the backhoe injury. The application was supported by medical records documenting the backhoe injury. And it showed that Knox had been complaining of symptoms just weeks before the crime. Although the Social Security disability application was admitted at the penalty phase, Attorney Sermos and Attorney Rosenthal did not present any explanatory evidence about the impact on Knox5 s mental health of his having been struck in the head with a backhoe. All the jury heard about the Social Security disability application was Sermos's closing argument in which he told the jury that:

We ask you to read it because we believe it will be valuable in understanding him. Not just as you've heard about him by what the prosecution has said, but understanding that he is a person, too, and he has been a person and before this crime happened, he was in society out among us and he was not in jail. He hadn't-this crime had not happened. So these are statements-

In other words, these records are things that happened before the crime and we ask that you look at them in your deliberations as mitigating circumstances as you consider what sentence to impose on Mr. Knox. That's all I have, Your Honor.

Defense counsels' possession of Knox's Social Security disability application placed them on notice that he had documented mental health issues of a potentially serious nature. Yet counsel did not explore further and lacked any strategic reason for failing to do so. Although Knox's trial attorneys employed the strategy of using the Social Security disability application as mitigation, they did not pursue the strategy to its logical end by requesting a mental evaluation of Knox to assess his claim in the application that the backhoe injury had a severe impact on his mental functioning. It defies reason that Sermos and Rosenthal did not, at a minimum, ask the trial court to order a mental examination for Knox. That omission evinced deficient performance. Crawford, 218 So.3d at 1155.

¶27. Knox has presented compelling and unrefuted evidence that defense counsel failed to conduct a reasonable investigation into his life history, school records, public records, and medical records that showed mental impairment including an earlier traumatic brain injury as a young adult and that they failed to retain experts to explore his mental conditions and how they affected his behavior. Although Knox has eleven siblings, none lived in Mississippi. Knox spent the majority of his childhood in New York, and his trial attorneys did no investigation of his life there. Therefore, defense counsel did not interview his siblings or obtain his school records, probation records, and medical records that provide evidence of Knox's trauma-filled background, low IQ, limited education, and psychological impairments. The affidavits from Knox's siblings illuminate his troubled and abusive childhood, one so bad that he requested to be removed from his home and placed in state custody. The family affidavits describe Knox's blackout episodes that began in childhood as well as his having been abused sexually by a neighbor. Additionally, Knox has presented evidence that he was a slow learner, exhibited unusual behavior, and was in special education classes. Further, he has provided evidence that, years before the backhoe injury, he had sustained another injury to the head when he was beaten by police in New York. His support for that allegation includes photographs of large bloody gashes on the back of his head. Given the large amount of available mitigating evidence coupled with the lack of a strategic reason for his lawyers' failure to investigate, Knox has shown substantially that defense counsels' penalty phase performance was grossly deficient.

¶28. Knox has made a substantial showing of prejudice. "[Prejudice exists if there is a reasonable probability that, but for his counsel's ineffectiveness, the jury would have made a different judgment about whether [Knox] deserved the death penalty as opposed to a lesser sentence." Andrus, 140 S.Ct. at 1885-86 (citing Wiggins v. Smith, 539 U.S. 510, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). Strickland requires the petitioner to prove that, "absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695. "[P]rejudice is assessed by 4reweigh[ing] the evidence in aggravation against the totality of available mitigating evidence.' No prejudice exists "if the new mitigating evidence "would barely have altered the sentencing profile presented" to the decisionmaker ... .'" Ronk, 267 So.3d at 1258 (second and third alterations in original) (citations omitted).

¶29. What is especially striking in this case is that, despite the existence of available evidence about Knox's history of mental problems from witnesses and public records, no one ever obtained a mental evaluation for Knox until these successive PCR proceedings. Again, neither Knox's trial counsel nor his post-conviction counsel obtained any mental evaluations or mental health testing for him at all-not a competency evaluation, not a sanity evaluation, and not an evaluation for mitigation purposes. The issue of the true state of Knox's mental health was left completely unexplored by both trial counsel and post-conviction counsel.

¶30. The psychological evaluation performed by Dr. Shaffer that has been submitted with Knox's successive application for post-conviction relief provides the judiciary its very first insight into what an expert thinks about Knox's mental health. Dr. Shaffer's psychological assessment substantiates that Knox suffered from mental health deficits that could have been discovered and presented in mitigation had he been evaluated before his trial. The symptoms assessed by Dr. Shaffer are consistent with the descriptions of Knox's mental health struggles recounted by his family members in their affidavits and supported by medical records and other materials attached to Knox's successive application. Dr. Shaffer said that Knox's test results indicate "frontal lobe impairment, temporal lobe impairment, and signs of right parietal impairment. A variety of partial seizure-like symptoms of brain dysfunction occur for Mr. Knox in relation to neural processes." Dr. Shaffer's testing revealed that Knox "demonstrates symptoms of an organic brain condition that results in seizure spectrum symptoms and loss of executive neuropsychological functions which began in childhood and was exacerbated after two head injuries (an incident of police battery and a blow to the head from a backhoe)." Additionally, "Steve Knox demonstrates gaps in memory during which he performs actions for which he has no awareness. There is an underlying abnormality in brain function related to these events." Dr. Shaffer concluded that "[t]o a reasonable degree of scientific certainty, any behavior related to the crime, whether as an accomplice or independently, must be considered to occur in an altered state of consciousness in which moral reasoning and judgment was unavailable to Mr. Knox." Further, Dr. Shaffer found that Knox was not malingering concerning his mental deficits. Considering the totality of the evidence attached to the successive post-conviction relief application, Knox has made a substantial showing that, had defense counsel presented mitigation evidence akin to that which Knox now advances instead of the paltry pleas for mercy presented at his trial, there is a reasonable chance that the jury would have imposed a sentence less than death.

¶31. Consistent with our prior handling of successive applications including Walker and Le, this Court should permit Knox to proceed with a motion for post-conviction relief in the trial court on the issue of trial counsel's ineffectiveness in the penalty phase. The Court should order a hearing at which the trial court would evaluate Knox's showing and the State's rebuttal and determine whether trial counsel performed deficiently and whether there is a reasonable probability that, "absent the errors, the sentencer... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695. Under Grayson, 118 So.3d 118, if Knox shows that he received ineffective assistance from trial counsel, he automatically will have shown that he was prejudiced by PCR counsel's deficient performance in failing to argue the issue adequately.

II. Knox substantially has shown that he received ineffective assistance of post-conviction counsel in litigating the ineffectiveness of trial counsel in the guilt phase.

A. Knox has shown substantially that trial counsel was ineffective concerning his guilt phase defense.

¶32. The trial record reveals that defense counsel did not call a single witness on Knox's behalf in the guilt phase. Knox makes a successive claim that trial counsel failed to present any defense during the guilt phase of his trial, much less an adequate and sufficient defense as required by the Sixth Amendment, the Fourteenth Amendment, and the Mississippi Constitution. Ryan raised the same claim on behalf of Knox in his original PCR proceeding. The Court denied the claim, holding that because "Knox has not suggested any new evidence or testimony which should have been offered by his trial counsel, we find that there was no violation of Knox's right to counsel under Cronic ⁴ or Strickland'' Knox II, 901 So.2d at 1264. Applying the analysis outlined in the previous section, Knox has shown that Attorney Ryan rendered deficient performance in the initial PCR proceedings because he did not support Knox's argument about guilt phase ineffectiveness with any competent evidence as required by Section 99-39-9(1)(e). With his successive application, Knox has attached voluminous evidence substantially showing that he was prejudiced by Ryan's failure to unearth any evidence supporting the claim that trial counsel ineffectively handled Knox's guilt phase defense.

4 United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

¶33. First, Knox has submitted an anonymous letter, signed "John Do[e]" that Attorney Sermos received seven months before the trial, which contained exculpatory evidence. The letter's writer said that it was not Knox, but the writer's cousin, a drug dealer, who had murdered Ella Mae Spears because of her community activism against drugs. The writer said that his cousin had gone to Spears's property before but had been unable carry out his plan to murder Spears at that time because she was not at home. The writer said that his cousin had implicated Knox in the murder by putting Spears's car keys in Knox's pocket and smearing blood on him. He was able to do this because Knox was often spaced out and had no memory of events when he was in that state. The letter's writer said that he was too afraid of his cousin to testify but that he had confirmed that his cousin was the true murderer when the cousin confessed to the crimes while drunk. Knox has submitted newspaper articles that corroborate portions of the letter in that there had been an attempted break in at Spears's home before the murder, and Spears had in fact spoken out against drugs publicly. Knox's trial counsel did nothing to investigate this potential lead.

¶34. The affidavit of Debra Press sheds light on the meager trial preparation undertaken by Attorney Sermos and Attorney Rosenthal. The weekend before Knox's Monday trial, Attorney Sermos attended a conference on capital post-conviction relief and met Debra and Charles Press, the co-directors of the Mississippi Post-Conviction Counsel Project. Debra Press's affidavit avers that she and her husband became concerned when Attorney Sermos approached them to discuss Knox's imminent trial and said that he had never tried a capital murder case, only recently having been admitted to the Bar. She said that they reviewed the files and helped draft ten motions including motions for a continuance, to suppress statements, for DNA testing discovery, for funds for a DNA expert, for discovery of information regarding the State's fingerprint expert, for funds for a fingerprint expert, for funds for a handwriting analysis, for funds to secure out-of-state witness, for funds for expert psychiatric assistance, and for a prohibition against the State's mentioning Knox's flight. But Knox's trial counsel filed none of those motions.

¶35. If Attorney Sermos and Attorney Rosenthal had filed the motions prepared by the Presses, a reasonable probability exists that Knox would have been granted the necessary funding for experts and could have put on a viable defense to combat the State's DNA expert and fingerprint analysis expert.⁵ 4S[A]n indigent defendant has a right to receive state funds for a DNA expert where the state presents DNA evidence ...." Branch v. State, 882 So.2d 36, 62 (Miss. 2004) (citing Richardson v. State, 767 So.2d 195, 199 (Miss. 2000). Knox submits that during his federal habeas proceedings, his new counsel obtained a DNA expert who provided an affidavit concerning the reliability of the DNA testing and testing material. The expert, Peter D'Eustaehio, Ph.D., found that the reports generated during the State's testing were "unclear" because the reports were missing critical and necessary information regarding the testing processes. His opinion was that, because of the missing information and the questionable condition of the samples, no basis existed for a conclusion, much less to a reasonable degree of scientific certainty, that the DNA typing patterns obtained from the sample were the same. Dr. D'Eustaehio explained that, even if the typing patterns were correct, "only one form (allele) was found for each of five markers . . . [, ]" ^so he lacked confidence that there was a DNA match. He opined that re-testing using current, more reliable methods "should be possible" as long the samples stored at the crime lab had been preserved correctly.

5 Attorney Sermos did file a motion for DNA testing, but he abandoned the motion by never seeking a ruling on it.

¶36. The record discloses no strategic reason for Attorney Sermos and Attorney Rosenthal to have decided not to pursue funding for a DNA expert to investigate and challenge the State's DNA evidence and its expert. Similarly, no strategic reason is apparent for trial counsels' decision not to challenge the fingerprint evidence by seeking expert funding. At the least, the unknown latent fingerprints recovered from the crime scene could have been sent to the federal database for comparison with any known prints. Finally, Attorney Sermos and Attorney Rosenthal did not seek funds for a handwriting expert who could have compared Knox's handwriting with that of the anonymous letter writer. If it had been shown that Knox did not write the letter, the letter could have provided defense counsel with a strong lead, especially considering that the neuropsychological testing of Knox supports the letter writer's description of his behavior.

¶37. The trial record and the evidence presented by Knox paint a picture of apathy and acceptance of the inevitability of Knox's conviction on the part of trial counsel. As it stands, all trial counsel did was file a few motions and cross-examine some witnesses without the benefit of adequate investigation and discovery. In Knox II, 901 So.2d at 1264, this Court denied Knox's claim that trial counsel had been ineffective in the guilt phase. But all the Court had to go on was the trial record. Id. The Court noted that Knox had submitted nothing to support the claim and "the physical evidence was overwhelmingly in favor of the State.55 Id. Now, Knox has come forth with a properly supported application to proceed with a motion for post-conviction relief making a substantial showing that, had trial counsel attempted to secure expert funding along with performing other acts on Knox's behalf, he could have presented a defense that established reasonable doubt. Importantly, at this stage, Knox need not prove his ineffective assistance of counsel claim; he need only make a substantial showing to support the claim, and he has done so. Miss. Code Ann. § 99-39- 27(5). This Court should grant him leave to proceed in the trial court on this issue.

IL Knox has made a substantial showing that trial counsel performed ineffectively during the Batson hearing.

¶38. The final composition of Knox's jury consisted of five white males, five white females, one Black male, one Black female, and two white alternates. During voir dire, the State used thirteen of fourteen peremptory strikes to exclude ten Black panelists-seven Black females and three Black males-and three white female panelists. The State struck no white male panelists. Knox's trial counsel objected to the strikes of Black panelists based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct 1712, 90 L.Ed.2d 69 (1986). Batson recognized that the Equal Protection Clause of the Fourteenth Amendment protects against racial discrimination injury selection. Id. at 84. "Under Batson, once a prima facie case of discrimination has been shown by a defendant the State must provide race-neutral reasons for its peremptory strikes. The trial judge must determine whether the prosecutor's stated reasons were the actual reasons or instead were a pretext for discrimination." Flowers v. Mississippi, 139 S.Ct. 2228, 2241, 204 L.Ed.2d 638 (2019) (citing Batson, 476 U.S. at 97- 98). f 39. This Court will overturn a trial court's ruling on a Batson claim only if the ruling was clearly erroneous or against the overwhelming weight of the evidence. Pruitt v. State, 986 So.2d 940, 942 (Miss. 2008) (citing Flowers v. State, 947 So.2d 910, 917 (Miss. 2007)). "The burden remains on the opponent of the strike to show that the race-neutral explanation given is merely a pretext for racial discrimination." Id. at 943 (citing Hicks v. State, 973 So.2d 211, 219 (Miss. 2007)).

The Court has identified five "indicia of pretext" that may belie a race/gender-neutral reason for a strike:

(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited; ... (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

[Lynch v. State, 877 So.2d 1254, ] 1272 [(Miss. 2004)] (quoting Manning v. State, 765 So.2d 516, 519 (Miss. 2000)). In attempting to refute a race/gender-neutral reason, the opposing party may "point[ ] out that similar

claims can be made about non-excluded jurors.'" McFarlandv. State, 707 So.2d 166, 172 (Miss. 1997) (citing U.S. v. Bentley-Smith, 2 F.3d 1368, 1373-74 (5th Cir. 1993)). While disparate treatment is strong evidence of discriminatory intent, it is not necessarily dispositive of discriminatory treatment. Lynch, 877 So.2d at 1274 (Citing Beny v. State, 802 So.2d 1033, 1039 (Miss. 2001)); see also Chamberlin v. State, 55 So.3d 1046, 1050-51 (Miss. 2011). "Where multiple reasons lead to a peremptory strike, the fact that other jurors may have some of the individual characteristics of the challenged juror does not demonstrate that the reasons assigned are pretextual." Lynch, 877 So.2d at 1274 (quoting Berry, 802 So.2d at 1040).

Hughes v. State, 90 So.3d 613, 625 (Miss. 2012).

¶40. In Flowers, the United States Supreme Court emphasized four features of the Batson decision. First, the defendant does not have to prove a history of racially discriminatory strikes by the State-one racially discriminatory strike at the defendant's trial is enough. Flowers, 139 S.Ct. at 2241. Second, the State cannot rebut a discrimination claim by arguing that it challenged a juror of the defendant's race on the assumption that the juror would be partial because of a shared race. Id. Third, each and every improper strike for a discriminatory reason is a separate constitutional violation. Id. at 2242. And last, even one instance of discrimination is impermissible. Id.

¶41. The State exercised eight of its eleven peremptory challenges against Black venire persons. The trial court found that Knox had made aprimafacie case of racial discrimination and required the State to provide race-neutral reasons for each peremptory strike. But after the State proffered its race-neutral reasons, Knox's defense counsel attempted no rebuttal by arguing that the reasons were pretextual. The trial court deemed all of the State's reasons race-neutral.

¶42. In Knox's original motion for post-conviction relief, Attorney Ryan argued that trial counsel had been ineffective by failing to make a Batson challenge to the State's proffered race-neutral reasons. Knox II, 901 So.2d at 1263. Critically, the Court found that Attorney Ryan did "not cite any of this Court's decisions construing Batson" nor had he identified any indicia of pretext concerning the race-neutral reasons. Id. Further, Attorney Ryan did not raise the issue ofBatson related to the State's removal of females from the jury.⁶ Importantly for Knox's argument here is that PCR counsel made no effort to demonstrate why the strikes were pretextual or to investigate the case beyond reading the trial-transcript summaries. In what has become a familiar refrain in this opinion, Knox has shown that Attorney Ryan performed deficiently, and admittedly so, by failing to provide adequate, statutorily required support for a claim raised in Knox's original motion for post-conviction relief. Knox has shown substantially that he was prejudiced by the failings of post-conviction counsel and of trial counsel.

6 J.E.B. v. Alabama, 511 U.S. 127, 129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), extended Batson to claims of gender discrimination injury selection.

¶43. Turning to the underlying Batson and J.E.B. claims, Knox provides the race and gender composition of the venire. He avers that 120 community members were summoned. Seventy-four panelists qualified: forty-seven white and twenty-seven Black; thirty males and forty-four females. The final panel consisted of twenty-three white and fourteen Black; twenty-four females and thirteen males. The State used eleven challenges to exclude eight Black jurors (six female and two male) and three white females. As set forth above, the jury's final composition was five white females, five white males, one Black male, one Black female, and two white alternates.

¶44. Knox argues that the State employed a clear practice of minimizing the number of Black and female jurors although many gave similar answers to those given by white, male jurors who were not struck. Knox urges that the State's proffered reasons for the strikes were pretextual. He argues also that trial counsel and the trial court, sua sponte, should have required the State to provide gender-neutral reasons for striking females. In his succcessive PCR, Knox provides a comparative juror analysis as evidence of what trial counsel and prior PCR counsel should have provided in rebuttal of the State's race-neutral reasons. The comparative juror analysis substantially shows that, because trial counsel could have made numerous arguments rebutting the State's race-neutral reasons, a reasonable probability exists that, but for trial counsel's deficient performance in failing to argue pretext, the trial court would have denied at least one of the State's peremptory strikes. Knox's successful showing of racial or gender discrimination regarding even one strike would entitle him to a new trial⁷ Flowers, 139 S.Ct at 2241.

7 I do not find that Knox has made a substantial showing that post-conviction and trial counsel were deficient for failing to raise a gender discrimination claim.

¶45. The following is a summation of Knox's comparative juror analysis. Notably, the comparative juror analysis relies on the trial transcript. Therefore, it discloses the pretext arguments for each of the eight Black jurors struck by the State that could have been detected and advanced by Attorney Sermos and Attorney Rosenthal based on their participation in voir dire.

1. Robert Lee McCoy-McCoy was struck because he indicated that he, a family member, or close friend had been charged with a crime. McCoy indicated also that he was "related somewhat" to law enforcement.

¶46. McCoy, a Black male, raised his hand when the State asked, "[i]s there anyone here who either themselves, a family member, or a close personal friend has ever been charged with a crime?" Knox points out that two white, female jurors (Margeret Buie and Sally Wallace) responded affirmatively to the same question but were selected to serve on the jury. No follow up questions were asked of McCoy or others who responded affirmatively about whether that person would be able to put aside the experience and be a fair and impartial juror.

¶47. Second, Knox shows that McCoy's being "related somewhat" to a law enforcement officer has no support in the record. McCoy and venire person Richard Freeman both said that they had a close friend who worked in law enforcement in the area. Freeman was a white male, and he was selected as a juror. Freeman's response to the State's question was that he knew "Charles Tidwell and Charlie Case. Both of them are highway patrol and both of them are good friends of mine." No follow up questions were asked of Freeman. In McCoy's response, he said that "I know Charles Case." McCoy clarified that he had not spoken to Charles Case about this case. So the voir dire transcript reflects that the prosecutor struck McCoy but did not strike a white juror, Freeman, despite the fact that both McCoy and the white juror said they knew the exact same highway patrolman. As Knox argues, no principled distinction can be made between Freeman and McCoy. In fact, Freeman's answer indicated that he had a closer relationship with the highway patrolman than did McCoy. Knox has made a strong argument that the State's strike of McCoy was pretextual.

2. Cynthia Richardson-The State's reason for striking Richardson was that "it was obvious" that she did not want to serve on the jury after she approached the bench to say that she believed she had served on a jury within the past two years.

¶48. Richardson approached the trial judge during the initial statutory qualifying process in which the trial court asked whether anyone had served on a jury within the last two years. Richardson said that she had served on a jury within the two-year period. But she said that "If you need me, I can stay around now.” The trial judge determined she was eligible to serve because she had served previously as a juror two years and one month before. When informed of this by the trial judge, Richardson was not disagreeable and was fine with staying to serve. Knox says that the State was unreasonable in positing that Richardson did not want to serve on the jury.

¶49. A comparison of the State's retention of Lonnie Priest with Richardson reveals a pretext argument. The State accepted Priest, a similarly situated white, male juror who asked to be excused because of prior jury service. Because Priest's jury service had been injustice court, it did not meet the statutory exemption either, and he was asked to stay.

3. Teresa Williams-The State struck Williams because she was young or at least "looked" young. When it was determined that she actually was twenty-eight years old, the State added that she was nonresponsive to questions and appeared to be nodding off at times.

¶50. Although the State struck Williams for "nodding off," it was unconcerned with nonresponsiveness to questions in the instance of seven white jurors who likewise were nonresponsive to questions during voir dire ⁸ Regarding Williams's age, the State accepted twenty-nine-year-old and twenty-five-year-old white males, Richard Cummings and Douglas McMillian Jr.

8 The white jurors were Ronald Ellsworth, Jimmie Scott, Richard Cummins, Shelby Jean Waldon, Douglas McMillian, Joyce Gilbert, and Patricia Watts.

4. Henry Jones-The State struck Jones because he was "pretty nonresponsive," because he had a strange hair design, and because his age was similar to Knox's at the time. The State expressed concern that Jones might "identify" with Knox "and both have unusual hairstyles."

¶51. Knox argues that the State's strike based on nonresponsiveness is not credible as applied to Jones for the same reason as it should not have applied to Williams. Similarly, Jones was not questioned individually, and he had no reason or opportunity to be "responsive." The State's striking of two Black jurors for nonresponsiveness but no white, but equally nonresponsive, jurors is highly indicative of pretext.

¶52. Even more troubling is the State's decision to strike Jones because he and Knox were close in age, had similar hair styles, and the State perceived a danger that Jones might identify with Knox. The State did not come out and say that the reason it thought Jones would identify with Knox was that both were young Black men. But it came dangerously close. As Knox argues, "[u]sing hair style as an excuse for striking a black juror is suspect on its face." Flowers clarified that the State cannot rebut a discrimination claim by arguing that it challenged a juror of the defendant's race on the assumption that the juror would be partial because of a shared race. Flowers, 139 S.Ct. at 2241. Therefore, the transcript reveals strong evidence of pretext that could have been argued by defense counsel. In fact, when asked by the trial court whether he had any rebuttal for the State's raee-neutral reasons, Attorney Rosenthal responded, "I cannot dispute any of the things [the prosecutor] has set forth. He was pretty weak on identifying with the defendant. Other than that, how the hair fixed up, a whole lot to do with anything." The State's reason was so suspect that Attorney Rosenthal, who made no pretext arguments at all, almost picked up on it.

¶53. Regarding the strike of Jones based on his age, Knox was thirty-one years old at the time of trial; Jones was thirty-seven. The State accepted white jurors who were much closer in age to Knox than Jones. Specifically, Richard Cummings was twenty-nine years old and Ronald Ellsworth was thirty-six years old.

5. James Griffin-Griffin was struck as an alternate juror because he had indicated he had been represented previously by a member of Knox's defense team.

¶54. Attorney Max Graves had been appointed to represent Knox during jury selection, and he was not involved in the guilt or sentencing phases of the trial. The State struck James Griffin, a Black male, as an alternate juror because he said he previously had been represented by Graves. The State also excluded another juror, Wetter Joyce Williams, a Black female, for the same reason. But the State did not strike Sally Wallace, ⁹ who also indicated that she had been represented by Graves. Moreover, the State did not strike Denver Goodson, a white male, who was Graves's brother-in-law. Goodson was selected to serve on the jury. It is hard to reconcile the reasoning for keeping a family member of one of the defense attorneys but finding that prior representation by the same attorney was enough to strike Griffin. Had defense counsel challenged the strike, the State would have been required to explain its reasoning. Again, Knox has made a showing of pretext that could have been, but was not, argued by trial counsel.

9 Wallace did not serve on the jury.

6. Lenora Snyder-Snyder was struck because she and another juror had a strong reaction to the announcement that the case was a death penalty case.

¶55. The State struck Snyder because she had rolled her eyes and displayed a pained appearance upon learning that it was a death penalty case. She also made eye contact with a neighboring juror, Telishia Hickingbottom. A prosecutor's concern that a juror has reservations about imposing the death penally has been held to be a legitimate race-neutral reason for a strike. Corrothers v. State, 148 So.3d 278, 309 (Miss. 2014) (citing Pitchford v. State, 45 So.3d 216, 228-29 (Miss. 2010)). But the trial court thoroughly vetted the jurors on their feelings about imposing the death penalty. The State thoroughly questioned the jurors on the issue. Any concerned juror was questioned further on whether he or she could impose the death penalty. Snyder never indicated at any point that she had any concerns or reservations about imposing the death penalty, and the State never followed up with Snyder about her reaction. Additionally, when all panelists were asked whether they had personal or religious objections to the death penalty and whether they could follow the court's instructions to consider the death penalty if the facts warranted imposition of it, Snyder did not respond and thus affirmed that she would. Considered along with the other evidence of pretextual strikes, the strike of Snyder is suspect.

7. Telishia Hickingbottom-Hickingbottom was struck for the same reason as Snyder. Another reason for the strike was that she was related to someone who had recently been charged for aggravated assault, but the grand jury did not indict the relative. The State said Hickingbottom did not bring that up during voir dire.

¶56. Knox submits that his argument as to why striking Snyder was pretextual also applied to Hickingbottom. Like Snyder, Hickingbottom expressed no reservations about imposing the death penalty when repeatedly asked by the trial court and the State.

¶57. Regarding Hickingbottom's relation to someone recently charged with aggravated assault, the State accepted two white panelists who indicated that they had a family member or friend charged with a crime but struck Hickingbottom and Robert McCoy (discussed above), both of whom are Black. And when the State asked the panelists whether anyone who had a family member or friend charged with a crime could put aside any bad experiences in those situations, both McCoy and Hickingbottom, by their silence, indicated that they could.

8. Shelia Costley-Costley was struck as an alternate because she indicated that she had a family member in law enforcement. Additionally, the State said that it was informed Costley had a drinking problem. Lastly, Costley was struck because allegedly her brother had sold drugs to law enforcement.

¶58. Shelia Costley was struck because "it was related to [the State] that [Costley] had a drinking problem with alcohol, and also that recently law enforcement had made a drug purchase from her brother." The State said also that it was "concerned in regards to her feelings toward law enforcement."

¶59. General allegations of alcohol abuse are not rebuttable or verifiable by the parties and are easily subject to fabrication. The State did not claim that Costley was impaired during voir dire or that she had ever had an alcohol-related arrest. The proffered reason for the strike seems pretextual because the State did not seek her for-cause disqualification as an habitual drunkard pursuant to Mississippi Code Section 13-5-1 (Rev. 2019).

¶60. The second reason for the strike was the State's representation that law enforcement officers recently had purchased drugs from Costley's brother. But no proof, such as reports or records, were produced concerning the alleged drug buy or that Costley had been aware of the incident. Tellingly, Costley indicated that her brother and uncle were in law enforcement and that her cousin was a chief of police, undermining the State's claim that she had bad feelings toward law enforcement. Knox presents a compelling argument that, if trial counsel had challenged the State's reasons for striking Costley, a reasonable probability exists that the trial court would have rejected both reasons as unsupported. Notably, Costley was qualified to be a juror because the trial court did not disqualify her as an habitual drunkard.

¶61. Knox has made a substantial showing that numerous pretext arguments were available to trial counsel, who did not make a single one but instead chose not to dispute any of the State's race-neutral reasons. No strategic reason exists for trial counsels' abandonment of the Batson claim by failing to recognize and present the available pretext arguments. Those arguments show that post-conviction counsel, Ryan, rendered deficient performance because he raised none of them in the original motion for post-conviction relief. Knox's presentation on this issue is sufficient to enable him to proceed in the trial court. He should be afforded an opportunity to show that post-conviction counsel's deficient performance prejudiced him by not adequately supporting the argument that his trial attorneys were ineffective.

Conclusion

¶62. "The rule in this State is clear: death is different. . . . [A]ll bona fide doubts are resolved in favor the defendant." Randall v. State, 806 So.2d 185, 200 (Miss. 2001). And "what may be harmless error in a case with less at stake becomes reversible error when the penalty is death." Batiste v. State, 121 So.3d 808, 829 (Miss. 2013) (internal quotation marks omitted) (quoting Moffett v. State, 49 So.3d 1073, 1079 (Miss. 2010)). "[Procedural niceties [should] give way to the search for substantial justice, all because death is undeniably different." Hansen v. State, 592 So.2d 114, 142 (Miss. 1991).

¶63. In 2011, Knox, together with fifteen other death-sentenced inmates whose initial postconviction relief applications had been filed by Bob Ryan, filed a complaint in chancery court seeking a ruling that Ryan and the Mississippi Office of Capital Post-Conviction Counsel had deprived them of the effective assistance of counsel in handling their post-conviction applications. Knox v. State, 75 So.3d 1030 (Miss. 2011). They sought an injunction preventing the State from opposing their filing of successive applications. Id. at 1032. This Court held that the chancery court lacked subject matter jurisdiction and required the petitioners to file their successive applications individually pursuant to the Uniform Post-Conviction Collateral Relief Act. Id. at 1036-37. As set forth above, this Court has reviewed several of those individual applications and determined that Ryan had, in fact, rendered deficient performance. Knox is one of the last remaining of the Ryan petitioners.

¶64. The evidence attached to Knox's successive application firmly situates his claims among those previously found by this Court to warrant further inquiry in the form of an evidentiary hearing. See, e.g., Walker, 131 So.3d 562. Because Knox's application aligns with cases having similar fact patterns in which this Court has granted a hearing, we should do likewise in this case. Because this Court rejects the strong evidence presented by Knox, it is impossible to imagine what sort of proof would stir this Court to grant a death-sentenced petitioner leave to proceed with an evidentiary hearing based on the ineffective assistance of post-conviction and trial counsel.

¶65. Again, Knox, a death-sentenced petitioner whose claims must be subjected to our heightened scrutiny, has presented persuasive evidence of longstanding mental deficits for which no counsel ever had him evaluated professionally until these successive postconviction proceedings. Knox has been a victim of police brutality. He has had repeated head trauma that is documented. No sane person would volunteer to grow up in his childhood environment, one so abusive that he requested to be placed in state custody to escape it. Knox has presented abundant evidence that the lawyers who represented him at trial were incompetent. Then, his opportunity to prove that he had been prejudiced by their incompetence was lost by an overburdened post-conviction counsel. By any measure, Knox's present application makes the requisite showing to continue with his case. Yet today the system fails Knox a third time. The crime for which Knox was convicted was reprehensible. But I cannot rest comfortably sending him to his death when he has presented strong evidence that not once, but twice, he has been deprived of the effective assistance of counsel to which he was constitutionally entitled.

KING, P.J., ISHEE AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN STATEMENT.