Last October, the Supreme Court denied certiorari and a stay in Earl Berry's case from the Mississippi Supreme Court but then granted a stay in his federal § 1983 case from the Fifth Circuit. Previous posts are here and here. By its terms, that stay terminates automatically if the certiorari petition is denied.
Berry's certiorari petition, No. 07-7348, is now on conference for tomorrow. A decision on it will probably be announced Monday. Lyle Denniston at SCOTUSblog has this post and Berry's supplemental brief, noting differences between Mississippi's protocol and Kentucky's.
But the judgment Berry wants reviewed wasn't decided on the merits.
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.
Berry v. Epps, USCA5 No. 07-70042 (Oct. 26, 2007).
That decision was correct the day it was issued, and it would have remained correct regardless of how Baze came out. The Supreme Court paralyzed capital punishment nationwide while it considered Baze in order to look dignified and not upset the witnesses. Cf. Baze, slip op. at 19 (lead opinion). The differences between Mississippi's protocol and Kentucky's do not warrant reviving a claim that the Fifth Circuit correctly held was untimely.
Denial of this petition Monday would be welcome signal that the de facto moratorium is truly over.
Jimmie Gates has this story in the Jackson Clarion-Ledger.