A man on death row is fighting for his life. MS attorney general says he's out of options

One of Mississippi Attorney General Lynn Fitch's arguments for her cause in setting an execution date for a man on death row is a recent state Supreme Court decision that says ineffective assistance-of-post-conviction-counsel is not an accepted means for legal relief.

The court ruled 5-3 in January in another death-row case to partially overturn a previous ruling that made ineffective counsel a remedy as provided in the Mississippi Uniform Post-Conviction Collateral Relief Act. The prisoner, Timothy Ronk, plans to file a motion for a rehearing.

The dissenting justices said the ruling took away one legal remedy without putting another in its place.

"Today’s partial reversal of Grayson leaves death-penalty petitioners with a right to 'competent and conscientious' post-conviction counsel but with no mechanism for petitioning for redress of a viable claim that post-conviction counsel was ineffective," Justice James Kitchens wrote in his dissent. "This nonsensical outcome violates the maxim that there 'is no right without a remedy,' for ‘whensoever the law giveth any right, . . . it also giveth a remedy.’”

Krissy Nobile with the Mississippi Office of Capital Post-Conviction Counsel who represents Robert Simon Jr., one of two men for whom Fitch is asking the court to set an execution date, said the ruling does not apply to Simon's case since it was filed before the Ronk decision.

"This Court’s recent decision in Ronk v. State purports to create more barriers to petitions for post-conviction relief," Nobile said. "Simon’s successive petition was pending when the Ronk decision was issued. And counsel for Simon has an affirmative duty to show Simon’s claims are not statutorily barred."

Nobile said Fitch's office is using the ruling to proceed with the execution without addressing the issues in Simon's petition for relief.

"Instead of also addressing the law, the State yet again just seeks to strike Simon’s properly filed and required briefing," Nobile said. "Plainly put, the State’s continued non-response reveals only that it has no response. The Court should deny the State’s motion to strike and consider Simon’s brief on statutory bars after the decision in Ronk v. State."

Nobile presented other issues with the state's position, including Simon's lack of access to his own records. The attorneys who previously were assigned to Simon's case had issues of their own, including one who was disbarred.

Nobile was officially appointed to represent Simon just three weeks before Fitch made her request to set an execution date. Regardless, Nobile has worked quickly to get Simon evaluated by experts who say he is not mentally competent and should not be executed.

"It has become glaringly apparent that the State is ready to execute Robert Simon without substantively addressing any of his legal claims," Nobile wrote. "In its most recent motion, the State faults Simon for his continued supplementation to his successive petition for post-conviction relief and his response to the motion to set his execution date. But it is the State that is solely responsible for this procedural morass."

In December, the attorney general's office said regardless of how long he has had his current attorney assigned to his case, he has exhausted all legal remedies.

"Robert Simon has exhausted all federal and state court avenues of appeal and there is no impediment to his lawful execution," Fitch's response said. "Simon has completed his constitutionally required direct appeal and was denied relief."

In addition, Fitch said the Supreme Court should strike a supplemental response filed on behalf of Simon that goes into further detail on why Simon should not be executed because his attorneys allegedly did not follow court guidelines when filing the supplement.

"Simon was obligated to seek leave of this Court before amending or supplementing his response," the attorney general's office wrote. "He did not. Simon cites no authority that authorizes his supplemental response. That Simon objects to this Court overruling its precedent is not a basis for unlimited filings both out of time and without leave of court."

This was after Simon's attorneys filed a supplement to his initial motion for relief that outlined what the experts reported in their examinations of Simon.

Nobile has been working with experts to evaluate Simon's mental competence, which also was called into question in 2011, when the state first sought to execute Simon.

Forensic psychiatrist Dr. Bhushan Agharkar recently determined Simon "is not competent to be executed under federal standards and Mississippi’s state statute."

Agharkar said in his report that while Simon understands execution as punishment in the hypothetical, he does not understand how it applies to him.

Simon, along with Anthony Carr, who is also on death row at the Mississippi State Penitentiary at Parchman, was convicted at trial for murder, sexual battery, kidnapping and burglary in connection with the deaths of four family members in Quitman County, including two children.

Capital punishment: Understanding Mississippi's death row as state seeks execution dates for two

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This article originally appeared on Hattiesburg American: Death row inmate out of options, MS AG says