E-Filed Document Dec 3 2021 09:39:34 2021-TS-01313 Pages: 5

Case 61CI1:08-cv-234 Document 135 Filed 04/01/2021 Page 1 of 5

IN THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI

f ~ ~u~ filQ/
DEVIN ALLEN BENNE PETITIONER

vs. lCI1 :os-cv·00234

APR -12021
STATE OF MISSISSIPPI AEB C N. BOYD,CIRCUIT CLERK RESPONDENT
BY

ORDER DENYING PETITION FOR POST-CONVICTION RELIEF

This matter came before the Court on the Amended Petition for

Post-Conviction Relief filed by Petitioner Devin Bennett. This matter

was set for an evidentiary hearing by order of the Mississippi Supreme

Court. Because the Petitioner failed to satisfy his burden of proof

pursuant to Strickland v. Washington, 466 U.S. 668 (1984), the

Amended Petition is denied.

The Mississippi Supreme Court's remand order directed this

Court to conduct an evidentiary hearing to determine the effectiveness

of trial counsel during the sentencing phase of Bennett's 2003 capital

murder trial. The Mississippi Supreme Court's order specified that this

Court must consider a nd make specific factual findings as follows:

"One of Bennett's counsel executed an affidavit used by

Bennett's present counsel in support of his motion. The
affidavit states, in part:

During my investigation, Devin Bennett admitted to me

that he had abused chemical substances in the past, but I
am now informed that his substance abuse problem was
much worse than my investigation revealed ...
Case 61CI1:08-cv-234 Document 135 Filed 04/01/2021 Page 2 of 5

I thought that Devin was competent to sta nd trial and

there was not a sanity defense available; therefore, I did not
hire or request funding or mental health experts to
evaluate Devin prior to trial.

I did not hire or request funding for a mitigation

investigator. I did not h ave a psycho-social history
prepared. Devin denied any significant mental problems,
though he did reveal to me that he h ad a troubled childhood
because of drug abuse by his parents ...

I was una ware that Devin had been diagnosed with a mood
disorder at age 12, and if I had been aware of such, I would
have requested that he be psychologically evaluated, a nd
evaluated for chemical dependency. If a n evaluation had
been done and showed that Devin suffered from a major
psychiatric illness, I would have presented it in the penalty
phase.

il 12. Other affidavits filed with Bennett's motion revealed

t hat several witnesses would have attested to Bennett's
traumatic childhood, mood disorders, and substance-abuse
history. Mark Webb, a licensed psychiatrist, would h ave
testified concerning Bennett's long history of psychiatric
a nd drug-related treatment, as well as mental disorders
due to his traumatic childhood. John Webb, an addiction
specialist, would have testified about Bennett's substance-
abuse history and its behavioral impact on Bennett.
Bennett's mother, Debbie Bennett , and several of his peers
would have testified about Bennett's troubled childhood, as
well as his relationship with his son, which t hey claim was
loving a nd normal. The trial court must determine at the
hearing that such testimony would have been relevant to a
jury's consideration of whether to impose a sentence of life
in prison or death.

,i 13. Bennett's mot her sta tes by affidavit that-although she

traveled to Mississippi prior to t he trial to meet Bennett's
attorney-he asked her no questions during their meeting

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 Case 61CI1:08-cv-234 Document 135 Filed 04/01/2021 Page 3 of 5

and failed to call her to testify during the sentencing phase

of the trial. Bennett's attorney, on the other hand, claims
she "was not available to interview." This is one of the
factual disputes that must be resolved by the trial court.

il 14. We hold that, as to the penalty phase of his trial,

Bennett has satisfied the "substantial showing" threshold,
and he is entitled to a hearing on the issue. Miss. Code
Ann. § 99·39·27(5) (Rev.2007)." Bennett v. State, 990 So. 2d
155, 159 (Miss. 2008).

Counsel for the Parties appeared before the Court on March 25,

2021 . Counsel for Bennett called three witnesses: Rhonda Triplett, a

mitigation investigator; Dr. Brushan Agharkar, a forensic psychiatrist;

and Ed Rainer, Bennett's trial counsel.

After hearing the testimony provided by the witnesses and

arguments made by counsel for Bennett and the State, the Court makes

the following findings :

• Funds for Mental-Health Evaluation

The Court finds that attorney Rainer saw no basis to conduct a

mental-health evaluation as to Bennett's competency to stand trial.

Further, attorney Rainer was h amstrung by his client, who explicitly

refused to speak with or meet a psychologist or psychiatrist. Bennett

further thwarted attorney Rainer's efforts by refusing to allow prior

treating institutions from sharing his medical information and

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 Case 61CI1:08-cv-234 Document 135 Filed 04/01/2021 Page 4 of 5

treatment history with attorney Rainer. Bennett refused to sign release

of information forms (ROis) for the express purpose of communicating

with his attorney.

• Substance Abuse as a Possible Mitigating Factor

The Court finds th at, at the time of this trial in February 2003,

no reasonable Rankin County trial practitioner would assert routine

drug u se and abuse as a mitigating factor in the murder of an infant

child. Additionally, as to Bennett's upbringing surrounded by drug and

alcohol abuse, attorney Rainer called Dale Bennett, Bennett's father, to

testify about his own drug use and the difficulties Bennett faced as a

child. Attorney Rainer was unable to call Bennett's mother because she

did not attend the trial. Although it is possible other avenues to secure

her attendance existed, Strickland is clear that the Court should avoid

relying on the benefit of hindsight when considering claims of

ineffective assistance of counsel.

• Potential Mood· Disorder Diagnosis

The Court hereby finds that the only proof of a mood disorder

diagnosis was the diagnosis of attention deficit hyperactivity disorder

(ADHD) at age nine. Throughout his representation, attorney Rainer

made a series of strategic decisions. The fact that attorney Rainer's

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strategy was ultimately unsuccessful does not mean he was

constitutionally ineffective under Strickland's deferential standard.

Attorney Rainer is both an experienced and competent attorney. While

he admitted he would do things differently in retrospect, he was still

competent and constitutionally effective in his representation of

Bennett.

IT IS, THEREFORE, ORDERED AND ADJUDGED that the

Petitioner's Petition for Post-Conviction Relief is hereby denied.

SO ORDERED, this the ~ day of April, 2021.

PREPARED AND PRESENTED BY:

Isl Parker Proctor Jr.

Special Assistant Attorney General
Mississippi Bar No. 105091
P.O. Box 220
Jackson, MS 39205-0220
601-359-3747
parker.proctor@ago.ms.gov