Birkhead v. State, 2013–M–00330

• Decision Date: 22 February 2017
• Docket Number: No. 2013–M–00330,2013–M–00330
• Citation: 255 So.3d 154 (Mem)
• Parties: Richard BIRKHEAD a/k/a Richard Earl Birkhead, Petitioner v. STATE of Mississippi, Respondent
• Court: Mississippi Supreme Court

255 So.3d 154 (Mem)

Richard BIRKHEAD a/k/a Richard Earl Birkhead, Petitioner

v.STATE of Mississippi, Respondent

No. 2013–M–00330

Supreme Court of Mississippi.

February 22, 2017

EN BANC ORDER

Now before the Court, en banc , is the Application for Leave to Proceed in the Trial Court filed by Richard Birkhead, pro se . A Response was filed by the State of Mississippi.

On appeal, the Court affirmed Birkhead's conviction and sentence. See Birkhead v. State , 57 So.3d 1223 (Miss. 2011). The mandate issued on March 10, 2011. On April 25, 2013, a panel of the Court denied Birkhead's pro se Application for Leave to Proceed in the Trial Court.

In the present Application, Birkhead claims that he received ineffective assistance of counsel based upon: (a) trial and appellate counsel's failure to advance speedy-trial claims; (b) trial counsel's alleged conflict of interest; and (c) trial counsel's failure "to protect his due process right to a competency hearing ...." After due consideration, the Court finds that (a) and (b) are waived and/or lack an arguable basis, and Birkhead's Application should be denied thereon. But as to (c), the Court finds that Birkhead's Application should be granted.

IT IS THEREFORE ORDERED that the Application for Leave to Proceed in the Trial Court filed by Richard Birkhead, pro se , is hereby granted in part and denied in part. Birkhead shall have sixty (60) days from the entry of this Order to file his Motion for Post–Conviction Relief in the trial court on his claim of ineffective assistance of counsel based upon trial counsel's failure "to protect his due process right to a competency hearing ...."

SO ORDERED, this the 22nd day of February, 2017.

/s/ Dawn H. Beam

DAWN H. BEAM, JUSTICE

TO GRANT IN PART: WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, BEAM AND CHAMBERLIN, JJ.

COLEMAN, J., OBJECTS WITH SEPARATE WRITTEN STATEMENT JOINED BY RANDOLPH, P.J., AND MAXWELL, J.

¶ 1. I object to the order granting Richard Birkhead permission to proceed in the trial court on the following two grounds: (1) the petition is barred by the applicable three-year statute of limitations and (2) he has failed to make a substantial showing of the denial of any fundamental state or federal right. Indeed, as discussed below, the only violation as to which he has made a substantial showing of a violation is a mere procedural one, created by rule alone.

I. The statute of limitations bars Birkhead's petition.

¶ 2. Birkhead filed the instant petition more than three years after the mandate issued in his direct appeal. As more fully set out below, his petition is barred by the applicable three-year statute of limitations and meets no exception found therein. Nevertheless, the order entered by a majority of the Court today sidesteps a law that we previously have found to be constitutional by using judicial power to add exceptions to the statute the Legislature did not itself see fit to add.

¶ 3. Article 1, Section 2, of the 1890 Constitution provides as follows:

No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

Accordingly, if the Legislature has the power to enact the substantive law of the State in the form of statutes, and if the Legislature has the power to determine the content of the statutes, then—if our Constitution is to be followed—we do not.

¶ 4. Mississippi Code Section 99–39–5 sets the statute of limitations for post-conviction relief, as applicable to Birkhead, as follows:

(2) A motion for relief under this article shall be made within three (3) years after the time in which the petitioner's direct appeal is ruled upon by the Supreme Court of Mississippi. ... Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate either:

(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or

(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

(b) Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss. Code Ann. § 99–39–5 (Rev. 2015). A Washington County jury convicted Birkhead of capital murder, after which the Supreme Court affirmed his conviction and sentence. Birkhead v. State , 57 So.3d 1223 (Miss. 2011). The mandate issued on March 10, 2011. Accordingly, he had until March 10, 2014, to file any petition for post-conviction relief, unless he meets one of the exceptions to the three-year limitations period. The exceptions provided by the statute are as follows: (1) an intervening judicial decision of either the Mississippi Supreme Court or the United States Supreme Court that would have had an actual, adverse effect on the conviction or sentence; (2) new evidence not discoverable at the time of trial; (3) the existence of untested DNA or DNA evidence subject to additional testing; and (4) cases wherein the petition claims that his sentence has expired or probation, parole, or conditional release has been revoked unlawfully. Id.

¶ 5. None of the exceptions applies to the case sub judice . However, Birkhead contends that his claim should not be subject to the statute of limitations because it meets the fundamental-rights exception to the procedural bars to post-conviction relief. See Rowland v. State (Rowland II ), 98 So.3d 1032, 1036 (Miss. 2012) ("In addition to the statutory exceptions afforded by the Act, we have provided that an exception to the procedural bars exists for errors affecting certain constitutional rights.") (citing Smith v. State , 477 So.2d 191, 195 (Miss. 1985) ("errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal")).

¶ 6. The Rowland II¹ Court identified the following three areas in which the fundamental-rights exception to the procedural bars previously had been applied: (1) violations of the protection against double jeopardy, (2) imposition of an illegal sentence, and (3) lack of due process at sentencing. Id. at 1038 (¶ 6). Unfortunately, our treatment of the fundamental-rights exception to the procedural bars to post-conviction relief has been too open-ended in defining the scope of the application of the exception, in that we now have reached a point at which the merest inscription of the words "fundamental rights" throws finality of judgment out of the window and allows collateral attack on a judgment of conviction no matter that the defendant has no new cases, no new evidence, and no DNA to test. I fear the Court effectively has written the Section 99–39–7 statute of limitations out of existence.

¶ 7. In response, I suppose one could point out that it is only in cases in which one convicted of a crime raises a "fundamental right" that we may ignore the statute, but a quick survey of the rights we previously deemed fundamental belies forever the contention that the fundamental-rights exception applies only to a narrow subset of post-conviction relief petitions. My boolean search on Westlaw produced a list of 385 opinions—the vast majority of which admittedly are direct appeals—in which the Mississippi Supreme Court used the phrase "fundamental right." In addition to the three recognized in Rowland II , we have applied the term fundamental, inter alia , to the right not to be convicted while incompetent to stand trial ( Smith v. State , 149 So.3d 1027 (Miss. 2014) ); the right to present the defendant's theory of the case ( Chinn v. State , 958 So.2d 1223, 1225 (¶ 13) (Miss. 2007) ); the right to compulsory process of witnesses ( White v. State , 127 So.3d 170, 175 (¶ 15) (Miss. 2013) ); the right to an unflawed indictment ( State v. Buckhalter , 119 So.3d 1015, 1019 (¶ 14) (Miss. 2013) ); the right to alternative theories of defense ( Childs v. State , 133 So.3d 348, 351 (¶ 12) (Miss. 2013) ); and the right to be free of an improper jury instruction attempting to prompt a deadlocked jury into rendering a verdict ( Sharplin v. State , 330 So.2d 591 (Miss. 1976) ). See also Lafayette v. State , 90 So.3d 1215, 1218–1219 (Miss. 2012) (considering the issue under plain-error analysis, which requires that the right at issue be a fundamental one); Havard v. State , 94 So.3d 229, 238 (¶ 26) (Miss. 2012) (the privilege against self-incrimination); Wilson v. State , 81 So.3d 1067, 1091 (¶ 37) (Miss. 2012) (the right to a jury at sentencing in a death penalty case); and—I will stop here but could continue for quite a bit longer. Birkhead v. State , 57 So.3d 1223, 1238 (¶ 53) (Miss. 2011) (the right to have prosecution refrain from commenting on defendant's choice not to testify).

¶ 8. Aside from referring to specific rights as...