H. BEAM, JUSTICE
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
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.
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.
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.
GRANT IN PART:
WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, BEAM AND
COLEMAN, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE
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.
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
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.
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, ...