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Birkhead v. State

Supreme Court of Mississippi, En Banc

February 24, 2017

RICHARD BIRKHEAD a/k/a RICHARD EARL BIRKHEAD Petitioner
v.
STATE OF MISSISSIPPI Respondent

          ORDER

          DAWN H. BEAM, JUSTICE

         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.

         TO GRANT IN PART:

          WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, BEAM AND CHAMBERLIN, JJ.

          COLEMAN, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

         ¶ 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, ...


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