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Brown v. State

Supreme Court of Mississippi, En Banc

September 14, 2017


          DATE OF JUDGMENT: 03/12/1994





         ¶1. This cause is before the Court on Joseph Patrick Brown's Motion for Leave to Invoke Discovery and Seek Access Orders in the Circuit Court. For the following reasons, this Court finds that said motion is not well-taken and should be denied.


         ¶2. Brown was convicted of capital murder and sentenced to death in 1994, and his conviction and sentence were affirmed by this Court in 1996. Brown v. State, 682 So.2d 340 (Miss. 1996). Brown filed a petition for post-conviction relief in 1998, and after granting him leave to proceed in the trial court in 1999, this Court ultimately affirmed the trial court's denial of his petition in 2012. Brown v. State, 749 So.2d 82 (Miss. 1999) (granting leave to proceed in the trial court); Brown v. State, 88 So.3d 726 (Miss. 2012) (affirming trial court's denial of post-conviction relief). Brown now has notified this Court of his intent to file a successive petition for post-conviction relief. Included in that notice was a motion requesting this Court to direct the Circuit Court of Adams County to assume jurisdiction over "discovery matters relevant to Mr. Brown's successive post-conviction claims." This Court unanimously denied that motion by order of December 17, 2015, finding that "there has been no minimal showing of any need for pre-petition discovery."

         ¶3. The subject motion requests the same relief as the motion previously denied by this Court: "Mr. Brown respectfully requests that this Court enter an order directing the Circuit Court of Adams County to exercise jurisdiction over matters and over requests for access orders that are relevant to Mr. Brown's post-conviction claims." The only thing differentiating this motion from the previous request is that Brown now presents this Court with several discovery "needs." Aside from references to a claim of ineffective assistance of post-conviction counsel, Brown's motion does not identify with any particularity the issues that he plans to raise in his successive petition. Instead, he claims that so-called "pre-petition discovery" is necessary for him to "file a meaningful and constitutionally adequate motion for leave to proceed in the trial court with a petition for post-conviction relief."


         ¶4. In support of his motion, Brown relies on Rule 22(c) of the Mississippi Rules of Appellate Procedure, which contains rules governing the filing of petitions for post-conviction relief by defendants who have been sentenced to death. Specifically, Rule 22(c)(4)(ii) requires certain mandatory disclosures to the defendant, including the transfer of certain files to the petitioner or his post-conviction counsel and allows limited prepetition discovery at the trial court's discretion and upon a showing of need:

Upon appointment of counsel, or the determination that the petitioner is represented by private counsel the petitioner's prior trial and appellate counsel shall make available to the petitioner's post-conviction counsel their complete files relating to the conviction and sentence. The State, to the extent allowed by law, shall make available to post-conviction counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner. If the State has a reasonable belief that allowing inspection of any portion of the files by post-conviction counsel for the petitioner would not be in the interest of justice, the State may submit for inspection by the convicting court those portions of the files so identified. If upon examination of the files, the court finds that such portions of the files could not assist the capital petitioner in investigating, preparing, or presenting a motion for post-conviction relief, the court in its discretion may allow the State to withhold that portion of the files. Discovery and compulsory process may be allowed the petitioner from and after the appointment of post-conviction counsel or the determination that the petitioner is represented by private counselor or is proceeding pro se, but only upon motion indicating the purpose of such discovery and that such discovery is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues which the petitioner in good faith believes to be in question and proper for post-conviction relief, and order entered in the sound discretion of the court. Upon determination that the petitioner has elected to proceed pro se, such files and discovery shall be made available as provided in subsection (2)(iii) above.

Miss. R. App. P. 22(c)(4)(ii). Brown argues that Rule 22(c) entitles him to submit discovery requests to the circuit court so he may investigate potential claims for his yet-to-be-filed successive petition.

         ¶5. We find that Brown's reliance on Rule 22(c) is misplaced. Today, we clarify that Rule 22(c) does not apply to successive petitions for post-conviction relief. Rule 22(c) must first be read in light of the Uniform Post-Conviction Collateral Relief Act's (UPCCRA) pronouncement that criminal defendants are entitled to file only one petition for post-conviction, subject to limited exceptions. See Miss. Code Ann. §§ 99-39-23, 27(9) (Rev. 2015). See also Russell v. State, 819 So.2d 1177, 1178 (Miss. 2001) ("Russell, as all others, is, upon entry of a final order and subject to only limited exceptions, allowed a single post-conviction motion by virtue of the successive writ bar of § 99-39-23.").[1] Accordingly, as discussed more fully below, Rule 22(c) was enacted to ensure that capital defendants could comply with the UPCCRA's burden of production when they filed their first petitions. Carrothers v. State, 189 So.3d 612, 614 (Miss. 2015). The purpose of Rule 22(c) is not, as Brown contends, to allow defendants an endless opportunity for discovery on the assertion that they may have claims which they did not raise in prior proceedings. We also note that Brown's first motion for leave to proceed in the trial court with a petition for post-conviction relief was filed and granted in part by this Court before Rule 22(c) went into effect, and this Court previously determined that Brown was not entitled to discovery under Rule 22 after he was granted leave to proceed in the trial court with his first petition. See Brown, 88 So.3d at 730.

         ¶6. Moreover, none of the provisions of Rule 22 suggest that the rule should be applied to successive petitions for post-conviction relief. On the contrary, Rule 22(c)(1)(ii) explicitly requires this Court to direct the convicting court to rule on the issue of appointment of counsel "immediately after the announcement of the decision on direct appeal[.]" Miss. R. App. P. 22(c)(1)(ii) (emphasis added). Additionally, Rule 22(c)(5)(i) provides that the petitioner's application for leave to proceed in the trial court must be filed "not later than one hundred eighty (180) days after counsel is appointed or sixty (60) days following denial of rehearing on the direct appeal of the conviction and sentence, whichever is later." Miss. R. App. P. 22(5)(i) (emphasis added). As a successive petitioner, Brown is not bound by these provisions and must instead make a showing that his successive claims are excepted from the UPCCRA's time bar and successive-writ bar. See Miss. Code Ann. § 99-39-5(2)(b) (Rev. 2015); Miss. Code Ann. § 99-39-27(9) (Rev. 2015); Miss. R. App. P. 22(c)(5)(i). Brown cannot claim the benefit of a single provision of Rule 22(c) as a ground for discovery prior to the filing of his successive petition, when the other provisions of that rule clearly do not apply to him.

         ¶7. The historical context of Rule 22(c) also supports a finding that it does not apply to successive post-conviction petitions. The current version of Rule 22(c) was adopted by this Court in 2000 in tandem with the Legislature's enactment of House Bill 1228, which made several important changes to death-penalty litigation in Mississippi. Relevant to this case, House Bill 1228 created of the Office of Capital Post-Conviction Counsel and the amended the Uniform Post-Conviction Collateral Relief Act to require petitions for post-conviction relief in capital cases to be filed within one year of conviction. See Miss. Code Ann. § 99-39-101 (Rev. 2015) (effective July 1, 2000); Miss. Code Ann. § 99-39-5(2)(b) (Rev. 2015) (effective July 1, 2000). Rule 22(c) was "designed to implement" these legislative enactments. Miss. R. App. 22 cmt. To that end, Rule 22(c) contains provisions governing the representation and compensation of counsel and imposes specific deadlines on both the petitioner and the State in order to comply with the expedited statute of limitations in capital cases. See Miss. R. App. P. 22(c)(1), (2), (3), (5), (6). Rule 22(c) also recognizes that, with the creation of the Office of Capital Post-Conviction Counsel, many capital defendants will be represented in their initial post-conviction proceedings by attorneys who have had no prior involvement with the case. With this context in mind, Rule 22(c)(4)(ii) serves as this Court's method of ensuring that capital petitioners are provided adequate information to file their initial petition for post-conviction relief within the expedited deadline following this Court's decision on direct appeal, and not as a broad guarantee of unlimited discovery for all capital petitioners, as Brown suggests.

         ¶8. Brown argues that, without so-called "prepetition discovery, " he will not be able to support his claims with the "affidavits of the witnesses who will testify and copies of documents or records that will be offered" as required by the UPCCRA. See Miss. Code Ann. § 99-39-9(e) (Rev. 2015). Similarly, Brown's current post-conviction counsel argues that she cannot render effective assistance to Brown without the benefit of discovery under Rule 22(c)(4)(ii). But Brown fails to recognize that the evidentiary burden imposed by Section 99-39-9 is not absolute:

The affidavits of other persons and the copies of documents and records may be excused upon a showing, which will be specifically detailed in the motion, of good cause why they cannot be obtained. This showing shall state what petitioner has done to attempt to obtain the affidavits, records and documents, the production of which he requests the court to excuse.

Id. (emphasis added). In addition, Brown may be entitled to discovery under the UPCCRA, assuming that he eventually files his successive petition for post-conviction relief. Miss. Code Ann. § 99-39-15 (Rev. 2015). See also Fleming v. State, 553 So.2d 505, 506 (Miss. 1989) ("A prisoner who has filed a proper motion pursuant to this Act, and whose motion has withstood summary dismissal under § 99-39-11(2), may be entitled to trial transcripts or other relevant documents under the discovery provisions of § 99-39-15, upon good cause shown and in the discretion of the trial judge.").[2] Thus, we find no merit in Brown's argument that he is without recourse if he is unable to obtain certain evidence through prepetition discovery.

         ¶9. The instant motion provides only scant support for the required showing that "such discovery is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues[.]" Miss. R. Civ. P. 22(c)(4)(ii) (emphasis added). Nothing further is advanced in terms of new or different needs as compared to Brown's previous request for prepetition discovery. Brown's list of discovery requests includes, but is not limited to, the following:

(1) trial counsel's files;
(2) files of the relevant law enforcement agencies and District ...

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