IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-DR-01099-SCT JOSEPH PATRICK BROWN a/k/a PEANUT

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 03/12/1994 TRIAL JUDGE: HON. FORREST A. JOHNSON, JR. COURT FROM W HICH APPEALED: ADAMS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION COUNSEL BY: JAMILA K. ALEXANDER LOUW LYNN VANZETTA W I LLIAMS ALEXANDER KASSOFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BRAD SMITH NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST CONVICTION DISPOSITION: MOTION DENIED - 09/14/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. WALLER, CHIEF JUSTICE, FOR THE COURT: ¶1. This cause is bef

ore the Court on Joseph Patrick Brown’s Motion f o r Leave to Invoke Discovery and Seek Access Orders in the Circuit Court. For the f ollowing reasons, this Court f inds that said m otion is not well-taken and should be denied.

F ACTS & PROCEDURAL HISTORY¶2. B r o w n w a s c o n v i c t e d of capital m urder and sentenced to death i n 1994, a n d h i s conviction and sentence were af f irm ed by this C ourt in 1996. Brown v. State , 682 So. 2d
340 (Miss. 1996). Brown f iled a p e tition f

or p ost-conviction relief in 1998, and af ter granting him leave to proceed in the trial cour t i n 1999, t his Court u ltim ately af f irm ed the trial court’s denial of his petition in 2012. Brown v. State , 7 49 So. 2d 8 2 ( M i s s . 1 9 9 9) (granting leave to proceed in the trial cou r t ) ; B rown v. State , 8 8 So. 3d 7 26 (Miss. 2012) (af f irm ing trial c ourt’s denial o f post-conviction relief ). Brown now has notif

i ed this Court of his intent to f

ile a s u c c e s s i v e petition f or post-conviction relief

. Included in that notice

was a m otion requesting this Court to direct the Circuit Court of Adam s County

to assum e jurisdiction over “discovery m a tters r el evant to Mr. Brown’s successive post-conviction claim s.” This Court unanim ously d enied that m otion by order of Decem ber 17, 2015, f

inding that “there has been no m inim al showing of any need f or pre-petition discovery .” ¶3. The subject m otion requests the sam e relief a s the m o tion previously denied by this
Court: “Mr. Brown respectf ully requests that this Court enter an order directing t he Circuit
Court of Adam s C ounty to exercise jurisdiction o v e r ma t ters and over requests f or access orders t hat are relevant to Mr. Brown’s p o s t

- c onviction claim s.” The only thing dif f erentiating this m otion f

rom t he previous request i s that Brown now presents this Court with several discovery “needs.” Aside f rom ref erences to a claim

of inef f ective assistance

o f p o s t

- c o n viction counsel, Brown’s m otion d oes not identif y with any particularity t

h e i s s u e s that he plans to raise in his successive petition. Instead, h e claim s that so-called “pre-petition

2discovery ” is necessary f or him to “f ile a m eaningf

ul and constitutionally

adequate m otion
f or leave to proceed in the trial court with a petition f or post-conviction relief

.”
DISCUSSION ¶4. In support of his mo t i o n , B r o w n r e l i e s o n Rule 22(c) of the Mississippi Rules of Appellate Procedure, which contains rules governing t he f ilin g o f p e t itions f

or postconviction relief by def

endants who have been sentenced t o d eath. Specif ically , Rule 22(c)(4)(ii) re q u ires certain m andatory disclosures t o t he def e ndant, including the transf er of certain f

iles to the petitioner or his post-conviction counsel and a llows lim ited prepetition discovery at the trial court’s discretion and upon a showing of need: Up o n appointm ent of counsel, or the determ ination that the p etitioner is represented by private c ounsel the petitioner’s prior trial and appellate counsel shall m ake available to the petitioner’s post-conviction counsel t heir com plete f iles relating to the conviction and sentence. The State, to the extent allowed by law, shall m ake available to post-conviction counsel the com plete f iles of all law enf

orcem ent and prosecutorial agencies i nvolved in the investigation of the c rim es c om m itted and the prosecution o f the petitioner. If the State h as a r e a s o n a ble belief that allowing i nspection o f any p ortion of the f i les by post-conviction counsel f or the petitioner wo u l d n ot be in the interest of justice, the State m ay su b mit f or inspection b y t he convicting court those portions o f the f

iles so identif

ied. If upon exam ination of t he f i l e s , t he court f inds that such p ortions of the f iles could not assist the capital petitioner in investigating, preparing, or presenting a m o tion f or post-conviction relief

, the court in its discretion m ay allow t he State to withhold that portion of the f iles. Discovery and comp u l s ory process m ay be a llowed t he petitioner f rom and af ter the appointm ent of p ost-conviction counsel or the determ ination that the petitioner is r epresented by private counselor o r is proceeding pro se, but only upon m otion indicating the purpose of such discovery and t hat s u ch discovery is not f r ivolous and is likely

to be helpf

ul in the investigation, preparation or presentation of s pecif

ic issues which the p etitioner in good f a ith believes to be in question a nd p r o p e r f or post-conviction relief

, and order e ntered in the sound d i scretion of the c ourt. Upon determ ination t hat the petitioner h as elected to proceed p ro s e, such f iles a nd discovery shall be m ade available as provided in subsection (2)(iii) above.

3Miss. R

. App. P. 22(c)(4)(ii). B rown argues that Rule 22(c) entitles h im to subm it discovery

r e q u e sts to t he circuit court so he m ay investigate potential claim s f or his y et-to-be- f

i l e d successive petition. ¶5. W e f

ind that B rown’s reliance o n R u l e 2 2 ( c) is m isplaced. T oday , we clarif y that Rule 22(c) does not apply t o successive petitions f o r post-conviction relief

. R ule 2 2(c) m

ust f ir s t b e r e ad i n light of the Unif o rm Post-Conviction Collateral Relief Act’s (UPCCRA)
pronouncem ent t hat crim inal def endants are e ntitled to f i l e o n l y one petition f

or postconviction, subject to lim i ted exceptions. S ee 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 e ntry of a f

i nal order and subject t o only l im ited exceptions, allowed a single postconviction m otion b y vi r t u e of the successive writ bar of § 9 9-39-23.”). 1 Accordingly , as discussed m ore f

ully below, Rule 22(c) was enacted to ensure that c a pital def e ndants could

com ply w i t h t h e UPCCRA’s burden o f production when they f iled their first petitions.
Carrothers v. State , 189 So. 3d 612, 614 (Miss. 2015). The purpose of R ule 22(c) is not, as Brown c ontends, to allow def endants an endless opportunity f or d iscovery on the assertion that they m ay have claim s which they did not raise in prior proceedings. W e also n o te t h at
B r o w n ’ s f irst m o tio n f

o r leav e to p ro ceed in t h e t rial co u rt w i th a p e titio n f o r p o st-co n v ictio n relief w as f

iled an d g r an ted in p art b y th is C o u rt b ef o re R u le 2 2 (c) w en t i n to e f f ect, an d th is
C o u rt p rev io u sly d eterm i n ed th at B ro w n w as n o t en titled to d isco v ery u n d er R u le 2 2 af ter

1 R u ssell in v o lv e d a d ef

en d an t’s f i rst p etitio n f

o r p o st-co n v ictio n r elief a n d th eref o re is d i stin g u ish a

b le f ro m th e in s tan t case. 4h e w as g ran ted l eav e to p ro ceed in th e trial co u r t w ith h is f

i rst p etitio n . S

ee B r o w n , 8 8 S o . 3 d at 7 3 0

. ¶6. Moreover, none o f the p r ovisions of Rule 22 suggest that the rule should be applied

to successive petitions f

or post- c o n viction relief

. On the contrary , Rule 22(c)(1)(ii) explicitly requires this C o u r t t o d i rect the convicting court t o r ule on the issue of appointm ent of counsel “im m ediately af

ter the announcem ent of the decision on direct appeal [ .]” Miss. R. App. P. 22(c)(1)(ii) (em phasis a dded). Additionally , Rule 22(c)(5)(i) p rovides that the petitioner’s application f

or leave to proceed i n the trial court m ust be f iled “not later than one hundred eighty

(180) day s af

ter counsel is a

ppointed or sixty

(60) day s f

ollowing denial of rehearing on the direct appeal of the c onviction and sentence, w hichever i s later.” Miss. R. App. P. 22(5)(i) (em

phasis added). As a s uccessive petitioner, Brown is not bound by these provisions and m

ust instead m a ke a showing t hat his successive claim s a re e xcepted f rom the
UPCCRA’s tim e bar and s uccessive-writ bar. See Miss. Code Ann. § 99-39-5(2)(b) (Rev. 2015); Miss. Code Ann. § 9 9

- 3 9

- 2 7 ( 9 ) (Rev. 2015); Miss. R. App. P. 2 2(c)(5)(i). Brown

cannot claim the benef

i t of a single provision of Rule 22(c) as a ground f or discovery prior

to the f iling of his successive petition, when the o ther provisions of that rule clearly do not apply to him

. ¶7. The historical context o f R ule 22(c) also supports a f inding that it does not apply to successive post-conviction petitions. The c u rrent version of Rule 22(c) w as adopted by this
Court in 2000 in tandem with t he Legislature’s enactm ent of House Bill 1228, which m ade several im

portant changes to death-penalty litigation in Mississippi. Relevant to this case,

5House Bill 1 228 created of the Of f ice of Capital Post-Conviction Counsel and the am ended the Unif orm Post-Conviction C o l l a t eral Relief Act to require petitions f or post-conviction relief in capital cases to be f i led within one y ear of conviction. S ee Miss. Code Ann. § 99-
39-101 ( Rev. 2015) (ef

f ective July 1, 2000); Miss. Code Ann. § 99-39-5(2)(b) (Rev. 2015) (ef f ective July 1, 2000). Rule 22(c) was “designed to im pleme n t ” t h e se l egislative

enactm ents. Miss. R. App. 22 c m t. To that end, Rule 22(c) contains provisions governing the representation and com pensation of counsel and im poses s pecif

ic d eadlines on both the petitioner and the S tate in order to com ply with the expedited statute o f lim itations 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 t he Of

f ice of Capital Post-Conviction Counsel, m any capital def endants will be represented in their initial p o st-conviction proceedings by attorney s who have had no prior involvem e nt with the case. W ith this context in m ind, R ule 22(c)(4)(ii) s erves as this Court’s

m ethod o f e n s u r i n g that capital petitioners are provided adequate inf orm ation to f

ile their initial petition f

or post-conviction relief within the expedited d eadline f ollowing this Court’s decision on direct appeal, and not as a broad guarantee of unlim ited discovery f or all capital petitioners, as Brown suggests. ¶8. Brown argues that, without so-called “prepetition discovery ,” he will not be able to

s u pport his claim s with the “af f idavits of the witnesses who will testif y and c opies o f docum ents o r records that will b e o f f ered” as required by the UPCCRA. See Miss. Code Ann. § 99-39-9(e) (Rev. 2 0 15). S im ilarly , Brown’s current post-conviction counsel argues that she cannot render ef

f ective assistance to Brown without the benef it of discovery u nder Rule

622(c)(4)(ii). But B rown f ails t o r ecognize that the evidentiary burden i m p osed b y S e c t ion 99-39-9 is not absolute: The af f idavits of o ther persons and t he copies of docum ents and records may be excused u

pon a showing, which will be specif ically detailed i n the m otion, o f good cause why they cannot be obtained. This showing s h all s tate w h a t petitioner has d one to attem pt to obtain the a f

f i davits, records and docum ents, the production of

which he requests the court to excuse.
Id. (em phasis added). I n addition, Brown m ay be entitled to d iscovery under the UPCCRA,

assum ing that he ev e n t u a l l y f i les his successive petition f or post-conviction r elief

. Miss. Code Ann. § 99-39-15 (Rev. 2015). See also Flem ing v. State , 553 So. 2d 505, 506 (Miss. 1989) ( “A prisoner who has f iled a proper m otion pursuant to this Act, and whose m otion has withstood sum m ary dism issal under § 9 9

- 3 9

- 1 1 (2), m ay be entitled to trial transcripts or other relevant docum ents under the discovery provisions of

§ 99-39-15, upon good cause shown and in the discretion of the trial judge.”). 2 Thus, we f ind no m erit in Brown’s argum ent that he is without r ecourse if he is unable t o obtain certain evidence through prepetition discovery

. ¶9. The i nstant m otion provides only scant support f o r t he required showing that “such discovery is n ot f

rivolous and is likely to b e h e lpf ul in the investigation, preparation or presentation o f specific issues [ .]” Miss. R. C iv. P. 22(c)(4)(ii) (em p hasis added). Nothing
f urther is advanced i n term s of new or dif f erent n eeds as com

pare d to Brown’s previous

2 T h e S tate u sed th i s ex act p ro ced u re t o su b p o en a B ro w n ’s trial a tto r n ey s a n d t h e d o cto rs w h o h ad co n d u cted B r o w n ’s m en tal ev alu atio n to testif y a t th e e v i d en tiary h earin g o n B ro w n ’s f

i rst p etitio n . S

e e B ro w n , 8 8 S o . 3 d at 7 3 1

.

7request f

or prepetition discovery

. Brown’s l i s t of discovery requests includes, but is not lim ited to, the f

ollowing: (1) trial counsel’s f

iles; (2) f iles of the relevant law enf orcem ent agencies and District Attorney ’s Of f ice; (3) copies of audiotapes and videotapes of the Natchez Police D epartm ent which were taken during the investigation of Brown’s case; (4) an order requiring the developm ent of undeveloped f ilm in t he custody of the Natchez Police Departm ent; (5) “discovery relating to the issue of w hether black jur o r s w ere stricken f rom the jury on the basis of

their race”; (6) “discovery f

r om the television stations t hat provided m edia coverage of Mr. Brown’s a rrest, the case investigation, p retrial p roceedings, and the trial”; (7) Youth C ourt and Departm ent of Hum an Services records of B rown and/or his f

am ily m em bers; (8) discovery regardin g other robberies or s hootings that occurred in Natchez on August 8, 1992; (9) “discovery of reports or inf orm ation regarding m i sconduct or unethical behavior of law enf

orcem ent o f

f icers or p r o s e cutorial s taf f who were involved in the investigation and prosecution of Mr. Brown’s case”; (10) prosecutorial f

iles relating to the death of Moses Green; (11) production of a letter f rom Larry Bernard to t he head j a i ler’s b rother regarding w hat Brown allegedly told Bernard whi l e they were in the custody of the Adam s County

Detention Center in 1993.
Brown f ails to explain why h e has been unable to obtain t he requested inf o rm a t ion without resorting to discovery , how this inf orm ation is related to the claim s he intends to raise, or the

8ultim ate purpose of seeking this inf o rm atio n , making this quest nothing m ore than an elaborate f

ishing e xpedition. I n addition, Brown’s f i lings bef ore this Court and the St a t e’s
response indicate that Brown h as been given a c cess to som e of this inf orm a tion, while other
inf orm ation sim

ply cannot be located and m ay not exist. 3 ¶10. In addition, while Brown a lleged both in his prior n otice a nd the instant m otion that he intends to f

ile his successive petition on the basis of inef f e c t i v e a ssistance of postconviction counsel, a review of t he instant m otion b elies this allegation. In h is f i lings bef ore this Court, Brown m akes repeated ref erences to his ef

f orts to engage in discovery during his
f irst post-conviction proceedings and this Court’s denial o f his request f or Rule 22 d iscovery

. The substance of

Brown’s com

p laint is perhaps best f

ram e d by the f

ollowing excerpt f

rom the instant m otion: The unf o rtunate result of th i s C o u r t ’s denial of Mr. Brown’s discovery requests w as t hat by the conclusi o n o f Mr. Brown’s initial post-conviction litigation, Mr. Brown h ad never had an opportunity to f ully investigate and develop potentially m eritorious claim s by use of R u l e 2 2’s discovery provisions. Mr. Brown should now be gra n t ed t hat opportunity since he is currently in a pre-petition posture rather than a post-rem and posture. Throughout his m otion, Brown blam es his alleged “inability ” t o investigate c l aim s during his
f irst post-conviction proceedings not on the a ctions of prior p ost-conviction counsel, but on the f act that prepetition discovery did not exist when he f iled his f irst petition. This a rgum ent does not equate to a claim of inef f ective assistance of

post-conviction counsel.

3 F o r ex am

p l e, in th e N o tice o f

In ten t f iled w ith th is C o u rt, B ro w n a d m itted th at h e h ad b een in co n tact w ith h is t rial atto rn ey s an d th at th ey w ere u n a b l e t o lo cate th eir f iles. In a d d itio n , th e S tate rep r esen ts in its resp o n se to t h e in s tan t m o tio n th at th e N a t ch ez P o lice D e p a rtm e n t h as g iv en B ro w n co m p lete access to its f

iles o n m o r e th an o n e o c c asio n . 9CONCLUSION

¶11. T o d a y w e h o l d t h a t R ule 22(c) does n ot apply to successive petitions f or post

conviction relief

. Accordingly , Brown is not entitled to discovery bef ore f iling his s u c c e s sive petition. For the f

oregoing reasons, we deny Brown’s Motion f or Leave t o Invoke Discovery and Seek Access Orders in the Circuit Court. ¶12. MOTION DENIED.
R A N D O L P H , P . J . , C O L E M A N , M A X W E L L , B E A M A N D C H A M B E R L I N , J J . , CONCUR. DICKINSON, P.J., D ISSENTS W ITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.; COLEMAN, J., JOINS IN PART. DICKINSON, PRESIDING JUSTICE, DISSENTING: ¶13. Mississippi Rule of A ppellate Pro c e d u r e 2 2 ( c ) ma n d a t e s t h a t “ [ d ]iscovery and

com pulsory process m a y be allowed by the p etitioner f rom and after the appointm ent of post-conviction counsel or the determ ination that the petitioner is r e p r e s e nted by private counselor or is proceeding pro se.” 4 Nothing in the R ule lim its that discovery and

com pulsory process to fi r s t p e titions f or post-conviction relief

. R ather, the Rule’s plain, clear
“f rom and af

ter” language establishes that no tem poral b ar exists on a petitioner’s access to this discovery and com

pulsory process. Instead, the Rule lim its a petitioner’s access with a

c a s e-by -case analy sis of whether the petitioner established a need f or the i n fo r

m a t i o n s o u g h t

. 5

4 M iss. R . A p p . P . 2 2 (c) (em p h asis ad d ed ).

5 Id

. (“u p o n m o tio n in d icatin g t h e p u rp o se o f s u ch d i sco v ery an d t h at su ch d isco v ery i s n o t f riv o lo u s an d is l ik ely to b e h elp f u l in th e i n v estig atio n , p rep aratio n o r p resen tatio n o f sp ecif i c issu es w h ich th e p etitio n er in g o o d f aith b eliev es t o b e in q u estio n an d p ro p er f o r p o st-co n v ictio n relief

, an d o rd er en tered in th e so u n d d iscretio n o f th e co u rt.”). 1 0¶14. The m a jority abandons the case-by -case analy sis required by a rule he enacted. But Rule 22’s language stands in the m ajority ’s w ay . So the m a j ority resorts to pro c edural

s t a t u tes—undoubtably unconstitutional—in the Mississippi Unif o rm Post-Convi c t i o n R e l i e f
Act. ¶15. The tim e long since has passed to end this Court’s em barras s i n g , d i s s e m

bling, and indef e nsible practice of seeking ref uge behind som e procedural provision of the Mississippi Unif orm Post-Conviction Collateral Relief Act ( UPCCRA) 6 when it sui t s t h e m ajority ’s
purposes in a particular case. Those justices w ho cite as authority the procedural provisions of the PCR statutes are the sam e justices who heap high praise on the f irst t w o s e ctions of

our Constitution, a nd extol the virtues of N ewell v. State , 7 a c a se that proclaim s this Court’s exclusive authority

to prom ulgate procedural rules f

or the courts of

Mississippi. ¶16. In Newell , this Court held: The division o f authority [ between the Legislature a n d t his Court] is specif i cally im plem ented by

Section 144 of

the Constitution: The judicial power of the state shall be vested in a Suprem e Court and such other courts as are provided f or in thi s constitution. This leaves no room for a division of authority between the judiciary and the legislature a s to the power t o prom

ulgate rules necessary to accom plis h t h e judiciary ’s constitutional purpose. 8 To be clear, I take the phrase, “no room f or a division of

authority ” to m ean no room f o r a division o f authority

. Section 99-39-27 directly contradicts both Newell a nd Section 2 of the

6 M iss. C o d e A n n . § 9 9 -3 9 -1 to 9 9 -3 9 -1 1 9 (R ev . 2 0 1 5 )

. 7 N ew ell v. S ta te , 3 0 8 S o . 2 d 7 1 (M iss. 1 9 7 5 ).

8 Id . at 7 7

. 1 1M i s s i s s i p p i C o n s t i t u t i on, by dictating that post-conviction proceedings in death- p e n a l t y c a s e s “shall b e governed by rules established by the Suprem e Court as w ell as the provisions of this section.” Thus, the Legislature gives no weight to Newell ’s holding that there is “no room f or division.” ¶17. This Court’s record of r espect f or Newell and Section 2 of t h e C o n s t i t ution is no better. Our precedent is replete w ith hundreds of exam ples 9 of cases in which this C ourt has cited as authority the U PCCRA’s procedural statutes which dictate every procedural aspect

o f a P C R p e t ition, including: (1) the contents and f orm of a petition, (2) the c ontents and
f orm of the answer, ( 3) the contents of the record on appe a l , ( 4 ) w h e r e petitions m ust be
f iled, (5) this Court’s standard of revi e w , ( 6 ) the p rocedure f or sum m ary judgm ent, (7) “procedural” w aiver of objections, (8) procedures to be f ollowed at a hearing, (9) the f orm and content of an a

pplication to be f

iled with this Court, (10) those who m ust be served, (11) what this Court m

ust review in m aking its decision, (12) t he nu mb e r o f d a y s the Attorney General m

ust be given to respond to a petition, and num erous other exam ples. The Law that Should Be Applied to this Case ¶18. In this death-penalty case, a prisoner claim s he n eed s t o c onduct d iscovery bef ore f iling a petition f

or post-conviction relief

. He does not ask this Court to allow him t o conduct

t h e d iscovery

. Instead, he relies—as h e s hould—on Rule 22(c)(4)(ii) of the Missi s s i p p i

9 A c u r s o r y W estlaw , L ex is, o r C asem a k er search resu lts in h u n d red s o f cases in w h ich th is C o u rt h a s ig n o red N ew ell an d S ectio n 2 o f th e M ississip p i C o n stitu tio n , an d ap p lied th e p ro ced u ral statu t es in th e U P C C R A

. F o r in stan ce, a search f o r cases rely in g o n S ectio n 9 9 -3 9 -9 , w h ic h d ictates th e co n ten ts o f a p etitio n , resu lts in m o re th an 2 0 0 cases. A n d th e se are j u st th e rep o rted cases. T h is C o u rt’s m o tio n s p an e l s h av e relied o n th e sam e p ro ced u ral statu tes to d ecid e th o u san d s o f u n rep o rted m o tio n s. 1 2R u l es of Appellate Procedure, w hich if applied by its term s , unquestionably would all o w

Brown t o seek the trial court’s perm ission to conduct the disco very . 10 But the m ajority ref uses to decide the issue b ased on the language of our rule. Instead, t he m ajority proclaim s that this Court’s Rule 22(c) m

ust f irst be read in l ight of the Unif orm Post-Conviction Collateral Relief A ct’s ( U PCCRA) pronouncem e nt that crim inal def endants are entitled to f

ile only one petition f

or post-conviction, s ubject to lim i ted exceptions. See Miss. Code Ann. §§ 99-39-23, 27(9) (Rev. 2015). 11 ¶19. This Court’s Rule 22— this Court’s rule—provides f or prepetition discovery in order
f or a petitioner t o f

i le a m eaningf

ul p e tition. Y et, t he m ajority m ocks B rown’s request by ref erring to it a s hi s request f or “so-called ‘prepetition discovery , ’” a nd then denies his request because the rule—“when r ead in the light of a procedural statute”—m eans som ething other than what it actually say s. ¶20. T h e ma

j ority correctly notes that R ule 22(c)(4)(ii) “ require s c e r t a i n ma n d a t o r y d i s c losures to the def

endant, including the transf er of certain f

iles t o the petition e r o r h i s
p o s t

- c o nviction c ounsel and allows lim i ted prepetition discovery at the trial court’ s discretion and upon a show of need.” 1 2 The rule states: Upon appointm ent o f counsel, or the determ ination that the p etitioner is represented by private c ounsel the petitioner’s p rior trial a nd appellate counsel shall m ake available t o the petitioner’s post-conviction counsel t heir com plete f iles relating t o the conviction and s entence. T he State, to the extent allowed by law, s hall m ake available to post-conviction counsel the com plete f iles of

10 S ee M iss. R . A p p . P . 2 2

11 M a j . O p . at ¶ 5

. 12 M a j . O p . at ¶ 4 (em

p h asis ad d ed ). 1 3all law enf orcem ent and prosecutorial agencies i nvolved in the investigation of t he crim es com m itted a nd the prosecution of t he petitioner. If the State h as a reasonable belief that allowing inspection o f a n y p ortion of the f iles by postconviction counsel f

or the petitioner would not be in the interest of justice, the State m ay subm it f or inspection by the convicting court those portions of the f iles so identif

ied. If upon exam ination o f the f iles, the court f

i nds that such p o r tions of the f

iles could not assist the capital petitioner i n investigating, preparing or presenting a m otion f o r p ost-conviction relief

, the court in its discretion m ay

allow the State to withhold that portion of the f iles. Discovery and com

pulsory pr o c e s s m ay be a llowed t he petitioner f rom and af ter the appointm ent of post-conviction counsel or the determ ination that the petitioner is represented by private counselor or is proceeding pro se, but only upon m otion indicating the purpose of such d iscovery and t hat s u ch discovery is not f rivolous and is likely

to be helpf

ul in the investigation, preparation or presentation of s pecif

ic issues which the p etitioner i n g ood f a ith believes to be in question a nd proper f or post-conviction relief

, a n d o r d e r e ntered in the sound d iscretion of the court. Upon determ ination that t he petitioner h as elected to proceed p ro se, such f iles and discovery s hall be m ade available as provided in subsection (2)(iii) above. 1 3 ¶21. Two things a re apparent f rom the language of the rule. First, it includes no lim itation
f or “successive petitio ns” f or post-conviction relief

. Second, a n d m ore im

portantly , it provides the prerequisite f or obtaining discovery : (1) a m otion that discloses the purpose of the p roposed discovery and d em onstrates that the discovery “is not f rivolous a nd is likely to be helpf u l in the investigation , p r e paration or presentation o f specif ic issues which the petitioner in good f

aith believes to be i n question and proper f or post-conviction relief

,” and (2) an “order entered in the sound discretion of the court.” ¶22. So the rule authorizes the petitioner in this case to ask the t r i a l judge f o r discovery , and to attem

pt to p ersuade the trial judge that his request “is not f rivolous and i s likely to be helpf u l in the i n vestigation, preparation or presentation o f specif ic issues which the p e t i t i oner

13 M i ss. R . A p p . P . 2 2 (c)(4 )(ii). 1 4in good f

a ith believes to be i n question and proper f or post-conviction r elief

.” The m ajority , displeased with this t roublesom e r ule, drags in a statute that the m ajority say s “clarif ies” the rules. ¶23. The m ajority correctly n otes that “ Brown’s f irst m otion f

or leave to proceed in the t rial

court with a petition f

or p o s t

- c o n v iction relief was f iled and granted in part by this Court bef ore R ule 22(c) went into ef

f ect, and this Court previously determ ined that Brown was not entitled to discovery under Rule 22 af ter he was granted leave to proceed in t h e t r i a l c ourt

w i th h is petition.” 14 But the m ajority f ails to point out that the reason t he m ajority d e n i e d
him discovery was because h e f ailed to show “good cause” f or needing the d iscovery , even though the discovery listed in Rule 22 is autom atic and requires no showing of good cause. ¶24. I d i s s e n t , n ot because I h a ve c oncluded that B rown has, or has not, sho w n “ g o o d cause”; and not b e cause I t hink he m ay , or m ay not, p revail on a petition f or post-conviction relief

. I dissent because our rules, as they currently exist, allow him to obtain the discovery he seeks, and I cannot join the m ajority ’s acrobatics in f i nding a w ay to deny him what our rules allow h im to have. If the justices in the m ajority think our rules are t oo lax, then they should change the rules, not take ref uge behind a procedural statute.
KIT C H E N S A ND K ING, JJ., JOIN THIS OPINION. COLEMAN, J., JOINS THIS OPINION IN PART.

14 M a j . O p . ¶ 5

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