Serial: 234859

IN THE SUPREME COURT OF MISSISSIPPI

No. 2016-M-00576

TYRONE BURRELL Petitioner

 v. 

STATE OF MISSISSIPPI Respondent

EN BANC ORDER

Before the en banc Court is the Application for Leave to File Post-Conviction 

Collateral Relief in the Trial Court filed by Tyrone Burrell. 

Burrell was convicted of kidnapping and sentenced as a habitual offender to thirty 

years in prison. Burrell v. State, 183 So. 3d 19, 26 (Miss. 2015). This Court affirmed, and 

the mandate issued on February 18, 2016. Id. Since then, Burrell has filed four applications that were denied or dismissed. 

Order, Burrell v. State, No. 2016-M-00576 (Miss. Jan. 8, 2020); Order, Burrell v. State, No. 2016-M-00576 (Miss. Dec. 11, 2018); Order, Burrell v. State, No. 2016-M-00576 

(Miss. Nov. 22, 2016); Order, Burrell v. State, No. 2016-M-00576 (Miss. July 20, 2016). 

Here, he asserts four claims: (1) His indictment was defective; (2) trial counsel 

was ineffective for not challenging the defective indictment; (3) trial counsel was 

ineffective for failing to investigate certain matters; and (4) the firearm-possession 

portion of the indictment was improper. 

In claims (1) and (4), Burrell argues that his indictment was defective. A defectiveindictment claim is not one of the recognized exceptions to the procedural bars. See 

Chapman v. State, 167 So. 3d 1170, 1174–75 (Miss. 2015); Smith v. State, 149 So. 3d 

1027, 1031 (Miss. 2014), overruled on other grounds by Pitchford v. State, 240 So. 3d 

1061 (Miss. 2017); Bell v. State, 123 So. 3d 924, 925 (Miss. 2013); Rowland v. State, 98 

Electronic Document Feb 2 2021 14:22:43 2016-M-00576 Pages: 7
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So. 3d 1032, 1035–36 (Miss. 2012), overruled on other grounds by Carson v. State, 212

So. 3d 22 (Miss. 2016); see also Bevill v. State, 669 So. 2d 14, 17 (Miss. 1996); Brown v.

State, 187 So. 3d 667, 671 (Miss. Ct. App. 2016). And even if it were, we find that

Burrell’s claims are insufficient to merit waiving the bars. See Means v. State, 43 So. 3d

438, 442 (Miss. 2010).

In claims (2) and (3), Burrell argues that counsel was ineffective. In exceptional

circumstances, an ineffective-assistance claim might be excepted from the procedural

bars. Chapman, 167 So. 3d at 1174–75; Bevill, 669 So. 2d at 17; Brown, 187 So. 3d at

671. We find that Burrell’s claims lack any arguable basis to merit waiving the bars. See

Means, 43 So. 3d at 442.

Burrell was previously warned that “any future filings deemed frivolous may

result not only in monetary sanctions, but also in restrictions on filing applications for

post-conviction collateral relief (or pleadings in that nature) in forma pauperis.” Order,

Burrell v. State, No. 2016-M-00576, at *2 (Miss. Dec. 11, 2018) (citing Order, Dunn v.

State, No. 2016-M-01514 (Miss. Nov. 15, 2018)). We find that this filing is frivolous and

that sanctions are merited.

IT IS, THEREFORE, ORDERED that Burrell’s Application for Leave to File PostConviction Collateral Relief in the Trial Court is denied.

IT IS FURTHER ORDERED that Burrell is hereby restricted from filing further

applications for post-conviction collateral relief (or pleadings in that nature) that are

related to this conviction and sentence in forma pauperis. The Clerk of this Court shall

not accept for filing any further applications for post-conviction collateral relief (or

pleadings in that nature) from Burrell that are related to this conviction and sentence

unless he pays the applicable docket fee.

SO ORDERED.

TO DENY WITH SANCTIONS: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM,
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CHAMBERLIN, ISHEE AND GRIFFIS, JJ.

TO DENY: KITCHENS AND KING, P.JJ.

KING, P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN

STATEMENT JOINED BY KITCHENS, P.J.
IN THE SUPREME COURT OF MISSISSIPPI

NO. 2016-M-00576

Tyrone Burrell 

 

v. 

 

State of Mississippi

KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART

WITH SEPARATE WRITTEN STATEMENT:

¶1. Today, this Court prioritizes efficiency over justice and bars Tyrone Burrell from its

doors. Because the imposition of monetary sanctions against indigent defendants and the

restriction of access to the court system serve only to punish those defendants and to violate

rights guaranteed by the United States and Mississippi Constitutions, I strongly oppose this

Court’s order restricting Burrell from filing further petitions for post-conviction collateral

relief in forma pauperis. 

¶2. This Court seems to tire of reading motions that it deems “frivolous” and imposes

monetary sanctions on indigent defendants. The Court then bars those defendants, who in all

likelihood are unable to pay the imposed sanctions, from future filings. In choosing to

prioritize efficiency over justice, this Court forgets the oath that each justice took before

assuming office. That oath stated in relevant part, “I . . . solemnly swear (or affirm) that I will

administer justice without respect to persons, and do equal right to the poor and to the rich.

. . .” Miss. Const. art. 6, § 155. Yet this Court deems the frequency of Burrell’s filings to be

too onerous a burden and decides to restrict Burrell from filing subsequent applications for
post-conviction collateral relief. See In re McDonald, 489 U.S. 180, 186–87, 109 S. Ct. 993,

997, 103 L. Ed. 2d 158 (1989) (Brennan, J., dissenting) (“I continue to find puzzling the

Court’s fervor in ensuring that rights granted to the poor are not abused, even when so doing

actually increases the drain on our limited resources.”). 

¶3. Article 3, section 25, of the Mississippi Constitution provides that “no person shall

be debarred from prosecuting or defending any civil cause for or against him or herself,

before any tribunal in the state, by him or herself, or counsel, or both.” Miss. Const. art. 3,

§ 25 (emphasis added). Mississippi Code Section 99-39-7 provides that actions under the

Uniform Post-Conviction Collateral Relief Act are civil actions. Miss. Code Ann. § 99-39-7

(Rev. 2015). Therefore, this State’s Constitution grants unfettered access in civil causes to

any tribunal in the State. The Court’s decision to deny Burrell’s filing actions in forma

pauperis is a violation of his State constitutional right to access to the courts. 

¶4. The decision to cut off an indigent defendant’s right to proceed in forma pauperis is

also a violation of that defendant’s fundamental right to vindicate his constitutional rights,

for

Among the rights recognized by the Court as being fundamental are the rights

to be free from invidious racial discrimination, to marry, to practice their

religion, to communicate with free persons, to have due process in disciplinary

proceedings, and to be free from cruel and unusual punishment. As a result of

the recognition of these and other rights, the right of access to courts, which

is necessary to vindicate all constitutional rights, also became a fundamental

right.

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Joseph T. Lukens, The Prison Litigation Reform Act: Three Strikes and You’re Out of

Court-It May Be Effective, but Is It Constitutional?, 70 Temp. L. Rev. 471, 474–75 (1997).

As United States Supreme Court Justice Thurgood Marshall stated,

In closing its doors today to another indigent litigant, the Court moves ever

closer to the day when it leaves an indigent litigant with a meritorious claim

out in the cold. And with each barrier that it places in the way of indigent

litigants, and with each instance in which it castigates such litigants for having

“abused the system,” . . . the Court can only reinforce in the hearts and minds

of our society’s less fortunate members the unsettling message that their pleas

are not welcome here. 

In re Demos, 500 U.S. 16, 19, 111 S. Ct. 1569, 1571, 114 L. Ed. 2d 20 (1991) (Marshall, J.,

dissenting). Instead of simply denying or dismissing those motions that lack merit, the Court

seeks to punish Burrell for arguing his claims. 

¶5. Although each justice took an oath to do equal right to the poor and rich, this Court

does not deny access to the court defendants who are fortunate enough to have monetary

resources. Those defendants may file endless petitions, while indigent defendants are forced

to sit silently by. An individual who, even incorrectly, believes that she has been deprived

of her freedom should not be expected to sit silently by and wait to be forgotten.

“Historically, the convictions with the best chances of being overturned were those that got

repeatedly reviewed on appeal or those chosen by legal institutions such as the Innocence

Project and the Center on Wrongful Convictions.” Emily Barone, The Wrongly Convicted:

Why more falsely accused people are being exonerated today than ever before, Time,

http://time.com/wrongly-convicted/ (last visited Nov. 17, 2020) (emphasis added). The

Washington Post reports that 

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the average time served for the 1,625 exonerated individuals in the registry is

more than nine years.Last year, three innocent murder defendants in Cleveland

were exonerated 39 years after they were convicted—they spent their entire

adult lives in prison—and even they were lucky: We know without doubt that

the vast majority of innocent defendants who are convicted of crimes are never

identified and cleared.

Samuel Gross, Opinion, The Staggering Number of Wrongful Convictions in America,

Washington Post (July 24, 2015), http://wapo.st/1SGHcyd?tid=ss_mail&utm_term=.4

bed8ad6f2cc. 

¶6. Rather than violating Burrell’s fundamental rights by restricting his access to the

courts, I would simply find that his petition for post-conviction relief has no merit. 

KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.

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