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: 72 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,3 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

Ty rone Burrell

v.

State of Mississippi

KING, PRESIDING JUSTICE , OBJECTING TO THE O RDER IN PART WITH SEPARATE WRITTEN STATEMENT:

¶1. Today

, this Court prioritizes ef f iciency over justice and bars Ty r one Burrell f

rom its

doors. Because the im

p osition of mo n etary sanctions against indigent d ef endants and the

restriction of access to the court sy stem serve only t o punish t hose def endants and to violate

rights g uaranteed by the U nited States and Mississippi Constitutions, I strongly o ppose this

Court’s order restricting Burrell f rom f iling f u rther petitions f

o r post-conviction collateral

relief in forma pauperis

.

¶2. Thi s C o urt s eem s t o tire of reading m o tions t hat it d eem s “f r ivolous” and im

poses

m onetary sanctions on i ndigent d ef endants. The Court then b ars those def e ndants, who in all

l i k e l i h o o d are unable to p ay the im posed sanctions, f

rom f uture f ilings. In choosing t o

p r i o r itize ef

f iciency over justice, this Court f orgets the oath that each j ustice took b e f o r e

assum ing of

f ice. That oath stated i n relevant part, “I

. . . solem nly swear (or af f i rm ) that I will

adm inister justice without respect to persons, and do equal r ight to the poor and to the rich.

. . .” Miss. Const. a rt. 6, § 155. Yet this Court d eem s t he f requency of Burrell’s f

ilings to be

too onerous a burden and decides to restrict Burrell f rom f iling subsequent applications f orpost-conviction collateral relief

. See In re McDonald

, 489 U.S. 180, 186–87, 109 S. Ct. 993,

997, 1 03 L. Ed. 2d 158 (1989) (Brennan, J., di s senting) ( “I continue to f ind p uzzling the

Court’s f ervor in ensuring that rights granted to t he poor are not abused, even when so doing

actually i ncreases the drain on our lim ited resources.”).

¶3. Article 3, section 25, of t he Mi s s i s s i ppi Constitution provides that “ no person shall

be debarred f

rom prosecuting or def

ending any civil c ause for or against him or herself

,

bef ore any tribunal in the state, by him or herself

, or counsel, or both.” Miss. Const. art. 3,

§ 25 (em phasis added). M i ssissippi Code Section 9 9

- 3 9 -7 provides that actions under the

Unif orm Post-Conviction C ollateral Relief A ct are c ivil actions

. Miss. Code Ann. § 99-39-7

(Rev. 2015). Theref

ore, this State’s Constitution grants unf ettered access in civil causes to

any tribunal i n the State. The C ourt ’ s d e c i s i on to deny B urrell’s f iling actions in forma

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

¶4. The decision to cut of f an indigent d ef

endant’s r ight to proceed in f orma pauperis is

also a violation of

that def e ndant’s f undam ental right to vindicate his constitutional rights,

f or

Am ong the rights recognized by the Court as being f undam e ntal are the rights

to be f ree f rom invidio u s racial d iscrim ination, to m a rry , to practice their religion, to com m

unicate with f

ree persons, to have due process in disciplinary proceedings, and t o be f

ree f rom cruel a nd unusual punishm ent. As a result of the recognition of these and o t h e r rights, the right of access to courts, which is necessary

to vindicate all constitutional rights, also becam e a f undam ental right.

2Joseph T. Lukens, The P rison Litigation Reform Act: Three S t r i k e s a n d Y ou’re Out of

Court-It M

ay Be Effective, b ut I

s It Constitutional?

, 7 0 Tem p. L

. Rev. 471, 474–75 (1997).

As United States Suprem e Court Justice Thurgood Marshall stated,

In closing its doors today to another indigent litigant, t he C ourt m o v e s e v er clo s e r t o the d ay w hen it leaves an indigent litigant with a m eritorious claim

out in the cold. And with each barrier that i t p l a c e s i n the way of indigent litigants, and with each instance in which it castigates such litigants f or h aving “abused the sy stem
, ”

. . . the Court can only r einf orce in t he hearts a nd m inds of our s ociety ’s less f

ortunate m em

bers t he u nsettling m essage that their pleas are not welcom e here.

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

dissenting). Instead of s im p ly deny ing or dism issing those m otions that lack m erit, the Court

seeks to punish Burrell f

or arguing his claim s.

¶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 def endants who are f

ortunate enough to h a v e mo netary

resources. Those d ef

endants m ay f

ile endless petitions, while indigent def endants are f

orced

to sit silently by

. An indiv i d u a l w h o , even incorrectly

, believes that she h as been deprived

of h er f reedom should not be expected to sit s ilently by and wait to be f orgotten.

“Historically

, the convictions with the b est c hances of being overturned were those that got

repeatedly r eviewed on appeal or those chosen by legal i n s t i t u t i o n s such as the I nnocence

Project a nd the Center on W rongf ul Convictions.” Em ily

Barone, The W

r ongly Convicted:

W hy m ore f

alsely accused people are being exonerated today than ever before

, Tim e,

http://tim e .com

/wrongly -convicted / (last visited Nov. 17, 2020) (em phasis added). The

W a shington Post reports that

3the average tim e served f or the 1,625 exonerated individuals i n the registry is

m ore than n ine y e a

r s

. L ast y ear, three innocent m urder def e ndants in Cleveland

were exon e r a t e d 39 y ears af ter they were convicted—they spent their entire adult lives in prison—and even they w ere lucky : W e k now without doubt t hat the vast m ajority of innocent def endants who are convicted of crim es are never identif ied and cleared.

Sam uel G ross, O pinion, The Staggering N u m b e r o f W rongful Convictions in America

,

W a shington Post (July 24, 2 015), http://wapo.st/1SGHcy d? tid=ss_m ail&utm _term =.4

bed8ad6f 2cc.

¶6. Rather than violating B urrell’s f undam ental rights by r estrict i n g h i s a c c e s s to the

courts, I would sim

p ly f i nd that his petition f

or post-conviction relief h as no m erit.

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

4