                    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 WHICH APPEALED:                ADAMS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF CAPITAL POST-CONVICTION
                                          COUNSEL
                                          BY: JAMILA K. ALEXANDER
                                               LOUWLYNN VANZETTA WILLIAMS
                                               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 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.

                        FACTS & PROCEDURAL HISTORY
¶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




                                                2
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.”

                                       DISCUSSION

¶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.


                                               3
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




       1
         Russell involved a defendant’s first petition for post-conviction relief and therefore
is distinguishable from the instant case.

                                               4
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,



                                                5
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



                                               6
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




       2
        The State used this exact procedure to subpoena Brown’s trial attorneys and the
doctors who had conducted Brown’s mental evaluation to testify at the evidentiary hearing
on Brown’s first petition. See Brown, 88 So. 3d at 731.

                                              7
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 Attorney’s
              Office;

       (3)    copies of audiotapes and videotapes of the Natchez Police Department
              which were taken during the investigation of Brown’s case;

       (4)    an order requiring the development of undeveloped film in the custody
              of the Natchez Police Department;

       (5)    “discovery relating to the issue of whether black jurors were stricken
              from the jury on the basis of their race”;

       (6)    “discovery from the television stations that provided media coverage of
              Mr. Brown’s arrest, the case investigation, pretrial proceedings, and the
              trial”;

       (7)    Youth Court and Department of Human Services records of Brown
              and/or his family members;

       (8)    discovery regarding other robberies or shootings that occurred in
              Natchez on August 8, 1992;

       (9)    “discovery of reports or information regarding misconduct or unethical
              behavior of law enforcement officers or prosecutorial staff who were
              involved in the investigation and prosecution of Mr. Brown’s case”;

       (10)   prosecutorial files relating to the death of Moses Green;

       (11)   production of a letter from Larry Bernard to the head jailer’s brother
              regarding what Brown allegedly told Bernard while they were in the
              custody of the Adams County Detention Center in 1993.

Brown fails to explain why he has been unable to obtain the requested information without

resorting to discovery, how this information is related to the claims he intends to raise, or the



                                               8
ultimate purpose of seeking this information, making this quest nothing more than an

elaborate fishing expedition. In addition, Brown’s filings before this Court and the State’s

response indicate that Brown has been given access to some of this information, while other

information simply cannot be located and may not exist.3

¶10.   In addition, while Brown alleged both in his prior notice and the instant motion that

he intends to file his successive petition on the basis of ineffective assistance of post-

conviction counsel, a review of the instant motion belies this allegation. In his filings before

this Court, Brown makes repeated references to his efforts to engage in discovery during his

first post-conviction proceedings and this Court’s denial of his request for Rule 22 discovery.

The substance of Brown’s complaint is perhaps best framed by the following excerpt from

the instant motion:

       The unfortunate result of this Court’s denial of Mr. Brown’s discovery
       requests was that by the conclusion of Mr. Brown’s initial post-conviction
       litigation, Mr. Brown had never had an opportunity to fully investigate and
       develop potentially meritorious claims by use of Rule 22’s discovery
       provisions. Mr. Brown should now be granted that opportunity since he is
       currently in a pre-petition posture rather than a post-remand posture.

Throughout his motion, Brown blames his alleged “inability” to investigate claims during his

first post-conviction proceedings not on the actions of prior post-conviction counsel, but on

the fact that prepetition discovery did not exist when he filed his first petition. This argument

does not equate to a claim of ineffective assistance of post-conviction counsel.



       3
         For example, in the Notice of Intent filed with this Court, Brown admitted that he
had been in contact with his trial attorneys and that they were unable to locate their files.
In addition, the State represents in its response to the instant motion that the Natchez Police
Department has given Brown complete access to its files on more than one occasion.

                                               9
                                       CONCLUSION

¶11.   Today we hold that Rule 22(c) does not apply to successive petitions for post-

conviction relief. Accordingly, Brown is not entitled to discovery before filing his successive

petition. For the foregoing reasons, we deny Brown’s Motion for Leave to Invoke Discovery

and Seek Access Orders in the Circuit Court.

¶12.   MOTION DENIED.

     RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ.,
CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS AND KING, JJ.; COLEMAN, J., JOINS IN PART.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶13.   Mississippi Rule of Appellate Procedure 22(c) mandates that “[d]iscovery and

compulsory process may be allowed by 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.”4 Nothing in the Rule limits that discovery and

compulsory process to first petitions for post-conviction relief. Rather, the Rule’s plain, clear

“from and after” language establishes that no temporal bar exists on a petitioner’s access to

this discovery and compulsory process. Instead, the Rule limits a petitioner’s access with a

case-by-case analysis of whether the petitioner established a need for the information sought.5




       4
           Miss. R. App. P. 22(c) (emphasis added).
       5
         Id. (“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.”).

                                               10
¶14.   The majority abandons the case-by-case analysis required by a rule he enacted. But

Rule 22’s language stands in the majority’s way. So the majority resorts to procedural

statutes—undoubtably unconstitutional—in the Mississippi Uniform Post-Conviction Relief

Act.

¶15.   The time long since has passed to end this Court’s embarrassing, dissembling, and

indefensible practice of seeking refuge behind some procedural provision of the Mississippi

Uniform Post-Conviction Collateral Relief Act (UPCCRA)6 when it suits the majority’s

purposes in a particular case. Those justices who cite as authority the procedural provisions

of the PCR statutes are the same justices who heap high praise on the first two sections of

our Constitution, and extol the virtues of Newell v. State,7 a case that proclaims this Court’s

exclusive authority to promulgate procedural rules for the courts of Mississippi.

¶16.   In Newell, this Court held:

       The division of authority [between the Legislature and this Court] is
       specifically implemented by Section 144 of the Constitution:

       The judicial power of the state shall be vested in a Supreme Court and such
       other courts as are provided for in this constitution. This leaves no room for
       a division of authority between the judiciary and the legislature as to the
       power to promulgate rules necessary to accomplish the judiciary’s
       constitutional purpose.8

To be clear, I take the phrase, “no room for a division of authority” to mean no room for a

division of authority. Section 99-39-27 directly contradicts both Newell and Section 2 of the


       6
           Miss. Code Ann. § 99-39-1 to 99-39-119 (Rev. 2015).
       7
           Newell v. State, 308 So. 2d 71 (Miss. 1975).
       8
           Id. at 77.

                                              11
Mississippi Constitution, by dictating that post-conviction proceedings in death-penalty cases

“shall be governed by rules established by the Supreme Court as well as the provisions of this

section.” Thus, the Legislature gives no weight to Newell’s holding that there is “no room

for division.”

¶17.   This Court’s record of respect for Newell and Section 2 of the Constitution is no

better. Our precedent is replete with hundreds of examples9 of cases in which this Court has

cited as authority the UPCCRA’s procedural statutes which dictate every procedural aspect

of a PCR petition, including: (1) the contents and form of a petition, (2) the contents and

form of the answer, (3) the contents of the record on appeal, (4) where petitions must be

filed, (5) this Court’s standard of review, (6) the procedure for summary judgment, (7)

“procedural” waiver of objections, (8) procedures to be followed at a hearing, (9) the form

and content of an application to be filed with this Court, (10) those who must be served, (11)

what this Court must review in making its decision, (12) the number of days the Attorney

General must be given to respond to a petition, and numerous other examples.

       The Law that Should Be Applied to this Case

¶18.   In this death-penalty case, a prisoner claims he needs to conduct discovery before

filing a petition for post-conviction relief. He does not ask this Court to allow him to conduct

the discovery. Instead, he relies—as he should—on Rule 22(c)(4)(ii) of the Mississippi

       9
         A cursory Westlaw, Lexis, or Casemaker search results in hundreds of cases in
which this Court has ignored Newell and Section 2 of the Mississippi Constitution, and
applied the procedural statutes in the UPCCRA. For instance, a search for cases relying on
Section 99-39-9, which dictates the contents of a petition, results in more than 200 cases.
And these are just the reported cases. This Court’s motions panels have relied on the same
procedural statutes to decide thousands of unreported motions.

                                              12
Rules of Appellate Procedure, which if applied by its terms, unquestionably would allow

Brown to seek the trial court’s permission to conduct the discovery.10 But the majority

refuses to decide the issue based on the language of our rule. Instead, the majority proclaims

that this Court’s

       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).11

¶19.   This Court’s Rule 22—this Court’s rule—provides for prepetition discovery in order

for a petitioner to file a meaningful petition. Yet, the majority mocks Brown’s request by

referring to it as his request for “so-called ‘prepetition discovery,’” and then denies his

request because the rule—“when read in the light of a procedural statute”—means something

other than what it actually says.

¶20.   The majority correctly notes that 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 show of need.”12 The rule states:

       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


       10
            See Miss. R. App. P. 22
       11
            Maj. Op. at ¶ 5.
       12
            Maj. Op. at ¶ 4 (emphasis added).

                                                13
       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.13

¶21.   Two things are apparent from the language of the rule. First, it includes no limitation

for “successive petitions” for post-conviction relief. Second, and more importantly, it

provides the prerequisite for obtaining discovery: (1) a motion that discloses the purpose of

the proposed discovery and demonstrates that the 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

(2) an “order entered in the sound discretion of the court.”

¶22.   So the rule authorizes the petitioner in this case to ask the trial judge for discovery,

and to attempt to persuade the trial judge that his request “is not frivolous and is likely to be

helpful in the investigation, preparation or presentation of specific issues which the petitioner

       13
            Miss. R. App. P. 22(c)(4)(ii).

                                               14
in good faith believes to be in question and proper for post-conviction relief.” The majority,

displeased with this troublesome rule, drags in a statute that the majority says “clarifies” the

rules.

¶23.     The majority correctly notes 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 petition.”14 But the majority fails to point out that the reason the majority denied

him discovery was because he failed to show “good cause” for needing the discovery, even

though the discovery listed in Rule 22 is automatic and requires no showing of good cause.

¶24.     I dissent, not because I have concluded that Brown has, or has not, shown “good

cause”; and not because I think he may, or may not, prevail on a petition for 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 majority’s acrobatics in finding a way to deny him what our

rules allow him to have. If the justices in the majority think our rules are too lax, then they

should change the rules, not take refuge behind a procedural statute.

     KITCHENS AND KING, JJ., JOIN THIS OPINION. COLEMAN, J., JOINS
THIS OPINION IN PART.




         14
              Maj. Op. ¶ 5.

                                                15
