IN THE SUPREME COURT OF MISSISSIPPI No.2013 CT SCT 2013-CT SCT. MILTON TROTTER, Appellant. STATE OF MISSISSIPPI, Appellee

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1 E-Filed Document Apr :50: CT SCT Pages: 15 IN THE SUPREME COURT OF MISSISSIPPI No.2013 CT SCT 2013-CT SCT MILTON TROTTER, Appellant v. STATE OF MISSISSIPPI, Appellee BRIEF OF AMICUS CURIAE MISSISSIPPI OFFICE OF CAPITAL POST-CONVICTION COUNSEL Louwlynn Vanzetta Williams (MSB 99712) OFFICE OF CAPITAL POST-CONVICTION COUNSEL 239 North Lamar Street, Suite 404 Jackson, Mississippi Telephone: Fax: Counsel for Mississippi Office of Capital Post-Conviction Counsel Amicus Curiae

2 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... 2 TABLE OF AUTHORITIES... 3 STATEMENT OF JURISDICTION... 5 ORDER ON QUESTION PRESENTED... 6 STATEMENT OF THE FACTS... 7 INTEREST OF AMICUS... 8 QUESTION PRESENTED... 8 DISCUSSION I. THIS COURT DOES NOT HAVE TO ADDRESS THE CONSTITUTIONALITY OF THE UPCCRA... 9 II. III. THE COURT HAS THE AUTHORITY TO OVERLOOK PROCEDURAL BARS WHEN A FUNDAMENTAL RIGHT IS IMPINGED OTHER OPTIONS ARE AVAILABLE TO PURSUE CLAIMS THAT FALL OUTSIDE OF THE THREE YEAR STATUTE OF LIMITATIONS CONCLUSION

3 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court may evaluate possible disqualification or recusal. 1. Honorable Robert Walter Bailey (Retired) Circuit Court Judge P.O. Box 1167 Meridian, MS Honorable E.J. (Bilbo) Mitchell District Attorney P.O. Box 5172 Meridian, MS Honorable James A. Williams Attorney for Appellant P.O. Box 5002 Meridian, MS Honorable Scott Stuart Special Assistant Attorney General P.O. Box 220 Jackson, MS Tel Honorable Justin Cobb(successor Judge) Circuit Judge P.O. Box 5631 Meridian, MS Mr. Milton Trotter #39088 MDOC Wilkinson County Correctional Center 2

4 TABLE OF AUTHORIES Cases Bell v. State, 123 So. 3d 924 (Miss. 2013) Chapman v. State, 167 So. 3d 1170 (Miss. 2015) Claix v. State, 875 So. 2d 1130 (Miss. Ct. App. 2004) Cole v. State, 608 So. 2d 1313 (1992)... 9 Edmond v. Miss. Dep't of Corrections, 783 So. 2d 675 (Miss. 2001)... 9 Gillett v. State, 148 So. 3d 260 (Miss. 2014) Grubb v. State, 584 So. 2d 786 (Miss. 1991) Jones v. State, 119 So. 3d 323 (Miss. 2013) Kennedy v. State, 732 So. 2d 184 (Miss. 1999) Laushaw v. State, 791 So. 2d 854 (Miss. Ct. App.2001) Logan v. State, 661 So. 2d (Miss. 1995)... 9 Luckett v. State, 3

5 941 So.2d 428 (Miss. 1991) McGruder v. State, 886 So. 2d 1 (Miss. 2003) Payne v. Epps, 2011 WL (S.D. Miss. 2011)... 9 Puckett v. State, 834 So.2d 676 (Miss. 2002) Rowland v. State, 42 So. 3d 503 (Miss. 2010) Rowland v. State, 98 So. 3d 1032 (Miss. 2012) Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999) Smith v. State, 149 So. 3d 1027 (Miss. 2014)... 10, 11 Smith v. State, 477 So. 2d 191 (Miss. 1985) Sykes v. State, 757 So. 2d 997 (Miss. 2000)... 9 Walker v. State, 555 So.2d 738 (Miss. 1990)... 9 Statutes Miss. Code Ann (2)..., Miss. Code Ann

6 STATEMENT OF JURISDICTION This court granted Mr. Trotter's petition for a writ of cedioral'i. Jurisdiction is proper under M.R.A.P

7 ORDER ON QUESTION PRESENTED Amicus adopts the Question as set forth in this Court's order of March 3,

8 STATEMENT OF THE FACTS Amicus adopts the facts as set forth in Mr. Trotter's petition for a writ of certiorari and the State's Response. 7

9 IN THE SUPREME COURT OF MISSISSIPPI No CT SCT MILTON TROTTER, Appellant v. STATE OF MISSISSIPPI, Appellee BRIEF OF AMICUS CURIAE MISSISSIPPI OFFICE OF CAPITAL POST-CONVICTION COUNSEL INTERESTS OF AMICUS The Office of Capital Post Conviction Counsel is mandated to provide representation to indigent individuals under sentence of death in state postconviction proceedings.1 The objective is to expedite the post-conviction process without depriving the individual of the right to have a court adjudicate issues that were not and could not have been reviewed on direct appeal. QUESTION PRESENTED Whether the Mississippi Uniform Post-Conviction Collateral Relief Act is unconstitutional because it abolishes petitioners' common law right to bring a claim through a petition for writ of habeas corpus while concomitantly providing no procedural alternative through which a conviction and sentence may be challenged collaterally when the claim arises after the time and successive-writ bars have taken effect. 1 Miss. Code Ann et seq. 8

10 DISCUSSION I. This Court does not have to address the constitutionality of the UPCCRA. This Court has previously addressed the constitutionality of the UPCCRA. In Cole v. State, this Court held that the statute "does not work an unconstitutional suspension of the writ of habeas corpus." 2 It explained that the setting of time limitations such as those in the statute "is a legislative prerogative. That body has the right to fix reasonable periods within which an action shall be brought and, within its sound discretion, determine the limitation period."3 The Cole Court held that the three-year time limitation period regarding post-conviction claims is a constitutional device in which post-conviction petitioners are required to bring their valid claims before a court within a reasonable time4. The Court noted that "[t]he primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time. These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected. They are designed to suppress assertion of false and stale claims, when evidence has been lost, memories have faded, witnesses are unavailable, or facts are incapable of production because of the lapse oftime."5 This Court has continued to so hold. 6 Likewise the federal court has 2 Cole v. State, 608 So. 2d 1313, 1318 (1992). 3 Id. at Id. 5 Id. at

11 held "the Mississippi Supreme Court has noted that the Act, in the pure post conviction collateral relief sense, is arguably post conviction habeas corpus renamed." 7 II. The Court has the authority to overlook procedural bars when a fundamental right is impinged. On the face of the pleadings before the court, Mr. Trotter's petition was not ripe for review until after he was granted parole on his federal sentence and denied parole by the Mississippi Parole Board. The right claimed by Mr. Trotter falls within the fundamental rights exceptions to UPCCRA's procedural bars. The Court has held on numerous occasions that "errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." 8 The Rowland Court noted that in Luckett v. State the Court relied on Smith v. State, 9 a post UPCCRA case. The Court noted that "Smith clearly establishes that a procedural bar cannot be applied in the face of 'errors affecting fundamental rights,' because such a 6 See Logan v. State, 661 So. 2d (Miss. 1995); Sykes v. State, 757 So. 2d 997 (Miss. 2000); Edmond v. Miss. Dep't of Corrections, 783 So. 2d 675 (Miss. 2001) ("[Plost trial petitions that are in the nature of habeas corpus are considered under the UPCCRA.) (citing Gaines v. State, 736 So. 2d 433, 434 (Miss. Ct. App. 1999). 7 Payne v. Epps, 2011 WL (S.D. Miss. 2011) (citing Walker v. State, 555 So.2d 738, 740 (Miss. 1990). s Rowland v. State, 42 So. 3d 503, 506 (Miss. 2010) (quoting Luckett v. State, 941 So.2d 428, 430 (Miss. 1991). 'Smith v. State, 477 So. 2d 191 (Miss. 1985). 10

12 violation 'is too significant a deprivation ofliberty to be subjected to a procedural bar."'10 In Grayson, this Court noted on numerous occasions that "errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." 11 The fundamental rights exception applies with full force to successive petitions for post-conviction relief"[t]o deny relief for a fundamental-rights violation brought to [this Court's] attention in a successive PCR would ignore the serious due process concerns underlying the fundamental rights exception... In recognition of this principle, this Court has reviewed errors affecting fundamental rights raised by successive pleadings."12 This Court has also "recognized exceptions to procedural bars for claims asserting illegal sentence and denial of due process at sentencing... because the State is without authority or right to impose a sentence illegally or without due process."13 10 Rowland, 42 So. 3d at 507 (quoting Smith, 477 So. 2d at 195 ("[C]itizens may not be deprived of constitutional rights without due process of law and that due process requires reasonable advance notice and a meaningful opportunity to be heard."). 11 Rowland v. State, 42 So. 3d 503, 506 (Miss. 2010). 12 Smith v. State, 149 So. 3d 1027, (Miss. 2014) (citations omitted). 13 Rowland v. State, 98 So. 3d 1032, 1036 (Miss. 2012) (citations omitted). See also Chapman v. State, 167 So. 3d 1170, 1174 (Miss. 2015) (applying fundamental rights exception to due process claim raised in successive PCR); Smith, 149 So. 3d at 1031 (applying fundamental rights exception to successive PCR alleging violation of fundamental due process right to a fair trial); Gillett v. State, 148 So. 3d 260, 264 (Miss. 2014) (fundamental rights exception applies to claim that petitioner was denied due process at sentencing); Sims v. State, 134 So. 3d 300, 303 (Miss. 2014) (claim of illegal punishment excepted from procedural bars); Bell v. State, 123 So. 3d 924 (Miss. 2013) (same); Jones v. State, 119 So. 3d 323, (Miss. 2013) 11

13 The exceptions of the three-year limitation period for filing motion for post conviction collateral relief are: "(l) cases in which the prisoner can show that there has been an intervening decision of the State or United States Supreme Court which would adversely affect the outcome of a conviction, (2) cases in which prisoner has new evidence, not discoverable at trial, that would have caused a different result in conviction or sentence, or (3) cases in which the prisoner claims his sentence has expired or his probation, parole, or conditional release has unlawfully been revoked.14 III. Other options are available to pursue claims that fall outside of the three-year statute of limitations. A. Out of Time Appeal Mr. Trotter may consider other mechanisms to bring his claims before the Court. The Supreme Court may grant an out-of-time appeal where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.15 B. Equitable Tolling (same); Kennedy v. State, 732 So. 2d 184, (Miss. 1999) (same); Grubb v. State, 584 So. 2d 786, 787, 789 (Miss. 1991) (same). 14 Clark v. State, 875 So. 2d 1130, 1132 (Miss. Ct. App. 2004) (citing Laushaw v. State, 791 So. 2d 854 (Miss. Ct. App.2001)); see also Miss. Code Ann (2). 15 McGruder v. State, 886 So. 2d 1, 2 (Miss. 2003) (the Court allowed defendant to file an out of time appeal because he did nothing to delay the perfection of his appeal). 12

14 This Court has also recognized the doctrine of equitable tolling. 16 " "The doctrine may be applied when a movant files in untimely fashion due to extraordinary circumstances which are both beyond his control and unavoidable even in the exercise of due diligence." 1 7 In the instant case, Mr. Trotter was unaware of the State's position regarding his sentence until he became eligible for parole for his federal sentence. CONCLUSION For the Foregoing reasons this Court should hold that the UPCCRA is constitutional. Respectfully Submitted MISSISSIPPI OFFICE OF CAPITAL POST CONVICTION COUNSEL /s/louwlynn Vanzetta Williams Louwlynn Vanzetta Williams, Esq. Of Counsel: Louwlynn Vanzetta Williams (MSB 99712) OFFICE OF CAPITAL POST-CONVICTION COUNSEL 239 North Lamar Street, Suite 404 Jackson, Mississippi Telephone: Fax: Counsel for Mississippi Office of Capital Post-Conviction Counsel Amicus Curiae 16 Puckett v. State, 834 So.2d 676, 679 (Miss. 2002). 17 Id. (citing Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). 13

15 CERTIFICATE OF SERVICE I, Louwlynn Vauzetta Williams, hereby certify that on this day I electronically filed the foregoing pleading with the Clerk of the Court using the MEC system which sent notification of such filing to the following: 7. Honorable Robert Walter Bailey (Retired) Circuit Court Judge P.O. Box 1167 Meridian, MS Honorable E.J. (Bilbo) Mitchell District Attorney P.O. Box 5172 Meridian, MS Honorable James A. Williams Attorney for Appellant P.O. Box 5002 Meridian, MS IO.Honorable Scott Stuart Special Assistant Attorney General P.O. Box220 Jackson, MS Tel II.Honorable Justin Cobb(successor Judge) Circuit Judge P.O. Box 5631 Meridian, MS This the 4th day of April, Isl Louwlynn Vanzetta Williams Louwlynn Vanzetta Williams Certifying Attorney 14