Derrick Nelson a/k/a Derrick Demetrius Nelson v. State of Mississippi

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Electronic Document Jan 18 2023 15:31:15 2020-M-01417 Pages: 6 Serial: 244523 IN THE SUPREME COURT OF MISSISSIPPI No. 2020-M-01417 DERRICK NELSON A/K/A DERRICK DEMETRIUS NELSON Petitioner v. STATE OF MISSISSIPPI Respondent EN BANC ORDER Now before the Court, en banc, is the Application for Leave to Proceed in the Trial Court filed pro se by Derrick Nelson. Nelson was convicted of murder and sentenced to life in the custody of the Mississippi Department of Corrections. The Court of Appeals initially reversed and remanded Nelson’s conviction and sentence; however, upon certiorari review, this Court affirmed Nelson’s conviction and sentence. Nelson v. State, 284 So. 3d 711 (Miss. 2019). Since this Court’s decision affirming Nelson’s conviction and sentence on direct appeal, Nelson has filed four applications for leave to proceed, and all four have been denied. In this fifth application, Nelson argues that his there was not sufficient evidence to support his indictment for first-degree murder. Nelson’s application is barred as a successive writ pursuant to Mississippi Code Section 99-39-27(9) (Rev. 2020), and the issue presented is also waived pursuant to Mississippi Code Section 99-39-21(1) (Rev. 2020). Further, Nelson has not presented any reasoning that the exceptions to the procedural bars are applicable here. In our July 21, 2022 order, this Court warned Nelson that any future filings deemed frivolous may result in the imposition of monetary sanctions or restrictions on filing applications for post-conviction relief (or pleadings in that nature) in forma pauperis. Order, Nelson v. State, No. 2020-M-01417 (Miss. July 21, 2022). We find that Nelson’s instant application is frivolous; therefore, Nelson should be restricted from filing further petitions for post-conviction relief (or pleadings in that nature) in forma pauperis that are related to this conviction and sentence. See Order, Walton v. State, 2009-M-00329 (Miss. Apr. 12, 2018). IT IS, THEREFORE, ORDERED that the Application for Leave to Proceed in the Trial Court filed pro se by Derrick Nelson is hereby denied. IT IS FURTHER ORDERED that Derrick Nelson is hereby restricted from filing further petitions for post-conviction relief (or pleadings in that nature) that are related to his conviction of murder and corresponding sentence. The Clerk of this Court shall not accept for filing any further petitions for post-conviction relief (or pleadings in that nature) in forma pauperis from Nelson that are related to his conviction and sentence. SO ORDERED. TO DENY WITH SANCTIONS: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ. TO DENY WITHOUT SANCTIONS: KITCHENS AND KING, P.JJ. KING, P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J. 2 IN THE SUPREME COURT OF MISSISSIPPI NO. 2020-M-01417 Derrick Nelson a/k/a Derrick Demetrius Nelson v. State of Mississippi KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT: ¶1. Today, this Court prioritizes efficiency over justice and bars Derrick Nelson 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 Nelson 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 Nelson’s filings to be too onerous a burden and decides to restrict Nelson 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. 2020). Therefore, this State’s Constitution grants unfettered access in civil causes to any tribunal in the State. The Court’s decision to deny Nelson’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. 2 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 Nelson 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/ (emphasis added) (last visited Sept. 9, 2021). The Washington Post reports that 3 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 Nelson’s fundamental rights by restricting his access to the courts, I would simply find his petition for post-conviction relief lacked merit. KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT. 4

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