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Dunn v. State

Supreme Court of Mississippi

November 14, 2018

GREGORY DUNN A/K/A GREGORY TODD DUNN Petitioner
v.
STATE OF MISSISSIPPI Respondent

          ORDER

          JAMES D. MAXWELL II, JUSTICE.

         This matter is before the Court, en banc, on Gregory Dunn's letter motion. Dunn was convicted of murder, among other crimes, and sentenced to life. In l997, the Court affirmed Dunn's convictions and sentences. Dunn v. State, 693 So.2d 1333 (Miss. 1997). Thus, the present filing is time barred. Dunn has filed multiple applications for post-conviction relief, making the present claim procedurally barred. See Dunn v. State, 2016-M-01514; Dunn v. State, 2006-M-02029.

         Dunn now raises an illegal-sentence claim, arguing the trial court was not allowed to impose a life sentence upon him without a jury recommendation. Although an illegal-sentence claim may be excepted from the procedural bars, Dunn fails to raise an arguable basis for his claim to justify an exception. See Means v. State, 43 So.3d 438, 442 (Miss. 20l0); Kennedy v. State, 732 So.2d 184, 187 (Miss. 1999). Accordingly, the Court finds the current motion should be dismissed as procedurally barred.

         We further find that Dunn's application is frivolous. Dunn is hereby warned that any future filings deemed frivolous may result not only in additional monetary sanctions, but also in restrictions on filing applications for post-conviction collateral relief (or pleadings in that nature) in forma pauperis. See En Banc Order, Fairley v. State, 2014-M-01185 (Miss. May 3, 2018) (citing Order, Bownes v. State, 2014-M-00478 (Miss. Sept. 20, 2017)).

         While at this time we issue a warning only, imposing monetary sanctions for frivolous filings and denying leave to proceed in forma pauperis is consistent with this Court's precedent. Ivy v. State, 688 So.2d 223, 224 (Miss. 1997) (sanctioning the petitioner "$250 for having filed a frivolous petition in this Court" and prohibiting the petitioner "from filing any matter in forma pauperis in any court of this state, without the prior permission of this Court, until he shall have paid the sanction here imposed"). It is also in line with the Fifth Circuit's approach. United States v. Kates, 736 Fed.Appx. 86 (5th Cir. Aug. 31, 2018) (denying previously sanctioned prisoner's request for in forma pauperis status); Order, In re Jackson, No. 17-90005 (5th Cir. Aug. 22, 2017) (reminding petitioner "that he is barred from filing any pleadings in . . . any court subject to [the Fifth Circuit's] jurisdiction until the [previously imposed $100] sanction has been paid" and cautioning him "that the filing of additional meritless pleadings will subject him to additional and progressively more severe sanctions"); Green v. Carlson, 649 F.2d 285, 286 (5th Cir. 1981) ("commend[ing] the contempt sanction to any panel" upon which Green sought to impose through his frivolous filings, "advanced in forma pauperis"). And denying in forma pauperis status to frivolous petitioners is also consistent with United States Supreme Court practice. Sup. Ct. R. 39.8 ("If satisfied that a petition for writ of certiorari, jurisdictional statement, or petition for an extraordinary writ is frivolous or malicious, the Court may deny leave to proceed in forma pauperis.").

         Our aim in issuing this warning is not to bar future access to the courts. But, as this Court has held before, Mississippi's constitutional right of access to its courts is not without bounds. Thomas v. Warden, 999 So.2d 842, 846 (Miss. 2008) (discussing Miss. Const. art. 3, § 24). See also Duncan v. Johnson, 14 So.3d 760, 765 (Miss. Ct. App. 2009) ("The Mississippi Constitution does not create an unlimited right of access to the courts."). Section 24 protects "a reasonable right of access to the courts-a reasonable opportunity to be heard." Thomas, 999 So.2d at 846. "No one, rich or poor, is [constitutionally] entitled to abuse the judicial process." Duncan, 14 So.3d at 765 (quoting Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989)). Of course, "Courts must carefully observe the fine line between legitimate restraints and an impermissible restriction on a prisoner's constitutional right of access to the courts." Id. (quoting Procup v. Strickland, 792 F.2d 1069, 1072 (11th Cir. 1986)). We find that warning Dunn that any future frivolous filing may result in monetary sanctions or restrictions on his ability to proceed in forma pauperis is by no means unreasonable and, thus, does not impermissibly cross the constitutional line. As the United States Supreme Court has acknowledged, "Pro se petitioners have a greater capacity than most to disrupt the fair allocation of judicial resources because they are not subject to the financial considerations-filing fees and attorney's fees-that deter other litigants from filing frivolous petitions." In re Sindram, 498 U.S. 177, 180, 111 S.Ct. 596, 597, 112 L.Ed.2d 599 (1991) (citing In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 996, 103 L.Ed.2d 158 (1989)).

         "[I]t is vital that the right to file in forma pauperis not be encumbered by those who would abuse the integrity of our process by frivolous filings." Zatko v. California, 502 U.S. 16, 18, 112 S.Ct. 355, 356, 116 L.Ed.2d 293 (1991) (quoting In re Amendment to Rule 39, 500 U.S. 13, 13, 111 S.Ct. 1572, 1573, 114 L.Ed.2d 15 (1991)). While we do not deny Dunn leave to proceed in forma pauperis at this time, we do warn that any future filing deemed frivolous may subject him to sanctions and restrictions on his future ability to proceed in forma pauperis.

         IT IS THEREFORE ORDERED that Dunn's letter motion is hereby dismissed.

         SO ORDERED.

          AGREE: WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.

          KITCHENS, P.J., OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT:

         ¶1. I agree with the Court's decision to dismiss Gregory Dunn's application for leave to file a motion for post-conviction relief (PCR). But I join Justice King's separate statement and I write separately because this Court's decision to impose upon PCR applicants either a monetary sanction or a warning that future filings might result in monetary sanctions violates Mississippi's constitutional guarantees that all citizens will have access to the courts of this State and that our courts shall be open for the redress of grievances. Article 3, Section 24, of the Mississippi Constitution provides that "[a]ll courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay." Miss Const. Art 3, Section 24. Article 3, Section 25, provides that "[n]o 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, Section 25.

         ¶2. Further, motions for post-conviction relief are civil actions to which the Mississippi Rules of Civil Procedure apply unless the Uniform Post-Conviction Collateral Relief Act provides otherwise. Sykes v. State, 757 So.2d 997, 999 (Miss. 2000). Rule 11 of the Mississippi Rules of Civil Procedure provides for the imposition of sanctions on litigants for frivolous filings. M.R.C.P. 11(b). Also, the Litigation Accountability Act authorizes sanctions for a filing that is "without substantial justification," which is defined as "frivolous, groundless in fact or in law, or vexatious, as determined by the court." Miss. Code Ann. § 11-55-3(a) (Rev. 2012). Under Rule 11, a claim is frivolous if it has no hope of success and its insufficiency is manifest to the court from a bare inspection, without argument or research. In re Estate of Smith, 69 So.3d 1, 6 (Miss. 2011). Because the insufficiency of Dunn's illegal sentence claim is not apparent from a bare inspection, it is not frivolous. This Court's decision to sanction those prisoners filing ...


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