EN BANC ORDER
WILLIAM L. WALLER, JR., CHIEF JUSTICE
matter is before the Court, en banc, on the Application for
Leave to Proceed in the Trial Court filed pro se by Eric
Shawn Davis. Davis's convictions and sentences were
affirmed on direct appeal, and the mandate issued on January
6, 2004. Davis v. State, 866 So.2d 1107 (Miss. Ct.
App. 2003). Davis subsequently filed an application for leave
to proceed in the trial court, which was denied by a panel of
this Court on January 28, 2005. This is Davis's second
application for leave. The Court finds it to be barred by
time and as a successive application, and it does not meet
any of the exceptions thereto. Miss. Code Ann. §§
99-39-5(2), 99-39-27(9) (Rev. 2015). Not withstanding these
bars, there is no merit Davis's claim challenging the
habitual offender portion of his indictment. Accordingly, the
Courtpanel finds the application for leave should be
the instant filing is also frivolous. Davis is hereby warned
that future filings deemed frivolous may result not only in
additional monetary sanctions, but also 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)).
THEREFORE ORDERED that the Application for Leave to Proceed
in the Trial Court is hereby denied.
WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM,
CHAMBERLIN, AND ISHEE, JJ.
J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN
STATEMENT JOINED BY KITCHENS, P.J.
JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN
Although Eric Shawn Davis's application for
post-conviction relief does not merit relief, I disagree with
the Court's finding that the application is frivolous and
with the warning that future filings deemed frivolous may
result in monetary sanctions or restrictions on filing
applications for post-conviction collateral relief in
This Court previously has defined a frivolous motion to mean
one filed in which the movant has "no hope of
success." Roland v. State, 666 So.2d 747, 751
(Miss. 1995). However, "though a case may be weak or
'light-headed,' that is not sufficient to label it
frivolous." Calhoun v. State, 849 So.2d 892,
897 (Miss. 2003). Davis made reasonable arguments regarding
the habitual offender portion of his indictment. As such, I
disagree with the Court's determination that Davis's
application is frivolous.
Additionally, I disagree with this Court's warning that
future filings may result in monetary sanctions or
restrictions on filling applications for post-conviction
collateral relief in forma pauperis. The imposition
of monetary sanctions upon a criminal defendant proceeding
in forma pauperis only serves to punish or preclude
that defendant from his lawful right to appeal. Black's
Law Dictionary defines sanction as "[a] provision that
gives force to a legal imperative by either rewarding
obedience or punishing disobedience."
Sanction, Black's Law Dictionary (10th ed. 2014)
(emphasis added). Instead of punishing the defendant for
filing a motion, I believe that this Court should simply deny
or dismiss motions which lack merit. As Justice Brennan
The Court's order purports to be motivated by this
litigant's disproportionate consumption of the
Court's time and resources. Yet if his filings are truly
as repetitious as it appears, it hardly takes much time to
identify them as such. I find it difficult to see how the
amount of time and resources required to deal properly with
McDonald's petitions could be so great as to justify the
step we now take. Indeed, the time that has been consumed in
the preparation of the present order barring the door to Mr.
McDonald far exceeds that which would have been necessary to
process his petitions for the next several years at least. 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.
In re McDonald, 489 U.S. 180, 186-87, 109 S.Ct. 993,
997, 103 L.Ed.2d 158 (1989) (Brennan, J., dissenting) (per
The same logic applies to the restriction on filing
subsequent applications for post- conviction relief. To cut
off an indigent defendant's right to proceed in forma
pauperis is to cut off his access to the courts. This,