D. MAXWELL II, JUSTICE.
the Court, en banc, is the "Motion for Permission to
File a Second or Successive Petition" filed pro se by
Jimmy Wren. Wren's conviction of capital rape of a child
under fourteen years of age and sentence of life imprisonment
were affirmed on direct appeal, and the mandate issued on
July 22, 1999. Lester v. State, 726 So.2d 598 (Miss.
Ct. App. 1998) (reversed and remanded as to co-defendant
Lester only). This is not Wren's second application for
leave as he purports in his filing. It is his eighth
application for leave.
instant application for leave is barred by time and as a
successive application, and it does not meet any of the
exceptions. Miss. Code Ann. § 99-39-5(2) and
99-39-27(9). Notwithstanding the bars, the post-conviction
filing is without merit. Accordingly, the Court finds it
should be dismissed.
previously was sanctioned in the amount of $100 on two
separate occasions for having filed frivolous applications
for leave. The total of $200 in sanctions is still
outstanding. We find the instant filing is also frivolous.
Wren 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. En Banc Order, Dunn v. State, 2016-M-01514
(Miss. Nov. 15, 2018); En Banc Order, Fairley v.
State, 2014-M-01185 (Miss. May 3, 2018) (citing Order,
Bownes v. State, 2014-M-00478 (Miss. Sept. 20,
THEREFORE ORDERED that Wren's "Motion for Permission
to File a Second or Successive Petition" is hereby
WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ.
JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN
Although Jimmy Wren's application for post-conviction
relief does not merit relief, I disagree with this
Court's contention that the application merits the
classification of frivolous and with this Court's warning
of future sanctions and restrictions.
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). Wren made reasonable arguments regarding
violations of due process in his application for
post-conviction relief. As such, I disagree with the
Court's determination that Wren's application is
Additionally, I disagree with this Court's warning that
future filings may result in monetary sanctions or
restrictions on filing applications for post-conviction
collateral relief in forma pauperis. The Eighth
Amendment to the United States Constitution provides that
"excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted." U.S. Const. amend. VIII. The imposition of
monetary sanctions upon a criminal defendant proceeding
in forma pauperis only serves to punish or to
preclude that defendant from his lawful right to appeal. 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,
in itself, violates a defendant's constitutional rights,
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.
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). This Court must not discourage convicted
defendants from exercising their right to appeal.
Wisconsin v. Glick, 782 F.2d 670, 673 (7th Cir.
1986). Novel arguments that might remove a criminal defendant
from confinement should not be discouraged by the threat of
monetary sanctions and restrictions on filings. Id.
Although I find no merit in Wren's application for
post-conviction relief and agree it should be dismissed, I
disagree with the Court's finding that the application is
frivolous and with ...