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Cummings v. State

Supreme Court of Mississippi

December 5, 2018

OTTIS J. CUMMINGS, JR. A/K/A OTTIS JUNIOR CUMMINGS A/K/A OTIS CUMMINGS A/K/A OTTIS J. COMMINGS A/K/A OTIS J. CUMMINGS Petitioner
v.
STATE OF MISSISSIPPI Respondent

          ORDER

          JAMES D. MAXWELL II, JUSTICE.

         Now before the en banc Court is Ottis J. Cummings's Application for Leave to Proceed in the Trial Court.

         Cummings filed this, his fourth, application outside the three-year statute of limitations. Miss. Code Ann. § 99-39-5(2). He raises seven issues: (1) he lawfully refused blood-alcohol testing, and his statements concerning that should have been suppressed; (2) he was not advised of his rights under Mississippi Code Section 63-11-13; (3) the amendment to his indictment to charge him as a habitual offender unfairly surprised him and violated Boyd v. State, 113 So.3d 1252 (Miss. 2013), an intervening decision; (4) an insufficient number of qualified grand jurors indicted him; (5) the post-indictment appointment of counsel prejudiced him; (6) his trial counsel was ineffective; and (7) the trial was "polluted with false and misleading testimony."

         After due consideration, we find that claims (1), (2), (4), (5), and (7) do not meet any recognized exception to the time, waiver, and successive-writs bars. Rowland v. State, 98 So.3d 1032, 1034 (Miss. 2012), overruled on other grounds by Carson v. State, 212 So.3d 22 (Miss. 2016); Bell v. State, 123 So.3d 924, 924-25 (Miss. 2013); see also Boyd v. State, 155 So.3d 914, 918 (Miss. Ct. App. 2014) ("[S]ince Rowland, only four types of 'fundamental rights' have been expressly found to survive PCR procedural bars: (1) double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims.").

         Claim (3) not only fails to meet any recognized exception to the time, waiver, and successive-writs bars, but Cummings has challenged the amendment to his indictment in prior applications for post-conviction relief. That claim, then, is barred by the doctrine of res judicata as well. See Crawford v. State, 218 So.3d 1142, 1152-55, 1160-61 (Miss. 2016).

         As for claim (6), Cummings has raised ineffective assistance in prior applications for post-conviction relief; therefore, that claim too is barred by the doctrine of res judicata. Id. Notwithstanding the res judicata bar, ineffective assistance of counsel can conceivably constitute an exception to the time, waiver, and successive-writs bars. See Bevill v. State, 669 So.2d 14, 17 (Miss. 1996). But merely raising the claim is insufficient. Id. To surmount the bars, there must be some arguable basis for the truth of the claim. Means v. State, 43 So.3d 438, 442 (Miss. 2010). We find Cummings's claim fails to surmount the bars.

         For the above reasons, we find the application should be dismissed.

         We now turn to the issue of sanctions. In dismissing Cummings's second application, the panel warned that "[s]anctions may be imposed for any future filings deemed frivolous." Order, Cummings v. State, 2010-M-00800 (Miss. Jan. 14, 2015). Cummings is hereby warned that future filings deemed frivolous may result not only in monetary sanctions, but also restrictions on filing applications for post-conviction relief (or pleadings in that nature) in forma pauperis. En Banc Order, Dunn v. State, 2016-M-01514 (Miss. Nov. 15, 2018); Order, Bownes v. State, 2014-M-00478 (Miss. Sept. 20, 2017); Order, Walton v. State, 2009-M-00329 (Miss. April 12, 2018); En Banc Order, Fairley v. State, 2014-M-01185 (Miss. May 3, 2018).

         IT IS THEREFORE ORDERED that the application is dismissed.

         SO ORDERED.

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

          COLEMAN, J., AGREES IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN STATEMENT.

          KING, J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN ...


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