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
STATE OF MISSISSIPPI Respondent
D. MAXWELL II, JUSTICE.
before the en banc Court is Ottis J. Cummings's
Application for Leave to Proceed in the Trial Court.
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."
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.").
(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
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.
above reasons, we find the application should be dismissed.
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,
THEREFORE ORDERED that the application is dismissed.
WALLER, C.J., RANDOLPH, P.J., MAXWELL, BEAM, CHAMBERLIN AND
COLEMAN, J., AGREES IN PART AND IN RESULT WITHOUT SEPARATE
J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN