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Carter v. State

Supreme Court of Mississippi

December 5, 2018

KENNETH CARTER Petitioner
v.
STATE OF MISSISSIPPI Respondent

          ORDER

          JAMES D. MAXWELL II, JUSTICE

         This matter is before the en banc Court on the Application for Leave to Proceed in the Trial Court filed pro se by Kenneth Carter. Carter was convicted in the Warren County Circuit Court of armed robbery and felon in possession of a weapon as a habitual offender, and received concurrent sentences of life imprisonment without parole. The Court of Appeals affirmed on appeal. Carter v. State, 941 So.2d 846 (Miss. Ct. App. 2006). Carter has previously filed seven unsuccessful requests for postconviction relief in this Court. He now alleges that his indictment was invalid, that Mississippi Code Section 99-19-83 is void for vagueness, that he received ineffective assistance of counsel, and that the circuit court made findings outside his presence.

         The Court finds that the issues Carter raised lack sufficient merit to warrant an evidentiary hearing. This application is barred by the statute of limitations, is barred as a successive application, and does not meet any of the exceptions to these bars. Miss. Code Ann. § 99-39-5(2); § 99-39-27(9). The Application for Leave to Proceed in the Trial Court should be dismissed.

         The Court further finds that this application is Carter's eighth request in this Court for post-conviction relief and is frivolous. Carter is hereby warned that future filings deemed frivolous may result not only in 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); Order, Bownes v. State, 2014-M-00478 (Miss. Sept. 20, 2017); Order, Walton v. State, 2009-M-00329 (Miss. April 12, 2018); Order, Fairley v. State, 2014-M-01185 (Miss. May 3, 2018).

         IT IS THEREFORE ORDERED that the Application for Leave to Proceed in the Trial Court filed pro se by Kenneth Carter is dismissed.

         SO ORDERED

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

          KING, J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J.

          KING, JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT:

         ¶1. Although Kenneth Carter'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 forma pauperis.[1]

         ¶2. 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). In his application for post-conviction relief, Carter made reasonable arguments that his indictment was invalid, that Mississippi Code Section 99-19-83 (Rev. 2015) was vague, that he received ineffective assistance of counsel, and that the circuit court's findings were erroneous. As such, I disagree with the Court's determination that Carter's application is frivolous.

         ¶3. 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 wisely stated,

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) (per ...


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