D. MAXWELL II, JUSTICE
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.
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.
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).
THEREFORE ORDERED that the Application for Leave to Proceed
in the Trial Court filed pro se by Kenneth Carter is
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 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
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.
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) (per ...