WILLIAM L. WALLER, JR., CHIEF JUSTICE
before the en banc Court is Eddie Earl Phillips's
"Application for Leave to File Motion for
filed this, his second application outside the three-year
limitations period. Miss. Code Ann. § 99-39-5(2) (Rev.
2015). He asserts three claims: (1) the indictment was
defective; (2) the amendment to the indictment to charge him
as a habitual offender constituted unfair surprise and thus
violated his due-process rights; and (3) confusing and
misleading jury instructions violated his due-process rights.
due consideration, we find that Phillips's claims do not
meet any recognized exception to the time, waiver, and
successive-writ bars. Rowland v. State, 98 So.3d
1032, 1036 (Miss. 2012), overruled on other grounds by
Carson v. State, 212 So.3d 22 (Miss. 2016); Bell v.
State, 123 So.3d 924, 925 (Miss. 2013); Chapman v.
State, 167 So.3d 1170, 1174-75 (Miss. 2015); see
also Bevill v. State, 669 So.2d 14, 17 (Miss. 1996);
Brown v. State, 187 So.3d 667, 671 (Miss. Ct. App.
2016). And even if they did meet an exception, the claims
lack any arguable basis to warrant waiving the bars.
Means v. State, 43 So.3d 438, 442 (Miss. 2010).
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, Fairley v. State, 2014-M-01185 (Miss.
May 3, 2018) (citing Order, Bownes v. State,
2014-M-00478 (Miss. Sept. 20, 2017)).
THEREFORE ORDERED that the application is dismissed.
DISMISS: WALLER, C.J., KITCHENS, P.J., KING, COLEMAN,
MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.
DENY: RANDOLPH, P.J.
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 Eddie Earl Phillips's application for
post-conviction relief does not merit relief, I disagree with
the warning contained in this Court's order that future
filings deemed frivolous may result in monetary sanctions or
restrictions on filing 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 ...