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Gardner v. State

Supreme Court of Mississippi

December 13, 2018

DAVID GARDNER Petitioner
v.
STATE OF MISSISSIPPI Respondent

          EN BANC ORDER

          JAMES D. MAXWELL II, JUSTICE

         This matter is before the Court on the filing titled "Leave to Proceed in Trial Court" filed pro se by David Gardner. The document is in the nature of a petition for post-conviction relief and is considered as such. The Court finds that Gardner's direct appeal was affirmed in 1997 and that the present petition is well out of time. Miss. Code Ann. § 99-39-5 (Rev. 2015). Further, Gardner has filed numerous previous petitions for post-conviction relief, which this Court has denied or dismissed. We find that the present petition is subject to the successive writ bar. Miss. Code Ann. § 99-39-27(9) (Rev. 2015). We find that no exception to the procedural bars exists and that the petition should be dismissed. Notwithstanding the procedural bars, we find that the present petition is without merit.

         The Court further finds that the present filing is frivolous. Gardner is hereby warned that future filings deemed frivolous could result in (1) monetary sanctions and (2) restrictions on his ability to file applications for post-conviction collateral relief (or pleadings in that nature) in forma pauperis. See En Banc Order, Dunn v. State, 2016-M-1514 (Miss. Nov. 15, 2018); 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)).

         IT IS THEREFORE ORDERED that the motion titled "Leave to Proceed in Trial Court" filed by David Gardner is dismissed.

         SO ORDERED.

          TO DISMISS: WALLER, C.J., KITCHENS, P.J, KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.

          TO DENY: RANDOLPH, P.J.

          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 David Gardner'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 additional 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). Gardner made reasonable arguments in his motion for post-conviction relief. As such, I disagree with the Court's determination that Gardner's application is frivolous.

         ¶3. This Court seems to tire of reading motions that it deems "frivolous" and imposes monetary sanctions on indigent defendants. The Court then bars those defendants, who in all likelihood are unable to pay the imposed sanctions, from future filings. In choosing to prioritize efficiency over justice, this Court forgets the oath that each justice took before assuming office. That oath stated in relevant part, "I . . . solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich. . . ."

         ¶4. I disagree with this Court's warning that future filings may result in additional 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 ...

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