ELBERT DAVIS A/K/A ELBERT LEE DAVIS A/K/A ELBERT L. DAVIS Petitioner
STATE OF MISSISSIPPI Respondent
MICHAEL K. RANDOLPH, CHIEF JUSTICE FOR THE COURT
the Court is Elbert Davis's Application for Leave to
Proceed in the Trial Court. Davis was convicted of sexual
battery of his ten-year-old cousin. He appealed and argued
that the circuit court erred when it limited his right to
show his confession was involuntary, admitted hearsay
testimony, and gave an improper jury instruction. The Court
of Appeals affirmed. Davis v. State, 183 So.3d 112
(Miss. Ct. App. 2015).
Davis's first application for leave, he asserted that the
verdict was against the overwhelming weight of the evidence,
that evidence collected from the crime scene should have been
suppressed for failure to obtain a warrant, and that he had
received ineffective assistance of counsel. This Court denied
in part and dismissed in part Davis's application.
instant application, Davis raises the same issues that he
raised in his first application. Davis does not provide
additional support for his arguments. After due
consideration, the Court finds the instant application should
be denied as a subsequent writ. Miss. Code Ann. §
99-39-27 (Rev. 2015). Moreover, the Court finds that the
present application is frivolous. We warn that future
frivolous filings could result in monetary sanctions or in
restrictions on his ability to file petitions for
post-conviction collateral relief (or pleadings in that
nature) in forma pauperis. See Order,
Dunn v. State, 2016-M-01514 (Miss. Nov. 15, 2018).
THEREFORE ORDERED that Elbert Davis's Application for
Leave to Proceed in the Trial Court is hereby denied.
DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN,
MAXWELL, ISHEE AND GRIFFIS, JJ.
DISMISS AND ISSUE SANCTIONS WARNING: BEAM AND CHAMBERLIN, JJ.
DENY: KITCHENS AND KING, P.JJ.
PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART WITH
SEPARATE WRITTEN STATEMENT:
Although Elbert Davis'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, Davis made reasonable arguments that the verdict was
against the overwhelming weight of the evidence, that
evidence should be suppressed for failure to obtain a
warrant, and that he had received ineffective assistance of
counsel. As such, I disagree with the Court's
determination that Davis's application is frivolous.
Additionally, I disagree with this Court's warning that
future filings 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 that lack merit. As Justice Brennan wisely
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 ...