EN BANC ORDER
MICHAEL K. RANDOLPH, CHIEF JUSTICE
before the Court, en banc, comes the Application for Leave to
Proceed in the Trial Court filed pro se by Joseph Cook.
Cook's conviction and sentence were affirmed by this
Court on direct appeal, and the mandate issued on May 14,
2015. Cook v. State, 161 So.3d 1057 (Miss. 2015).
The instant application for leave, Cook's third, is
barred by time and as a successive application. Miss. Code
Ann. §§ 99-39-5(2) and 99-39-27(9) (Rev. 2015).
Additionally, at least one of Cook's claims was raised
and rejected in his previous application for leave, and it is
now barred by res judicata. Miss. Code Ann. §
99-39-21(3) (Rev. 2015). Notwithstanding the procedural bars,
we find that Cook has presented no arguable basis for these
claims, and the petition should be denied. See Means v.
State, 43 So.3d 438, 442 (Miss. 2010).
we find the instant filing also is frivolous. Cook is warned
that future filings deemed frivolous may result not only in
monetary sanctions, but also in restrictions on filing
applications for post-conviction collateral relief (or
pleadings in that nature) in forma pauperis. Order,
Dunn v. State, 2016-M-01514 (Miss. Nov. 15, 2018).
THEREFORE ORDERED that the Application for Leave to Proceed
in the Trial Court is hereby denied.
DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN,
MAXWELL, BEAM, ISHEE, AND GRIFFIS, JJ.
DISMISS AND ISSUE SANCTIONS WARNING: CHAMBERLIN, J.
DENY: KITCHENS AND KING, P.JJ.
PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART WITH
SEPARATE WRITTEN STATEMENT:
Although Joseph Cook'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, Cook made reasonable arguments that his sentence was
illegal and that he was not afforded due process. As such, I
disagree with the Court's determination that Cook'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 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) (Brennan, J.,