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Kidd v. State

Supreme Court of Mississippi

March 12, 2019

JOHN RAY KIDD Petitioner
v.
STATE OF MISSISSIPPI Respondent

          EN BANC ORDER

          MICHAEL K. RANDOLPH, CHIEF JUSTICE.

         Now before the en banc Court are (1) John Ray Kidd's Application for Leave to Proceed in the Trial Court for Evidentiary Hearing on Post-Conviction Claim of Newly Discovered Evidence and (2) his Motion to Amend Brief of Application to Proceed in Trial Court.

         Kidd was convicted of sexual battery and two counts of rape. Kidd v. State, 793 So.2d 675, 677 (Miss. Ct. App. 2001). He was sentenced to twenty-five years for sexual battery and to two consecutive thirty-year terms for the rape convictions. Id. The Court of Appeals affirmed. Id. This Court denied his petition for a writ of certiorari, and the mandate issued September 27, 2001.

         Since then, Kidd has filed eight applications for leave to seek post-conviction relief. See Order, Kidd v. State, 2017-M-01512 (Miss. April 5, 2018); Order, Kidd v. State, 2014-M-00778 (Miss. Sept. 11, 2014); Order, Kidd v. State, 2011-M-01537 (Miss. Mar. 27, 2014); Order, Kidd v. State, 2011-M-01537 (Miss. July 26, 2013); Order, Kidd v. State, 2011-M-01537 (Miss. May 2, 2013); Order, Kidd v. State, 2011-M-01537 (Miss. Dec. 20, 2011); Order, Kidd v. State, 2010-M-01864 (Miss. Feb. 2, 2011); Order, Kidd v. State, 2003-M-02680 (Miss. Mar. 17, 2004).

         In this application and motion to amend, Kidd seeks leave based on newly discovered evidence: affidavits from Roy Ray and Manuel Shane Hicks. Kidd says the affidavits show his actual innocence.

         Notably, Kidd has asserted newly discovered evidence in prior applications. He was even granted leave to proceed on such claim in 2014. Order, Kidd v. State, 2014-M-00778 (Miss. Sept. 11, 2014). The circuit court held an evidentiary hearing and denied relief. Kidd v. State, 221 So.3d 1041, 1042 (Miss. Ct. App. 2016). The Court of Appeals affirmed the judgment, id., and this Court denied his petition for a writ of certiorari. Order, Kidd v. State, 2015-CT-01182-SCT (Miss. June 15, 2017).

         Newly discovered evidence is an exception to the time, waiver, and successive-writ bars. Havard v. State, 86 So.3d 896, 906 (Miss. 2012) (citing Miss. Code Ann. § 99-39-27(9) (Rev. 2007)). "The new evidence must be 'evidence, not reasonably discoverable at the time of trial, that is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence.'" Id. (citing id.).

         After due consideration, we find that Kidd does not meet the newly-discovered-evidence standard.

         This Court has previously warned Kidd of possible sanctions for frivolous filings. Order, Kidd v. State, 2011-M-01537 (Miss. Dec. 20, 2011); Order, Kidd v. State, 2011-M- 01537 (Miss. May 2, 2013). And it once sanctioned him $100. Order, Kidd v. State, 2011-M-01537 (Miss. July 26, 2013). He is hereby warned that any future filings deemed frivolous may result not only in additional monetary sanctions, but also in restrictions on filing applications 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).

         IT IS THEREFORE ORDERED the Application for Leave to Proceed in the Trial Court for Evidentiary Hearing on Post-Conviction Claim of Newly Discovered Evidence is denied.

         SO ORDERED.

          TO DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM AND GRIFFIS, JJ.

          TO DISMISS AND ISSUE SANCTIONS WARNING: ...


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