MICHAEL K. RANDOLPH CHIEF JUSTICE
before the Court, en banc, comes the Application for Leave to
Proceed in the Trial Court with Motion for Order to Show
Cause and to Vacate Illegal Sentence filed pro se by Freddie
Doug Burrell. Burrell's conviction of sale or transfer of
a controlled substance, Schedule II (cocaine), within fifteen
hundred feet of a school as a habitual offender and sentence
of life imprisonment were affirmed on direct appeal.
Burrell v. State, 726 So.2d 160 (Miss. 1998). The
mandate in that appeal issued on December 3, 1998. Since that
time, Burrell has filed numerous applications for leave, and
none of them were granted. The instant filing is, at the
least, Burrell's sixth application for leave, and it is
barred by time and as a successive application, without
exception. Miss. Code Ann. §§ 99-39-5(2),
99-39-27(9) (Rev. 2015).
on direct appeal, Burrell specifically challenged the
State's evidence of his prior convictions used to prove
the habitual offender enhancement. Burrell, 726
So.2d at 162. The Court found no merit to the claim.
Id. Accordingly, the issue is also barred by the
doctrine of res judicata, and the application for leave
should be dismissed. Miss. Code Ann. §
99-39-21(3) (Rev. 2015).
order of the Court entered September 17, 2014, Burrell was
sanctioned in the amount of $100 after having been previously
warned against frivolous, successive filings. The sanction is
still outstanding. After due consideration, the Court finds
that the instant filing is also frivolous. Burrell is warned
that 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).
THEREFORE ORDERED that the Application for Leave to Proceed
in the Trial Court with Motion for Order to Show Cause and to
Vacate Illegal Sentence is hereby denied.
DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN,
MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
DENY: KITCHENS AND KING, P.JJ. KING, P.J., OBJECTS TO THE
ORDER IN PART WITH SEPARATE WRITTEN STATEMENT JOINED BY
JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN
Although Freddie Doug Burrell's application for
post-conviction relief does not merit relief, I disagree with
this Court's warning that future filings this Court deems
frivolous may result in monetary sanctions or restrictions on
filing applications for post-conviction collateral relief
in forma pauperis.
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. . . ."
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
that 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 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., ...