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McCain v. State

Supreme Court of Mississippi

July 25, 2019

KEVIN DALE MCCAIN Petitioner
v.
STATE OF MISSISSIPPI Respondent

          ORDER

          JAMES D. MAXWELL II, JUSTICE

         Now before the en banc Court is Kevin Dale McCain's "Application for Leave to Proceed in the Trial Court with Post-Conviction Motion Miss. Code Ann. § 99-39-27."

         This Court affirmed McCain's conviction and life sentence as a habitual offender under Mississippi Code Section 99-19-83 (Rev. 2015). McCain v. State, 81 So.3d 1055, 1062 (Miss. 2012). The mandate issued March 22, 2012. Since then, he has filed one application, which was denied. Order, McCain v. State, 2013-M-00448 (Miss. Apr. 10, 2013).

         McCain filed this application outside the three-year limitations period. Miss. Code. Ann. § 99-39-5(2) (Rev. 2015). He raises two claims.

         First, he says his application should be excepted from the procedural bars based on the intervening decision of Sessions v. Dimaya, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). After due consideration, we find that Dimaya does not meet the intervening-decision exception under Section 99-39-5(2)(a)(i) (Rev. 2015).

         Second, based on Dimaya, McCain argues that Section 99-19-83 was unconstitutionally vague because, at the time he was sentenced, it did not define "crime of violence." In effect, he argues that his sentence is illegal. Although an illegal-sentence claim is a recognized exception to the time, waiver, and successive-writ bars, Rowland v. State, 98 So.3d 1032, 1035-36 (Miss. 2012) (citing Ivy v. State, 731 So.2d 601, 603 (Miss. 1999)), overruled on other grounds by Carson v. State, 212 So.3d 22 (Miss. 2016), the claim must have some arguable basis to warrant relief from those bars. Means v. State, 43 So.3d 438, 442 (Miss. 2010). After due consideration, we find that this claim has no arguable basis.

         McCain is hereby warned that any 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. See Order, Dunn v. State, 2016-M-01514, at *2 (Miss. Nov. 15, 2018) (warning of sanctions, including in forma pauperis restrictions); En Banc Order, Dunn v. State, 2016-M-01514, at *2 (Miss. Apr. 11, 2019) (restricting in forma pauperis status).

         IT IS THEREFORE ORDERED that the application is denied.

         SO ORDERED

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

          TO DENY: COLEMAN AND ISHEE, JJ. TO DISMISS: KITCHENS AND KING, P.JJ.

          KING, P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J., AND ISHEE, J.

          KING, JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT:

         ¶1. Although Kevin Dale McCain'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 ...


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