D. MAXWELL II, JUSTICE
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. §
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).
filed this application outside the three-year limitations
period. Miss. Code. Ann. § 99-39-5(2) (Rev. 2015). He
raises two claims.
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).
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.
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).
THEREFORE ORDERED that the application is denied.
DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., MAXWELL,
BEAM, CHAMBERLIN AND GRIFFIS, JJ.
DENY: COLEMAN AND ISHEE, JJ. TO DISMISS: KITCHENS AND KING,
P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN
STATEMENT JOINED BY KITCHENS, P.J., AND ISHEE, J.
JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN
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