D. MAXWELL II, JUSTICE
instant matter is before the en banc Court on James
Holloway's Application for Leave to File Motion for
Post-Conviction Relief. In 2004, Holloway was convicted of
armed robbery and sentenced, as a habitual offender, to life
in the custody of the Mississippi Department of Corrections.
The Court of Appeals affirmed Holloway's conviction and
sentence. Holloway v. State, 914 So.2d 817 (Miss.
has filed three prior applications for post-conviction
relief, the first in 2006 and the most recent in March 2015.
Each of Holloway's applications has resulted in the
denial or dismissal of his application. In the instant
application, Holloway makes the same arguments that he made
in his prior applications; therefore, we find that
Holloway's application is time-barred pursuant to
Mississippi Code Section 99-39-5(2) (Rev. 2015), is barred as
a successive writ pursuant to Mississippi Code Section
99-39-23(6) (Rev. 2015), and is barred by the doctrine of res
judicata pursuant to Mississippi Code Section 99-39-21(3)
does raise one issue that has been recognized as an exception
to the application of the procedural bars. Holloway claims
that he is serving an illegal sentence due to a late
amendment to his indictment charging him as a habitual
offender. However, merely claiming that he is subject to an
illegal sentence is insufficient to avoid the application of
the procedural bars. Instead, the claim must have some
arguable basis for truth. See Means v. State, 43
So.3d 438, 442 (Miss. 2010). We conclude that Holloway's
claim lacks the needed arguable basis; therefore, his
argument that he is serving an illegal sentence is also
subject to the procedural bars.
due consideration, we find that Holloway's application is
not well-taken and should be denied. Further, the instant
application is Holloway's fourth application for
post-conviction relief; therefore, we take the opportunity to
warn Holloway that any future filings deemed frivolous may
subject him to monetary sanctions and restrictions on his
ability to proceed in forma pauperis in the future.
See Order, Dunn v. State, 2016-M-01514
(Miss. Nov. 15, 2018).
THEREFORE ORDERED that James Holloway's Application for
Leave to File Motion for Post-Conviction Relief is hereby
DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN,
MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
DISMISS: KITCHENS AND KING, P. JJ.
JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN
Although James Holloway'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 ...