EN BANC ORDER
D. MAXWELL II, JUSTICE
matter is before the Court on the Application for Leave to
Proceed in the Trial Court filed pro se by Rodolfo Espinoza,
who challenges the validity of his enhanced sentence. The
mandate in Espinoza's direct appeal issued in 1999. The
petition is subject to the time bar. Miss. Code Ann. §
99-39-5 (Rev. 2015). Further, Espinoza has filed at least
four prior petitions for post-conviction relief, so this
filing is successive. Miss. Code Ann. § 99-39-27 (Rev.
2015). After due consideration, the Court finds that Espinoza
has presented no arguable basis for his claim and that the
petition should be denied. See Means v. State, 43
So.3d 438, 442 (Miss. 2010). Further, the Court finds that
the petition is frivolous. Espinoza is warned that future
filings deemed frivolous could result in monetary sanctions
or in restrictions on his ability to file applications for
post-conviction collateral relief (or pleadings in that
nature) in forma pauperis. Order, Dunn v.
State, 2016-M-01514 (Miss. Nov. 15, 2018).
THEREFORE ORDERED that the Application for Leave to Proceed
in the Trial Court on Post-Conviction Collateral Relief filed
pro se by Rodolfo Espinoza is denied. SO ORDERED, this the
31st day of July, 2019.
DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN,
MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
DISMISS: KITCHENS AND KING, P.JJ.
P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN
STATEMENT JOINED BY KITCHENS, P.J.
PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART WITH
SEPARATE WRITTEN STATEMENT:
Although Rodolfo Espinoza's application for
post-conviction relief does not merit relief, I disagree with
the Court's finding that the application is frivolous and
with the warning that future filings deemed frivolous may
result in monetary sanctions or restrictions on filing
applications for post-conviction collateral relief in
This Court previously has defined a frivolous motion to mean
one filed in which the movant has "no hope of
success." Roland v. State, 666 So.2d 747, 751
(Miss. 1995). However, "though a case may be weak or
'light-headed,' that is not sufficient to label it
frivolous." Calhoun v. State, 849 So.2d 892,
897 (Miss. 2003). In his application for post-conviction
relief, Espinoza made reasonable arguments that his sentence
is illegal. As such, I disagree with the Court's
determination that Espinoza's application is frivolous.
Additionally, I disagree with this Court's warning that
future filings may result in monetary sanctions or
restrictions on filing applications for post-conviction
collateral relief in forma pauperis. The imposition
of monetary sanctions on 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
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.,
The same logic applies to the restriction on filing
subsequent applications for post- conviction relief. To cut
off an indigent defendant's right to proceed in forma
pauperis is to cut off his access to the courts. This,
in itself, violates a defendant's constitutional rights,
Among the rights recognized by the Court as being fundamental
are the rights to be free from invidious racial
discrimination, to marry, to practice their religion, to
communicate with free persons, to have due process in
disciplinary proceedings, and to be free from cruel and
unusual punishment. As a result of the recognition of these
and other rights, the right of access to courts, ...