GARRETT EUGENE RAY A/K/A GARRETT E. RAY A/K/A GARRETT RAY Petitioner
STATE OF MISSISSIPPI Respondent
EN BANC ORDER
M. ISHEE, JUSTICE
matter is before the Court on the Application for Leave to
Proceed in the Trial Court filed pro se by Garrett Eugene Ray
on June 20, 2019. This Court affirmed Ray's conviction
and sentence on direct appeal, and the mandate issued on
April 5, 2018. Ray v. State, 238 So.3d 1118 (Miss.
2018). Ray filed his first application for leave to pursue
post-conviction relief in the trial court on June 5, 2018.
Before this Court ruled on that application, Ray filed a
second application for leave on August 6, 2018. Those filings
were treated as a single application for leave and were
denied by a panel of this Court on October 10, 2018.
Ray's motion for reconsideration was dismissed on June 3,
Court finds that today's application is successive and
that it does not qualify under any of the successive-writ bar
exceptions. Miss. Code Ann. § 99-39-27(9) (Rev. 2015).
Additionally, Ray's first two claims regarding the right
to confront witnesses and the illegal seizure of evidence
were raised on direct appeal and in his August 6, 2018
post-conviction filing. They are barred by the doctrine of
res judicata. Miss. Code Ann. § 99-39-21(3) (Rev. 2015).
Ray's third claim that his sentence exceeded the maximum
allowed by law was raised in his previous application for
leave and was found to be without merit. It is now barred by
res judicata and the successive-writ bar. Finally, the Court
finds that Ray's new claim of ineffective assistance of
counsel was capable of being raised on direct appeal or in
his first application for leave, and it has been waived.
Notwithstanding waiver, the claim fails to pass the first
prong set forth in Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Accordingly, the Court finds that Ray's application for
leave is successive and should be denied. Miss. Code Ann.
§ 99-39-27(9) (Rev. 2015).
Court also finds that the successive application for leave is
frivolous. Ray is warned that 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 (Miss. Nov. 15, 2018).
THEREFORE ORDERED that the Application for Leave to Proceed
in the Trial Court filed pro se by Garrett Eugene Ray on June
20, 2019, is hereby denied.
DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., MAXWELL,
BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN
STATEMENT JOINED BY KITCHENS, P.J.; COLEMAN, J., JOINS IN
Although Garrett Eugene Ray'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, Ray made reasonable arguments that he was denied the
right to confront witnesses, that evidence in his case was
illegally seized, that his sentence exceeded the maximum, and
that he received ineffective assistance of counsel. As such,
I disagree with the Court's determination that Ray'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,