Opinion
No. 2018-M-01063
12-05-2018
GREGORY LINSON Petitioner v. STATE OF MISSISSIPPI Respondent
Serial: 221772 ORDER
Now before the en banc Court is Gregory Linson's motion titled "Post-Conviction Relief Miss. Code Ann. 99-39-25(1) Rule 2(c) and 4(g)."
Linson filed this, his sixth application for leave to seek postconviction collateral relief outside the three-year limitations period. Miss. Code Ann. § 99-39-5(2). We discern three claims: (1) Linson was unfairly surprised when the State amended his indictment to charge him as a repeat drug offender and a habitual offender; (2) the cocaine's weight did not mandate a thirty-year sentence; and (3) "[w]hen the facts which constitute a criminal offense may fall under either of two statutes, or when there is a substantial doubt as to which of the two is to be applied, the case will be referred to the statute which imposes the lesser punishment." Alexander v. State , 749 So. 2d 1031, 1039 (Miss. 1999) (quoting White v. State , 374 So. 2d 225, 227 (Miss. 1979)).
After due consideration, we find the following. First, claim (1) does not meet any recognized exception to the time, waiver, and successive-writ bars. Rowland v. State , 98 So. 3d 1032, 1035-36 (Miss. 2012), overruled on other grounds by Carson v . State , 212 So. 3d 22 (Miss. 2016); Bell v. State , 123 So. 3d 924, 925 (Miss. 2013); Chapman v. State , 167 So. 3d 1170, 1174-75 (Miss. 2015); see also Bevill v . State , 669 So. 2d 14, 17 (Miss. 1996); Brown v. State , 187 So. 3d 667, 671 (Miss. Ct. App. 2016). And even if it did, it lacks any arguable basis to surmount the bars. Means v. State , 43 So. 3d 438, 442 (Miss. 2010). Second, in claims (2) and (3), Linson effectively challenges the legality of his sentence. While illegal-sentence claims can be excepted from the time, waiver, and successive-writ bars, Rowland , 98 So. 3d at 1036, Linson's claims lack any arguable basis to warrant waiving the bars. Means , 43 So. 3d at 442.
Linson has been warned that frivolous filings may subject him to sanctions. Order, Linson v. State , 2011-M-00377 (Miss. Oct. 26, 2011). He is hereby warned again that future filings deemed frivolous may result not only in monetary sanctions, but also restrictions on filing applications for post-conviction collateral relief (or pleadings in that nature) in forma pauperis. En Banc Order, Dunn v. State , 2016-M-1514 (Miss. Nov. 15, 2018); En Banc Order, Fairley v. State , 2014-M-01185 (Miss. May 3, 2018) (citing Order, Bownes v. State , 2014-M-00478 (Miss. Sept. 20, 2017)).
IT IS THEREFORE ORDERED that the motion is dismissed.
SO ORDERED, this the 5th day of December, 2018.
/s/ James D. Maxwell II
JAMES D. MAXWELL II, JUSTICE
FOR THE COURT AGREE: WALLER, C.J., RANDOLPH, P.J., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ. COLEMAN, J., AGREES IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN STATEMENT. KING, J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J.
KING, JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT: ¶1. Although Gregory Linson's application for post-conviction relief does not merit relief, I disagree with the warning contained in this Court's order that future filings deemed frivolous may result in monetary sanctions or restrictions on filing applications for post-conviction collateral relief in forma pauperis. ¶2. 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 which lack merit. As Justice Brennan wisely stated,
See Order, Dunn v. State , 2016-M-01514 (Miss. Nov. 15, 2018).
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) (per curiam). ¶3. In addition, 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, for
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, which is necessary to vindicate all constitutional rights, also became a fundamental right.Joseph T. Lukens, The Prison Litigation Reform Act: Three Strikes and You're Out of Court-It May Be Effective, but Is It Constitutional?, 70 Temp. L. Rev. 471, 474-75 (1997). This Court must not discourage convicted defendants from exercising their right to appeal. Wisconsin v. Glick , 782 F.2d 670, 673 (7th Cir. 1986). Novel arguments that might remove a criminal defendant from confinement should not be discouraged by the threat of monetary sanctions and restrictions on filings. Id. ¶4. Therefore, although I find no merit in Linson's application for post-conviction relief and agree it should be dismissed, I disagree with this Court's warning of future sanctions and restrictions.
See also In re Demos , 500 U.S. 16, 19, 111 S. Ct. 1569, 1571, 114 L. Ed. 2d 20 (1991) (Marshall, J., dissenting) ("In closing its doors today to another indigent litigant, the Court moves ever closer to the day when it leaves an indigent litigant with a meritorious claim out in the cold. And with each barrier that it places in the way of indigent litigants, and with each instance in which it castigates such litigants for having 'abused the system,' . . . the Court can only reinforce in the hearts and minds of our society's less fortunate members the unsettling message that their pleas are not welcome here."). --------
KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.