Opinion
2021-M-01170
01-12-2022
JAMES ROBERT ROWSEY A/K/A JAMES R. Petitioner v. STATE OF MISSISSIPPI Respondent ROWSEY A/K/A JAMES ROWSEY
ORDER
Josiah Dennis Coleman, Justice
Before en banc Court is James Robert Rowsey's Application for Leave to Proceed in the Trial Court.
In 1995, Rowsey was convicted of murder and sentenced to life in prison. In an unpublished opinion, the Court of Appeals affirmed. Rowsey v. State, No. 95-KA-01048-COA (Miss. Ct. App. July 29, 1997). And this Court denied his petition for a writ of certiorari. Order, Rowsey v. State, No. 95-CT-01048-SCT (Miss. Dec. 22, 1997).
As an inmate, Rowsey was convicted of aggravated assault for throwing scalding water on a fellow inmate. Rowsey v. State, 188 So.3d 486, 490 (Miss. 2015). For that crime, he was sentenced to ten years to run consecutively with his life sentence for murder. Id. This Court affirmed. Id.
Rowsey has previously filed seven post-conviction applications. See Order, Rowsey v. State, No. 2021-M-00911 (Miss. Oct. 22, 2021); Order, Rowsey v. State, No. 2021-CP-00143-COA (Miss. Ct. App. Sept. 23, 2021); Order, Rowsey v. State, No. 2016-M-00480 (Miss. Oct. 13, 2016); Order, Rowsey v. State, 2016-M-00480 (Miss. June 8, 2016); Order, Rowsey v. State, No. 2005-M-01524 (Miss. July 21, 2006); Order, Rowsey v. State, No. 2005-M-01524 (Miss. Aug. 17, 2005); Order, Rowsey v. State, No. 2003-M-00561 (Miss. May 14, 2003). Of the seven, four concerned his murder conviction and sentence. See Order, Rowsey v. State, No. 2021-CP-00143-COA (Miss. Ct. App. Sept. 23, 2021); Order, Rowsey v. State, No. 2005-M-01524 (Miss. July 21, 2006); Order, Rowsey v. State, No. 2005-M-01524 (Miss. Aug. 17, 2005); Order, Rowsey v. State, No. 2003-M-00561 (Miss. May 14, 2003). This eighth application, too, concerns his murder conviction and sentence.
Rowsey appears to raise five claims.
First, he challenges the sufficiency of the evidence by arguing that the evidence was all circumstantial: he was the only witness to the alleged accidental shooting.
This claim was capable of determination at trial and/or on direct appeal; thus, the claim is waived unless Rowsey shows cause and actual prejudice to merit relief from the waiver bar. See Miss. Code Ann. § 99-39-21(1) (Rev. 2020).
We find that the claim is insufficient to merit relief from the statutory waiver bar. Nor does it meet any recognized exception to the waiver, time, and successive-writ bars. See Chapman v. State, 167 So.3d 1170, 1172, 1174-75 (Miss. 2015); Smith v. State, 149 So.3d 1027, 1031 (Miss. 2014), overruled on other grounds by Pitchford v. State, 240 So.3d 1061 (Miss. 2017); Bell v. State, 123 So.3d 924, 925 (Miss. 2013); 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); Fulgham v. State, 47 So.3d 698, 700 (Miss. 2010). And even if the claim met a recognized exception, Rowsey's claim lacks any arguable basis to merit relief from the bars. See Fluker v. State, 170 So.3d 471, 475 (Miss. 2015) (quoting Means v. State, 43 So.3d 438, 442 (Miss. 2010)).
Second, Rowsey claims that he is not the person named in the "Trial, Verdict and Sentence of the Court," attached as Exhibit A to his application.
This claim, too, was capable of determination at trial and/or on direct appeal; thus, the claim is waived unless Rowsey shows cause and actual prejudice to merit relief from the waiver bar. See Miss. Code Ann. § 99-39-21(1).
We find that the claim is insufficient to merit relief from the statutory waiver bar. Nor does it meet any recognized exception to the waiver, time, and successive-writ bars. See Chapman, 167 So.3d at 1172, 1174-75; Smith, 149 So.3d at 1031; Bell, 123 So.3d at 925; Rowland, 98 So.3d at 1035-36; Fulgham, 47 So.3d at 700. And even if the claim met a recognized exception, Rowsey's claim lacks any arguable basis to merit relief from the bars. See Fluker, 170 So.3d at 475 (quoting Means, 43 So.3d at 442).
Third, Rowsey argues that the circuit court lacked this Court's permission to change his total pre-trial/pre-sentence jail time from 180 days to 185 days. We find that Rowsey's proper recourse is through the Mississippi Department of Corrections' (MDOC) Administrative Remedy Program, not post-conviction relief. See Putnam v. Epps, 63 So.3d 547, 550 (Miss. 2011).
Fourth, Rowsey's claims that MDOC officials have abused him. We find that this claim is not cognizable under the Mississippi Uniform Post-Conviction Collateral Relief Act. See Miss. Code Ann. § 99-39-5(1) (Rev. 2020).
Finally, Rowsey claims that counsel was ineffective. In exceptional circumstances, an ineffective-assistance claim might be excepted from the time, waiver, and successive-writ bars. See Chapman, 167 So.3d at 1172, 1174-75. We find that Rowsey's ineffective-assistance claim is insufficient to merit relief from the bars.
For the above reasons, we find that the application should be denied.
Twice, Rowsey has been warned of possible sanctions for any successive filing deemed frivolous. Order, Rowsey v. State, No. 2021-M-00911 (Miss. Oct. 22, 2021); Order, Rowsey v. State, No. 2016-M-00480 (Miss. Oct. 13, 2016). The most recent warning said 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." Id. (citing Order, Dunn v. State, No. 2016- M-01514, at *2 (Miss. Nov. 15, 2018)).
We find that this filing is frivolous and that sanctions are merited.
IT IS, THEREFORE, ORDERED that Rowsey's Application for Leave to Proceed in the Trial Court is denied.
IT IS FURTHER ORDERED that Rowsey is hereby restricted from filing further applications for post-conviction collateral relief (or pleadings in that nature) that are related to this conviction and sentence in forma pauperis. The Clerk of this Court shall not accept for filing any further applications for post-conviction collateral relief (or pleadings in that nature) from Rowsey that are related to this conviction and sentence unless he pays the applicable docket fee.
SO ORDERED.
TO DENY WITH SANCTIONS: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
TO DENY: KITCHENS AND KING, PJJ.
KING, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J.
KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
¶1. Today, this Court prioritizes efficiency over justice and bars James Robert Rowsey from its doors. Because the imposition of monetary sanctions against indigent defendants and the restriction of access to the court system serve only to punish those defendants and to violate rights guaranteed by the United States and Mississippi Constitutions, I strongly oppose this Court's order restricting Rowsey from filing further petitions for post-conviction collateral relief in forma pauperis.
¶2. 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. . . ." Miss. Const. art. 6, § 155. Yet this Court deems the frequency of Rowsey's filings to be too onerous a burden and decides to restrict Rowsey from filing subsequent applications for post-conviction collateral relief. See In re McDonald, 489 U.S. 180, 186-87, 109 S.Ct. 993, 997, 103 L.Ed.2d 158 (1989) (Brennan, J., dissenting) ("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.").
¶3. Article 3, section 25, of the Mississippi Constitution provides that "no person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both." Miss. Const. art. 3, § 25 (emphasis added). Mississippi Code Section 99-39-7 provides that actions under the Uniform Post-Conviction Collateral Relief Act are civil actions. Miss. Code Ann. § 99-39-7 (Rev. 2020). Therefore, this State's Constitution grants unfettered access in civil causes to any tribunal in the State. The Court's decision to deny Rowsey's filing actions in forma pauperis is a violation of his State constitutional right to access to the courts.
¶4. The decision to cut off an indigent defendant's right to proceed in forma pauperis is also a violation of that defendant's fundamental right to vindicate his 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). As United States Supreme Court Justice Thurgood Marshall stated,
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.In re Demos, 500 U.S. 16, 19, 111 S.Ct. 1569, 1571, 114 L.Ed.2d 20 (1991) (Marshall, J., dissenting). Instead of simply denying or dismissing those motions that lack merit, the Court seeks to punish Rowsey for arguing his claims.
¶5. Although each justice took an oath to do equal right to the poor and rich, this Court does not deny access to the court defendants who are fortunate enough to have monetary resources. Those defendants may file endless petitions, while indigent defendants are forced to sit silently by. An individual who, even incorrectly, believes that she has been deprived of her freedom should not be expected to sit silently by and wait to be forgotten. "Historically, the convictions with the best chances of being overturned were those that got repeatedly reviewed on appeal or those chosen by legal institutions such as the Innocence Project and the Center on Wrongful Convictions." Emily Barone, The Wrongly Convicted: Why more falsely accused people are being exonerated today than ever before, Time, http://time.com/wrongly-convicted/ (emphasis added) (last visited Sep. 9, 2021). The Washington Post reports that
the average time served for the 1, 625 exonerated individuals in the registry is more than nine years. Last year, three innocent murder defendants in Cleveland were exonerated 39 years after they were convicted-they spent their entire adult lives in prison-and even they were lucky: We know without doubt that the vast majority of innocent defendants who are convicted of crimes are never identified and cleared.
Samuel Gross, Opinion, The Staggering Number of Wrongful Convictions in America, Washington Post (July 24, 2015), http://wapo.st/1SGHcyd?tid'ss_mail&utm_term=.4 bed8ad6f2cc.
¶6. Rather than violating Rowsey's fundamental rights by restricting his access to the courts, I would simply find his petition for post-conviction relief lacked merit.
KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.