Serial: 232083
                   IN THE SUPREME COURT OF MISSISSIPPI

                                  No. 2017-M-01424


OTTIS J. CUMMINGS JR. Al.KIA OTTIS                                            Petitioner
JUNIOR CUMMINGS Al.KIA OTIS
CUMMINGS Al.KIA OTTIS J.
                                                      FILED
COMMINGS Al.KIA OTIS J. CUMMINGS                      AUG 20 2020
v.                                                 OFFICE OF THE CLERK
                                                    c~'c'f:~FeAiim-s
STATE OF MISSISSIPPI                                                        Respondent


                                  EN BANC ORDER

      Before the Court is the Application for Leave to Proceed in the Trial Court filed by

Ottis J. Cummings Jr.

      In 2009, Cummings was convicted of felony driving under the influence and

sentenced as a habitual offender to life in prison. Cummings v. State, 29 So. 3d 859, 860

(Miss. Ct. App. 2010). The Court of Appeals affirmed, id., and the mandate issued on

April 5, 2010.

       Since then, Cummings has filed four applications concerning this conviction and

sentence. Order, Cummings v. State, No. 2017-M-01424 (Miss. Dec. 6, 2018) (dismissed

and warned of sanctions, including restrictions on in forma pauperis status); Order,

Cummings v. State, No. 2017-M-01424 (Miss. Jan. 18, 2018) (denied); Order, Cummings

v. State, No. 2010-M-00800 (Miss. Jan. 14, 2015) (dismissed and warned of sanctions);

Order, Cummings v. State, No. 2010-M-00800 (Miss. July 15, 2010) (denied).
       Here, he argues that his indictment was defective in four ways: (1) it was not

submitted to the grand jury-only the grand jury foreman ratified it; (2) the foreman's

affidavit was not attached to it; (3) it omitted the county and judicial district; and (4) it lacked

specificity. As a result, he argues that his sentence is illegal.

       Although an illegal-sentence claim is an 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),. a defective-indictment

claim-which is the basis for Cummings's illegal-sentence claim-does not meet any

recognized exception to the bars. Chapman v. State, 167 So. 3d 1170, 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, 98 So. 3d at 1035-36; see also Brown v. State, 187 So. 3d 667, 671 (Miss. Ct.

App. 2016); Boyd v. State, 155 So. 3d 914, 918 (Miss. Ct. App. 2014); Bevill v. State,

669 So. 2d 14, 17 (Miss. 1996). And even if it did, the claim.musthave.some arguable basis
                                    ..
to merit waiving the bars. Means v. State, 43 So. 3d 438, 442 (Miss. 2010).

       After due consideration, we find that Cummings' s defective-indictment claim neither

meets any recognized exception to the procedural bars nor has any arguable basis.

Consequently, his illegal-sentence claim is insufficient to surmount the procedural bars.

       In its order dismissing Cummings's last application, the Court warned that "future

filings deemed frivolous may result not only in monetary sanctions, but also restrictions on


                                                 2
         filing applications for post-conviction relief (or pleadings in that nature) informa pauperis."

         Order, Cummings v. State, No. 2017-M-01424, at 3 (Miss. Dec. 6, 2018) (citing En Banc

         Order, Dunn v. State, No. 2016-M-01514 (Miss. Nov. 15, 2018)). We find that this

         application is frivolous and that sanctions are merited.

                IT IS, THEREFORE, ORDERED that the Application for Leave to Proceed in the

 . . Trial Court is denied.

                IT IS FURTHER ORDERED that Cummings 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 Cummings that are related to this conviction and sentence unless he pays the

         applicable docket fee.
                                           \"(,~
:··...          SO ORDERED, this the --\--S-=- day of August, 2020.




                                                      0    DENNIS COLEMAN, msTICE
                                                      OR THE COURT

     · . . TO DENY WITH SANCTIONS: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM,
           CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
         TO DENY: KITCHENS AND KING, P.JJ.
         KITCHENS, P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN
         STATEMENT JOINED BY KING, P.J.
         KING, P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN
         STATEMENT JOINED BY KITCHENS, P.J.

                                                        3
                     IN THE SUPREME COURT OF MISSISSIPPI

                                     No. 2017-M-01424


 OTTIS J. CUMMINGS, JR. Al.KIA OTTIS
 JUNIOR CUMMINGS Al.KIA OTIS
 CUMMINGS Al.KIA OTTIS J.
 COMMINGS Al.KIA OTIS J. CUMMINGS

 v.

 STATE OF MISSISSIPPI

     KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART
 WITH SEPARATE WRITTEN STATEMENT:

 ,1.    The majority· writes that a defective indictment claim meets no ·exception to the

 procedural bars of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). Yet we

 have held that "a challenge to an: indictment for failure to charge the essential elements of

 a criminal offense affects a fundamental right .... " Carson v. State, 212 So. 3d 22, 31

 (Miss.2016) (internal quotation mark omitted) (quoting Ross v. State, 954 So. 2d 968, 1015

 (Miss. 2007)). I would find that such a challenge may be excepted from the procedural bars

- of the UPCCRA. But because Cummings does not challenge his indictment on the ground

 that it failed to charge the· essential elements ·of a crime and because ·his claims have no

 arguable basis, I agree that his application should be denied. Like Presiding Justice King,

 whose separate statement I join, I would not sanction Cummings by depriving him of access

 to the courts in violation of his fundamental rights.

        KING, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.


                                               4
                      IN THE SUPREME COURT OF MISSISSIPPI

                                       No. 2017-M-01424

 OTTIS J. CUMMINGS, JR. A/KIA OTTIS
 JUNIOR CUMMINGS A/KIA OTIS
 CUMMINGS A/KIA OTTIS J.
 COMMINGS A/KIA OTIS J. CUMMINGS

 v.

. STATE OF MISSISSIPPI

     KING, PRESIDING JUSTICE, OBJECTING TO. THE. ORDER IN PART
 WITH SEPARATE WRITTEN STATEMENT:

 tjf2.   Today, this Court prioritizes efficiency over justice and bars Ottis J. Cummings 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 Cummings from filing further petitions for post-conviction collateral

 relief in forma paup~ris.

 tjf3.   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.



                                                 5
... " Miss. Const. art. 6, § 15 5. Yet this Court deems the frequency of Cummings' s filings

to be too onerous a burden and decides to restrict Cummings 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 fo ensuring that rights granted to the poor are not abused, even

when so doing actually increases the drain on our limited resources.").

,J4.   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,

§ 26 (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. § 99-3 9-7
                    -·     --   ..
(Rev. 2015). Therefore, this state's constitution grants unfettered access in civil causes to any

tribunal in the state. The Court's decision to deny Cummings's filing actions in forma

pauperis is a violation of his state constitutional right to access to the courts.

,is.   The decision to cut off an indigent defendant's right to proceed informa 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 inyidious, racial discrimination, to 1Tiarry, 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.

                                               6
 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 Cummings for arguing his claims.

 ,I6.   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/ (last visited Aug. 6, 2020) (emphasis added). The

· Washington Post reports that

                                                7
       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 3 9 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 ofinnocent 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/lSGHcyd?tid=ss_mail&utm_term=.4

bed8ad6f2cc.

if7.   Rather than violating Cummings' s fundamental rights by restricting his access to the

courts, I would simply deny his petition for post-conviction relief.

       KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.




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