Serial: 229874
                    IN THE SUPREME COURT OF MISSISSIPPI

                                     No. 2019-M-01521


PHILLIP EARL YOUNG A/K/A PHILLIP                                                  Petitioner
E. YOUNG

v.

STATE OF MISSISSIPPI                                                            Respondent


                                    EN BANC ORDER

       This matter is before the Court on Phillip Earl Young’s Petition for Permission to File

Motion for Post-Conviction Relief. Young raises issues regarding his indictment, pretrial

identification, lack of an initial appearance, and his right to counsel.

       The Court of Appeals affirmed Young’s conviction and sentence, and the mandate

issued on August 21, 2007. Young v. State, 962 So. 2d 110 (Miss. Ct. App. 2007). Young

has sought post-conviction relief from the Court before, and the Court denied or dismissed

those filings. See Young v. State, No. 2013-M-00012; Young v. State, No. 2014-M-00406.

Thus, the present motion is time barred and barred as a successive writ. Miss. Code Ann. §§

99-39-5(2), 99-39-27(6) (Rev. 2015). Young’s claims also were raised before; thus, the

issues are barred under the doctrine of res judicata. Miss. Code Ann. § 99-39-21(3) (Rev.

2015). Further, Young fails to present an arguable basis for his claims to warrant an

exception to the procedural bars. Means v. State, 43 So. 3d 438, 442 (Miss. 2010). After

due consideration, the Court finds the present motion should be denied.
       The Court also finds the successive application is frivolous. Young 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).

       IT IS THEREFORE ORDERED that Phillip Earl Young’s Petition for Permission to

File Motion for Post-Conviction Relief is denied.

       SO ORDERED, this the 19th day of February, 2020.


                                           /s/ Michael K. Randolph
                                          MICHAEL K. RANDOLPH, CHIEF JUSTICE
                                          FOR THE COURT


TO DENY WITH SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN, BEAM,
ISHEE AND GRIFFIS, JJ.

TO DISMISS WITH SANCTIONS WARNING: MAXWELL AND CHAMBERLIN, JJ.

TO DENY: KITCHENS AND KING, P.JJ.

KING, P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN
STATEMENT JOINED BY KITCHENS, P.J.




                                              2
                    IN THE SUPREME COURT OF MISSISSIPPI

                                    No. 2019-M-01521

PHILLIP EARL YOUNG A/K/A PHILLIP
E. YOUNG

v.

STATE OF MISSISSIPPI


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

¶1.    Although Phillip Earl Young’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 forma pauperis.1

¶2.    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, Young made reasonable arguments that his charges were illegally changed

after his arrest, that he was not given a timely initial appearance, that his pretrial

identification was highly suggestive, and that he was denied his Sixth Amendment right to

counsel. As such, I disagree with the Court’s determination that Young’s application is

       1
        See Order, Dunn v. State, No. 2016-M-01514 (Miss. Nov. 15, 2018).

                                              3
frivolous.

¶3.    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 stated,

       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., dissenting).2


       2
        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

                                               4
¶4.    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, 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.

¶5.    Therefore, although I find no merit in Young’s application for post-conviction relief,

I disagree with this Court’s contention that the application merits the classification of

frivolous and with its warning of future sanctions and restrictions.

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




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.”).

                                                 5
