Serial: 230132
                     IN THE SUPREME COURT OF MISSISSIPPI

                                  No. 2018-M-00115-SCT

WINFRED FORKNER                                                                     Petitioner

v.

STATE OF MISSISSIPPI                                                              Respondent

                                           ORDER

       This matter is before the Court on the Application for Leave to Proceed in the Trial

Court filed pro se by Winfred Forkner who claims that this Court’s decision in one of his

previous petitions for post-conviction relief, Forkner v. State, 277 So. 3d 946 (Miss. 2019),

is an intervening decision and that he is entitled to relief. The 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). The Court further finds that the

claims raised in Forkner’s successive petition are frivolous. Forkner is warned that future

filings deemed frivolous could result in monetary sanctions or in restrictions on his ability

to file applications for post-conviction collateral relief (or pleadings in that nature) in forma

pauperis.

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

Court filed pro se by Winfred Forkner is denied.

       SO ORDERED, this the 11th day of February, 2020.

                                                      /s/ David Michael Ishee
                                                      DAVID MICHAEL ISHEE, JUSTICE
                                                      FOR THE COURT
TO DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., MAXWELL,
BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.

TO DENY: KITCHENS AND KING, P.JJ., AND COLEMAN, J.

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




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                     IN THE SUPREME COURT OF MISSISSIPPI

                                  No. 2018-M-00115-SCT


WINFRED FORKNER

v.

STATE OF MISSISSIPPI


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

¶1.    Although Winfred Forkner’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, Forkner made a reasonable argument that this Court’s decision on his

recent petition was an intervening decision that entitled him to relief. As such, I disagree with

the Court’s determination that Forkner’s application is 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


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

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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

¶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



       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
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.”).

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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 Forkner’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.
COLEMAN, J., JOINS THIS SEPARATE WRITTEN STATEMENT IN PART.




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