Electronic Document         Apr 28 2020 15:42:10          2011-M-01377           Pages: 5




           Serial: 231485
                               IN THE SUPREME COURT OF MISSISSIPPI

                                               No. 2011-M-01377

           MANUAL COOPER A/K/A MANUEL COOPER                                                  Petitioner

            v.

           STATE OF MISSISSIPPI                                                             Respondent


                                               EN BANC ORDER


                  This matter is before the Court on the Application for Leave to Proceed in the Trial
           Court filed by Manual Cooper. Today’s application is subject to the time bar. Miss.
           Code Ann. § 99-39-5 (Rev. 2015).           Further, Cooper’s previous petition for post-
           conviction relief was denied by this Court. This filing is successive. Miss. Code Ann. §
           99-39-27 (Rev. 2015). After due consideration, the Court finds that Cooper has presented
           no arguable basis for his claims and that the petition should be dismissed. See Means v.
           State, 43 So. 3d 438, 442 (Miss. 2010). Further, the Court finds that the petition is
           frivolous. Cooper 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. Order, Dunn v. State, 2016-
           M-01514 (Miss. Nov. 15, 2018).
                  IT IS THEREFORE ORDERED that the Application for Leave to Proceed in the
           Trial Court filed by Manual Cooper is dismissed.
                  SO ORDERED.


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




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                    IN THE SUPREME COURT OF MISSISSIPPI

                                     No. 2011-M-01377


MANUAL COOPER A/K/A MANUEL
COOPER

v.

STATE OF MISSISSIPPI


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

¶1.    Although Manuel Cooper’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, Cooper made reasonable arguments that the jury instructions were improper

and that the jury was not properly instructed. As such, I disagree with the Court’s

determination that Cooper’s application is frivolous.




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




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