Serial: 230118
                     IN THE SUPREME COURT OF MISSISSIPPI

                                      No. 2015-M-01153


BOBBY K. BARNETT                                                                    Petitioner
A/K/A BOBBY KEITH BARNETT

v.

STATE OF MISSISSIPPI                                                              Respondent


                                     EN BANC ORDER

       Before the Court is Bobby K. Barnett’s eighth motion for post-conviction relief, filed

October 22, 2019. Barnett filed the motion after the Court, en banc, considered his seventh

motion for post-conviction relief but before the Court entered its disposition on the seventh

motion. The issues raised in the eighth motion are identical to those previously considered

and denied by the Court. Accordingly, the Court finds that the eighth motion should be

dismissed as moot.

       On November 14, 2019, when the Court denied Barnett’s seventh motion for

post-conviction relief, it warned Barnett that future frivolous filings “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.” En Banc Order, Barnett v. State,

2015-M-00153-SCT (Miss. Nov. 14, 2019). Because the Court issued its warning after

Barnett had already filed the eighth motion, Barnett will not be sanctioned today. The
sanctions warning issued on November 14, 2019, shall remain in effect and apply to all future

filings in this matter.

       IT IS THEREFORE ORDERED that Barnett’s eighth motion for post-conviction

relief, filed October 22, 2019, is dismissed as moot.

       SO ORDERED, this the 10th day of March, 2020.


                                                 /s/ Robert P. Chamberlin
                                              ROBERT P. CHAMBERLIN, JUSTICE
                                              FOR THE COURT


TO DISMISS AS MOOT: KITCHENS, P.J., COLEMAN, MAXWELL, CHAMBERLIN
AND GRIFFIS, JJ.

TO DENY: RANDOLPH, C.J., KING, P.J., BEAM AND ISHEE, JJ.

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. 2015-M-01153


BOBBY K. BARNETT A/K/A BOBBY
KEITH BARNETT

v.

STATE OF MISSISSIPPI


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

¶1.    Although I agree that Bobby Barnett’s application for post-conviction relief should

be dismissed as moot, I disagree with the Court’s finding that the application is frivolous and

with its 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, Barnett made reasonable arguments. As such, I disagree with the Court’s

determination that Barnett’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




       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 Barnett’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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