               IN THE SUPREME COURT OF MISSISSIPPI

                        NO. 2012-CT-00159-SCT

DONALD KEITH SMITH a/k/a DONALD SMITH
a/k/a DONALD K. SMITH

v.

STATE OF MISSISSIPPI

                       ON WRIT OF CERTIORARI

DATE OF JUDGMENT:               01/05/2012
TRIAL JUDGE:                    HON. DALE HARKEY
COURT FROM WHICH APPEALED:      JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:         DONALD KEITH SMITH (PRO SE)
ATTORNEY FOR APPELLEE:          OFFICE OF THE ATTORNEY GENERAL
                                BY: LISA L. BLOUNT
NATURE OF THE CASE:             CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                    REVERSED AND REMANDED - 10/30/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


                        CONSOLIDATED WITH

                        NO. 2012-CT-00926-SCT

DONALD KEITH SMITH a/k/a DONALD SMITH
a/k/a DONALD K. SMITH

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:               05/25/2012
TRIAL JUDGE:                    HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED:      JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:         DONALD KEITH SMITH (PRO SE)
ATTORNEY FOR APPELLEE:          OFFICE OF THE ATTORNEY GENERAL
                                BY: LISA L. BLOUNT
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                               REVERSED AND REMANDED - 10/30/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Under Uniform Rule of Circuit and County Court Practice 9.06, a mental evaluation

and competency hearing are mandatory if the trial court has a reasonable ground to believe

the defendant is incompetent to stand trial. URCCC 9.06. Before Donald Keith Smith entered

a guilty plea in the Circuit Court of Jackson County, the trial court ordered a mental

evaluation of Smith that never was performed. The record is silent as to the reason the trial

court ordered the mental evaluation. We granted Smith’s petition for certiorari on his post-

conviction claim that the trial court had erred by accepting his guilty plea without a

completed mental evaluation and competency hearing. Because a mental evaluation and

hearing were required if the trial court ordered the mental evaluation to assess Smith’s

competence to stand trial, we reverse and remand for an evidentiary hearing on the issue of

why the trial court ordered a mental evaluation.

                                          FACTS

¶2.    Smith was indicted for two counts of kidnapping, one count of armed carjacking, and

one count of felony evading a police officer. The record reveals the following concerning the

trial court’s order of a mental evaluation for Smith. His case was set for trial on November

13, 2008. On that date, Smith orally moved for a continuance and a psychiatric examination.



                                             2
Because the proceedings before the trial court were not transcribed, the grounds for the

motion are not in the record. The court granted the motion and ordered “that Defendant be

examined by some competent psychiatrist(s) for a determination of Defendant’s mental

and/or psychiatric condition.” The order contained no explanation of the reason for the

mental evaluation. The order continued the trial “until a psychiatric evaluation can be

conducted and a report generated.” The same day, the trial court entered an agreed order of

continuance that stated “Defendant is to undergo a psychiatric evaluation at his own expense

and the parties need additional time for plea negotiations.” The agreed order continued the

trial until March 3, 2009. On November 21, 2008, the court entered another agreed order

granting Smith’s motion for a continuance until March 3, 2009, for the purpose of obtaining

a mental examination of Smith. On January 29, 2009, an order was entered for Smith to be

transferred from the Jackson County Adult Detention Center to the Mississippi State Hospital

for evaluation on February 7, 2009.

¶3.    No further information concerning the mental evaluation appears in the record of the

guilty-plea proceedings. On March 3, 2009, the trial court entered another agreed order of

continuance on the basis of ongoing plea negotiations. Another agreed order of continuance

was entered on April 9, 2009, setting a trial date of June 3, 2009. On June 3, 2009, Smith

filed a petition to plead guilty to one count of kidnapping, armed carjacking, and felony

fleeing. At the plea hearing that day, Smith stated that he had been treated for depression and

“psychosis or something like that,” and was taking medication for those conditions. The trial

court found Smith’s guilty plea was knowingly, intelligently, and voluntarily made. The trial

court accepted the guilty plea and sentenced Smith according to the State’s recommendation:


                                              3
for kidnapping, to thirty years with twelve years suspended and eighteen years to serve, for

armed carjacking, to thirty years with twelve years suspended and eighteen years to serve,

and for felony fleeing, to five years, with all sentences to run concurrently. The trial court

also ordered that Smith be placed in the Therapeutic Community Treatment Program, that

he have a full mental-health examination while incarcerated, and that he must take all

prescribed medications.

¶4.    On December 14, 2011, Smith filed a pro se motion for post-conviction relief (PCR),

attacking his armed-carjacking conviction. The trial court dismissed the motion for PCR and

Smith appealed. He filed a second, successive pro se motion for PCR on February 22, 2012,

arguing that the trial court had erred by accepting his guilty plea because the mental

evaluation ordered by the court never had been performed, and no competency hearing had

occurred. In this motion for PCR, Smith averred that it was unclear to him why the mental

evaluation never had been performed. He stated that his attorney had told his parents the

evaluation would cost $2,000. Smith stated that he was taken to the Mississippi State

Hospital on February 7, 2009, but “was promptly returned to jail” after being told that no

psychiatrist was available. He argued that the trial court should not have accepted his guilty

plea because he was “mentally incompetent to fully understand the proceedings against him.”

He also argued that his attorney, Victor Carmody, had provided ineffective assistance of

counsel by failing to investigate his mental condition and pursue a mental evaluation.

¶5.    Smith attached affidavits from his parents. In their affidavits, both parents stated that

Smith had been institutionalized numerous times for drug addiction and bipolar disorder, and

for self-mutilation after he had slashed his arms with a razor. Smith’s father additionally


                                               4
stated that Smith had been prescribed drugs for bipolar disorder. Smith’s father stated that

Smith had been transported to the Mississippi State Hospital for a mental evaluation, but he

was not seen by a doctor and was returned to jail. He averred that Smith’s attorney had called

him and said it would cost $2,000 for the mental evaluation, but they did not have the money.

¶6.    The trial court dismissed Smith’s motion for PCR as successive. See Miss. Code Ann.

§ 99-39-23(6) (Rev. 2007). Alternatively, the trial court held that no competency hearing had

been required because the court never had made a finding that reasonable ground existed as

to Smith’s competency. Smith appealed. This Court assigned both of Smith’s appeals to the

Court of Appeals, which consolidated them and affirmed the dismissal of the motions for

PCR. Smith v. State, 2013 WL 3799825, at *8 (Miss. Ct. App. Feb. 18, 2014). Smith filed

a pro se petition for certiorari, which this Court granted. We limit our review to Smith’s

claim that, because the trial court ordered a mental evaluation, the court could not accept his

guilty plea until a mental evaluation and competency hearing had occurred. M.R.A.P. 17(h).

                                STANDARD OF REVIEW

¶7.    The trial court may summarily dismiss a motion for PCR “[i]f it plainly appears from

the face of the motion, any annexed exhibits and the prior proceedings in the case that the

movant is not entitled to any relief . . . .” Miss. Code Ann. § 99-39-11(2) (Rev. 2007). On

appeal from the summary dismissal of a motion for PCR, this Court determines whether the

motion presents “a claim procedurally alive ‘substantial[ly] showing denial of a state or

federal right.’” Gable v. State, 748 So. 2d 703, 704 (Miss. 1999).

                                        ANALYSIS

¶8.    We begin by addressing the trial court’s holding that Smith’s second motion for PCR

                                              5
was barred as a successive writ. Mississippi Code Section 99-39-23(6) provides that an order

dismissing a motion for PCR acts as a bar to a successive motion for PCR. Miss. Code Ann.

§ 99-39-23(6) (Rev. 2007). However, this Court has held unequivocally that “errors affecting

fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.”

Rowland v. State, 42 So. 3d 503, 507 (Miss. 2010). In Drope v. Missouri, 420 U.S. 162, 172,

95 S. Ct. 896, 43 L. Ed. 2d 103 (1975), the United States Supreme Court held “the

prohibition [against trying or convicting an incompetent defendant] is fundamental to an

adversary system of justice.” The constitutional right not to be tried or convicted while

incompetent is a component of a defendant’s due-process right to a fair trial. Pate v.

Robinson, 383 U.S. 375, 385, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). Because Smith’s

second motion for PCR alleges a violation of his fundamental right not to be convicted while

incompetent, we will address the merits of his argument.

¶9.    The dissent would eliminate the fundamental-rights exception to the successive-

pleadings bar by labeling the bar “substantive” rather than “procedural.” But, as the dissent

recognizes, the Uniform Post-Conviction Collateral Relief Act contains no substantive res

judicata bar to a second PCR. Dis. Op. at n.3. This Court consistently has declared that the

successive-pleadings bar is a procedural bar. See, e.g., Rowland v. State, 98 So. 3d 1032,

1035 (Miss. 2012). And we consistently have recognized an exception to the successive-

pleadings bar for errors affecting fundamental rights. Rowland, 42 So. 3d at 507-08.

¶10.   To deny relief for a fundamental-rights violation brought to our attention in a

successive PCR would ignore the serious due-process concerns underlying the fundamental-

rights exception. Id. at 507 (citing Brooks v. State, 209 Miss. 150, 46 So. 2d 94 (1950)). In

                                             6
recognition of this principle, this Court has on numerous occasions reviewed errors affecting

fundamental rights raised by successive pleadings. Grayson v. State, 118 So. 3d 118, 125

(Miss. 2013) (ineffective assistance of death-penalty post-conviction counsel); Jones v.

State, 119 So. 3d 323, 325-26 (Miss. 2013) (illegal sentence); Rowland, 98 So. 3d at 1035-36

(double jeopardy); Rowland, 42 So. 3d at 505-08 (double jeopardy); Kennedy v. State, 732

So. 2d 184, 186-87 (Miss. 1999) (illegal sentence); Grubb v. State, 584 So. 2d 786, 787, 789

(Miss. 1991) (illegal sentence).

¶11.   Most vitally, this Court previously has held that neither the common law nor our own

constitutional law applies the doctrine of res judicata to constitutional claims. In Bragg v.

Carter, 367 So. 2d 165, 165-66 (Miss. 1978), this Court considered whether common-law

res judicata barred a taxpayer suit alleging a violation of Article 4, Section 95 of the

Mississippi Constitution, which prohibits the donation of public lands to private entities. In

an opinion joined by all justices, this Court stated:

       Although the doctrine of res judicata is based upon the public policy of putting
       an end to litigation, we nevertheless think the doctrine is not inflexible and
       incapable of yielding to a superior policy, and particularly so since the
       confirmation decree has every attribute of tacit consent. The doctrine of res
       judicata must yield to the constitution.

Id. at 167 (citing C.I.T. Corporation v. Turner, 248 Miss. 517, 157 So. 2d 648 (1963);

Annotation, Res Judicata as Affected by Fact that Former Judgment was Entered by

Agreement or Consent, 2 A.L.R. 2d 514, 532 (1948)) (emphasis added). The Bragg Court

recognized that a doctrine of judicial expediency and economy must yield to the superior

policy of enforcing constitutional provisions. Stated differently, the Court removed claims

based in constitutional principle from the bounds of common law res judicata.

                                               7
¶12.   And in Ex parte Pattison, 56 Miss. 161 (1878), in considering an appeal from a trial

court’s denial of a prisoner’s petition for writ of habeas corpus under the then-existing

statutory codification of habeas relief, this Court stated:

       At common law, an adverse decision on one writ of habeas corpus did not
       preclude a second one. Indeed, so tender was the law of the liberty of the
       subject, that he might, when deprived of it, resort in turn to every judge in the
       realm, and was entitled to be enlarged if any one of them thought proper to bail
       or discharge him. Such is still the law in many States of the American Union.

Id. (emphasis added) (internal citations omitted). That is, a petitioner’s right to collaterally

attack his unlawful incarceration was not limited by prior adjudication.

¶13.   No unlawful incarceration is constitutional. The motion for post-conviction relief

before us attacks Smith’s unlawful conviction and incarceration. Under Pattison, that

procedural mechanism is not limited by common-law res judicata. And Smith challenges the

trial court’s failure to determine competency, affecting his fundamental due-process rights.

Under Bragg, claims of constitutional dimensions are likewise excepted from common-law

res judicata.

¶14.   Turning to the merits, the constitutional standard for competency to stand trial is

“whether [a defendant] has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding . . . and whether he has a rational as well as

factual understanding of the proceedings against him.” Hearn v. State, 3 So. 3d 722, 728

(Miss. 2008) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d

824 (1960)). This Court has held that a competent defendant is one:

       (1) who is able to perceive and understand the nature of the proceedings; (2)
       who is able to rationally communicate with his attorney about the case; (3)
       who is able to recall relevant facts; (4) who is able to testify in his own defense

                                               8
         if appropriate; and (5) whose ability to satisfy the foregoing criteria is
         commensurate with the severity of the case.

Hearn, 3 So. 2d at 728 (quoting Martin v. State, 871 So. 2d 693, 697 (Miss. 2004)).

¶15.     When the evidence raises sufficient doubt as to the defendant’s competency to stand

trial, the defendant is deprived of due process of law if the trial court fails to conduct a

separate competency hearing. Pate, 383 U.S. at 385, 86 S. Ct. 836. Mississippi’s procedure

for determining competency appears in Uniform Rule of Circuit and County Court Practice

9.06, which provides:

         If before or during trial the court, of its own motion or upon motion of an
         attorney, has reasonable ground to believe that the defendant is incompetent
         to stand trial, the court shall order the defendant to submit to a mental
         examination by some competent psychiatrist selected by the court . . . .

         After the examination the court shall conduct a hearing to determine if the
         defendant is competent to stand trial. After hearing all the evidence, the court
         shall weigh the evidence and make a determination of whether the defendant
         is competent to stand trial. If the court finds that the defendant is competent to
         stand trial, then the court shall make the finding a matter of record and the case
         will then proceed to trial. If the court finds that the defendant is incompetent
         to stand trial, then the court shall commit the defendant to the Mississippi State
         Hospital or other appropriate mental health facility.

URCCC 9.06. A statute provides that a court-ordered mental evaluation to determine

competency to stand trial will be at the county’s expense. Miss. Code Ann. § 99-13-11 (Rev.

2007).

¶16.     This Court has held that, once the trial court has reasonable ground to believe the

defendant is incompetent, Rule 9.06 mandates that the trial court shall order a mental

evaluation followed by a competency hearing to determine whether the defendant is

competent to stand trial. Sanders v. State, 9 So. 3d 1132, 1137 (Miss. 2009). We have stated



                                                 9
that “it is evident that it would be error not to hold a competency hearing once a trial court

orders a psychiatric evaluation to determine competency to stand trial.” Id. In Sanders, the

trial court ordered a mental evaluation of the defendant to determine his competency to stand

trial. Id. We held that the order for a mental competency evaluation indicated that the trial

court necessarily found that some of the defendant’s assertions in his motion for a mental

evaluation were sufficient to warrant a mental evaluation. Id. In other words, a trial court’s

order of a mental evaluation to determine competency under Rule 9.06 means that the trial

court had reasonable ground to believe the defendant was incompetent to stand trial. Id.; see

Coleman v. State, 127 So. 3d 161, 168 (Miss. 2013) (stating that a trial court’s grant of an

order for a mental competency evaluation is “conclusive of its having found reasonable

ground to believe [the defendant] was entitled to a mental examination and a competency

hearing”). And when the trial court has such reasonable ground, a mental evaluation and

competency hearing are required. URCCC 9.06. Thus, in Sanders, the fact that the trial court

had ordered a mental evaluation but never held a competency hearing was reversible error.1

Sanders, 9 So. 3d at 1139.

¶17.   Smith argues that, under Rule 9.06, the trial court’s order of a mental evaluation

mandated that the evaluation occur and that it be followed by a competency hearing. The


       1
          The Court in Sanders also reviewed whether trial testimony from the defendant’s
psychiatrist obviated the need for a competency hearing under Hearn v. State, and concluded
that a competency hearing had been required. Sanders, 9 So. 3d at 1137-38 (citing Hearn,
3 So. 3d at 730) (holding that a competency hearing was not required because the
defendant’s psychiatrist testified at trial as to his competency and was subject to cross-
examination, and the defendant had the opportunity to present competing evidence). That
issue is irrelevant to Smith’s appeal because this case does not concern the sufficiency of a
competency hearing.

                                             10
Court of Appeals disagreed and found that the record failed to show the trial court had

reasonable ground to believe Smith was incompetent. Smith, 2013 WL 3799825, at *3. The

Court of Appeals observed that the order for a mental evaluation did not state the reason for

the mental evaluation and reasoned that a trial court is empowered to order a mental

evaluation to address matters other than competency, such as to support an insanity defense

or to generate mitigation evidence for use in sentencing. Smith, 2013 WL 3799825, at **2-4

(citing Evans v. State, 984 So. 2d 308, 313 (Miss. Ct. App. 2007)) (holding that “if a trial

judge orders a psychiatric evaluation without a reasonable question as to the defendant’s

competency, he is not also required [to] order a competency hearing”). In particular, the

Court of Appeals relied on the facts that the agreed order granting a continuance stated that

the mental evaluation was to be at Smith’s expense, and Smith’s father stated that Smith had

been returned from the State Hospital after the family was unable to pay for a mental

evaluation. Smith, 2013 WL 3799825, at *2. The Court of Appeals stated that “if

competency was truly the issue, Smith could have required the State to pay for the evaluation

pursuant to [Section 99-13-11].” Smith, 2013 WL 3799825, at *2.

¶18.   According to the Court of Appeals, “without more, we cannot say that the circuit

court’s decision to order the mental evaluation was simultaneously a finding that reasonable

grounds existed to question Smith’s competency.” Smith, 2013 WL 3799825, at *3. We

agree that, on this record, no reviewing court can say whether the order for a mental

evaluation triggered the requirements that a mental evaluation and competency hearing

occur. Simply put, the record is ambiguous as to whether the mental evaluation was ordered

for the purpose of determining Smith’s competence to stand trial. The order for a mental

                                             11
evaluation does not state the reason. No notice of insanity defense appears in the record. See

URCCC 9.07. Nothing except the agreed order for a continuance stating that the evaluation

was to be at Smith’s expense tends to show that the mental evaluation was ordered for some

purpose other than competency. But the agreed order is far from conclusive that competency

was not the reason for the mental evaluation. Smith was transported to the Mississippi State

Hospital, which routinely performs competency evaluations at the county’s expense. And

Smith vehemently argues in his motion for PCR that the trial court erred by requiring him

to pay for a competency evaluation in violation of Section 99-13-11. Further, evidence was

before the trial court that Smith had mental problems; his attorney requested a mental

evaluation, and at the plea hearing he stated that he had depression and possibly psychosis,

and was on medication for these conditions.2

¶19.   Because significant ambiguity surrounds the reason the trial court ordered a mental

evaluation, we reverse and remand for an evidentiary hearing on this issue pursuant to

Mississippi Code Section 99-39-19 (Rev. 2007). We note that, although the State now urges

this Court to affirm the Court of Appeals, the State conceded this issue in its brief before the



       2
         After his appeal, Smith filed an “Appendix of Exhibits” in the Court of Appeals
containing his mental-health records. These records evince Smith’s long history of substance
abuse and mental illness. The records show that, in August 2008, Smith was transferred to
Singing River Hospital after having intentionally cut himself while in jail awaiting trial. On
October 31, 2008, thirteen days before the court order for a mental evaluation, a psychiatrist
at Singing River performed a mental evaluation that assessed Smith as bipolar and possibly
psychotic and recommended that Smith be treated at the State Hospital. The Court of Appeals
correctly held that, because these records were not included in Smith’s motion for PCR, they
could not be considered on appeal. Smith, 2013 WL 5799825, at *3 n.3. These records may
be submitted to the trial court at the evidentiary hearing. Miss. Code Ann. § 99-39-23(4)
(Rev. 2007).


                                              12
Court of Appeals and requested that this case be remanded for a retrospective competency

hearing. However, that remedy is unavailable, because in Coleman v. State, 127 So. 3d 161,

168 (Miss. 2013), a plurality of this Court held that the appropriate remedy for failure to hold

a competency hearing is a new trial, not a retrospective competency hearing. Therefore, if,

after the evidentiary hearing, the trial court determines that the purpose of the court-ordered

mental evaluation was to determine Smith’s competency to stand trial, Smith’s conviction

cannot stand, and Smith must be either retried or institutionalized following a mental

evaluation and competency hearing under Rule 9.06.

                                       CONCLUSION

¶20.   The trial court found that it plainly appeared from the face of Smith’s motion for PCR

and annexed exhibits that he was not entitled to any relief. The Court of Appeals affirmed

that judgment. But we find that Smith presented sufficient evidence supporting the denial of

his fundamental right not to be convicted while incompetent to survive the summary

dismissal of his motion for PCR. Therefore, we reverse the judgments of the Court of

Appeals and the Circuit Court of Jackson County and remand the case to the trial court for

an evidentiary hearing.

¶21.   REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON, P.J., KITCHENS AND KING, JJ., CONCUR.
COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
RANDOLPH, P.J.; LAMAR AND PIERCE, JJ., JOIN IN PART.

       COLEMAN, JUSTICE, DISSENTING:

¶22.   I respectfully disagree that the case sub judice implicates Uniform Rule of Circuit and

County Court Practice 9.06, upon which the majority bases its holding. Accordingly, I

                                              13
dissent.

       I. The Court of Appeals correctly held that Rule 9.06 does not apply to
          the case sub judice.

¶23.   In short, I agree with the well-reasoned opinion issued by the Court of Appeals in

Smith v. State, 2013 WL 5799825 (Miss. Ct. App. March 3, 2014), wherein the Court of

Appeals noted that nothing in the record indicates that Smith’s competency to stand trial was

questioned. Id. at *2 (¶ 7). To put it in Rule 9.06 terms, Smith identifies nothing in the

record of the criminal proceedings against him to indicate the existence of any “reasonable

ground to believe” him “incompetent to stand trial.” URCCC 9.06. As the Court of Appeals

pointed out, myriad reasons exist to conduct a mental competency examination aside from

a determination that the above-described reasonable grounds exist. Smith, 2013 WL

5799825, *2 (¶ 7). Finally, the Court of Appeals correctly points out that, if the trial court’s

order allowing the defendant a mental exam were traveling under Rule 9.06, then, by

operation of Mississippi Code Section 99-13-11, the county would have footed the bill. Id.

The trial court’s order in the instant case provided that the exam would be conducted at the

defendant’s expense. For the above-described reasons as well as the others addressed by the

Court of Appeals, I would affirm the trial court’s denial of post-conviction relief.

       II. Rowland and whether res judicata should apply.

¶24.   I take the opportunity afforded by writing the instant dissent to address another

pertinent issue – the applicability (or inapplicability) of the doctrine of res judicata to

Smith’s claim for post conviction relief. The issue addressed today, that of the competency

hearing, was raised in Smith’s second petition filed on February 22, 2012, after the trial court



                                              14
denied his first petition on January 6, 2012.

¶25.   In the absence of any reason to disregard it, the doctrine of res judicata operates to

bar Smith’s second petition because it bars the petitioner from litigating issues that he placed

or could have placed before the court in his first petition.3 Little v. V & G Welding Supply,

Inc., 704 So. 2d 1336, 1337-1338 (¶ 8) (Miss. 1997) (“Res judicata bars all issues that might

have been (or could have been) raised and decided in the initial suit, plus all issues that were

actually decided in the first cause of action.”) (citing Estate of Anderson v. Deposit

Guaranty Nat’l Bank, 674 So. 2d 1254, 1256 (Miss. 1996). Nothing in the record indicates

that Smith could not have presented the mental examination issue to the trial court in his first

petition. In order for res judicata to operate to preclude Smith’s instant claim, the following

four identities must exist: (1) the subject matter of the action; (2) the cause of action; (3) the

parties to the cause of action; and (4) the quality or character of a person against whom the

claim is made. Little, 704 So. 2d at 1338 (¶ 9). They do. The subject matter of both his first

and second petition was a collateral attack upon his conviction and sentence. The causes of

action both rely on the underlying facts and circumstances leading up to his guilty plea,

conviction, and sentence.      In both petitions, the parties were Smith and the State of




       3
          The Legislature encoded the doctrine of res judicata for post-conviction relief
purposes in Mississippi Code Section 99-39-21, but – interestingly – as encoded the doctrine
would apply only to issues and facts determined at trial or on direct appeal. A bar against
successive writs is found elsewhere in the Uniform Post-Conviction Collateral Relief Act,
see Mississippi Code Section 99-39-23(6), which would be a statutory enactment of res
judicata that more fully applies here. Otherwise, and the latter does not incorporate the
identities or by its terms require the denial of relief be on the merits, there appears to be no
attempt to statutorily apply res judicata to issues and facts determined in earlier post-
conviction proceedings.

                                                15
Mississippi, and the third and fourth identities are thus satisfied.

¶26.   We have held – several times – that when a petitioner seeking post-conviction relief

puts a fundamental right at issue, Mississippi courts will not apply various procedural bars

that might otherwise foreclose any relief. See, e.g., Rowland v. State, 98 So. 3d 1032, 1036

(¶ 6) (Miss. 2012) (noting that, as to several fundamental rights, including the protection

against double jeopardy, illegal sentencing, and denial of due process at sentencing, the

procedural bars found in Mississippi’s Uniform Post-Conviction Collateral Relief Act will

not apply) (citing, inter alia, Rowland v. State, 42 So. 3d 503, 508 (Miss. 2010); Ivy v. State,

731 So. 2d 601, 603 (Miss. 1999); Kennedy v. State, 732 So. 2d 184, 186-87 (Miss. 1999);

Grubb v. State, 584 So. 2d 786, 789 (Miss. 1991); Smith v. State, 477 So. 2d 191, 195 (Miss.

1985)). For the reasons I further develop below, I am of the opinion that the doctrine of res

judicata places a substantive – not procedural – bar, and I would apply it even when a

petitioner asserts a fundamental right.

¶27.   Several courts have noted the substantive nature of res judicata. In JP Morgan Chase

Bank v. Winthrop Props., 312 Conn. 662, 94 A.3d 622 (2014), the Supreme Court of

Connecticut noted that the procedural matter before it was “not intended to alter established

definitions and the scope of such terms within the substantive doctrines of res judicata,

collateral estoppel, and relation back, which implicate different concerns.” Id. at 684 n.11.

Ohio’s state courts repeatedly have written that “res judicata is a substantive rule of law[.]”

Hopkins v. Dyer, 104 Ohio St. 3d 461, 820 N.E.2d 329 (2004). The Supreme Court of

Indiana held that a litigant “was entitled to challenge the substantive determination of the

trial court that his claims were barred by the substantive defense of res judicata[.]” Smith

                                              16
v. Euler, 956 N.E.2d 657, 658 (Ind. 2011). In the context of post-conviction relief, the

Illinois Supreme Court addressed the relationship of res judicata to Illinois’s post-conviction

relief statutes and wrote, “Thus, waiver and res judicata are substantive considerations to the

extent that they define and limit the scope and purpose of the Act.” People v. Blair, 215 Ill.

2d 427, 440, 631 N.E.2d 604, 613 (2005). See also Martin v. Amerman, 47 Tex. Sup. Ct.

J. 285, 133 S.W.3d 262, 266 (2004); Johns v. Agrawal, 748 So. 2d 514, 518 (La. Ct. App.

1999) (recognizing that whether the preclusive effect of a federal court decision is subject

to the federal law on res judicata because the doctrine is substantive); Jordache Enters., Inc.

v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 204 W.Va. 465, 476, 513 S.E.2d 692, 703

(1998) (the “effect of a judgment as res judicata is ‘substantive’”); VanDeWalle v. Albion

Nat’l Bank, 243 Neb. 496, 503, 500 N.W.2d 566, 572 (1993) (“res judicata is a substantive

rule”); McKinney v. Galvin, 701 F.2d 584, 586 n.5 (6th Cir. 1983).

¶28.   I agree with those courts that consider the doctrine of res judicata substantive in

nature. Before the doctrine can apply, there must be an earlier determination on the merits.

EMC Mortgage Corp. v. Carmichael, 17 So. 3d 1087, 1090 (¶ 10) (Miss. 2009) (“In addition

to the four identities, a fifth requirement is that the prior judgment must be a final judgment

that was adjudicated on the merits.”) (citing Anderson v. LaVere, 895 So. 2d 828, 833 (Miss.

2004)). Accordingly, I am of the opinion that the bar imposed by operation of res judicata

differs in a significant way from the bar imposed by, e.g., a statute of limitations. Per the

latter, if a petitioner fails to bring an issue before the Court before three years, he may not

and loses all opportunity to bring the issue, but without ever having the benefit of a ruling.

Per the former, the petitioner has a ruling on the merits. The distinction leads easily to the

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conclusion reached by so many other courts, that res judicata is a creature of substance and

not of procedure.

¶29.   Looking at the origins of our rule that petitions for post-conviction relief that raise

fundamental rights are exempt from the procedural bars reveals why the above-described

distinction makes a difference. In Read v. State, 430 So. 2d 832, 837 (Miss. 1983), the Court

wrote as follows:

       Today, however, state courts are being allowed not inconsiderable leeway
       when it comes to enforcing procedural rules to bar litigation of federal
       constitutional rights. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L.
       Ed. 2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 71 L. Ed.
       2d 783 (1982). Given such leeway, it is peculiarly appropriate that state courts
       be faithful stewards of those fundamental rights adjudication of which is thus
       entrusted to them. It is appropriate that this Court keep the spirit of [Brooks
       v. State, 209 Miss. 150, 46 So. 2d 94 (1950)] alive. The State’s brief would
       have us take advantage of this leeway—and, in effect, preclude any defendant
       ever raising the troublesome, unpleasant and no doubt frequently abused claim
       of ineffective assistance of counsel. The State’s invitation should be rejected.

Read, 430 So. 2d at 837. The Read Court declined the State’s invitation because Read

“never had a meaningful opportunity to raise the issue in the court below.” Id. In Brooks

v. State, 209 Miss. 150, 46 So. 2d 94 (1950), cited by the Read Court in the above-quoted

paragraph, the Court refused to apply procedural bars when a fundamental right was raised

for the first time on appeal. Id. at 155. See also Fisher v. State, 145 Miss. 116, 110 So. 361,

365 (1926). Based on my reading of the foregoing cases, we excluded petitions that raised

fundamental rights from procedural bars because a petitioner whose fundamental

constitutional rights had been violated should have the opportunity to present such alleged

violation to a court. Res judicata, because it applies only after a decision on the merits,

applies only after a would-be petitioner has had that opportunity or could have had that

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opportunity but, for whatever reason, passed upon it.

¶30.   “Res judicata reflects the refusal of the law to tolerate a multiplicity of litigation. It

is a doctrine of public policy designed to avoid the expense and vexation attending multiple

lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the

possibilities of inconsistent decisions.” Hill v. Carroll County, 17 So. 3d 1081, 1084 (¶ 8)

(Miss. 2009) (internal citations omitted). For the reasons outlined above, I would hold the

doctrine of res judicata to be a substantive bar against further litigation rather than a

procedural one and therefore not a member of the class of procedural bars from which

petitioners may have relief when they raise fundamental rights.

     RANDOLPH, P.J., JOINS THIS OPINION. LAMAR AND PIERCE, JJ., JOIN
THIS OPINION IN PART.




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