Dwaliues Deon Carter a/k/a Dwaliues D. Carter a/k/a Dwaliues Carter a/k/a Dwaliue Deon Carter a/k/a Dwalieu Deon Carter a/k/a Deon Carter a/k/a Dwalie Carter v. State of Mississippi

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Serial: 228046 IN THE SUPREME COURT OF MISSISSIPPI No. 2017-M-01357 DWALIUES DEON CARTER A/K/A DWALIUES D. CARTER A/K/A DWALIUES CARTER A/K/A DWALIUE DEON CARTER A/K/A DWALIEU DEON CARTER A/K/A DEON CARTER A/K/A DWALIE CARTER Petitioner v. STATE OF MISSISSIPPI Respondent ORDER Before the en banc Court are Dwaliues Deon Carter’s Application for Leave to Proceed in the Trial Court and his “Motion to Move this Honorable Court or Clerk to Attach to Petitioner Motion for Post-Conviction Collateral Relief that was Filed Within this Court Last Week August 27, 2019 the Attached Financial Authorization that Attach to this Motion.” The Court of Appeals affirmed Carter’s convictions and sentences. Carter v. State, 195 So. 3d 238, 240 (Miss. Ct. App. 2016). The mandate issued on March 9, 2017. Since then, he has filed three applications that were either denied or dismissed. Order, Carter v. State, No. 2017-M-01357 (Miss. Apr. 11, 2018) (dismissing second and third applications); Order, Carter v. State, No. 2017-M-01357 (Miss. Nov. 29, 2017) (denying first application). Here, he raises three claims: (1) trial counsel was ineffective; (2) his state and federal rights to be free from double jeopardy were violated; and (3) his state and federal due-process and equal-protection rights were violated. First, in exceptional circumstances, an ineffective-assistance-of-counsel claim might be excepted from the successive-writ bar. Chapman v. State, 167 So. 3d 1170, 1174–75 (Miss. 2015); Bevill v. State, 669 So. 2d 14, 17 (Miss. 1996); Brown v. State, 187 So. 3d 667, 671 (Miss. Ct. App. 2016). But to merit waiving that bar, the claim must have some arguable basis. Means v. State, 43 So. 3d 438, 442 (Miss. 2010). We find that Carter’s claim does not. Second, double jeopardy could have been raised at trial or on direct appeal. So unless an exception applies, that claim is waived. Miss. Code Ann. § 99-39-21(1) (Rev. 2015). By statute, relief from the waiver bar may be granted if cause and actual prejudice are shown. Miss. Code Ann. § 99-39-21(1). In addition, this Court has recognized a double-jeopardy claim as an exception to the waiver and successive-writ bars. Rowland v. State, 98 So. 3d 1032, 1036 (Miss. 2012), overruled on other grounds by Carson v. State, 212 So. 3d 22 (Miss. 2016). But, again, to merit waiving the bars, the claim must have some arguable basis. Means, 43 So. 3d at 442. We find that Carter’s claim is insufficient to surmount the waiver and successive-writ bars. Finally, like the double-jeopardy claim, Carter’s due-process and equal-protection claims could have been raised at trial or on direct appeal. So unless an exception applies, 2 those claims are waived. Miss. Code Ann. § 99-39-21(1). By statute, relief from the waiver bar may be granted if cause and actual prejudice are shown. Miss. Code Ann. § 99-39-21(1). Unlike the double-jeopardy claim, however, this Court has not recognized these claims as exceptions to the waiver and successive-writ bars. Chapman, 167 So. 3d at 1174–75; Smith v. State, 149 So. 3d 1027, 1031–32 (Miss. 2014), overruled on other grounds by Pitchford v. State, 240 So. 3d 1061 (Miss. 2017); Bell v. State, 123 So. 3d 924, 925 (Miss. 2013); Rowland, 98 So. 3d at 1035–36. See also Bevill, 669 So. 2d at 17; Brown, 187 So. 3d at 671. And even if they were excepted, some arguable basis would be required to merit relief from the bars. Means, 43 So. 3d at 442. We find that Carter’s claims are insufficient to surmount the waiver and successive-writ bars. In sum, we find that Carter’s motion to attach his financial authorization should be granted but that his application should be denied. In addition, Carter is hereby warned that any 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) (warning of sanctions, including in forma pauperis restrictions); En Banc Order, Dunn v. State, 2016-M-01514 (Miss. Apr. 11, 2019) (restricting in forma pauperis status). IT IS THEREFORE ORDERED that the “Motion to Move this Honorable Court or Clerk to Attach to Petitioner Motion for Post-Conviction Collateral Relief that was Filed 3 Within this Court Last Week August 27, 2019 the Attached Financial Authorization that Attach to this Motion” is granted. IT IS FURTHER ORDERED that the Application for Leave to Proceed in the Trial Court is denied. SO ORDERED, this the 11th day of December, 2019. /s/ David M. Ishee DAVID M. ISHEE, JUSTICE FOR THE COURT TO DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ. TO DENY: COLEMAN, J. TO DISMISS: KITCHENS AND KING, P.JJ. KING, P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J. 4 IN THE SUPREME COURT OF MISSISSIPPI No. 2017-M-01357 DWALIUES DEON CARTER A/K/A DWALIUES D. CARTER A/K/A DWALIUES CARTER A/K/A DWALIUE DEON CARTER A/K/A DWALIEU DEON CARTER A/K/A DEON CARTER A/K/A DWALIE CARTER v. STATE OF MISSISSIPPI KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT: ¶1. Although Dwaliues Deon Carter’s application for post-conviction relief does not merit relief, I disagree with this Court’s warning that future filings deemed frivolous may result in monetary sanctions or restrictions on filing applications for post-conviction collateral relief in forma pauperis. ¶2. This Court seems to tire of reading motions that it deems “frivolous” and imposes monetary sanctions on indigent defendants. The Court then bars those defendants, who in all likelihood are unable to pay the imposed sanctions, from future filings. In choosing to prioritize efficiency over justice, this Court forgets the oath that each justice took before assuming office. That oath stated in relevant part, “I . . . solemnly swear (or affirm) that I will 5 administer justice without respect to persons, and do equal right to the poor and to the rich . . . .” Miss. Const. art. 6, § 155. ¶3. I disagree with this Court’s warning that future filings may result in additional monetary sanctions or restrictions on filing applications for post-conviction collateral relief in forma pauperis. The imposition of monetary sanctions upon 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). 6 ¶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. As United States Supreme Court Justice Thurgood Marshall stated, 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. In re Demos, 500 U.S. 16, 19, 111 S. Ct. 1569, 1571, 114 L. Ed. 2d 20 (1991) (Marshall, J., dissenting). 7 ¶5. Instead of simply denying or dismissing those motions that lack merit, the Court seeks to punish the defendant for the frequency of his motion filing. However, an individual who, even incorrectly, believes that she has been deprived of her freedom should not be expected to sit silently by and wait to be forgotten. “Historically, the convictions with the best chances of being overturned were those that got repeatedly reviewed on appeal or those chosen by legal institutions such as the Innocence Project and the Center on Wrongful Convictions.” Emily Barone, The Wrongly Convicted: Why More Falsely Accused People are Being Exonerated Today Than Ever Before, Time, http://time.com/wrongly-convicted/ (last visited Oct. 31, 2019) (emphasis added). The Washington Post reports that the average time served for the 1,625 exonerated individuals in the registry is more than nine years. Last year, three innocent murder defendants in Cleveland were exonerated 39 years after they were convicted—they spent their entire adult lives in prison—and even they were lucky: We know without doubt that the vast majority of innocent defendants who are convicted of crimes are never identified and cleared. Samuel R. Gross, Opinion, The Staggering Number of Wrongful Convictions in America, Washington Post (July 24, 2015), http://wapo.st/1SGHcyd?tid=ss_mail&ut m_term=.4bed8ad6f2cc. ¶6. Rather than imposing sanctions and threatening to restrict access to the courts, I would simply dismiss or deny motions that lack merit. Therefore, although I find no merit in Carter’s application for post-conviction relief, I disagree with this Court’s warning of future sanctions and restrictions. KITCHENS, P.J.,JOINS THIS SEPARATE WRITTEN STATEMENT. 8

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