Serial: 230132 IN THE SUPREME COURT OF MISSISSIPPI No. 2018-M-00115-SCT WINFRED FORKNER Petitioner

v. STATE OF MISSISSIPPI Respondent ORDER This m atter is bef

ore the Court on the Application f or Leave to Proceed in the Trial C o u r t f iled pro se by W inf

red Forkner who c l aim s that this Court’s decision in one of h i s previous petitions f

o r post-conviction relief

, Forkner v. S

tate , 277 So. 3d 946 (Miss. 2019), is an intervening decision and that he is e ntitled to relief

. The Court f

i n ds that today ' s application is successive and that it does not qualif y under any o f the successive-writ bar exceptions. Miss. Code Ann. § 99-39-27(9) (Rev. 2 015). The Court f urther f inds that the claim s raised in Forkner’s successive petition are f rivolous. F or k n e r i s w arned that f uture f ilings deem ed f

rivolous could result in m onetary s anctions or in restrictions on his ab i lity
to f ile applications f

or post-conviction collateral relief (or pleadings in that nature) in forma pauperis

. IT IS THEREFORE ORDERED that the Application f or Leave to P roceed in the Trial Court f iled pro se by

W inf red Forkner is denied. SO ORDERED, this the 11th day of February , 2020. /s/ David Michael Ishee DAVID MICHAEL ISHEE, JUSTICE FOR THE COURTTO DENY AND I SSUE SANC TIONS WARNING: RANDOLPH, C

. J ., MAXW ELL,

BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ. TO DENY: KITCHENS AND KING, P.JJ., AND COLEMAN, J. KING, P.J., OBJECTS T O THE ORDER IN PART W ITH SEPARATE W RITTEN STATEMENT JOINED BY KITCHENS, P.J.; COLEMAN, J., JOINS IN PART.

2IN THE SUPREME COURT OF MISSISSIPPI No. 2018-M-00115-SCT

WINFRED FORKNER

v. STATE OF MISSISSIPPI
KING, PRES I DING JUSTICE, OBJECTING TO THE O RDER IN PART WITH SEPARATE WRITTEN STATEMENT: ¶1. A l t h o u g h Wi n f

r e d F o r k n e r’s application f or p ost-conviction relief d oes not me r i t relief , I d isagree with the Cou r t ’ s f i n d ing that the application is f rivolous and with the warning that f

uture f ilings deem e d f

rivolous m ay result in m onetary sanctions or restrictions on f iling applications f

o r post-conviction collateral relief in forma pauperis

. 1 ¶2. This Court previously has def ined a f rivolous m o tion to m e an one f iled in which the

m ovant has “no h ope of success.” Roland v. State , 666 So. 2d 747, 7 51 (Miss. 1995). However, “thou g h a c a se m ay b e weak or ‘light-headed,’ that is not suf f icient to label it f rivolous.” Calhoun v. State , 849 So. 2d 892, 897 (Miss. 2003). In his application f or postconviction relief

, Fork n e r m ade a reasonable argum ent that this Court’s d ecision on his
recent petition was an intervening decision that entitled h im to relief

. As such, I disagree with the Court’s determ i nation that Forkner’s application is f rivolous. ¶3. Additionally , I disagree w ith this Court’s warn i n g t h a t f u t u r e f i l ings m ay

result in

m onetary sanctions or restrictions on f iling applications f

or post-conviction collateral relief

1 See Order, Dunn v. State , No. 2016-M-01514 (Miss. Nov. 15, 2018). 3in

f orma pauperis

. The i m

position of m onetary sanctions on a crim inal def endant proceeding in forma pauperis only serves to p unish or preclude that def endant f r om his lawf ul right to appeal. Black’s Law Dictionary def ines sanction as “[ a] p rovision that gives f o rce to a legal i m p e r at i v e b y e i t

h e r r e w a r d i n g o b e d ience or punishing disobedience .” S anction , Black’s Law Dictionary

(10th ed. 2014) (em

phasis added). Instead of

punishing the def

endant f or f iling

a m otion, I believe that this Court should s im ply deny o r dism i ss m otions that l ack m erit. As Justice Brennan wisely

stated, The Court’s order purports to be m otivated by this litigant’s disproportionate consum ption o f the C ourt’s tim e and resources. Yet if his f ilings are truly as repetitious as it appears, it hardly takes m uch tim e to identif

y them as such. I f ind i t dif f icult to see how the am ount of tim e and resources required to deal properly with M cDonald’s petitions could be so great as to justif y the step we now take. I ndeed, the tim e that has been consum ed in the pre p a r a t i o n of the present order b arring the door to Mr. McDonald f ar exceeds that which w ould have been necessary to process h is petitions f or the next several y e ars at least. I continue to f

i nd puzzling the Court’s f ervor in e n suring that rights granted to the poor are not abused, even when so d oing actually increases the drain o n o ur lim ited resources. In re McDonald, 489 U.S. 180, 186–87, 109 S. Ct. 993, 997, 1 03 L. E d

. 2d 158 (1989) (Brennan, J., dissenting). 2 ¶4. The s am e logic applies to the restriction o n f i l i n g s ub sequent applications for postconviction relief

. To cut of

f an indigent def

endant’s right to proceed in forma pauperis is to

2 See also In re Dem os , 500 U.S. 16, 19, 111 S

. C t
. 1 569, 1571, 114 L. Ed. 2d 20 (1991) (Marshall, J., dissenting) (“In closing its d oors today t o another indigent litigant, the Cour t m oves ever c loser to the day when it leaves an indigent litigant with a m eritorious claim out in the cold. And with each barrier that it places in the way of indigent litigants, and with each i n s t ance i n which it castigates such litigants f or having ‘ abused the sy stem ,’

. . . the Court can only reinf

orce in the hearts and m inds of our society ’s less f ortunate m em

bers the unsettling m essage that their pleas are not welcom e here.”). 4cut of

f his access to the courts. This, in itself , violates a def

endant’s constitutional r ights, f or Am ong the rights recognized by the Court as being f undam ental are the rights to be f ree f r om i nvidious racial d iscrim ination, to m arry , to practice their religion, to comm

unicate with f

ree persons, to have due process in disciplinary proceedings, and t o be f

ree f rom cruel and unusual punishm ent. As a result of t h e r e cognition of these and other rights, the right of access to courts, which is necessary

to vindicate all constitutional rights, also becam e a f undam ental right. Joseph T. L u k e n s , T

h e Prison Litigation Reform Act: Three S trikes and Y

ou’re Out of Court-It M

ay Be Effective, b ut Is It Constitutional? , 70 Tem p. L. Rev. 471, 474–75 (1997). This C ourt m

ust not discourage convicted def endants f rom exercising their right to appeal. Wisconsin v

. Glick , 782 F.2d 6 70, 673 (7th Cir. 1986). Novel argum ents that m ight rem ove

a crim inal def

endant f rom c onf inem ent should not be discouraged by the threat of m onetary sanctions and restrictions on f ilings. Id . ¶5. Theref

ore, although I f

ind no m e rit in F orkner’s a pplication f

or post-conviction relief

, I disagree w ith th i s C o u rt ’ s contention that the a pplication m erits the classif ication of f rivolous and with its warning of f uture sanctions and restrictions. KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN S T ATEMENT. COLEMAN, J., JOINS THIS SEPARATE WRITTEN STATEMENT IN PART.

5