Serial: 234914

IN THE SUPREME COURT OF MISSISSIPPI

No. 2019-M-01279

ANTONIO DANIEL WALLACE A/K/A ANTONIO

WALLACE A/K/A ANTONIO D. WALLACE Petitioner

v.

STATE OF MISSISSIPPI Respondent

EN BANC ORDER

Before the en banc Court are Antonio Daniel Wallace’s (1) “Motion Seeking

Leave to Proceed to File Post-Conviction Collateral Relief,” (2) “Motion to Suspend

[Judgment] on Petitioner’s Pending Application for Leave to Proceed in the Trial Court

for Post[-]Conviction Relief,” (3) “Motion to Amend Previously Filed Application for

Leave to Proceed in the Trial Court for Post[-]Conviction Relief,” and (4) “Motion for

Leave to Submit Additional Facts, Arguments and Evidence Regarding Ineffective

Assistance of Counsel.”

Wallace was convicted of armed robbery, kidnapping, and conspiracy to commit

armed robbery. Wallace v. State , 160 So. 3d 1184, 1185 (Miss. Ct. App. 2014). He was

sentenced to concurrent thirty-four-, thirty-four-, and five-year terms, respectively. Id.

This Court denied his petition for a writ of certiorari, Order, Wallace v. State , No. 2013-

CT-01181-SCT (Miss. Apr. 16, 2015), and the mandate issued on May 7, 2015.

Since then, he has filed one application for leave to seek post-conviction relief in

the trial court. The Court granted relief in part and denied in part. Order, Wallace v. State

,

No. 2019-M-01279 (Miss. Dec. 12, 2019).

Here, Wallace again requests leave to seek post-conviction relief in the trial court.

He also moves to amend and to supplement his motion. Prior to filing his motion to

amend, he had asked the Court to suspend ruling on his request for leave to seek postElectronic Document Feb 2 2021 14:16:42 2019-M-01279 Pages: 72 conviction relief until he filed the motion to amend.

After due consideration, we find that the motions to amend and to supplement

should be granted. And because he has now filed his motion to amend, we find that his

motion to suspend ruling on his request for leave to seek post-conviction relief should be

dismissed as moot.

Turning to the pleadings’ merits, Wallace raises three issues.

First, he argues that he is actually innocent. Even assuming that actual innocence is

an exception to the procedural bars, we find that Wallace’s claim is insufficient to merit

waiving them. See Means v. State

, 43 So. 3d 438, 442 (Miss. 2010).

Second, Wallace asserts newly discovered evidence. To merit waiving the

procedural bars, “[t]he new evidence must be ‘evidence, not reasonably discoverable at

the time of trial, that is of such nature that it would be practically conclusive that, if it had

been introduced at trial, it would have caused a different result in the conviction or

sentence.’” Havard v. State

, 86 So. 3d 896, 906 (Miss. 2012) (quoting Miss. Code Ann. §

99-39-27(9) (Rev. 2007)). We find that Wallace’s claim does not meet that standard.

Finally, Wallace argues that counsel was ineffective in several respects. In

exceptional circumstances, an ineffective-assistance claim might be excepted from the

procedural bars. 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 at 667, 671 (Miss. Ct.

App. 2016). Yet we find that Wallace’s claim is insufficient to merit waiving them. See

Means

, 43 So. 3d at 442.

After due consideration, we find that Wallace’s request for leave to seek postconviction relief in the trial court should be denied. Further, Wallace 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

, No. 2016-M-01514, at *2

(Miss. Nov. 15, 2018) (warning of sanctions); see also En Banc Order, Dunn v. State

,3 No. 2016-M-01514, at *2 (Miss. Apr. 11, 2019) (restricting Dunn’s in forma pauperis

status).

IT IS THEREFORE ORDERED that Wallace’s “Motion Seeking Leave to

Proceed to File Post-Conviction Collateral Relief”is denied.

IT IS FURTHER ORDERED that his “Motion to Amend Previously Filed

Application for Leave to Proceed in the Trial Court for Post[-]Conviction Relief” and his

“Motion for Leave to Submit Additional Facts, Arguments and Evidence Regarding

Ineffective Assistance of Counsel” are granted.

IT IS FURTHER ORDERED that his “Motion to Suspend [Judgment] on

Petitioner’s Pending Application for Leave to Proceed in the Trial Court for Post[-

]Conviction Relief” is dismissed as moot.

SO ORDERED.

TO DENY WITH SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN,

MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.

TO DENY: KITCHENS AND KING, P.JJ.

KING, P.J., OBJECTS TO THE ORDER IN PART WITH SEPARATE WRITTEN

STATEMENT JOINED BY KITCHENS, P.J.IN THE SUPREME COURT OF MISSISSIPPI

No. 2019-M-01279

ANTONIO DANIEL WALLACE A/K/A

ANTONIO WALLACE A/K/A ANTONIO

D. WALLACE

v.

STATE OF MISSISSIPPI

KING, PRESIDING JUSTICE, O BJECTING TO TH E O RDER IN PART

WITH SEPARATE WRITTEN STATEMENT:

¶1. Although Antonio Daniel W allace’s applicati o n f o r post-conviction r elief does not

m erit relief

, I disagree with this Court’s w arning that f utur e f i l i n g s d e em ed f

rivolous m ay

result in m onetary sanctions or restrictio n s o n f iling applications f

or post-conviction

collateral relief

in forma pauperis

.

¶2. This Court s ee ms t o tire of reading m o tions t hat it d eem s “f r ivolous” and im

poses

m onetary sanctions on indigent def endants. The Court then bars those def endants, who in all

likelihood are u nable t o p a y t h e im posed sanctions, f

rom f uture f ilings. I n choosing to

prioritize ef

f iciency over ju s t i c e

, t h i s Court f orgets the oath that e ach justice took bef ore

assum ing of

f ice. That oath stated in relevant part, “ I

. . . solem nly swear (or af f i rm ) that I will

adm inister 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 Cou r t ’ s w a r n i n g t h a t f u ture f ilings m ay result in additional

m onetary sanctions or restrictions on f iling applications f

or post-conviction collateral reliefin form a p a u peris

. T he i m

position of m o netary sanctions upon a crim inal def endant

proceeding in forma pauperis only serves to p unish or preclude that d ef endant f rom his

lawf ul right to appeal. Black’s Law Dictionary def ines sanction as “[ a] provision that gives

f orce to a legal im

perative by e i t h e r r ewarding obedience or p unishing disobedience .”

Sanction

, Black’s Law Dictionary (10th e d

. 2014) ( em phasis added)

. I n s t e a d of punishing

the def endant f or f i ling a m otion, I believe t hat this Court sh o u l d s i mply deny o r dism iss

m otions that lack m erit. As Justice Brennan wisely s tated,

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 t he door to Mr. McDonald f a r 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).

¶4. The s am e logic applies to the restriction o n f i l i n g s u bsequent applications for postconviction relief

. To cut of

f an indigent def

endant’s right to proceed in forma pauperis is to

cut 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 e ntal are the rights

to be f ree f rom invidious racia l d iscrim ination, to m a rry

, to practice their

religion, to com m

u nicate with f

ree persons, t o h ave d

ue process i n disciplinary

proceedings, and t o be f

ree f rom cruel and unusual punishm ent. As a result of

the reco g n i t i on of these and other rights, the right of access to courts, which

2is necessary to vindicate all constitutional rights, also becam e a f undam ental

right.

Joseph T. Lukens, The P riso n L i t i g a t i o n 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 Court m

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

Wisconsin v. Glick

, 782 F .2d 670, 673 (7th Cir. 1986). Novel argum e nts that m ight rem ove

a crim inal def

endant f rom conf inem ent should not be discouraged by the threat of m onetary

sanctions and restrictions on f ilings. Id. As United States Suprem e Court Justice Thurgood

Marshall stated,

In closing its d o o r s today to another indigent litigant, the Court m oves e ver

closer t o t h e d ay w hen it leaves an indigent litigant with a m eritorious claim

out in t h e c o l d

. A n d with each barrier that it p laces in the way of indigent

litigants, and with each instance in which it castigates such litigants f or h aving

‘abused the sy stem ,’

. . . the Court can only reinf orce in the hearts and m inds

of our s ociety ’s less f

ortunate m em

bers t he u nsettling m essage that their pleas

are not welcom e here.

In re Dem os

, 500 U.S. 16, 19, 111 S. Ct. 1569, 1571, 114 L. Ed. 2d 20 (1991) (Marshall, J.,

dissenting).

¶5. Instead of s im

p ly deny ing or dism issing those m otions that lack m erit, the Court seeks

to p unish the def

endant f or the f requency of his m otion f

iling. H owever, an individual who,

even incorrectly

, believes t hat she has been deprived of h er f reedom should n ot b e expected

to sit silently by and wait to be f o rgotten. “Historically

, the convictions w i th t he best chances

of being overturned were t hose that got repeatedly reviewed on appeal or those chosen by

legal institutions s uch as t he Innocence Project and the Cente r on W rongf ul Convictions.”

Em ily Barone, The W

rongly Convicted: W

hy More Falsely Accused P e ople are Being

3Exonerated Today Than Ever B efore

, Tim e, http://tim e.com /wrongly

- convicted

/ (em phasis

added) (last visited Oct. 31, 2020). The W ashington Post reports that

the average tim e served f

or the 1,625 exonerated individuals i n the registry is

m ore than n ine y ears. Last y ear, three innocent m urder def e n d a n t s in Cleveland

wer e e x o n e rated 39 y ears af ter they were convicted—they spent their entire

adult lives in prison—and e ven they were lucky : W e know without doubt t hat

the vast m ajority of innocent def endants who are convicted of crim e s are never

identif ied and cleared.

Sam uel R. G ross, Opinion, The Staggering N umber of W

ron g f u l C o n victions in America

,

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, 2 0 1 5 )

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. s t / 1 S G H c y d ? t i d

= s s

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¶6. Rather than im

posing sanctions and threatening to restrict access to the courts, I would

sim ply dism iss or d eny m otions that l a c k m e r i t

. Theref o re, although I f

ind no m erit in

W a llace’s application f

or post-conviction relief

, I disagree with this Cour t ’ s warning of

f uture sanctions and restrictions.

KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.

4