Serial: 231485 IN THE SUPREME COURT OF MISSISSIPPI
No. 2011-M-01377
MANUAL COOPER A/K/A MANUEL COOPER Petitioner

v. STATE OF MISSISSIPPI Respondent

EN BANC ORDER
This matter is before the Court on the Application for Leave to Proceed in the Trial Court filed by Manual Cooper. Today’s application is subject to the time bar. Miss.Code Ann. § 99-39-5 (Rev. 2015). Further, Cooper’s previous petition for postconviction relief was denied by this Court. This filing is successive. Miss. Code Ann. § 99-39-27 (Rev. 2015). After due consideration, the Court finds that Cooper has presented no arguable basis for his claims and that the petition should be dismissed. See Means v. State , 43 So. 3d 438, 442 (Miss. 2010). Further, the Court finds that the petition is frivolous. Cooper is warned that future filings deemed frivolous could result in monetary sanctions or in restrictions on his ability to file applications for post-conviction collateral relief (or pleadings in that nature) in forma pauperis . Order, Dunn v. State , 2016- M-01514 (Miss. Nov. 15, 2018). IT IS THEREFORE ORDERED that the Application for Leave to Proceed in the Trial Court filed by Manual Cooper is dismissed. SO ORDERED.

TO DISMISS WITH SANCTIONS WARNING: MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ. TO DENY WITH SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN Electronic Document Apr 28 2020 15:42:10 2011-M-01377 Pages: 52 AND ISHEE, JJ. TO DISMISS: KITCHENS, P.J. TO DENY: KING, P.J. 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. 2011-M-01377

MANUAL COOPER A/K/A MANUEL COOPER

v. STATE OF MISSISSIPPI
KING, PRESIDING JUSTICE, O BJECTING TO THE O RDER IN PART WITH SEPARATE WRITTEN STATEMENT: ¶1. Although Manuel Cooper’s application f or post-convic t i o n r e l i e f d o e s n o t m e r it relief , I disagree with the Court’s f inding that the a

pplication is f

rivolous and with the w arning that
f uture f ilings deem ed f

rivolous m ay result in m oneta r y s a nctions or restrictions on f iling applications f

or post-conviction collateral relief in forma pauperis

. 1 ¶2. This Court previously has def ined a f rivolous m otion to m ean one f iled in w hich the

m ovant has “no h ope of success.” Roland v. State , 666 So. 2d 747, 7 51 (Miss. 1995). However, “though a case m ay be weak or ‘light-head e d , ’ t h at is not suf f icient to label it
f rivolous.” C

alhoun v. State , 8 49 So. 2d 892, 897 ( Miss. 2003). In h is a p plication f

or postconviction relief

, C ooper m ade r e a s o n a

b l e a r g u m e n t s t h a t t he jury instructions were im proper and that the jury was not properly instructed. As such, I disag r e e w i t h t h e Court’s determ ination that Cooper’s application is f r ivolous.

1 See Order, Dunn v. State , No. 2016-M-01514 (Miss. Nov. 15, 2018).¶3. Additionally , I disagree w ith this Court’s w a r n i n g t h a t f uture f ilings m ay result in

m onetary sanctions or restrictions on f iling applications f

o r p ost-conviction collateral relief
in f orma pauperis

. The im

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 rom his lawf ul right to appeal. B lack’s Law Dictionary def ines sanction as “[ a] provision that gives f orce to a legal i m p e r a tive by either rewarding obedience or punishing disobedie n c e . ” S a n c t i o n , B l a c k ’ s L a

w 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 t hat 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 of the Court’s tim e and resources. Yet i f his f ilings are truly as repetitious as it appears, it hardly t akes m uch tim e to identif

y them as such. I f ind it dif f icult to see how the am ount o f 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 consume d i n t he preparation of the present order b arring t he door to Mr. McDonald f ar exceeds that which w ould have been n e cessary to process his petitions f or the next several y ears at least. I continue to f

ind puzzling the Court’s f ervor in ensuring 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. Ed. 2d 158 (19 8 9) (Brennan, J., dissenting). 2

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 a nother 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 t he 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 t he 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.”). 2¶4. The s am e logic applies to th e r e s t r i c t i on on f iling subsequent 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 racial discrim ination, to m arry , to p ract i c e their religion, to com m

u nicate with f

ree persons, t o h ave d

ue process in disciplinary proceedings, and to be f

ree f rom cruel and unusual p unishm e nt. As a result of the recognition of these and other righ t s , t he right of access to courts, which is necessary

to vindicate all constitutional rights, also becam e a f undam ental right. Joseph T. Lukens, The P r i s o n L i t i g a tion Reform Act: Three S trikes and Y

ou’re Out of
Court-It M

ay Be Effective, b ut I

s It Constitutional? , 7 0 Tem p. L

. Rev. 471, 474–75 (1997). This Court m

ust not d iscourage convicted d ef 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 . ¶5. Theref

ore, although I f

ind no m erit in Cooper’s application f or post-conviction relief

, I d i s a g ree with t his Court’s contention that the a pplication m erits the classif icatio n o f
f rivolous and with its warning of f uture sanctions and restrictions. KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.

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