Serial: 235954

IN THE SUPREME COURT OF MISSISSIPPI

No. 2015-M-01153

BOBBY K. BARNETT A/K/A BOBBY KEITH

BARNETT Petitioner

v.

STATE OF MISSISSIPPI Respondent

CORRECTED EN BANC ORDER

Before the Court, en banc, is Bobby Keith Barnett’s Appeal from Judgment, which

we treat as his ninth motion for post-conviction relief. The Court finds that the motion is

barred by time and as a successive writ, and none of Barnett’s claims meet an exception

to the bars. Miss. Code Ann. §§ 99-39-5(2), 99-39-27(9) (Rev. 2015). Notwithstanding

the bars, Barnett has also failed to make a substantial showing of the denial of a state or

federal right. Miss. Code Ann. § 99-39-27(5) (Rev. 2015). Accordingly, the application

for leave should be denied.

Barnett has been warned that “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. ” Order, Barnett v. State

,

No. 2015-M-01153 (Miss. Nov. 14, 2019); Order, Barnett v. State

, No. 2015-M-01153

(Miss. Mar. 12, 2020). We find that the instant filing is frivolous and that Barnett should

be restricted from filing further applications for post-conviction collateral relief (or

pleadings in that nature) that are related to this conviction and sentence in forma

pauperis

. See En Banc Order, Dunn v. State

, No. 2016-M-01514 (Miss. Apr. 11, 2019).

IT IS THEREFORE ORDERED that the Appeal from Judgment, which is treated

as a motion for post-conviction relief, is denied.

IT IS FURTHER ORDERED that Bobby Keith Barnett is hereby restricted from Electronic Document Mar 2 2021 13:13:06 2015-M-01153 Pages: 62 filing further applications for post-conviction collateral relief (or pleadings in that nature)

that are related to this conviction and sentence in forma pauperis

. The Clerk of this Court

shall not accept for filing any further applications for post-conviction collateral relief (or

pleadings in that nature) from Barnett that are related to this conviction and sentence

unless he pays the applicable docket fee.

SO ORDERED.

TO DENY WITH SANCTIONS: 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 WITH SEPARATE WRITTEN STATEMENT

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

NO. 2015-M-01153

Bobby K. Barnett a/k/a Bobby Keith

Barnett

v.

State of Mississippi

KING, PRESIDING J U STICE

, OBJECTING T O T HE ORDER WITH

SEPARATE WRITTEN STATEMENT:

¶1. Today

, this Court prioritizes ef f iciency over j ustice and b ars Bobby K

. Barnett f rom

its doors. B ecause the im

position of m onetary sanctions against indigent def endants and the

restriction of access to the c ourt sy stem serve only to p unish those d ef endants and to violate

rights g uaranteed by the United States and Mississippi Constitutions, I s t rongly o ppose this

Court’s order r estricting Barnett f rom f iling f urther petitions f

or post-conviction collateral

relief in forma pauperis

.

¶2. This Court s eem s to tire of reading m otions that i t d eem s “f r ivolous” and im

poses

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

likelihood are u nable to pay the im pose d s a n c t i ons, f

rom f uture f ilings. I n choosing to

prioritize ef

f iciency over j u s t i c e

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

assum ing of

f ice. That oath stated i n relevant part, “I

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

adm inister justice without respect to persons, and do e q ual right to the poor and to the rich.

. . .” Miss. Const. art. 6, § 1 55. Yet this Court d eem s the f requency of Barnett’s f

i lings to be

too onerous a burden and decides to restrict Barnett f rom f iling subsequent a

pplications f

orpost-conviction collateral relief

. See In re McDonald

, 489 U.S. 180, 186–87, 109 S. Ct. 993,

997, 1 03 L. Ed. 2d 158 (1989) (Brennan, J., di s senting) ( “I continue to f ind p uzzling the

Court’s f ervor in ensuring that rights granted to t he poor are not abused, even when so doing

actually i ncreases the drain on our lim ited resources.”).

¶3. Article 3, section 25, of t he Mi s s i s s i ppi Constitution provides that “ no person shall

be debarred f

rom prosecuting or def

ending any civil c ause for or against him or herself

,

bef ore any tribunal in the state, by him or herself

, or counsel, or both.” Miss. Const. art. 3,

§ 25 (em phasis added). M i ssissippi Code Section 9 9

- 3 9 -7 provides that actions under the

Unif orm Post-Conviction C ollateral Relief A ct are c ivil actions

. Miss. Code Ann. § 99-39-7

(Rev. 2020). Theref

ore, this State’s Constitution grants unf ettered access in civil causes to

any tribunal in the State. T he Court ’ s d e c i s i o n to deny Barnett’s f iling actions in forma

pauperis is a violation of his State constitutional right to access to the courts.

¶4. The decision to cut of f an indigent d ef

endant’s r ight to proceed in f orma pauperis is

also a violation of

that def e ndant’s f undam ental right to vindicate his constitutional rights,

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 invidio u s racial d iscrim ination, to m a rry

, to practice their

religion, to com m

unicate with f

ree persons, to have due process in disciplinary

proceedings, and t o be f

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

the recognition of these and o t h e r rights, the right of access to courts, which

is necessary

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

right.

2Joseph T. Lukens, The P rison Litigation Reform Act: Three S t r i k e s a n d 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).

As United States Suprem e Court Justice Thurgood Marshall stated,

In closing its doors today to another indigent litigant, t he C ourt m o v e s e v er

clo s e r t o the d ay w hen it leaves an indigent litigant with a m eritorious claim

out in the cold. And with each barrier that i t p l a c e s i n 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 r einf orce in t he hearts a nd 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). Instead of s im p ly deny ing or dism issing those m otions that lack m erit, the Court

seeks to punish Barnett f

or arguing his claim s.

¶5. Although each justice took an oath to do equal right to the poor and rich, this Court

does not deny access to the court def endants who are f

ortunate enough to h a v e mo netary

resources. Those d ef

endants m ay f

ile endless petitions, while indigent def endants are f

orced

to sit silently by

. An indiv i d u a l w h o

, even incorrectly

, believes that she h as been deprived

of h er f reedom should not be expected to sit s ilently by and wait to be f orgotten.

“Historically

, the convictions with the b est c hances of being overturned were those that got

repeatedly r eviewed on appeal or those chosen by legal i n s t i t u t i o n s such as the I nnocence

Project a nd the Center on W rongf ul Convictions.” Em ily

Barone, The W

r ongly Convicted:

W hy m ore f

alsely accused people are being exonerated today than ever before

, Tim e,

http://tim e .com

/wrongly -convicted / (em phasis added) (last visited Nov. 17, 2020). The

W a shington Post reports that

3the average tim e served f or the 1,625 exonerated individuals i n the registry is

m ore than n ine y e a

r s

. L ast y ear, three innocent m urder def e ndants in Cleveland

were exon e r a t e d 39 y ears af ter they were convicted—they spent their entire

adult lives in prison—and even they w ere lucky : W e k now without doubt t hat

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

identif ied and cleared.

Sam uel G ross, O pinion, The Staggering N u m b e r o f W rongful Convictions in America

,

W a shington Post (July 24, 2 015), http://wapo.st/1SGHcy d? tid=ss_m ail&utm _term =.4

bed8ad6f 2cc.

¶6. Rather than violating Barnett’s f undam ental rights b y restrict i n g h i s a c c e ss to the

courts, I would sim

p ly f i nd his petition f

or post-conviction relief

lacked m erit.

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

4