Johnny Turner v. State of Mississippi ( 2021 )

Serial: 235519
IN THE SUPREME COURT OF MISSISSIPPI
No. 2020-M-00961
JOHNNY TURNER FILED Petitioner
v. JAN 28 2021
OFFICE OF THE CLERK
STATE OF MISSISSIPPI SUPREME COURT Respondent
COURT OF APPEALS
CORRECTED EN BANC ORDER
Now before the Court is the Motion for Leave filed pro se by Johnny Turner. Turner's
conviction and sentence were affirmed on direct appeal, and the mandate issued on January
23, 2007. Turner v. State, 945 So. 2d 992 (Miss. Ct. App. 2007). The instant application for
leave is Turner's fifth. The Court finds the application for leave to be time-barred and
successive. Miss. Code Ann. §§ 99-39-5(2); 99-39-27(9) (Rev. 2015).
Turner claims to have newly discovered evidence. The Court finds that Turner has
presented no arguable basis for his claims, that no exception to the procedural bars exists,
and that the petition should be denied. See Means v. State, 43 So. 3d 438,442 (Miss. 2010).
The Court also finds that the instant filing is frivolous. Turner is hereby 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) informa pauperis. Order, Dunn v. State, 2016-M-01514 (Miss. Nov. 15, 2018).
IT IS, THEREFORE, ORDERED that the Motion for Leave is denied.
SO ORDERED, this the J..{i!day of January, 2021.
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.
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IN THE SUPREME COURT OF MISSISSIPPI
No. 2020-M-00961
JOHNNY TURNER
v.
STATE OF MISSISSIPPI
KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART
WITH SEPARATE WRITTEN STATEMENT:
11. Although Johnny Turner'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 pauper is.
12. 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
administer justice without respect to persons, and do equal right to the poor and to the rich
.... " Miss. Const. art. 6, § 15 5.
13. 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).
,I4. 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 informa 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
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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 ofCourt-
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).
,rs. 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
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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, 2020) (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 3 9 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/l SGHcyd?tid=ss_mail&ut
m term=.4bed8ad6f2cc.
16. 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
Turner'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.
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