Opinion
2021-M-00738
09-22-2021
BOBBY ALLRED Petitioner v. STATE OF MISSISSIPPI Respondent
EN BANC ORDER
DAWN H. BEAM, JUSTICE.
Before the en banc Court is Bobby Allred's Application for Leave to Proceed in the Trial Court.
Allred was convicted of three counts of sexual battery and sentenced to seventy-five years in prison. Allred v. State, 908 So.2d 889, 890 (Miss. Ct. App. 2005). The Court of Appeals affirmed his convictions and sentences, id., and the mandate issued on September 6, 2005.
Since then, Allred has filed four applications for leave to seek post-conviction relief in the trial court. See Order, Allred v. State, No. 2007-M-00116 (Miss. Mar. 1, 2007); Order, Allred v. State, No. 2007-M-00116 (Miss. Apr. 8, 2010); Order, Allred v. State, No. 2017-M-00793 (Miss. July 26, 2017); Order, Allred v. State, No. 2017-M-00793 (Miss. Mar. 15, 2021).
In this fifth application, he seems to raise eight claims: (1) His convictions and sentences were illegal because venue was not changed; (2) the verdict was against the weight and sufficiency of the evidence; (3) the indictment was fatally defective because the time frame was too vague; (4) his guilty plea lacked a factual basis; (5) trial counsel was ineffective; (6) his wife was unlawfully coerced to testify against him; (7) he had a conflict with two jurors; and (8) the trial judge unlawfully polled jurors.
Because claims (1), (2), and (6) through (8) could have been raised at trial or on direct appeal, they are subject to the waiver bar. Miss. Code Ann. § 99-39-21(1) (Rev. 2020). We find that Allred does not show cause and actual prejudice to merit relief from the waiver bar under Section 99-39-21(1). Nor do the claims meet any recognized constitutional fundamental-rights exception. See Chapman v. State, 167 So.3d 1170, 1172, 1174-75 (Miss. 2015); Smith v. State, 149 So.3d 1027, 1031 (Miss. 2014), overruled on other grounds by Pitchford v. State, 240 So.3d 1061 (Miss. 2017); Bell v. State, 123 So.3d 924, 925 (Miss. 2013); Rowland v. State, 98 So.3d 1032, 1036 (Miss. 2012), overruled on other grounds by Carson v. State, 212 So.3d 22 (Miss. 2016); Fulgham v. State, 47 So.3d 698, 700 (Miss. 2010). And even if the claims met such an exception, they lack any arguable basis to merit relief from the time, waiver, and successive-writ bars. See Fluker v. State, 170 So.3d 471, 475 (Miss. 2015) (quoting Means v. State, 43 So.3d 438, 442 (Miss. 2010)).
Next, we find that that claim (3) was decided on direct appeal. Allred, 908 So.2d at 890-92. As a result, that claim is barred by the doctrine of res judicata. Miss. Code. Ann. § 99-39-21(3) (Rev. 2020).
Claim (4) lacks merit: Allred was convicted by a jury.
Finally, as to claim (5), an ineffective-assistance claim might be excepted from the procedural bars in exceptional circumstances. See Chapman, 167 So.3d at 1172, 1174-75; see also Bevill v. State, 669 So.2d 14, 17 (Miss. 1996); Brown v. State, 187 So.3d 667, 671 (Miss. Ct. App. 2016). But we find that Allred's claim is insufficient to surmount the bars.
After due consideration, we find that the application should be denied.
In addition, Allred has been warned that "future filings deemed frivolous could result in monetary sanctions or in restrictions on his ability to file applications for postconviction collateral relief (or pleadings in that nature) in forma pauperis." Order, Allred v. State, No. 2017-M-00793 (Miss. Mar. 15, 2021) (citing Order, Dunn v. State, No. 2016-M-01514 (Miss. Nov. 15, 2018)). We find that this filing is frivolous and that sanctions are merited. IT IS THEREFORE ORDERED that the Application for Leave to Proceed in the Trial Court is denied.
IT IS FURTHER ORDERED that Allred is hereby restricted from filing further applications for post-conviction collateral relief (or pleadings in that nature) that are related to these convictions and sentences 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 Allred that are related to these convictions and sentences unless he pays the applicable docket fee.
SO ORDERED.
TO DENY WITH SANCTIONS: RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ.
TO DENY: KITCHENS AND KING, P.JJ., COLEMAN AND ISHEE, JJ.
KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
¶1. Today, this Court prioritizes efficiency over justice and bars Bobby Allred from its doors. Because the imposition of monetary sanctions against indigent defendants and the restriction of access to the court system serve only to punish those defendants and to violate rights guaranteed by the United States and Mississippi Constitutions, I strongly oppose this Court's order restricting Allred from filing further petitions for post-conviction collateral relief in forma pauperis.
¶2. 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, § 155. Yet this Court deems the frequency of Allred's filings to be too onerous a burden and decides to restrict Allred from filing subsequent applications for post-conviction collateral relief. See In re McDonald, 489 U.S. 180, 186-87, 109 S.Ct. 993, 997, 103 L.Ed.2d 158 (1989) (Brennan, J., dissenting) ("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.").
¶3. Article 3, section 25, of the Mississippi Constitution provides that "no person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both." Miss. Const. art. 3, § 25 (emphasis added). Mississippi Code Section 99-39-7 provides that actions under the Uniform Post-Conviction Collateral Relief Act are civil actions. Miss. Code Ann. § 99-39-7 (Rev. 2020). Therefore, this State's Constitution grants unfettered access in civil causes to any tribunal in the State. The Court's decision to deny Allred's filing actions in forma pauperis is a violation of his State constitutional right to access to the courts.
¶4. The decision to cut off an indigent defendant's right to proceed in forma pauperis is also a violation of that defendant's fundamental right to vindicate his 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 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 of Court-It May Be Effective, but Is It Constitutional?, 70 Temp. L. Rev. 471, 474-75 (1997). 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). Instead of simply denying or dismissing those motions that lack merit, the Court seeks to punish Allred for arguing his claims.
¶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 defendants who are fortunate enough to have monetary resources. Those defendants may file endless petitions, while indigent defendants are forced to sit silently by. 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 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/ (emphasis added) (last visited Sep. 9, 2021). 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 39 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 Gross, Opinion, The Staggering Number of Wrongful Convictions in America, Washington Post (July 24, 2015), http://wapo.st/1SGHcyd?tid'ss_mail&utm_term=.4 bed8ad6f2cc.
¶6. Rather than violating Allred's fundamental rights by restricting his access to the courts, I would simply find his petition for post-conviction relief lacked merit.
KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.