Opinion
2018-M-01768
11-29-2021
TREMAYNE WHITTLE A/K/A TREMAYNE LEMMIE WHITTLE A/K/A TREMAYNE L. WHITTLE Petitioner v. STATE OF MISSISSIPPI Respondent
EN BANC ORDER
Josiah Dennis Coleman, Justice
Before the en banc Court is Tremayne Whittle's Application for Leave to Proceed in the Trial Court and attached Motion for Post-Conviction Relief to Vacate Conviction and Illegal Sentence.
A jury convicted Whittle of sexual battery, and the trial court sentenced him to thirty years in prison. Whittle v. State, 182 So.3d 1285, 1286 (Miss. Ct. App. 2015). The Court of Appeals affirmed. Id. And the mandate issued on January 19, 2016.
Since then, Whittle has filed one post-conviction application. See Order, Whittle v. State, No. 2018-M-01768 (Miss. Feb. 20, 2019).
The filing is hard to discern at times; however, Whittle seems to raise six claims: (1) "DNA"; (2) "[h]earsay"; (3) "[n]urse's Scales Biological Laboratory"; (4) newly discovered evidence; (5) defective indictment; and (6) ineffective assistance of counsel.
After due consideration, we find as follows.
First, Mississippi Code Section 99-39-5(2)(a)(ii) (Rev. 2020) sets forth the standard for excepting a request for DNA testing from the time bar. Whittle's DNA claim falls short.
Second, hearsay was capable of determination at trial and on direct appeal; thus, the claim is waived unless Whittle can show cause and actual prejudice to merit relief from the waiver bar. See Miss. Code Ann. § 99-39-21(1) (Rev. 2020). Whittle's claim is insufficient to merit relief from the statutory waiver bar. Nor does it meet any recognized exception to the waiver, time, and successive-writ bars. 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, 1035-36 (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 claim met a recognized exception, it lacks any arguable basis to merit relief from the bars. See Fluker v. State, 170 So.3d 471, 475 (Miss. 2015) (quoting Means v. State, 43 So.3d 438, 442 (Miss. 2010)).
Third, Whittle's claim of "[n]urse's Scales Biological Laboratory" is indiscernible.
Fourth, for newly discovered evidence to surmount the time, waiver, and successive-writ 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.'" See Havard v. State, 86 So.3d 896, 906 (Miss. 2012) (citing Miss. Code Ann. § 99-39-27(9) (Rev. 2007)). Whittle's newly-discovered-evidence claim is insufficient to merit relief from the bars.
Fifth, Whittle's defective-indictment claim was capable of determination at trial and on direct appeal; thus, it is waived unless he can show cause and actual prejudice to merit relief from the waiver bar. See Miss. Code Ann. § 99-39-21(1). Whittle's claim is insufficient to merit relief from the statutory waiver bar. Nor does it meet any recognized exception to waiver, time, and successive-writ bars. See En Banc Order, Cummings v. State, No. 2017-M-01424, at *2 (Miss. Aug. 20, 2020); see also Chapman, 167 So.3d at 1172, 1174-75; Smith, 149 So.3d at 1031; Bell, 123 So.3d at 925; Rowland, 98 So.3d at 1035-36; Fulgham, 47 So.3d at 700; but see Patrick v. State, 325 So.3d 706, 708 (Miss. Ct. App. 2021); Hays v. State, 282 So.3d 714, 719 (Miss. Ct. App. 2019) (quoting Wilson v. State, 203 So.3d 762, 765 (Miss. Ct. App. 2016)). And even if the claim met a recognized exception, it lacks any arguable basis to merit relief from the bars. See Fluker, 170 So.3d at 475 (quoting Means, 43 So.3d at 442).
Finally, an ineffective-assistance claim might be excepted from the time, waiver, and successive-write bars in exceptional circumstances. See Chapman, 167 So.3d at 1172, 1174-75. Whittle's ineffective-assistance claim is insufficient to merit relief from the bars.
We thus find that Whittle's request for leave to seek post-conviction in the trial court should be denied.
In addition, Whittle 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, No. 2016- M-01514, at *2 (Miss. Apr. 11, 2019) (restricting Dunn's in forma pauperis status).
IT IS, THEREFORE, ORDERED that Whittle's Application for Leave to Proceed in the Trial Court and attached Motion for Post-Conviction Relief to Vacate Conviction and Illegal Sentence is denied.
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.
KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT:
¶1. Although Tremayne Whittle's application for leave to proceed in trial court 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 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.
¶3. 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).
¶4. 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 in forma 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 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). 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 re Demos, 500 U.S. 16, 19, 111 S.Ct. 1569, 1571, 114 L.Ed.2d 20 (1991) (Marshall, J., dissenting).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.
¶5. 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 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 Aug. 11, 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 R. Gross, Opinion, The Staggering Number of Wrongful Convictions in America, Washington Post (July 24, 2015), http://wapo.st/1SGHcyd?tid'ss_mail&ut m_term=.4bed8ad6f2cc.
¶6. 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 Whittle's application for leave to proceed in the trial court, I disagree with this Court's warning of future sanctions and restrictions.
KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.