Derome M. Cavitt a/k/a Derome Cavitt v. State of Mississippi

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Electronic Document Jan 8 2024 09:36:25 2018-M-00197 Pages: 5 Serial: 250124 IN THE SUPREME COURT OF MISSISSIPPI No. 2018-M-00197 DEROME M. CAVITT A/K/A DEROME CAVITT Petitioner v. STATE OF MISSISSIPPI Respondent EN BANC ORDER Now before the Court, en banc, is the Application for Leave to Proceed in the Trial Court filed by Derome M. Cavitt, pro se. On direct appeal, the Mississippi Court of Appeals unanimously affirmed Cavitt’s conviction and sentence. See Cavitt v. State, 159 So. 3d 1199 (Miss. Ct. App. 2015). The mandate issued on April 14, 2015. Subsequently, panels of the Court have dismissed or denied two petitions for post-conviction collateral relief filed by Cavitt. In the present application, Cavitt contends that he is entitled to post-conviction collateral relief based upon the alleged denial of his right to due process at sentencing, which resulted in an illegal sentence. After due consideration, the Court finds that Cavitt’s claim is time and successive-writ barred, as well as waived, and that it fails to satisfy any of the statutory exceptions. Accordingly, the Court finds that Cavitt’s application should be denied. The Court further finds that the application is frivolous. Therefore, Cavitt 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, e.g., En Banc Order, Dunn v. State, No. 2016-M-01514 (Miss. Apr. 11, 2019) (restricting in forma pauperis status); En Banc Order, Dunn v. State, No. 2016-M-01514 (Miss. Nov. 15, 2018) (warning of sanctions, including in forma pauperis restrictions). IT IS, THEREFORE, ORDERED that the Application for Leave to Proceed in the Trial Court filed by Derome M. Cavitt, pro se, is hereby denied. SO ORDERED. TO DENY WITH SANCTION 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. 2 IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-M-00197 Derome M. Cavitt a/k/a Derome Cavitt v. State of Mississippi KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER IN PART WITH SEPARATE WRITTEN STATEMENT: ¶1. Although I agree that Derome M. Cavitt’s application for post-conviction relief should be dismissed, I disagree with the Court’s finding that the application is frivolous and with its warning that future filings deemed frivolous may result in monetary sanctions or restrictions on filing applications for post-conviction collateral relief in forma pauperis.1 ¶2. This Court previously has defined a frivolous motion to mean one filed in which the movant has “no hope of success.” Roland v. State, 666 So. 2d 747, 751 (Miss. 1995). However, “though a case may be weak or ‘light-headed,’ that is not sufficient to label it frivolous.” Calhoun v. State, 849 So. 2d 892, 897 (Miss. 2003). In his application for postconviction relief, Cavitt made reasonable arguments. As such, I disagree with the Court’s determination that Cavitt’s application is frivolous. ¶3. Additionally, I disagree with this Court’s warning that future filings may result in monetary sanctions or restrictions on filing applications for post-conviction collateral relief in forma pauperis. The imposition of monetary sanctions on a criminal defendant proceeding 1 See Order, Dunn v. State, No. 2016-M-01514 (Miss. Nov. 15, 2018). 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).2 ¶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 2 See also 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.”). 2 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. ¶5. Therefore, although I find no merit in Cavitt’s application for post-conviction relief, I disagree with this Court’s contention that the application merits the classification of frivolous and with its warning of future sanctions and restrictions. KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT. 3

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