United States Court of Appeals,
Fifth Circuit.
No. 94-40515.
Richard F. TREST, Petitioner-Appellant,
v.
John P. WHITLEY, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
Sept. 17, 1996.
Appeal from the United States District Court for the Western
District of Louisiana.
Before JONES, STEWART and PARKER, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Richard F. Trest ("Trest") appeals the district
court's denial of his petition for a writ of habeas corpus.
Because his petition raises forfeited claims that are procedurally
barred from review by this court, the judgment of the district
court is AFFIRMED.
FACTUAL BACKGROUND
After a jury trial, Trest was convicted in 1979 of armed
robbery in Bossier Parish, Louisiana. Three years before this
conviction Trest had pleaded guilty to five felony counts of
burglary in Mississippi. The Mississippi state court sentenced
Trest to serve concurrent four year terms for his offenses, and he
was released from prison in Mississippi in 1978. Based on these
prior felony convictions for burglary in Mississippi, the Louisiana
trial court adjudicated Trest an habitual offender and sentenced
him to 35 years imprisonment, without possibility of parole,
1
probation, or suspended sentence. See La.R.S. 15:529.1. Trest
concedes that during his habitual offender proceedings he failed to
object to the Louisiana court's reliance on the Mississippi
convictions on the basis that these convictions were somehow
constitutionally invalid. Trest did not appeal his convictions in
Mississippi and has never challenged their validity in any
Mississippi court, either on direct or collateral appeal. Rather,
he served his concurrent sentences until he became eligible for
release from prison.
Trest filed his petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 on September 30, 1991. In this petition, Trest
alleges for the first time that the Louisiana trial court erred in
relying on his prior Mississippi convictions because these
predicate convictions were unconstitutional. Specifically, Trest
contends, inter alia, that because the Mississippi court
purportedly failed to advise him of his constitutional rights and
of the maximum sentence he could receive, the convictions used to
enhance his Louisiana sentence were constitutionally infirm.1 To
support his petition, Trest submitted a copy of the habitual
offender bill of information filed against him and the transcript
of the hearing on this bill. The government did not respond
specifically to this potential ground for relief in its answer to
1
To buttress the claim that the Mississippi convictions are
somehow unconstitutional, Trest relies on Boykin v. Alabama, 395
U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), in which
the Supreme Court held that "[i]t was error, plain on the face of
the record, for the trial judge to accept petitioner's guilty plea
without an affirmative showing that it was intelligent and
voluntary."
2
Trest's petition. Likewise, the magistrate judge's report and
recommendation did not directly address the issue. Trest stressed
this silence in his objections to the report and recommendation.
While Trest acknowledged that his claim had been poorly
articulated, he rearticulated it, and attached for the district
court a copy of the transcript of his 1976 guilty pleas in
Mississippi state court. After considering Trest's petition for
writ of habeas corpus, the district court denied it.
DISCUSSION
When considering requests for federal habeas corpus relief,
this court has frequently explained that we review the district
court's factual findings for clear error, but review issues of law
de novo. See, e.g., Myers v. Johnson, 76 F.3d 1330, 1333 (5th
Cir.1996).
In the instant case, however, this court's decision in Sones
v. Hargett, 61 F.3d 410 (5th Cir.1995), precludes us from reviewing
the merits of Trest's habeas challenge to the constitutionality of
his Mississippi convictions because his petition raises claims that
were forfeited by Trest and are procedurally barred from appellate
scrutiny.2 In Sones, this court held that an inmate who had been
sentenced under Mississippi's habitual offender statute to life in
prison without parole was properly denied habeas relief for his
claim that his trial counsel was constitutionally ineffective
because this claim would have been time barred had it been included
2
Inexplicably, neither of the parties cited Sones or discussed
it in their briefs, oral arguments, or memoranda to this court.
3
in a state petition for habeas and, thus, was procedurally
defaulted for purposes of federal habeas. Sones, 61 F.3d at 416.
The procedural default in Sones is replicated in the instant
appeal. As Sones observes, Mississippi imposes the following
procedural bar on all efforts at collateral relief from a
conviction and sentence:
A motion for relief under this chapter shall be made within
three years after the time in which the prisoner's direct
appeal is ruled upon by the Supreme Court of Mississippi or,
in case no appeal is taken, within three (3) years after the
time for taking an appeal from the judgment of conviction or
sentence has expired, or in case of a guilty plea, within
three (3) years after entry of the judgment of conviction.
Miss.Code Ann. § 99-39-5(2) (emphasis added); Sones, 61 F.3d at
417 (emphasis added); see also, Lott v. Hargett, 80 F.3d 161, 163
(5th Cir.1996). In Odom v. State, 483 So.2d 343 (Miss.1986), the
Mississippi Supreme Court declared that this procedural bar applied
prospectively to all convictions occurring prior to April 17, 1984,
the statute's effective date; hence, Mississippi convictions
before April 17, 1984 can be challenged collaterally only if the
challenge is filed in a petition for post-conviction relief by
April 17, 1987. Sones further explains that Mississippi's
procedural bar also extends to constitutional challenges against
the predicate convictions triggering habitual offender status:
the Mississippi Supreme Court has consistently held that an
attack on a facially valid prior conviction, used either as an
aggravating circumstance in capital sentencing or as a basis
for a sentence as a habitual offender, must be brought after
sentencing in a petition for post-conviction relief from that
prior judgment of conviction.
See Sones, 61 F.3d at 418 n. 14 (emphasis added); see also,
Phillips v. State, 421 So.2d 476, 481 (Miss.1982); Culberson v.
4
State, 612 So.2d 342, 343-47 (Miss.1992).
Because Sones did not challenge the prior convictions used to
trigger the career offender enhancement in petitions for
post-conviction relief filed within the three-year statute of
limitations, this court considered the challenge forfeited. We
reasoned that,
[f]or the first time on appeal, Sones's counsel argues that
his prior convictions are void on their face for failing to
indicate whether the guilty pleas on which they were based
were knowing and voluntary. We consider this novel argument
forfeited. Although we may consider a forfeited claim if it
presents a purely legal question and if failure to consider it
will result in manifest injustice, the issue whether Sones's
prior convictions were based on voluntary and knowing pleas is
not purely a question of law.... Because this issue thus
involves factual as well as legal questions, we will not
consider it for the first time on appeal.
Sones, 61 F.2d at 419 n. 18 (citations omitted) (emphasis added);
see also, Lott, 80 F.3d at 164-66 (inmate in Mississippi denied
federal habeas corpus review of his Boykin claim because
Mississippi's procedural default statute is an independent and
adequate rule barring such review).3 Indeed, the importance of
3
Indeed, because Sones's attorney could not have raised these
forfeited challenges to the prior convictions at sentencing for the
enhanced conviction, this court denied Sones's habeas claim that he
suffered from constitutionally ineffective counsel. As the panel
explained,
[c]ounsel therefore could not have successfully
challenged the constitutionality of the prior convictions
in the sentencing phase; as mentioned above, in
Mississippi constitutional challenges to the validity of
prior convictions that are not facially invalid must be
made collaterally, and Sones has never sought collateral
relief from the prior convictions that qualify him as a
habitual offender. We perceive no attorney
constitutional ineffectiveness.... Accordingly, we
reject Sones's contention that denying federal review of
his Sixth Amendment claim would result in a fundamental
5
enforcing Mississippi's procedural bar and of preventing the
retrial of the predicate offenses used to trigger a habitual
offender enhancement has been reiterated by the Mississippi Supreme
Court, which has stressed that
[i]n fulfilling its mission to determine whether a prior
conviction is constitutionally valid for the purpose of
enhancing a defendant's sentence, the trial court must not be
placed in position of "retrying' the prior case. Certainly
any such frontal assault upon the constitutionality of a prior
conviction should be conducted in the form of an entirely
separate procedure solely concerned with attacking that
conviction. This role is neither the function nor the duty of
the trial judge in a hearing to determine habitual offender
status.
Phillips v. State, 421 So.2d 476, 481-82 (Miss.1982); Sones, 61
F.3d at 419.
For the same reasons that Sones was procedurally barred from
challenging the prior convictions used to trigger his career
offender enhancement, Trest is likewise barred. As has been
discussed, while Trest was convicted in 1979 for armed robbery in
Louisiana, his prior convictions occurred in Mississippi. The
Mississippi convictions that provided the basis for the enhancement
of the Louisiana sentence arose as a result of Trest's pleas of
guilty to five counts of burglary on May 24, 1976. Trest neither
appealed these convictions nor challenged them collaterally.
Although he was sentenced to serve concurrent four year terms of
imprisonment on the five counts, he left prison when he became
miscarriage of justice.
Sones, 61 F.3d at 420. Trest confronts precisely the same
predicament as he has never challenged the prior convictions
that qualify him as a habitual offender in any post-conviction
or collateral proceeding in Mississippi.
6
eligible for release, in February of 1978.
Mississippi's procedural bar, the Mississippi Supreme Court,
and this court in Sones mandate that Trest had until April 17, 1987
to file a petition for post-conviction relief from his Mississippi
convictions. Since Sones did not comply with this requirement, his
challenges to the constitutionality of his Mississippi convictions
have been procedurally defaulted. Put differently, because the
potential remedies in Mississippi courts for the constitutional
defects alleged by Sones were rendered unavailable by his own
procedural default, federal courts, including those in Louisiana,
are barred from reviewing these claims. Sones, 61 F.3d at 416;
Lott, 80 F.3d at 164. As the Supreme Court has instructed,
[I]f the petitioner failed to exhaust state remedies and the
court to which petitioner would be required to present his
claims in order to meet the exhaustion requirement would now
find the claims procedurally barred, ... [then] there is a
procedural default for purposes of federal habeas.
Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557
n. 1, 115 L.Ed.2d 640 (1991).
The only potential remedies available to cure Trest's
procedural default are to demonstrate either cause and prejudice
for the default or that a fundamental miscarriage of justice will
result from our failure to analyze his claims. Again, the Supreme
Court has explained that procedural default will block all federal
review of a claim that a conviction was unconstitutional unless the
prisoner "can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
7
fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111
S.Ct. at 2565 (emphasis added). In the instant case, Trest neither
alleges such cause and prejudice nor a fundamental miscarriage of
justice; indeed, Trest has not even attempted to bear this burden.
Hence, a federal district court in Louisiana cannot consider
Trest's claims that his Mississippi convictions were somehow
unconstitutional. As a result, this court is bound to conclude as
we did in Sones: "section 99-39-5(2) functions as an independent
and adequate procedural bar to review [of the constitutional claims
raised by Trest] in federal court." Sones, 61 F.3d 410, 417-18;
see also, Lott, 80 F.3d at 165.
Because this court concludes that it is foreclosed from
considering the merits of Trest's habeas petition, we need not
decide whether Custis v. United States, 511 U.S. 485, 114 S.Ct.
1732, 128 L.Ed.2d 517 (1994) would entitle Trest, had he not
procedurally defaulted, to review in a federal habeas corpus
proceeding of his claim that his prior Mississippi convictions were
unconstitutional and that, as a result of this alleged
constitutional infirmity, his current sentence has been improperly
enhanced.
CONCLUSION
For the foregoing reasons, the judgment of the district court
denying Trest's petition for federal habeas corpus relief is
AFFIRMED.
ROBERT M. PARKER, Circuit Judge, dissenting:
The independent and adequate state ground doctrine applies to
8
bar federal habeas corpus relief when a state court declines to
address a prisoner's federal claims because the prisoner has failed
to meet a state procedural requirement. Coleman v. Thompson, 501
U.S. 722, 729, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991).
For the independent and adequate state ground doctrine to apply,
the state court adjudicating a habeas petitioner's claims must
explicitly rely on a state procedural rule to dismiss the
petitioner's claims. Sones v. Hargett 61 F.3d 410, 416 (5th
Cir.1995). The procedural default doctrine presumes that the state
court's express reliance on a procedural bar functions as an
independent and adequate ground in support of the judgment. Id.
The petitioner can rebut this presumption by establishing that the
procedural rule is not strictly or regularly followed. Id.; see
also, Moore v. Roberts, 83 F.3d 699 (5th Cir.1996). Additionally,
Petitioner might defend his position by demonstrating cause and
prejudice for his failure to raise the claim in state proceedings.
See Gray v. Netherland, --- U.S. ----, ----, 116 S.Ct. 2074, 2082,
135 L.Ed.2d 457 (1996). By failing to raise the procedural default
as a defense, the State lost the right to assert that defense. Id.
In this case, the Louisiana court did not explicitly rely on
the Mississippi statute of limitations, nor did the petitioner have
the opportunity to rebut any resulting presumption. The majority's
observation that Trest did not even attempt to bear his burden of
establishing cause and prejudice is central to the flaw in their
reasoning. How can this Court penalize Trest for failing to
respond to the state's affirmative defense of procedural bar, when
9
the State declined to raise such a defense?
For these reasons, I dissent from the majority's holding that
petitioner was procedurally barred from challenging the prior
convictions.
10