United States Court of Appeals,
Fifth Circuit.
No. 96-60549
Summary Calendar.
Phillip STOKES, Petitioner-Appellant,
v.
James V. ANDERSON, Superintendent, Mississippi State
Penitentiary, Respondent-Appellee.
Oct. 6, 1997.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
A Mississippi state jury convicted Phillip Stokes of murder
during the commission of a robbery; the court then sentenced him
to life imprisonment. Stokes appealed, and the Mississippi Supreme
Court affirmed his conviction. Stokes v. State, 548 So.2d 118
(Miss.1989), cert. denied, 493 U.S. 1029, 110 S.Ct. 742, 107
L.Ed.2d 759 (1990).
After collateral appeals in state and federal court, Stokes
filed a second petition for federal habeas relief, raising
seventeen claims. A magistrate judge determined that nine of
Stokes' claims were procedurally barred,1 some did not sound in
1
The nine claims the magistrate judge suggested were
procedurally barred included those pertaining to the admission of
enlarged fingerprint evidence, the failure to grant a motion for
acquittal, the failure to sequester the jury, the denial of a
motion for a mistrial, allowing the prosecutor to lead witnesses,
permitting the admission of hearsay testimony by a police officer,
the denial of an impartial jury, the denial of the right to testify
by being forced to appear in court while bleeding and suffering
head injuries, and the refusal to use proffered jury instructions.
federal habeas, and the rest failed on the merits. The district
court then adopted the findings of the magistrate judge (with some
changes) and dismissed Stokes' petition.
After the district court denied Stokes a certificate of
appealability ("COA"), Stokes moved this court for a COA, arguing
that the district court erred by dismissing any of his claims as
procedurally barred. This court granted Stokes a partial COA on
the issue of "whether the Mississippi courts have consistently and
regularly applied [the appellate bars of] MISS.CODE ANN. § 99-39-
27(5) (1994) and MISS.CODE ANN. § 99-39-21(1) (1994)."2
I
We review de novo a district court's denial of federal habeas
review based on a state procedural ground. Amos v. Scott, 61 F.3d
333, 338 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 557,
133 L.Ed.2d 458 (1995). Where a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, this court may not review the
prisoner's habeas petition unless he 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 fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A
2
The only issue on appeal is the adequacy of the appellate
bars of §§ 99-39-27(5) and 99-39-21(1). Thus, we will not examine
whether Stokes can show cause and prejudice or whether the court's
failure to consider his claims would result in a fundamental
miscarriage of justice. See generally Wainwright v. Sykes, 433
U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977).
state procedural rule that bars consideration of an issue is not
adequate unless it is "strictly or regularly followed." Johnson v.
Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d
575 (1988); see also Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102
S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982) ("State courts may not
avoid deciding federal issues by invoking procedural rules that
they do not apply evenhandedly to all similar claims").
The Mississippi Supreme Court held that Stokes' claims were
procedurally barred under §§ 99-29-21(1) and 99-39-27(5). Section
99-39-21(1) states that
[f]ailure by a prisoner to raise objections, defenses, claims,
questions, issues or errors either in fact or law which were
capable of determination at trial and/or on direct appeal,
regardless of whether such are based on the laws and the
Constitution of the state of Mississippi or of the United
States, shall constitute a waiver thereof and shall be
procedurally barred, but the court may upon a showing of cause
and actual prejudice grant relief from the waiver.
MISS.CODE ANN. § 99-39-21(1). In turn, § 99-39-27(5) provides that
[u]nless it appears from the face of the application, motion,
exhibits, exhibits and the prior record that the claims
presented by such are not procedurally barred under Section
99-39-21 and that they further present a substantial showing
of the denial of a state or federal right, the court shall by
appropriate order deny the application. The court may, in its
discretion, require the attorney general upon sufficient
notice to respond to the application.
MISS.CODE ANN. § 99-39-27(5).
As a threshold matter, we first determine that we need not
consider whether Mississippi applies § 99-39-27(5) strictly or
regularly. This section cannot operate as a procedural bar to
review because it requires some evaluation, however cursory, of the
merits of a petitioner's claim. Similarly, § 99-39-27(5) cannot be
an independent state ground because it is not separate from the
merits of Stokes' claim under 28 U.S.C. § 2254(a) that he is being
held in custody in violation of the Constitution or federal law.
In contrast, § 99-39-21(1) does contain an independent state
procedural bar. The question, then, is whether this bar is
"adequate," and this hinges on whether Mississippi has strictly or
regularly applied it. Lott v. Hargett, 80 F.3d 161, 165 (5th
Cir.1996). As a general rule, a procedural bar must be "firmly
established and regularly followed by the time as of which it is to
be applied." Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850,
857-58, 112 L.Ed.2d 935 (1991). However, a state fails to strictly
or regularly apply a procedural bar only when the state "clearly
and unequivocally excuse[s] the procedural default." Amos, 61 F.3d
at 342.
The petitioner bears the burden of showing that the state did
not strictly or regularly follow a procedural bar around the time
of his direct appeal. Sones v. Hargett, 61 F.3d 410, 416 (5th
Cir.1995). Moreover, the petitioner must demonstrate that the
state has failed to apply the procedural bar rule to claims
identical or similar to those raised by the petitioner himself.
Martin, 98 F.3d at 848; Amos, 61 F.3d at 340.
In attempting to show that Mississippi has not strictly or
regularly applied the § 99-39-21(1) procedural bar, Stokes cites
twenty-two Mississippi Supreme Court cases. However, none of these
cases is particularly relevant, and most miss the mark by a wide
margin. Twelve cases, for instance, do not involve any discussion
of § 99-39-21(1), and another four cases are orders of the
Mississippi Supreme Court granting Stokes leave to proceed in the
trial court. Two cases pertain to § 99-39-27(9) of the Mississippi
Code. This provision generally bars second or successive state
habeas petitions except in a number of specific situations,
including "those cases in which the prisoner can demonstrate ...
that there has been an intervening decision of the supreme court of
either the state of Mississippi or the United States which would
have actually adversely affected the outcome of his conviction or
sentence...." One case deals with time and res judicata bars, not
the § 99-39-21(1) procedural bar. In a couple of other cases, the
Mississippi Supreme Court recognized plain error despite the fact
that the time bar of § 99-39-5(2) or the bar on second or
successive writs applied.
Only one of twenty-two cases Stokes cites involves the § 99-
39-21(1) procedural bar. In this case, Smith v. State, 477 So.2d
191 (Miss.1985), the court reversed and remanded to correct a
sentencing mistake, even though the § 99-39-21(1) procedural bar
applied. The court explicitly waived the bar because it found that
the sentencing mistake rose to a level of plain error and affected
Smith's fundamental rights. However, Stokes does not allege that
the state court made a error in sentencing him. Thus, he may not
rely on Smith to show that the Mississippi Supreme Court does not
strictly or regularly apply the § 99-39-21(1) procedural bar.
In short, Stokes has not pointed to a single case where the
Mississippi Supreme Court case has failed to apply the § 99-39-
21(1) procedural bar to a claim identical or similar to one of his
own procedurally barred claims. Accordingly, Stokes has failed to
carry his burden of showing inconsistent and irregular application
of the § 99-39-21(1) bar; he has defaulted his federal claims in
state court pursuant to an independent and adequate state
procedural rule.
II
For the foregoing reasons, we AFFIRM the judgment of the
district court. We also DENY Stokes' motion to file a reply brief
in excess of the page limit set forth in Fifth Circuit Rule 28.1.