United States Court of Appeals,
Fifth Circuit.
No. 96-30638.
Ronald GLOVER, Petitioner-Appellant,
v.
Burl CAIN, Warden,
and
Richard Ieyoub, Attorney General, State of Louisiana,
Respondents-Appellees.
Nov. 20, 1997.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before MAGILL,* SMITH and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ronald Glover appeals the denial of his petition for writ of
habeas corpus. Concluding that he has failed to demonstrate cause
for his procedural default, we affirm.
I.
In 1985, during a single proceeding encompassing two separate
cases, Glover pleaded guilty to four counts of armed robbery, three
counts of forcible rape, four counts of simple kidnapping, three
counts of aggravated crimes against nature, three additional counts
of armed robbery, and one count of attempted armed robbery. He was
sentenced to forty years' hard labor.
Glover's long march through the post-conviction legal system
*
Circuit Judge of the Eighth Circuit, sitting by designation.
1
began in May 1990, when he requested the transcript of his 1985
plea and sentencing proceeding. In July 1990, the state trial
court ordered the court reporter to furnish Glover with the
transcript. In February 1991, the state court of appeal granted
Glover a writ of mandamus, directing the state court to enforce its
initial order. In May 1991, the court of appeal again ordered that
Glover be provided a transcript. Glover did not receive the
transcript until December 1991.
In the midst of Glover's quest for the transcript, Louisiana
enacted a law limiting a prisoner's ability to seek post-conviction
relief. That statute, LA.CODE CRIM.PROC. art. 930.8, effective
October 1, 1990, provides that "[n]o application for post
conviction relief, including applications which seek an out-of-time
appeal, shall be considered if it is filed more than three years
after the judgment of conviction and sentence has become final."
The statute granted a one-year grace period to prisoners whose
cause of action otherwise would be immediately extinguished.
Because Glover—having been sentenced in 1985—fell into this
category, he had until October 1, 1991, to file his claim. On
September 12, 1991, he sought an extension on grounds that he had
yet to receive the transcript. The trial court denied his motion,
and the court of appeal affirmed.
Despite the denial of an extension, Glover failed to file
before the deadline. In February 1992, he finally filed an
application for post-conviction relief. The trial court denied his
application, and the court of appeal affirmed, finding his claim
2
procedurally barred under art. 930.8. Glover then proceeded to the
Louisiana Supreme Court, which affirmed the appellate court's
conclusion that the claim was untimely and rejected Glover's
constitutional challenge to the statute. See State ex rel. Glover
v. State, 660 So.2d 1189 (La.1995).
Glover next sought habeas relief in federal court, pressing a
litany of claims.1 The federal district court found that Glover
had exhausted his state remedies but agreed with the state courts
that his suit was procedurally barred and that the statute was
constitutional. Glover was then granted a certificate of
appealability limited to the question whether he had shown cause
for his procedural default in state court.
II.
We review a district court's denial of federal habeas review
based on state procedural grounds de novo and its findings of fact
for clear error. Amos v. Scott, 61 F.3d 333, 338 (5th Cir.1995).
Our review of Glover's claims is bounded by the independent and
adequate state grounds doctrine.
1
Specifically, Glover argued that (1) the state trial court
failed to inform him of the nature and elements of his offenses;
(2) his guilty pleas lacked a factual basis; (3) the state failed
to honor its side of the plea agreement; (4) the state trial court
failed to inform him that some of his sentences must be served
without benefit of probation, parole, or suspension of sentence;
(5) the state trial court failed to inform him of maximum possible
sentences and the maximum possible accrued sentence; (6) the state
trial court failed to credit him for time served; (7) the state
trial court orally amended the indictment; (8) the state trial
court failed to enter a signed final order; (9) the Louisiana
statute (art. 930.8) is unconstitutional; (10) the Louisiana
Supreme Court erroneously found the statute constitutional; and
(11) he was erroneously denied an evidentiary hearing in state
court.
3
In Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546,
2565, 115 L.Ed.2d 640 (1991), the Court held:
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred 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 fundamental miscarriage
of justice.
This doctrine ensures that federal courts give proper respect to
state procedural rules. Id. at 750-51, 111 S.Ct. at 2564-66.
Accordingly, before we can reach the merits of Glover's habeas
claim, we must find that he has demonstrated cause for his
procedural default.
A.
We begin by asking whether Glover defaulted his claims
pursuant to an "independent and adequate" state rule. In Amos, 61
F.3d 333, we recognized that in order to fulfill the independence
requirement, the last state court rendering a judgment must
"clearly and expressly" indicate that its judgment rests on a state
procedural bar. Id. at 338. In denying Glover's application, the
Louisiana Supreme Court clearly and expressly indicated that its
ruling was premised on the untimeliness of the claim under LA.CODE
CRIM.PROC. art. 930.8. See Glover, 660 So.2d at 1201-02 (affirming
judgment of court of appeal, which barred Glover's claim pursuant
to the statute). The court's holding is sufficient to fulfill the
independence requirement.
The state procedural rule also must be adequate. An
"adequate" rule is one that state courts strictly or regularly
4
follow, and one that is applied evenhandedly to the vast majority
of similar claims. Amos, 61 F.3d at 339 (citing Johnson v.
Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d
575 (1988), and Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct.
1211, 1217 n. 6, 103 L.Ed.2d 435 (1989)). Moreover, "[a] state
procedural rule enjoys a presumption of adequacy when the state
court expressly relies on it in deciding not to review a claim for
collateral relief." Lott v. Hargett, 80 F.3d 161, 165 (5th
Cir.1996).
There is no suggestion that art. 930.8 has been applied
selectively or irregularly. Because Louisiana courts have
regularly invoked the statute to bar untimely claims,2 we find
nothing to trump the presumption of adequacy.
B.
We now turn to Glover's central contention: that the state's
delay in furnishing him with a transcript of his plea and
sentencing proceeding constitutes "cause" under Coleman. This is
a question we expressly reserved in McCowin v. Scott, 67 F.3d 100,
102 (5th Cir.1995), in which we held that, for purposes of Rule
9(b) of the Rules Governing Section 2254 Cases, a prisoner's lack
of access to a transcript cannot constitute cause if he has not
allowed the state a reasonable amount of time to respond to his
request before filing his initial habeas petition. Because the
prisoner in McCowin had failed to meet this requirement, we avoided
2
See, e.g., State ex rel. Nelson v. Louisiana, 699 So.2d 87
(La.1997); State ex rel. Russell v. Louisiana, 699 So.2d 86
(La.1997).
5
the broader question of whether a state's failure promptly to
furnish a transcript may constitute cause. Id.
Other circuits have split on this question. The Eleventh
Circuit has held that failure to furnish a trial transcript for a
direct appeal in state court may suffice as cause. See Dorman v.
Wainwright, 798 F.2d 1358, 1370 (11th Cir.1986). The Seventh and
Eighth Circuits have reached the opposite conclusion in unpublished
opinions. See Mitchell v. Ahitow, 27 F.3d 569, 1994 WL 323211 (7th
Cir.1994) (per curiam) (unpublished); United States v. Evans, 12
F.3d 1103, 1993 WL 503252 (8th Cir.1993) (per curiam)
(unpublished).
The Supreme Court has sketched the contours of what
constitutes cause for a procedural default. In Murray v. Carrier,
477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the Court held
that a defense counsel's inadvertent failure to raise a substantive
claim of error is insufficient to establish cause. The Court
explained that cause requires an external impediment:
[W]e think that the existence of cause for a procedural
default must ordinarily turn on whether the prisoner can show
that some objective factor external to the defense impeded
counsel's efforts to comply with the State's procedural rule.
Without attempting an exhaustive catalog of such objective
impediments to compliance with a procedural rule, we note that
a showing that the factual or legal basis for a claim was not
reasonably available to counsel, or that some interference by
officials made compliance impracticable, would constitute
cause under this standard.
Id. at 488, 106 S.Ct. at 2645 (internal citations and quotation
marks omitted).
Applying this standard, we find that Glover has not shown that
his failure to receive a transcript before the filing deadline
6
prevented him from developing a factual or legal basis for his
claim. Glover concedes that he knew the facts underlying his
allegation that the state breached the plea agreement. More
importantly, he does not allege the existence of legal claims he
needed the transcript to uncover; his argument is that he lacked
supporting facts that could flesh out his legal claims.
Glover's knowledge of his legal claims is illustrated by his
pleadings, filed with the district court, in which he acknowledged
that prior to receiving the transcript, he was aware that a
conviction for armed robbery did not allow for parole eligibility,
as he alleges he was led to believe at his sentencing. Glover
further admitted that, prior to receiving the transcript, he knew
that his parole eligibility date was some ten years later than the
date he had supposedly been promised. Finally, Glover conceded
that, prior to receiving the transcript, he was aware that his
earliest release date was twenty-six years away, rather than the
thirteen-year period he had purportedly agreed to. This knowledge
was more than sufficient to form a factual and legal basis upon
which an application could be filed.3
As the Louisiana Supreme Court observed, because Glover was
aware of his underlying legal claims, he could have filed his
3
The First Circuit has addressed a similar question in a
related context. In Andiarena v. United States, 967 F.2d 715 (1st
Cir.1992), the court held that a petitioner who did not have access
to the transcripts of his trial had not established cause for
failing to raise certain arguments in his initial habeas petition.
The court noted that "the factual and legal basis underlying each
of these claims was obviously apparent at the time of trial." Id.
at 719.
7
application before the deadline, then moved to supplement the
record.4 From the moment of his sentencing until the deadline
imposed by art. 930.8, Glover had more than six years in which to
file an application. That he did not do so cannot be blamed on a
tardy transcript.
Glover argues that the state's failure promptly to provide him
with the transcript was an external factor beyond his control.
This contention may be correct, but it misses the point. The
question is not whether an external factor prevented him from
receiving the transcript, but whether an external factor prevented
him from developing a "factual or legal basis for a claim."
Murray, 477 U.S. at 488, 106 S.Ct. at 2645.
In sum, the district court's finding that Glover was aware of
the basis for his claims is supported by the evidence. Glover has
not shown, as the Court required in Murray, that the denial of the
transcript precluded him from developing a factual or legal basis
for a claim.5
III.
Finally, Glover has not established that a "fundamental
4
"We believe our decision in Duhon [v. Whitley, 642 So.2d 1273
(La.1994) ] provides additional assistance to inmates facing the
constraints of Art. 930.8 by ensuring that a petitioner who timely
files an application for post conviction relief will, in the
discretion of the trial court and when justice requires it, have
the opportunity to amend and supplement his application." Glover,
660 So.2d at 1197 n. 8.
5
Because we find that Glover has failed to show cause for his
procedural default, we need not consider whether he suffered actual
prejudice. See Glover v. Hargett, 56 F.3d 682, 684 (5th Cir.1995).
8
miscarriage of justice" will occur if his claim is deemed time
barred. In order to prove a fundamental miscarriage of justice,
the prisoner must assert his actual innocence. Glover v. Hargett,
56 F.3d 682, 684 (5th Cir.1995). Glover has not raised that claim
here.
AFFIRMED.
9