IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20524
Summary Calendar
GRAYLING LAMAR SMITH,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
July 12, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
Grayling Lamar Smith appeals the district court’s dismissal of
his petition for habeas relief. For the following reasons, we
AFFIRM.
I
A jury found Grayling Lamar Smith guilty of possession with
intent to deliver a controlled substance, and he was sentenced to
99 years’ imprisonment. The Texas Court of Appeals affirmed the
conviction and sentence.
Smith filed a state habeas petition in which he alleged that
his appellate counsel was ineffective for failing to advise him
that his direct appeal had been affirmed, which prevented him from
filing a timely petition for discretionary review (PDR). The Texas
Court of Criminal Appeals granted the petition on that claim and
granted Smith leave to file an out-of-time PDR, but then refused
review.
Smith filed a second state habeas petition, in which he argued
that his trial attorney was ineffective for failing to inform him
of the State’s plea offer of twenty-five years’ imprisonment. The
state trial court rejected Smith’s petition on the merits, but the
Texas Court of Criminal Appeals dismissed the petition as
successive pursuant to article 11.07 § 4 of the Texas Criminal
Procedure Code. Smith then filed a third state habeas petition,
which was similarly dismissed.
Smith then filed the instant federal habeas petition in which
he alleged that (1) the evidence was insufficient; (2) his counsel
was ineffective for failing to advise him of a plea offer from the
State, for failing “to advance material witnesses” who were not
present for trial, and for failing to object to the improperly
pleaded enhancement paragraph; and (3) the state trial court had
erred when it failed to suppress evidence seized by the arresting
officer. Smith also argued that his petition was timely filed
because the limitations period was tolled while the second and
third state habeas petitions were pending.
Respondent filed a motion to dismiss the petition as time-
barred, expressly reserving its right to address exhaustion. Smith
opposed the Respondent’s motion. The district court granted
Respondent’s motion and dismissed the petition as time-barred.
Alternatively, the court determined that Smith’s petition failed on
the merits. The district court denied Smith a certificate of
appealability (COA) to appeal.
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In his COA application to this court, Smith made a credible
showing that the district court had erred in applying the
limitations bar. A COA then issued as to whether this court may
sua sponte apply the procedural bar and, if so, whether Smith is
procedurally barred from raising his claim that his trial counsel
failed to convey a plea offer to him; alternatively, if the
procedural bar is not applied, whether the district court erred in
ruling on disputed factual issues relating to whether Smith’s trial
counsel conveyed a plea offer to Smith on the basis of the state
habeas trial court’s findings given that the Texas Court of
Criminal Appeals had dismissed the petition as successive.
II
As a threshold matter, we find that Smith’s notice of appeal
was timely filed. The district court’s judgment was entered on
April 23, 1999. Smith therefore had until Monday, May 24, 1999,
to file a timely notice of appeal. See Fed. R. App. P. 4(a)(1)(A).
Smith’s notice of appeal, filed on May 26, 1999, and only two
business days late, is deemed timely filed because Smith is a pro
se prisoner. See United States v. Young, 966 F.2d 164, 165 (5th
Cir. 1992).
Although Smith’s appeal was timely, we find that his initial
request for habeas relief is procedurally barred. Smith’s claim
that his trial counsel was ineffective for failing to inform him of
the State’s plea offer was first raised in Smith’s second state
habeas application. As noted, the Texas Court of Criminal Appeals
dismissed the petition pursuant to article 11.07 § 4 of the Texas
Criminal Procedure Code. That provision states that a court may
not consider the merits of a subsequent application for habeas
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relief after final disposition of an initial application
challenging the same conviction. See Tex. Crim. P. Code Ann. art.
11.07 § 4.
Smith argues that the Texas Court of Criminal Appeals
incorrectly dismissed his second habeas application as “successive”
because his first habeas application did not actually challenge his
conviction but only challenged the adequacy of Smith’s counsel
post-conviction. Nevertheless, “[a] basic tenet of federal habeas
review is that a federal court does not have license to question a
state court’s finding of procedural default, if based upon an
adequate and independent state ground,” Barnes v. Thompson, 58 F.3d
971 (4th Cir. 1995), and this court has held that article 11.07 §
4 is an adequate and independent state procedural ground to bar
federal habeas review and that it has been strictly and regularly
applied since 1994. See Fearance v. Scott, 56 F.3d 633, 642 (5th
Cir. 1995).
In these circumstances, federal courts ordinarily will not
review questions of federal law because of the adequate and
independent state ground. See Coleman v. Thompson, 501 U.S. 722,
729 (1991). In this case, the procedural bar was not raised in the
district court. However, in Fisher v. State of Texas, 169 F.3d
295, 300-02 (5th Cir. 1999), this court expressly left open the
possibility that this court may, in the appropriate circumstances,
apply the procedural bar sua sponte when the state has waived the
defense in the district court. The relevant concerns are whether
the petitioner has been given notice that procedural default will
be an issue for consideration, whether the petitioner has had a
reasonable opportunity to argue against the application of the bar,
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and whether the State intentionally waived the defense. Id. at
301-02.
The record does not suggest that the Respondent intentionally
waived the defense, and the Respondent in fact relied upon the
general rule that a procedural default in state court bars federal
habeas review in arguing that Smith’s second habeas petition was
not properly filed and, thus, did not toll the limitations period.
Perhaps more importantly, by receiving a COA on the procedural bar
issue, Smith received notice that procedural default would be an
issue for consideration and an opportunity to argue against its
application. In his appellate brief, Smith offers no argument why
this court should not apply the procedural bar. He argues only
that the Texas Court of Criminal Appeals should not have dismissed
his second petition because it was not “successive.”
Given that Smith has been given notice and an opportunity to
respond to the procedural bar and that the State did not
intentionally waive the bar, we deem it appropriate for this court
to apply the procedural bar. See Washington v. James, 996 F.2d
1442, 1451 (2d Cir.1993) (stating that a court of appeals may raise
the procedural bar sua sponte despite the fact that the issue was
not addressed in the district court); cf. Blankenship v. Johnson,
118 F.3d 312, 316 (5th Cir. 1997) (stating that a court of appeals
has discretion to apply Teague despite state waiver); Graham v.
Johnson, 94 F.3d 958, 970 (5th Cir. 1996) (stating that a court of
appeals has discretion to require exhaustion of state court
remedies despite state waiver).
Smith may overcome the state procedural bar only “by
demonstrating (1) cause for the procedural default and actual
prejudice as a result of the alleged violation of federal law or
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(2) that failure to consider his claims will result in a
fundamental miscarriage of justice.” Pitts v. Anderson, 122 F.3d
275, 279 (5th Cir. 1997). “[T]he fundamental miscarriage of
justice exception is confined to cases of actual innocence, where
the petitioner shows, as a factual matter, that he did not commit
the crime of conviction.” Fairman v. Anderson, 188 F.3d 635, 644
(5th Cir. 1999)(internal quotations and citations omitted).
Smith has not shown cause for failing to raise this claim in
his first state habeas petition, and he has not shown that he is
factually innocent. A narcotics officer suspected that Smith was
a drug courier based upon Smith’s actions and demeanor while Smith
waited for a bus at a bus station. A narcotics detection dog
alerted to the presence of narcotics in a shoulder bag carried by
Smith, Smith consented to a search of the bag, and officers found
drugs in the bag. Because Smith has not shown cause for his
procedural default or that he is actually innocent, Smith cannot
avoid the procedural bar.
AFFIRMED.
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