[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 13, 2006
No. 05-16646 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-01097-CV-WHA-VPM
DANIEL SIEBERT,
Petitioner-Appellant,
versus
RICHARD F. ALLEN,
Commissioner, Alabama Department
of Corrections,
CHARLIE E. JONES, Warden,
TROY KING,
The Attorney General of the
State of Alabama,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(July 13, 2006)
Before TJOFLAT, BARKETT, and WILSON, Circuit Judges.
BARKETT, Circuit Judge.
Daniel Siebert appeals the district court’s dismissal of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. On appeal, Siebert argues that the
district court erred by dismissing his petition on the ground that his claims were
procedurally defaulted. He further argues that even if his claims were procedurally
defaulted, he demonstrated cause and prejudice sufficient to overcome the default.
In 1987, Siebert was convicted of killing Sherri, Joseph, and Chad Weathers
and sentenced to death by electrocution. His conviction and sentence were upheld
on direct appeal. See Siebert v. State, 555 So. 2d 772 (Ala. Crim. App. 1989),
aff’d, Ex parte Siebert, 555 So. 2d 780 (Ala. 1989). Siebert filed a petition for
relief from his conviction and death sentence under Ala. R. Crim. P. 32 in 1992. A
two year statute of limitations governed the filing of Rule 32 petitions from the
time the Alabama Court of Criminal Appeal issued a certificate of final judgment.
Siebert’s petition was filed more than two years after the Alabama Court of
Criminal Appeals issued a certificate of final judgment, and it was ultimately
denied on the grounds that it was barred by Alabama’s statute of limitations.
Siebert v. State, 778 So. 2d 842 (Ala. Crim. App. 1999), cert. denied, 778 So. 2d
857 (Ala. 2000).
Siebert then filed a federal habeas corpus petition under 28 U.S.C. § 2254 in
September 2001 claiming that his federal constitutional rights were violated by,
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among other things, his counsel’s failure to investigate and present mitigating
evidence. The State of Alabama moved to dismiss, arguing that consideration of
the petition was barred by the one year statute of limitations in 28 U.S.C. §
2244(d). Siebert responded that the statute of limitations had been tolled pursuant
to § 2244(d)(2) 1 until the Alabama courts disposed of his Alabama Rule 32 petition
and, thus, his federal habeas corpus petition was timely. The district court agreed
with Alabama and summarily dismissed Siebert’s habeas petition, finding that his
Rule 32 petition, which had been filed outside of Alabama’s two year statute of
limitation, had accordingly not been “properly filed,” and therefore did not toll the
federal statute of limitations for §2254 purposes. Siebert v. Haley, 193 F. Supp. 2d
1260, 1272 (M.D. Ala. 2002).
This Court, however, reversed, holding that in the context of § 2244(d)(2)’s
tolling provision, “a rule governing filings must be ‘firmly established and
regularly followed’ before noncompliance will render a petition improperly filed
for the purposes of AEDPA’s tolling provision,” and that Alabama’s Rule 32.2(c)
did not meet that requirement. Siebert v. Campbell, 334 F.3d 1018, 1025 (11th
Cir. 2003) (“Siebert I”). Thus, because the time had been tolled until the Alabama
1
28 U.S.C. § 2244(d)(2) states that “[t]he time during which a properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under this subsection.”
3
Courts ruled on his Rule 32 petition, the federal petition was not barred from
consideration by AEDPA’s statute of limitations, and the matter was remanded to
the district court.
On remand, the district court, after considering the petition, ruled that all of
Siebert’s claims were procedurally defaulted under the authority of Hurth v.
Mitchem, 400 F.3d 857 (11th Cir. 2005), because the state post-conviction petition
had not been timely filed. The district court also held that Siebert was unable to
demonstrate “cause” to excuse his procedural default. Accordingly, the court
denied the petition. Siebert now appeals.2 We affirm because the district court
correctly determined that relief is barred by Hurth.
Federal courts are barred from reaching the merits of a state prisoner’s
federal habeas claim where the petitioner has failed to comply with an independent
and adequate state procedural rule. Wainwright v. Sykes, 433 U.S. 72, 85-86
(1977). When a state court correctly applies a procedural default principle of state
law, federal courts must abide by the state court decision, Harmon v. Barton, 894
F.2d 1268, 1270 (11th Cir. 1990), but only if the state procedural rule is regularly
followed, Ford v. Georgia, 498 U.S. 411, 424 (1991). In Hurth, this Court
2
We review the district court’s dismissal of a petition for writ of habeas corpus de novo.
Drew v. Dep’t of Corrs., 297 F.3d 1278, 1283 (11th Cir. 2002). The district court’s factual
determinations will be reversed only if they are clearly erroneous. Dorsey v. Chapman, 262 F.3d
1181, 1185 (11th Cir. 2001).
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specifically held that the Alabama statute of limitation in Rule 32 is firmly
established and regularly followed for purposes of applying the doctrine of
procedural default. 400 F.3d at 863. Thus, while Siebert I held that Alabama’s
Rule 32 tolled the time for the filing of Siebert’s federal habeas petition under the
tolling provision of § 2244(d), Hurth explicitly held that Alabama’s Rule 32 was
sufficiently firmly established and regularly followed to warrant a procedural
default. Id. Siebert here argues that we are not bound by Hurth’s holding because
the issue in that case was not whether Rule 32 was consistently applied in the
Alabama state courts to the extent necessary to constitute a procedural bar, but only
whether the fact that Rule 32 was not jurisdictional in nature meant that it was not
firmly established and regularly followed. We cannot agree.
The certificate of appealability granted in Hurth was explicitly granted to
decide the issue of whether Rule 32 was consistently applied in the Alabama state
courts to the extent necessary to constitute a procedural bar. Id. at 860 (“Whether
the district court erred in dismissing the claims in appellant’s federal habeas corpus
petition . . . as procedurally defaulted when it is arguable among jurists of reason
that the state’s rationale for failing to reach the merits of appellant’s claims was not
consistently applied.”). Hurth answered this question affirmatively. Id. at 862-63.
Furthermore, Hurth rejected as “error” the precedent of Moore v. Campbell,
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344 F.3d 1313 (11th Cir. 2003), relied on by the petitioner there for the proposition
that Alabama’s time bar rule was inconsistently applied because it had not been
jurisdictional in nature prior to Williams v. State, 783 So. 2d 135 (Ala. Crim. App.
2000). See Hurth, 400 F.3d at 861 (noting that Moore had incorrectly taken the
“jurisdictional criterion from [Siebert I]’s holding” and applied it “into the
different context” of deciding whether a state procedural rule was independent and
adequate). In fact, Hurth concluded – after reviewing the relevant Alabama case
law – that Rule 32 was firmly established and regularly followed even before
Alabama courts had considered the time bar to be jurisdictional. Id. at 862-4. The
district court correctly determined that Hurth is binding precedent, and that
Siebert’s claims are procedurally defaulted.3
Siebert also argues that, even if his claims are procedurally defaulted, he
satisfied an equitable exception to the procedural bar doctrine by showing cause
and prejudice for the default. Specifically, Siebert argues that he did not
personally receive notice of the time that his state postconviction limitations period
began to run, and therefore could not comply with Alabama’s procedural
3
Additionally, one of Siebert’s claims, relating to the failure of his counsel to present
facts that were “critical to a reasoned understanding” of Siebert’s background, was not raised in
Siebert’s Rule 32 petition and is therefore procedurally defaulted for that reason. See Harmon v.
Barton, 894 F.2d 1268, 1270 (11th Cir. 1990) (“[A] state habeas corpus petitioner who fails to
raise his federal constitutional claim in state court is procedurally barred from pursuing the same
claim in federal court absent a showing of cause for and actual prejudice from the default.”).
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requirements. His argument lacks merit.
The existence of sufficient “cause” to justify a procedural default ordinarily
turns 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.”
Murray v. Carrier, 477 U.S. 478, 488 (1986). Here, Siebert’s argument is that the
certificate of judgment issued by the Court of Criminal Appeals “was sent to the
Lee County Circuit Court clerk” but not to him personally. Alabama Rule of
Appellate Procedure 17 obligates the clerk of the Court of Criminal Appeals to
send notice of any order entered in a case to the party’s counsel if the party is
represented by counsel.4 Nothing in this case indicates that state procedural rules,
or any external objective factor, impeded Siebert’s lawyer from complying with the
State procedural rule.
The evidence in the record reflects that the certificate of judgment was
timely issued. Siebert, who was represented by counsel, does not present any
evidence that his counsel did not receive the certificate of judgment or that the
clerk of court failed to comply with the Alabama Rules of Appellate Procedure.
4
Ala. R. App. P. 17 provides, in pertinent part, as follows:
(a) Notice of Orders. Immediately upon the entry of an order the clerk shall serve a
notice of its entry by mail upon each party to the proceeding together with a copy of any
opinion respecting the order, and shall make a note in the docket of the mailing. Service
on a party represented by counsel shall be made on counsel.
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Accordingly, he has not made the requisite showing to prove “cause” sufficient to
justify a procedural default.
AFFIRMED
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