UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-60126
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GARY LEE MOORE,
Petitioner-Appellant,
versus
EDWARD HARGETT, SUPERINTENDENT OF MISSISSIPPI
STATE PENITENTIARY; MICHAEL C. MOORE, Attorney
General, State of Mississippi,
Respondent-Appellees.
__________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
__________________________________________________
May 10, 1996
Before WISDOM, EMILIO M. GARZA, and PARKER, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Petitioner Gary Lee Moore filed a habeas corpus petition
pursuant to 28 U.S.C. § 2254(b) challenging several prior
convictions which were used to enhance a new sentence. The
district court rejected Moore's challenge as procedurally barred
for untimeliness, and alternatively as being without merit. We
affirm.
I
In 1991, Moore was convicted of burglary in a Mississippi
state court. At sentencing, the judge enhanced Moore's sentence,
finding that Moore's prior convictions in 1983 for burglary and
forgery rendered him a habitual offender under Mississippi law.
Moore is currently serving this sentence.
After the sentencing hearing, Moore sought post-conviction
relief in Mississippi state court, requesting the court to dismiss
his 1983 convictions on the basis that his guilty pleas upon which
the convictions were based were obtained in violation of his
constitutional rights.1 The state circuit court dismissed his
petition on the sole basis that Moore's challenge was untimely
because he failed to bring his post-conviction challenge within the
statutory time period "after entry of judgment of conviction."2
Moore appealed this decision to the Mississippi Supreme Court,
which denied his petition for a writ of mandamus that would have
directed the district court to consider the merits of his claim.
After exhausting his state remedies, Moore filed this habeas
petition in federal district court. The district court assigned
the matter to a magistrate, who recommended that the court deny
Moore's claim because the state circuit court dismissed his
petition on the "independent and adequate" ground that he failed to
follow state procedural rules, thereby barring federal review, or,
alternatively, because even if his petition was timely, his claims
lack merit. The district court conducted a de novo review and
1
Specifically, Moore contends that the court failed to inform him of
the possible minimum sentence that he could receive for these crimes and failed
to state explicitly that Moore had the right to be free from self-incrimination.
2
Miss. Code Ann. § 99-39-5(2) (Supp. 1995).
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adopted the magistrate's recommendation. Moore filed a timely
notice of appeal.
II
The Mississippi courts dismissed Moore's petition because he
failed to file his petition within the time period required by the
Mississippi Uniform Post-Conviction Collateral Relief Act
(UPCCRA).3 The UPCCRA, which became effective in 1984, provides:
A motion for relief under this chapter shall be made
within three (3) 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).4 With respect to defendants like
Moore who were convicted before the effective date of the UPCCRA,
the three year time limit runs from the effective date of the
UPCCRA, thereby giving Moore until 1987 to raise his appeal.5
Patterson v. State, 594 So. 2d 606, 607-08 (Miss. 1992).
When a state court decision rests on a state law ground that
3
Miss. Code Ann. § 99-39-5(2) (Supp. 1995).
4
The statute also provides several exceptions for situations in which
the Mississippi or United States Supreme Court renders a decision that would have
adversely affected his conviction, the defendant discovers new evidence, not
reasonably discoverable at trial, that would have resulted in a different
outcome, or the defendant claims his sentence is expired or his parole has been
unlawfully revoked. Moore, however, does not claim that any of these exceptions
apply.
5
Under Mississippi law, a defendant cannot attack prior convictions
used as a basis for an enhanced sentence during the sentencing hearing; rather,
the defendant must bring a post-conviction petition for relief from the prior
convictions. Sones v. Hargett, 61 F.3d 410, 418 n.14 (5th Cir. 1995) (citing
Phillips v. State, 421 So. 2d 476, 481 (Miss. 1982)).
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is independent of a federal question and adequate to support the
judgment, federal courts lack jurisdiction to review the merits of
the case. Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546,
2553, 115 L. Ed. 2d 640 (1991). The independent and adequate state
ground doctrine "applies to bar federal habeas when a state court
decline[s] to address a prisoner's federal claims because the
prisoner ha[s] failed to meet a state procedural requirement." Id.
at 729-20, 111 S. Ct. at 2554.
For the independent and adequate state ground doctrine to
apply, the state courts adjudicating a habeas petitioner's claims
must explicitly rely on a state procedural rule to dismiss the
petitioner's claims. Sones, 61 F.3d at 416. 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,
however, can rebut this presumption by establishing that the
procedural rule is not "strictly or regularly followed." Id. Even
if the state procedural rule is strictly and regularly followed,
the defendant still can prevail by demonstrating "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, 501
U.S. at 750, 111 S. Ct. at 2565.
In Sones, a panel of the Fifth Circuit stated in dicta that
"it is arguable" that a state procedural bar that prevents a
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defendant, such as Moore, from challenging prior convictions that
occurred before 1984, but are subsequently used to sentence a
defendant as a habitual offender, "may not be considered an
independent and adequate state ground to bar federal relief."
Sones, 61 F.3d at 418 n.14. The court reasoned that this might be
so because the procedural bar would not provide an "opportunity at
or after the enhancement proceeding for collateral relief from the
new use of prior convictions," which the Seventh Circuit had
recently held was necessary. Id. (citing Smith v. Farley, 25 F.3d
1363, 1369-70 (7th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.
Ct. 908, 130 L. Ed. 2d 791 (1995); Tredway v. Farley, 35 F.3d 288,
294 (7th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 941,
130 L. Ed. 2d 885 (1995)). However, the court in Sones
specifically noted that this issue was not before it. Id.
In Smith and Tredway, the Seventh Circuit held that "`the
systemic concerns of both fairness and efficiency'" require that
"`if a defendant does not have access to a fair procedure in a
state court affording him a review, on the merits, of the
constitutionality of a prior conviction after it has been
incorporated into a new, enhanced sentence, a federal court may
properly grant him such review.'" Tredway, 35 F.3d at 293 (citing
Smith, 25 F.3d at 1367-68)); see Smith, 25 F.3d at 1368-69
(describing fairness and efficiency concerns). The Seventh Circuit
distinguished Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct.
2546, 2565, 115 L. Ed. 2d 640 (1991), on the ground that the
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petitioner in Coleman had not been "sentenced under a state
recidivist statute and was not collaterally challenging a prior
conviction which had been used to enhance his present sentence."
Tredway, 35 F.3d at 294. Therefore, the court concluded, the
Supreme Court had not considered the fairness and efficiency
concerns that compelled the court's decision in Farley. Id.
The Seventh Circuit's reasoning ignores the concerns of comity
and federalism that underlie the adequate and independent state
ground doctrine. See Coleman, 501 U.S. at 730, 111 S. Ct. at 2554
(stating that the doctrine is grounded in comity and federalism
concerns). The Coleman court noted that without the independent
and adequate state ground doctrine, a federal habeas court could
release a prisoner held pursuant to a state court judgment that
rests on an independent and adequate state ground, thereby
rendering ineffective the state procedural rule just as completely
as if the Supreme Court had reversed the state judgment on direct
review. Id. Without the doctrine, state prisoners whose custody
was supported by an independent and adequate state ground would be
entitled to an "end run around the limits of [the federal courts']
jurisdiction and a means to undermine the State's interest in
enforcing its laws." Id.
The Coleman Court noted there are also comity concerns that
arise when the independent and adequate state law ground is a
procedural default.
This Court has long held that a state prisoner's federal
habeas petition should be dismissed if the prisoner has
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not exhausted available state remedies as to any of his
federal claims. This exhaustion requirement is also
grounded in principles of comity; in a federal system,
the States should have the first opportunity to address
and correct alleged violations of state prisoner's
federal rights. . . . "The exhaustion doctrine is
principally designed to protect the state courts' role in
the enforcement of federal law and prevent disruption of
state judicial proceedings." . . . . Just as in those
cases in which a state prisoner fails to exhaust state
remedies, a habeas petitioner who has failed to meet the
State's procedural requirements for presenting his
federal claims has deprived the state courts of an
opportunity to address those claims in the first
instance. A habeas petitioner who has defaulted his
federal claims in state court meets the technical
requirements for exhaustion; there are no state remedies
any longer "available" to him. In the absence of the
independent and adequate state ground doctrine in federal
habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims
in state court. The independent and adequate state
ground doctrine ensures that the States' interest in
correcting their own mistakes is respected in all federal
habeas cases.
Id. at 731-32, 111 S. Ct. at 2554-55 (emphasis added) (quoting Rose
v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203, 71 L. Ed. 2d
379 (1982)).
In addition to ignoring federalism and comity concerns, the
Seventh Circuit's conclusion that the Coleman decision does not
"encompass all collateral challenges to prior convictions used to
enhance subsequent sentences" creates finality problems and a
preference for repeat offenders. Tredway, 35 F.3d at 294. The
Supreme Court has emphasized that "principles of finality
associated with habeas corpus actions apply with at least equal
force when a defendant seeks to attack a previous conviction used
for sentencing." Custis v. United States, ___ U.S. ___, ___, 114
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S. Ct. 1732, 1739 (1994). The Seventh Circuit rule would bar a
state prisoner's appeal of an initial habeas ruling because he
filed the appeal on day late, yet allow that same defendant the
opportunity to challenge that same conviction many years later once
that defendant had committed another crime. As noted by Judge
Trott of the Ninth Circuit, it is not "necessary to bend over
backwards to the point of standing on our heads to indulge repeat
offenders whose 'standing' to reopen closed cases is based on
having committed another criminal offense." United States v.
Davis, 15 F.3d 902, 917 (9th Cir.) (Trott, J., concurring in part,
dissenting in part), withdrawn and superseded by 36 F.3d 1424 (9th
Cir. 1994).
We conclude that the Supreme Court in Coleman intended the
independent and adequate state ground doctrine to encompass "all
federal habeas cases" including those in which a prisoner
challenges a prior conviction that was subsequently been used to
enhance a prisoner's sentence.6 The Mississippi circuit court
dismissed Moore's suit under the UPCCRA as being untimely on its
face; thus, it is clear that the state expressly relied on a
procedural rule to dismiss Moore's challenge, raising the
presumption that the UPCCRA qualifies as an independent and
adequate state ground to bar federal review of Moore's claim.
6
We recognize that the Supreme Court has recently suggested that the
issue of whether due process mandates that states "allow recidivism defendants
to challenge prior guilty pleas" is unresolved. Parke v. Raley, 502 U.S. 20, 28,
113 S. Ct. 517, 523, 121 L. Ed. 2d 391 (1992).
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Moore contends that the UPCCRA is not an independent and adequate
state ground because it is not strictly and regularly enforced.
After reviewing the cases in which the Mississippi courts have
applied the UPCCRA, we do not find any evidence that the
Mississippi courts have applied the UPCCRA in an inconsistent
manner.7
Moore also attempts to overcome the bar to federal review of
his claim by demonstrating cause for his procedural default and
prejudice stemming from the alleged constitutional errors. Cause
is defined as "something external to the petitioner, something that
cannot fairly be attributed to him" that impedes his efforts to
comply with the procedural rule. Coleman, 501 U.S. at 753, 111 S.
Ct. at 2566. Moore's stated excuse for his procedural default is
that he is challenging these prior convictions only to reduce his
enhanced 1991 sentence, an issue that did not arise until after his
1991 conviction. This argument, however, fails to explain why
Moore failed to challenge his 1983 guilty pleas within the
statutory time period. Moore had until 1987 to raise these claims,
yet failed to do so. The fact that he was not interested in
7
See e.g., Fortson v. Hargett, 662 So. 2d 633, 635 (Miss. 1995)
(applying the parole exception of § 99-39-5(2) to hold that the time bar did not
apply); Lockett v. State, 656 So. 2d 68, 71 (Miss.) (upholding the application
of the time bar to a collateral appeal by a death row inmate), cert. denied, ___
U.S. ___, 115 S. Ct. 2595, 132 L. Ed. 2d 29 (1995); Brown v. State, 643 So. 2d
937, 938-39 (Miss. 1994); Campbell v. State, 611 So. 2d 209, 210 (Miss. 1992);
Cole v. State, 608 So. 2d 1313, 1317 (Miss. 1992), cert. denied, ___ U.S. ___,
113 S. Ct. 2936, 124 L. Ed. 2d 685 (1993); Patterson, 594 So. 2d at 608 (barring
the defendant's claim as time barred because three years had passed and no
fundamental constitutional right was involved in the claim); Luckett v. State,
582 So. 2d 428, 430 (Miss. 1991). Notably, this Court reached the same
conclusion in Sones, 61 F.3d at 417-18.
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implementing a challenge until after he had committed more crimes
is not an objective, external factor that impeded his ability to
raise these claims within Mississippi's time period. Herbst v.
Scott, 42 F.3d 902, 905-06 (5th Cir.), cert. denied, ___ U.S. ___,
115 S. Ct. 2590, 132 L. Ed. 2d 838 (1995). Accordingly, we find
that Moore has not established cause for his failure to comply with
§ 99-39-5(2). Because we decide that no cause exists, we need not
inquire into actual prejudice. Herbst, 42 F.3d at 906. Moore has
failed to allege or demonstrate that a failure to consider his
claims will result in a fundamental miscarriage of justice.
Therefore, we hold that we lack jurisdiction to consider Moore's
claims because they were dismissed on an independent and adequate
state ground.
III
For the foregoing reasons, we AFFIRM the decision of the
district court.
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