IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60542
Summary Calendar
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PATRICK BERRY,
Petitioner-Appellant,
versus
RAYMOND ROBERTS, Superintendent,
Mississippi State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:93CV742BN
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May 3, 1996
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Mississippi prisoner Patrick Berry appeals the district
court's denial of his federal habeas corpus petition. Berry's
appeal may not proceed unless this court grants a certificate of
probable cause to appeal (CPC). 28 U.S.C. § 2253; see FED. R.
APP. P. 22(b). The court issues a CPC when the petitioner makes
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 95-60542
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a substantial showing of the denial of a federal right. Barefoot
v. Estelle, 463 U.S. 880, 893 (1983).
Berry's federal habeas petition alleges that his guilty plea
was involuntary because he did not understand the consequences of
his plea and his attorney was ineffective for advising him to
plead guilty instead of challenging the indictment on speedy
trial grounds. The district court dismissed Berry's petition
without addressing his argument that counsel should have moved to
dismiss the indictment on speedy trial grounds. Although Berry
did not timely file a notice of appeal, he filed a FED. R. CIV. P.
60(b) motion for reconsideration within the time for filing an
appeal. In light of the extraordinary circumstance that the
district court failed to address a potentially meritorious legal
argument raised in both Berry's pleadings and his objections to
the magistrate judge's recommendation, the district court abused
its discretion by denying the Rule 60(b) motion. Batts v. Tow-
Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995); Harrison v.
Byrd, 765 F.2d 501, 503 (5th Cir. 1985). According, Berry's
motion for a CPC is GRANTED and the matter is VACATED AND
REMANDED to the district court. Clark v. Williams, 693 F.2d 381,
382 (5th Cir. 1982).
On remand, the district court should consider whether, by
failing to raise the issue at the proper time, the respondent
waived exhaustion of Berry's argument that counsel was
ineffective for failing to present a speedy trial defense. McGee
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v. Estelle, 722 F.2d 1206, 1213-14 (5th Cir. 1984)(en banc); see
Nelson v. Hargett, 989 F.2d 847, 850-51 (5th Cir. 1993); Smith v.
State, 550 So.2d 406, 408 (Miss. 1989). The district court
should also consider whether Berry's ineffective counsel claim is
procedurally barred under MISS. CODE ANN. § 99-39-5(2), or whether
the state forfeited its right to impose the § 99-39-5(2)
procedural bar because no state court has denied Berry relief
based on his procedural default. Sones v. Hargett, 61 F.3d 410,
416-18 (5th Cir. 1995); see Teague v. Lane, 489 U.S. 288, 299
(1989); see also Wiggins v. Procunier, 753 F.2d 1318, 1321 (5th
Cir. 1985).
The state court papers submitted by the respondent appear to
be incomplete, and it is impossible from the current record to
evaluate the merits of Berry's ineffective counsel argument or
his claim that counsel's advice to plead guilty without
challenging the indictment on speedy trial grounds rendered his
plea involuntary. On remand, the district court should direct
the parties to brief the issues of exhaustion and procedural bar
and direct the respondent to supplement Berry's state court
papers. The court may find it necessary to obtain an affidavit
from Berry's attorney and/or hold an evidentiary hearing to
explore the ineffective counsel/speedy trial issue. We note that
we have reviewed Berry's argument that his guilty plea was
involuntary because he misunderstood the penalty involved and
find it frivolous. As to that issue, we affirm.
No. 95-60542
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MOTION GRANTED.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.