United States Court of Appeals,
Fifth Circuit.
No. 94-60846.
John LOTT, Petitioner-Appellant,
v.
Edward M. HARGETT, Superintendant, Mississippi State
Penitentiary, Respondent-Appellee.
April 16, 1996.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before POLITZ, Chief Judge, and GOODWIN1 and DUHÉ, Circuit Judges.
GOODWIN, Circuit Judge:
John Lott, a Mississippi state prisoner, appeals a judgment
denying habeas corpus relief in his petition claiming that his
guilty plea was not taken in accordance with federal constitutional
standards. We affirm the judgment.
PROCEDURAL HISTORY
On September 23, 1982, in the Circuit Court of Simpson County,
Mississippi, Lott pled guilty to one count of rape. The State
dropped a second count of rape and one other unspecified charge in
consideration for Lott's guilty plea. The State recommended, and
the court imposed, a life sentence.
In September, 1990, Lott filed a "Motion to Suspend, Reduce or
Modify Sentence" in the sentencing court under the Mississippi Post
Conviction Relief Act (Miss.Code Ann. § 99-39-1 et seq.). At his
1
Circuit Judge for the Ninth Circuit, sitting by
designation.
1
hearing, Lott successfully argued that his life sentence was
illegal under Miss.Code Ann. § 97-3-65, which authorized only a
jury to recommend a life sentence for rape. The court vacated the
life sentence and resentenced Lott to forty years, beginning on
September 23, 1982. This sentence complies with the holding in
Luckett v. State, 582 So.2d 428, 430 (Miss.1991), that a trial
judge must sentence a convicted rapist to a term reasonably
expected to be less than life absent a jury recommendation for a
life sentence. The court also reviewed the transcript of the 1982
sentencing hearing and rejected Lott's claim that he did not
knowingly, intelligently, and voluntarily enter his guilty plea.
On December 21, 1990, Lott filed with the Simpson County
Circuit Court a "Motion to Amend or Alter Judgment." He repeated
his claim, raised initially in the "Motion to Suspend, Reduce or
Modify Sentence," that his attorney at the 1982 sentencing hearing
misled him into believing that the State would recommend, and the
court would accept, a twenty-year sentence in exchange for a guilty
plea. Lott alleged that he would not have pled guilty had he known
he could receive a life sentence, but would have proceeded to trial
on two counts of rape and one other unspecified charge. Lott
further argued that the circuit court erred on resentencing by
failing to question him personally as to whether he still wanted to
plead guilty to the rape charge. He alleged that the circuit court
violated the constitutional standards for the taking of guilty
pleas set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709,
23 L.Ed.2d 274 (1969).
2
The court denied post-conviction relief on October 25, 1991.
The court gave three reasons: 1) the three-year statute of
limitations set forth in § 99-39-5(2) barred consideration of the
motion; 2) § 99-39-23(6) barred consideration of the motion as a
successive motion because it was the second motion filed for
post-conviction collateral relief; and 3) the forty-year sentence
was legal and valid as one reasonably expected to be less than
life.
Lott appealed to the Mississippi Supreme Court. First, he
claimed that the circuit court erred in finding his motion to be
procedurally barred under §§ 99-39-5(2), 99-39-23(6). Second, he
claimed that his December, 1990 "new guilty plea" was not made
knowingly, intelligently and voluntarily pursuant to the mandates
of Uniform Circuit Court Criminal Rule 3.03 and Boykin. Finally,
he alleged ineffective assistance of counsel.
The Mississippi Supreme Court affirmed the denial of
post-conviction relief without written opinion. Lott v. State, 622
So.2d 1269 (Miss.1993).
On March 10, 1994, Lott filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 in the United States District Court
for the Southern District of Mississippi. The sole issue presented
in the petition was whether Lott knowingly, intelligently and
voluntarily entered his guilty plea. On December 8, 1994, the Hon.
William H. Barbour adopted the recommendation of the magistrate
judge that the petition be dismissed with prejudice as procedurally
barred from federal review.
3
Lott timely filed his notice of appeal on December 14, 1994
and Judge Barbour issued a certificate of probable cause for the
appeal on December 16, 1994.
I. LOTT'S CLAIMS ARE PROCEDURALLY BARRED.
Federal habeas review is barred 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, unless the
prisoner can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or that
failure to consider the claims will result in a fundamental
miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 751,
111 S.Ct. 2546, 2565-66, 115 L.Ed.2d 640 (1991). To prevent
federal habeas review, a state procedural bar "must be independent
of the merits of the federal claim and adequate in the sense of not
being unconstitutional, or arbitrary, or pretextual." Young v.
Herring, 938 F.2d 543, 548 n. 5 (5th Cir.1991) (en banc), cert.
denied, 503 U.S. 940, 112 S.Ct. 1485, 117 L.Ed.2d 627 (1992)
(internal quotations and citations omitted). Where the last
reasoned state court opinion on a federal claim explicitly imposes
a procedural default, there is a presumption that a later decision
rejecting the same claim without opinion did not disregard the
procedural bar and consider the merits. Ylst v. Nunnemaker, 501
U.S. 797, 803, 111 S.Ct. 2590, 2594-95, 115 L.Ed.2d 706 (1991).
The Mississippi Supreme Court affirmed the Simpson County
Circuit Court's denial of post-conviction collateral relief without
opinion. Pursuant to Ylst, we must "look through" the Mississippi
4
Supreme Court's affirmance and "begin by asking which is the last
explained state-court judgment...." Id. at 804, 805, 111 S.Ct. at
2595, 2596. Coleman bars federal review of Lott's claims if the
last explained state-court judgment rested on an independent and
adequate state procedural rule, unless Lott can meet his burden of
establishing cause and prejudice, or a fundamental miscarriage of
justice. The last explained state-court judgment in this case was
Simpson County Circuit Judge Goza's denial of post-conviction
collateral relief.
Judge Goza found Lott's Motion to Amend or Alter Judgment
procedurally barred by Miss.Code Ann. §§ 99-39-5(2) and 99-39-
23(6).2 Lott has not offered any meaningful arguments impeaching
these statutes as unconstitutional, arbitrary, or pretextual. See
Luckett v. State, 582 So.2d 428 (Miss.1991). Furthermore, Judge
Goza determined that Lott's new sentence of forty years was valid
under Mississippi law. The court did not reach the merits of
Lott's federal guilty plea claim.
A. § 99-39-23(6) Is An Adequate State Procedural Rule And Bars
Federal Habeas Review.
2
§ 99-39-5(2) provides that "[a] motion for relief under
this chapter shall be made ... in the case of a guilty plea,
within three (3) years after entry of the judgment of
conviction." Odom v. State, 483 So.2d 343 (Miss.1986), held that
any prisoner who, like Lott, pled guilty before the enactment of
the statute on April 17, 1984 had until April 17, 1987 to move
for post-conviction collateral relief.
§ 99-39-23(6) provides that "any order dismissing the
prisoner's motion or otherwise denying relief under this
chapter is a final judgment and shall be conclusive until
reversed. It shall be a bar to a second or successive
motion under this chapter."
5
Lott may have intended to petition for rehearing when he
filed his "Motion to Amend or Alter Judgment," which Judge Goza
found procedurally barred, because the judge who heard Lott's
"Motion to Suspend, Reduce or Modify Sentence" nine days earlier
did not allow Lott to retract his guilty plea. In any case, Lott
offers no argument that § 99-39-23(6) is a constitutionally
inadequate procedural bar, nor that he can show cause and prejudice
or a fundamental miscarriage of justice to override the procedural
bar. See Coleman, supra. Thus, Judge Goza's finding that Lott's
motion was barred as a successive motion under § 99-39-23(6)
operates to bar federal habeas review of the substantive claims
raised in the motion.
B. § 99-39-5(2) Is A Constitutionally Adequate Procedural Bar.
Lott claims that Mississippi courts do not regularly apply
the three-year time limitation of § 99-39-5(2). A procedural bar
is not adequate unless it has been "consistently or regularly
applied." Johnson v. Mississippi, 486 U.S. 578, 589, 108 S.Ct.
1981, 1988, 100 L.Ed.2d 575 (1986). A state procedural bar is
adequate if courts have applied it in "the vast majority of cases."
Dugger v. Adams, 489 U.S. 401, 411 n. 6, 1217 n. 6, 103 L.Ed.2d 435
(1989). 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. Sones v. Hargett, 61 F.3d
410, 416 (5th Cir.1995).
Lott cites Luckett, which held that a petitioner who has been
denied due process in sentencing was excepted from the three-year
6
time limit to petition for post-conviction relief. The Luckett
court stated, "[e]rrors affecting fundamental constitutional rights
may be excepted from the procedural bars which otherwise prohibit
their consideration, and this case discloses a denial of due
process in sentencing." Id. at 430. The Luckett exception thus
allows the state circuit court to consider the merits in a limited
class of cases. A court must examine a petitioner's claim to
determine whether there are fundamental constitutional rights at
stake before it can dismiss a petition as procedurally barred.
But, it does not follow that Luckett has eliminated consistent
application of § 99-39-5(2). Sones v. Hargett, 61 F.3d 410 (5th
Cir.1995). In Sones, at 417, we said:
[T]he [Luckett ] court indicated, as it has in other contexts,
that the limitations rule would not prohibit the court from
noticing plain errors. We have held, however, that noticing
plain error does not "detract from the consistency of ... the
[procedural] rule." Instead, the issue is whether Mississippi
has been consistent in its application of the limitations rule
to "classes of claims" such as Sones's. Our independent
review of all the published state decisions citing section 99-
39-5(2) indicates that the Mississippi Supreme Court has
consistently applied the time bar to claims of ineffective
assistance of counsel at trial. Id. at 417 (internal
citations omitted).
When it vacated Lott's life sentence and resentenced him to
forty years, the sentencing court was applying a remedial statute
and there was no procedural bar. When the sentencing court denied
post conviction relief with respect to Lott's ineffective
assistance of counsel and guilty plea claims, it was making orders
which, if not appealed, could result in future claims being barred
by procedural default. In any case, Sones validates § 99-39-5(2)
as an adequate procedural bar.
7
C. Lott's Three-Year Time Limit Under § 99-39-5(2)
Lott argues that the three-year time limit of § 99-39-5(2)
did not begin to run until he was lawfully sentenced in December,
1990. He concedes that the circuit court could have dismissed his
first petition for post-conviction collateral relief as untimely
pursuant to § 99-39-5(2). However, Lott argues, because the court
considered his claim that his life sentence was erroneous, and
because the court resentenced him, his follow-up "Motion to Amend
or Alter Judgment" was not barred under the statute because the
three years began to run anew from the date on which he was
resentenced.
We have found no authority addressing whether the three-year
limit begins anew when a petitioner is resentenced. However, the
plain language of the statute does not support Lott's construction.
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 the case of a guilty plea, within
three (3) years after entry of the judgment of conviction.
Miss.Code Ann. § 99-39-5(2) (emphasis added).
The legislature specifically mentioned sentencing as a
reference point from which the three-year time limit begins to run
in a case where no appeal is taken. Because the statute does not
mention sentencing, but only conviction, as the point at which the
three-year limit begins to run in case of a guilty plea; and
because it specifically mentions sentencing with respect to cases
in which no appeal is taken; the logical inference is that the
time of sentencing is irrelevant for the purposes of § 99-39-5(2)'s
8
three-year time limit in case of a guilty plea. Thus, Lott's
window of opportunity did not reopen in December, 1990.
D. Lott Cannot Avail Himself of the "Cause and Prejudice"
Lott has not shown and cannot show cause and prejudice.
"Although we liberally construe the briefs of pro se appellants, we
also require that arguments must be briefed to be preserved."
Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988)
(citations omitted). He offers no explanation for failing to file
his motion for post-conviction collateral relief on time.
Moreover, while he claims ineffective assistance of counsel at
sentencing, he does not allege that the ineffective assistance
caused the procedural default. See Murray v. Carrier, 477 U.S.
478, 488-89, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986)
(holding that ineffective assistance of counsel is cause for a
procedural default).
E. Lott Has Suffered No "Fundamental Miscarriage of Justice."
Finally, Lott cannot avail himself of the "fundamental
miscarriage of justice" exception to the general "cause and
prejudice" test. See Coleman, 501 U.S. at 751, 111 S.Ct. at 2565;
Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575-76, 71
L.Ed.2d 783 (1982). This exception applies "in an extraordinary
case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent...." Murray, 477 U.S.
at 496, 106 S.Ct. at 2649-50. Lott stated to the trial court that
he agreed with the State's description of the crime, that he had
nothing to add, and that he did commit the rape. St.R. 40-41. He
9
has never claimed that he is actually innocent of the crime.
II. LOTT'S GUILTY PLEA CLAIM FAILS ON THE MERITS.
Lott claims that he should be permitted to retract his guilty
plea because it was not knowingly, intelligently and voluntarily
entered. He argues specifically that because the trial court
sentenced him to life imprisonment, and because that sentence was
later reduced to forty years, his guilty plea was rendered
constitutionally suspect. He primarily relies on Mallett v. State,
592 So.2d 524 (Miss.1991), which held that a guilty plea is not
knowingly, intelligently and voluntarily entered when the trial
court fails to advise the accused of the proper minimum and maximum
penalties provided by law. Similarly, he cites Vittitoe v. State,
556 So.2d 1062 (Miss.1990), a case holding that a guilty plea is
not voluntary where the court fails to advise the defendant of
mandatory minimum sentences.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969), requires that a trial judge "canvass[ ] the matter with the
accused to make sure he has a full understanding of what the
[guilty] plea connotes and of its consequence." Id. at 244, 89
S.Ct. at 1712. Boykin involved a trial court sentencing to death
a defendant who pled guilty to five counts of common law robbery
without asking the defendant any questions concerning his plea.
Lott correctly points out that the trial court misinformed him as
to the possibility of receiving a life sentence, but that defect
was cured later when his sentence was reduced to forty years. The
record reflects that the trial judge painstakingly warned Lott that
10
the court was not bound by the State's sentencing recommendation,
nor would it necessarily be lenient in exchange for Lott's guilty
plea. The trial judge amply fulfilled his obligations under Boykin
and Uniform Circuit Court Criminal Rule 3.03 governing the taking
of guilty pleas.
No prejudice resulted from the trial court's erroneous life
sentence. While Lott claims that he would not have pled guilty had
he known that the judge could not have sentenced him to life, he in
fact accurately weighed the risk of going to trial. For had he
gone to trial, the jury could have imposed life sentences on the
two counts of rape that would have been charged. Moreover, if the
jury recommended life sentences on both counts, the sentences could
have been imposed consecutively. Thus, the error in the
calculation caused by the trial court misinforming Lott as to his
maximum sentence actually benefited Lott in the end. The trial
court's mistaken sentencing of Lott did not deprive him of "a full
understanding of what the plea connote[d] and of its consequence."
Boykin, 395 U.S. at 244, 89 S.Ct. at 1712.
III. LOTT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Lott's ineffective assistance of counsel claim must be
rejected even if it is not procedurally barred. Lott contends that
he was denied effective assistance of counsel as required by the
Sixth Amendment because his counsel failed to advise him that the
trial court could not legally sentence him to life, and because he
allegedly promised Lott a twenty-year sentence for pleading guilty.
In support of this contention, Lott repeats his claim that although
11
he pled guilty on the understanding that he could have been
sentenced to life, he would not have pled guilty had he been
advised properly that the judge could only sentence him to a term
reasonably expected to be less than life.
Strickland v. Washington sets the standard whereby courts
judge whether a defendant was denied effective assistance of
counsel. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Strickland provides that in order to reverse a conviction,
"[f]irst, the defendant must show that counsel's performance was
deficient.... Second, the defendant must show that the deficient
performance prejudiced the defense." Id. at 687, 104 S.Ct. at
2064. Whether counsel's performance was deficient "depends on
whether counsel's advice "was within the range of competence
demanded of attorneys in criminal cases.' " Hill v. Lockhart, 474
U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting
McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25
L.Ed.2d 763 (1970)). To satisfy the prejudice prong of Strickland,
a "defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at
694, 104 S.Ct. at 2068. The Strickland court further provided that
"[i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed." Id. at 697, 104 S.Ct. at
2069.
Lott's trial counsel's assistance may very well have been
12
constitutionally deficient at sentencing because he failed to
object when the trial court sentenced Lott to life in prison.
Counsel could have and probably should have objected on the grounds
of a 1975 case, Lee v. State, 322 So.2d 751 (Miss.1975), which
clearly states that a trial judge may not give a life sentence to
a defendant who has pled guilty to rape. However, the prejudice
which Lott suffered as a result of counsel's failure to cite Lee
was cured when Lott was resentenced. As a result, this claim is
now moot.
Lott claims that his attorney indicated to him at some point
that the State would recommend and the court would accept a
twenty-year sentence. Even if this were true, the record
establishes that the trial court cautiously and meticulously
dispelled any such notions. The trial judge asked Lott the
following five questions: 1) whether anyone led him to believe
that the State's recommendation would be anything less than life
imprisonment; 2) whether he understood that the maximum sentence
was life; 3) whether anyone made any promises or threats to induce
his plea; 4) whether he understood that the court was not bound by
the State's recommendation; and 5) whether anyone represented to
him that the court would be "lighter" on him for pleading guilty.
Lott answered "no" to all of these questions, and further stated to
the court that he was satisfied with his attorneys' services and
that they had not promised him anything to make him plead guilty.
See St.R. 38-48. A defendant's solemn declarations in court carry
a strong presumption of truth. Blackledge v. Allison, 431 U.S. 63,
13
74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). These
circumstances not only imply that Lott's counsel did not promise
him a twenty-year sentence, but also a clear lack of prejudice even
if he had.
CONCLUSION
We AFFIRM the district court's dismissal with prejudice of
Lott's Petition for Writ of Habeas Corpus.
14