Marks v. Johnson

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________________

No. 97-41178
_______________________

JEROME ALEXANDER MARKS,

Petitioner-Appellant,
v.

GARY L. JOHNSON, Director, Texas Department of
Criminal Justice, Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Texas
(1:94-CV-157)
_________________________________________________________________

July 7, 1999

Before WIENER and PARKER, Circuit Judges, and LAKE,* District
Judge.

PER CURIAM:*

Petitioner, Jerome Alexander Marks, appeals from the district

court’s denial of his petition for writ of habeas corpus.

Respondent, Gary L. Johnson, argues that the district court was

correct and also moves to dismiss the appeal for failure to comply

with appellate filing deadlines. We will deny the motion to

dismiss and affirm the judgment of the district court.

I. BACKGROUND

*
District Judge of the Southern District of Texas, sitting by
designation.
*
Pursuant to 5th Cir. R. 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this opinion should not be published and is not precedent except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 5th Cir. R. 47.5.4.
 A state grand jury indicted Marks for possession of a

controlled substance, pentazocine. He pleaded not guilty and went

to trial in 1986. The state trial court impaneled thirty-six

potential jurors. After voir dire, both Marks and the state used

all of their available peremptory challenges. All of the ten

venire members struck by the state were African-American. The jury

ultimately seated for the trial included two African-Americans.

Marks, who is African-American, objected to the state’s use of
peremptory challenges, claiming that the state exercised its

challenges on the basis of race. The prosecutor replied that the

ages and occupations of the ten challenged venire members motivated

the strikes. The trial court overruled Marks’ objection. The jury

convicted Marks and sentenced him to ten years in prison. The

state court of appeals affirmed. See Marks v. State, 721 S.W.2d

401, 402, 405 (Tex. App. -- Beaumont 1986, no pet.). Marks did not

petition the Texas Court of Criminal Appeals for discretionary

review.

Marks filed two applications for writ of habeas corpus in the

state courts. The Texas Court of Criminal Appeals denied the first

application without written order on February 27, 1991. See Ex

Parte Marks, No. 21,995-01 (Tex. Crim. App. Feb. 27, 1991). It

denied the second application on October 20, 1993. See Ex Parte

Marks, No. 21,995-02 (Tex. Crim. App. Oct. 20, 1993). Marks then

filed a petition for writ of habeas corpus in federal district

court. The district court denied the petition on the recommenda-

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tion of the magistrate judge. The district court entered a final

judgment on August 27, 1997. The district court clerk received

Marks’ notice of appeal on September 29, 1997.

On April 24, 1998, a member of this court granted Marks a

certificate of probable cause limited to Marks’ claims that:

(1) the state’s peremptory strikes were unconstitution-
ally racially motivated, and

(2) defects in the indictment deprived the state trial
court of jurisdiction.
On June 12, 1998, Johnson filed a motion to dismiss, arguing that

the court does not have jurisdiction under 28 U.S.C. § 2107(a) and

Fed. R. App. P. 4(a)(1) because Marks did not timely file notice of

appeal.

II. STANDARD OF REVIEW

Because Marks did not object to the magistrate judge’s

recommendation, we review the findings of fact and conclusions of

law of the magistrate judge for plain error. See Douglass v.

United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)

(en banc). We review fact issues addressed by the district court

for plain error and issues of law de novo. See Mann v. Scott, 41

F.3d 968, 973 (5th Cir. 1994).

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 III. MOTION TO DISMISS

Johnson moves to dismiss Marks’ appeal because Marks did not

timely file his notice of appeal. To invoke the jurisdiction of

this court, appellants must file a timely notice of appeal. See

Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983). Pro se

litigants are not exempt from the filing requirements. See United

States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985). Marks was

required to file his notice of appeal with the clerk of the

district court within thirty days from the entry of the judgment or

the order being appealed. See Fed. R. App. P. 4(a)(1). The

appellate time period begins to run on the date that the judgment

or order is entered on the docket, not the date it is filed. See

Barksdale v. Blackburn, 670 F.2d 22, 23 (5th Cir. 1982).

When an inmate confined in prison files a notice of appeal,

the notice is considered timely if the inmate deposited it in the

prison mail system by the filing deadline. See Fed. R. App.

P. 4(c); Houston v. Lack, 108 S. Ct. 2379, 2385 (1988). In

applying Houston, we have directed that “if the pro se prisoner’s

notice of appeal is received by the district court within two

business days after the last day for filing, it is to be treated as

timely, as we will presume that it was timely delivered for mailing

via the prison mail system.” Sonnier v. Johnson, 161 F.3d 941, 945

(5th Cir. 1998) (per curiam).

The district court entered its final judgment on August 27,

1997. The thirty-day appellate filing period expired on Friday,

September 26, 1997. The district court clerk received Marks’

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notice of appeal on the following Monday, September 29, 1997.

Since Marks filed the notice one business day after the appellate

filing period had expired, he is entitled to the presumption of

timely delivery to the prison mail system.

Noting that another inmate’s name appears on the return

address of the envelope that contained Marks’ notice of appeal,

Johnson argues that Marks should not enjoy the benefit of Rule 4(c)

and Houston v. Lack because Marks had a fellow inmate mail his

notice. Marks responds that he was confined in administrative

segregation during the relevant period and that prison officials

would not allow him to meet with the inmate who was assisting him

in his litigation, Terry Beck, in order to prepare the notice of

appeal. Marks also alleges that because all mailboxes had been

removed from the administrative segregation facilities, he had to

allow Beck to prepare the notice of appeal and mail it for him.

Because the envelope was postmarked September 27, 1997, the

day after the appellate deadline, and the prison mailroom records

do not reflect that Marks mailed any legal or certified mail from

August 26, 1997, through October 4, 1997, Johnson speculates that

whoever deposited the notice in the prison mail system might not

have done so until September 27, 1997. Speculation, however, does

not rebut a presumption. Johnson does not affirmatively allege

that the notice was mailed on September 27.

We are not persuaded. Johnson did not investigate whether

Beck sent any mail to the district court during the relevant time

period. The key issue under Rule 4(a) is when the district clerk

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received the notice of appeal. Here, the district clerk received

the notice of appeal one business day after the appellate deadline

expired. Under Sonnier, we therefore presume Marks delivered the

notice before the filing deadline. Because Johnson has not

rebutted this presumption, we will deny Johnson’s motion to

dismiss.

IV. DEFECTIVE INDICTMENT

Although the certificate of probable cause authorized Marks to

raise a defective indictment claim on appeal, he has waived this

issue by not briefing it. See Brinkmann v. Abner, 813 F.2d 744,

748 (5th Cir. 1987).

V. BATSON CLAIM

After voir dire, Marks objected when the prosecution used all

ten of its peremptory challenges to exclude African-American venire

members. The trial court overruled the objection. Three months

after Marks’ trial, in Batson v. Kentucky, 106 S. Ct. 1712 (1986),

the Supreme Court articulated a burden-shifting scheme for

analyzing claims of racially discriminatory peremptory challenges.

Although Marks raised this claim in his direct appeal, which was

pending when Batson was decided, the state court of appeals held

that Batson did not apply retroactively. See Marks v. State, 721

S.W.2d 401, 402-403 (Tex. App. -- Beaumont 1986, no pet.).

Nevertheless, “concerned that some higher court might disagree”

with that holding, the court considered the merits of Marks’ Batson

claim. Marks, 721 S.W.2d at 403. The court concluded that Marks

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established a prima facie claim of purposeful discrimination but

that the record “was inconclusive as to whether the state

sufficiently explained its challenges on ‘neutral’ grounds.”

Marks, 721 S.W.2d at 404. The court declined to remand for further

findings by the trial court since it concluded that Batson did not

apply retroactively.

Marks did not petition the Texas Court of Criminal Appeals for

discretionary review. The next year, the Supreme Court held that

Batson applied retroactively to cases pending on appeal when Batson

was issued. See Griffith v. Kentucky, 107 S. Ct. 708, 716 (1987).

The state habeas courts rejected Marks’ Batson claim, however,

because the court of appeals had already adversely decided the

issue on direct appeal before Griffith was issued.

The Equal Protection Clause prohibits prosecutors from

striking venire members solely on the basis of race. See Batson,

106 S. Ct. at 1719. The Batson Court articulated a three-step,

burden-shifting scheme for reviewing claims of discriminatory

peremptory challenges. First, the defendant must make a prima

facie case that the prosecutor exercised a challenge on the basis

of race. If the defendant makes such a showing, the burden shifts

to the state to articulate a race-neutral reason for striking the

juror. If the state articulates such a reason, the court must

decide whether the defendant has carried his burden of establishing

purposeful discrimination. See id. at 1723-24; United States v.

Clemons, 941 F.2d 321, 324 (5th Cir. 1991). A reason is race-

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neutral if it is based upon a facially valid ground other than the

race of the juror. See United States v. Fields, 72 F.3d 1200, 1206

(5th Cir. 1996). “Unless a discriminatory intent is inherent in

the prosecutor’s explanation, the reason given by the prosecution

[is] deemed race-neutral.” Id.

The Report and Recommendation of the magistrate judge, which

the district court adopted, concluded that Marks was not entitled

to federal habeas relief on his Batson claim because Marks had not

presented any facts to show purposeful discrimination after the

state articulated race-neutral reasons for striking the African-

American members of the venire. The district court did not err in

rejecting the Batson claim. Although the magistrate judge and the

district court erred in applying the new standard of deference

contained in the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and codified

at 28 U.S.C. § 2254(d), even under pre-AEDPA law1 federal courts

presume correct the factual findings of a state court. See

Marshall v. Lonberger, 103 S. Ct. 843, 850 (1983). Determining

whether a prosecutor intended to discriminate is a question of

fact. See Hernandez v. New York, 111 S. Ct. 1859, 1870 (1991).

Although the state court of appeals did not reach the ultimate

issue of whether Marks had proven discrimination, the trial court

1
Marks filed his federal petition well before the effective
date of the AEDPA. The Act does not apply to noncapital federal
habeas cases filed before its effective date, April 24, 1996. See
Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997).

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did when it overruled Marks’ motion. We presume correct the trial

court’s finding of no discriminatory intent. See Washington v.

Johnson, 90 F.3d 945, 954 (5th Cir. 1996), cert. denied, 117 S. Ct.

1259 (1997). Marks does not point to anything in the record

indicating discriminatory intent. He offers nothing to rebut the

presumption of correctness beyond his own unspecified allegations.

Such allegations, unsupported by evidence, do not raise

constitutional issues. See McCoy v. Lynaugh, 874 F.2d 954 (5th

Cir. 1989). Moreover, because discriminatory intent is not

inherent in the prosecutor’s explanation, we deem the state’s

motives to be race-neutral. See Fields, 72 F.3d at 1206. Because

Marks has failed to establish a Batson claim, the district court’s

decision was not plain error.

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 VI. CONCLUSION

Johnson’s Motion to Dismiss is DENIED, and the judgment of the

district court is AFFIRMED.

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