United States Court of Appeals,
Fifth Circuit.
No. 93-7370.
Charles Lee GLOVER, Petitioner-Appellant,
v.
Edward M. HARGETT, Respondent-Appellee.
June 29, 1995.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Charles Glover appeals from the district court's dismissal of
his application for a writ of habeas corpus. We affirm.
I
Glover pled guilty to one count of armed robbery in
Mississippi state court in 1971 and was sentenced to serve
ninety-nine years in prison. Following his conviction in
Mississippi, he was returned to Alabama where he had been serving
a term of life imprisonment for murder. When he was released from
the Alabama prison on parole in 1988, he was returned to
Mississippi to serve his ninety-nine-year sentence for armed
robbery. In 1989, Glover filed a motion for post-conviction relief
in Mississippi state court, contending that he had not received
effective assistance of counsel, that the indictment against him
was defective, and that his sentence was excessive under
Mississippi law.
The Lauderdale County Circuit Court denied Glover's motion on
1
the grounds that his claims were time-barred, see Miss.Code Ann. §
99-39-5(2) (1994); Odom v. State, 483 So.2d 343, 344 (Miss.1986)
(interpreting § 99-39-5(2) and holding that "[i]ndividuals
convicted prior to April 17, 1984, have three (3) years from April
17, 1984, to file their petition for post conviction relief"), and
the Mississippi Supreme Court affirmed.
Glover then filed a petition for a writ of habeas corpus under
28 U.S.C. § 2254 (1988) in federal court. He alleged (1) that he
had been denied his right to a speedy trial, (2) that his counsel
had been ineffective, (3) that the Mississippi courts had denied
him due process by holding that his claims were time-barred, (4)
that his guilty plea was invalid because of the trial court's
failure to satisfy his right to a speedy trial, and (5) that his
extradition from Alabama to Mississippi in 1971 was unlawful. The
district court dismissed the first, second, fourth, and fifth of
these claims without prejudice for failure to exhaust state
remedies, and it dismissed the third with prejudice.
After exhausting his state remedies, Glover filed a second
habeas petition in which he reiterated all of his earlier claims
except for his challenge to his extradition. The district court
dismissed Glover's second petition, holding that Glover had
procedurally defaulted his federal claims in state court. Glover
appealed to this Court pro se, and we appointed counsel to
represent him on appeal.
II
A
2
Glover argues that the district court erroneously dismissed
his ineffective assistance of counsel claim without a hearing. The
district court declined to reach Glover's ineffective assistance of
counsel claim because the Mississippi Supreme Court had rejected it
as time-barred under the applicable Mississippi statute of
limitations. The district court concluded that because the
Mississippi court's decision rested on an adequate and independent
state law ground, Glover's claim was procedurally defaulted.
"In a federal habeas corpus proceeding, we review the district
court's legal determinations de novo." Johnson v. Puckett, 929
F.2d 1067, 1070 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct.
274, 116 L.Ed.2d 226 (1991). In Coleman v. Thompson, 501 U.S. 722,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated
the procedural default doctrine as follows:
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, federal habeas review of the
claim is barred unless the prisoner can demonstrate 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 fundamental miscarriage of
justice.
Id. at 750, 111 S.Ct. at 2565.
Glover did not allege in his habeas petition that he had cause
for his default or that it caused him actual prejudice, and he made
no showing of cause or prejudice in the district court. On appeal,
Glover argues that he can demonstrate cause for his procedural
default because he was incarcerated in Alabama for the period of
time when the post-conviction statute of limitations went into
effect and ran on his claims. We do not reach this argument,
3
however, because Glover did not assert it in the district court.
"We have repeatedly held that a contention not raised by a habeas
petitioner in the district court cannot be considered for the first
time on appeal from that court's denial of habeas relief." Johnson
v. Puckett, 930 F.2d 445, 448 (5th Cir.) (citing cases), cert.
denied, 502 U.S. 890, 112 S.Ct. 252, 116 L.Ed.2d 206 (1991); see
also Lincecum v. Collins, 958 F.2d 1271, 1280-81 (5th Cir.)
(holding that petitioner had waived one of two specific bases for
ineffective assistance of counsel claim by failing to present it to
the district court), cert. denied, --- U.S. ----, 113 S.Ct. 417,
121 L.Ed.2d 340 (1992). Because Glover has not demonstrated cause
for his procedural default, we need not consider whether his
inability to bring his Sixth Amendment claim prejudiced him. See
Murray v. Carrier, 477 U.S. 478, 494-95, 106 S.Ct. 2639, 2649, 91
L.Ed.2d 397 (1986) (holding that habeas petitioner must demonstrate
both cause and prejudice to overcome procedural default).
In addition, Glover has not contended, either in the district
court or on appeal, that he is actually innocent of the armed
robbery to which he plead guilty. Indeed, he clearly admits in his
habeas pleadings that he committed the crime. Therefore, the
"manifest miscarriage of justice" exception to the procedural
default rule does not apply, see id. at 496, 106 S.Ct. at 2649
("[I]n an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural default."), and
4
the district court correctly held that it was barred from
considering Glover's ineffective assistance of counsel claim, see
Coleman, 501 U.S. at 757, 111 S.Ct. at 2568 (holding that because
habeas petitioner had failed to demonstrate cause and had not
argued on appeal that federal review of his claim was necessary to
prevent a fundamental miscarriage of justice, he was "barred from
bringing the[ ] claims in federal habeas").
B
Glover also argues that the district court erroneously
dismissed his excessive sentence claim as procedurally defaulted.
Specifically, he contends that Mississippi's post-conviction
statute of limitations cannot bar federal habeas review of his
claim because the Mississippi Supreme Court does not consistently
apply its statute of limitations to excessive sentence claims. See
Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72
L.Ed.2d 824 (1982) ("[A] state procedural ground is not "adequate'
unless the procedural rule is "strictly or regularly followed.' "
(quoting Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct.
1734, 1736, 12 L.Ed.2d 766 (1964))). We do not address this
argument, however, because we hold that even if Mississippi courts
do not regularly apply the post-conviction relief statute of
limitations to excessive sentence claims, Glover's claim fails on
the merits. See Wiley v. Puckett, 969 F.2d 86, 104 (5th Cir.1992)
(declining to decide whether Mississippi regularly enforced its
5
procedural bar because claim failed on its merits).1
Glover contends that his sentence was excessive under the
Mississippi Supreme Court's decision in Stewart v. State, 372 So.2d
257 (Miss.1979). In Stewart, the defendant was convicted of armed
robbery under Section 97-3-79 of the Mississippi Code, which
provides: "Every person who [commits armed robbery] shall be
imprisoned for life in the state penitentiary if the penalty is so
fixed by the jury; and in cases where the jury fails to fix the
penalty at imprisonment for life in the state penitentiary the
court shall fix the penalty at imprisonment in the state
penitentiary for any term not less than three (3) years."
Miss.Code Ann. § 97-3-79 (1994). The court interpreted this
provision to mean that only the jury could sentence a defendant to
life, and if the jury did not do so, the court lacked authority to
impose a life sentence. Id. at 258. Consequently, in cases in
which the jury does not fix a defendant's sentence at life, the
court must sentence the defendant to a "definite term reasonably
expected to be less than life." Id. at 259.
Glover argues that his sentence was excessive under Stewart
because the trial court sentenced him to ninety-nine years in
prison, a term that is not "reasonably expected to be less than
1
See also Smith v. Black, 904 F.2d 950, 971 (5th Cir.1990)
(assuming without deciding that claim was not procedurally barred
because it failed on its merits), vacated on other grounds, 503
U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992); Johnson v.
Thigpen, 806 F.2d 1243, 1252 (5th Cir.1986) (rejecting claim
because "[t]o the extent the claim may not be procedurally barred
it nevertheless fails" on the merits), cert. denied, 480 U.S.
951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987).
6
life." Glover's argument fails, however, because he was sentenced
under an earlier and crucially different version of the armed
robbery statute. The version under which Glover was sentenced
provided in pertinent part: "Every person who [commits armed
robbery] shall be punished by death if the penalty is so fixed by
the jury; and in cases where the jury fails to fix the penalty at
death, the court shall fix the penalty at imprisonment in the
penitentiary for any term not less than three years." Miss.Code
Ann. § 2367 (1942) (emphasis added).2 Thus, the trial court's
imposition of a ninety-nine-year term of imprisonment was perfectly
proper. See Allen v. State, 440 So.2d 544, 545-46 (Miss.1994)
(holding that sixty-year sentence for armed robbery, which would be
excessive under Stewart, was permissible because defendant was
sentenced under pre-1974 armed robbery statute); see also Flegg v.
State, 202 Miss. 179, 30 So.2d 615, 616 (1947) (holding that, under
pre-1974 statute, sentence of life imprisonment was within
sentencing court's discretion when jury failed to fix penalty at
death).
Glover argues that the state courts' references to Stewart in
their decisions rejecting his petition for post-conviction relief
imply that they considered his sentence excessive under Mississippi
law.3 Although we agree that the Mississippi Supreme Court is "the
2
The Mississippi legislature amended the armed robbery
statute in 1974. See Act of Apr. 23, 1974, ch. 576, § 4, 1974
Miss. Laws 863, 865.
3
The Mississippi Supreme Court referred to its holding in
Stewart in its recitation of the procedural history of Glover's
case and pointed out that Glover had not sought review of his
7
final authority on the meaning of Mississippi law," Stringer v.
Black, 503 U.S. 222, 234, 112 S.Ct. 1130, 1139, 117 L.Ed.2d 367
(1992), the Mississippi Supreme Court did not hold that Glover's
sentence was excessive. Instead, it ruled on procedural grounds,
and any implication regarding the legality of Glover's sentence
under Stewart is merely dicta. Therefore, based on the Mississippi
Supreme Court's decision in Allen, we hold that Glover's excessive
sentence claim fails on the merits.4
sentence in light of the Stewart decision within the applicable
statute of limitations. See Glover v. State, 572 So.2d 881
(Miss.1990). Because it ruled on procedural grounds, however,
the court did not reach the question of whether Glover's sentence
was excessive under Stewart. Id.
The Circuit Court of Lauderdale County had similarly
held that Glover's excessive sentence claim was time-barred,
but it stated, in dicta:
The third ground asserted by the Petitioner is
intriguing. Stewart v. State, 372 So.2d 257
(Miss.1979) did declare that a trial judge has no
authority to sentence a defendant convicted of armed
robbery to a term in the penitentiary exceeding his
life expectancy absent a jury verdict of a life
sentence. Obviously, a 99 year sentence given to this
defendant in 1971 is excessive under the Stewart
criteria.
Glover v. State, No. 89-CV-045-(R), slip op. at 2
(Lauderdale County Cir.Ct. May 5, 1989), aff'd, 572 So.2d
881 (Miss.1990). The court did not consider the Mississippi
Supreme Court's decision in Allen, however, and the
reasoning behind its dicta is unclear.
4
In his pro se brief, Glover also argues that the
Mississippi statute of limitations for petitions for
post-conviction relief cannot apply to him on collateral review
because it is a new rule under Teague v. Lane, 489 U.S. 288, 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989). This argument fails,
however, because Teague concerned the retroactive application of
court-made rules of criminal procedure, not state statutes. See
489 U.S. at 299-300, 109 S.Ct. at 1069.
8
III
For the foregoing reasons, we AFFIRM the district court's
dismissal of Glover's habeas petition.
Glover also raises a number of claims in his pro se
reply brief, but "[t]his Court will not consider a claim
raised for the first time in a reply brief." Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir.1993).
9