[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11471
February 16, 2005
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 99-03372-CV-TMP-S
ALONZO HURTH,
Petitioner-Appellant,
versus
BILLY MITCHEM, Warden,
ATTORNEY GENERAL FOR THE STATE OF ALABAMA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 16, 2005)
Before DUBINA, CARNES and CUDAHY*, Circuit Judges.
CARNES, Circuit Judge:
In order to serve as the basis for a procedural bar in federal habeas
proceedings, a state rule must be firmly established and regularly followed. Hill v.
Jones, 81 F.3d 1015, 1023 (11th Cir. 1996); Cochran v. Herring, 43 F.3d 1404,
1408, modified on reh’g, 61 F.3d 20 (11th Cir. 1995); see also Lee v. Kemna, 534
U.S. 362, 376, 122 S. Ct. 877, 885 (2002). This appeal presents us with the
question of whether the only state procedural rules that meet those requirements
are jurisdictional ones.
A rule is jurisdictional if the petitioner’s non-compliance with it actually
divests the state courts of power and authority to decide the underlying claim,
instead of merely offering the respondent an opportunity to assert a procedural
defense which may be waived if not raised. See, e.g., Siebert v. Campbell, 334
F.3d 1018, 1025 (11th Cir. 2003) (“Under [Alabama law], ‘the failure to file a[n
Alabama] Rule 32 petition within the two-year limitations period is a jurisdictional
defect that can be noticed at any time and is not waived by the failure of the state
to assert it.’”) (quoting Williams v. State, 783 So. 2d 135, 137 (Ala. Crim. App.
*
Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
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2000); see also id. at 1025–26 n.8 (distinguishing “[a] court’s discretionary
authority to dismiss an untimely petition” from “a jurisdictional rule requiring a
court to dismiss untimely petitions whenever their untimeliness may be noticed”).
We have conflicting prior panel precedent on the question of whether state
procedural rules must be jurisdictional in nature in order to be firmly established
and regularly followed for federal habeas procedural bar purposes. Before
addressing that intra-circuit conflict, we will set out the pertinent procedural
history of the present case.
I.
In 1994 Alonzo Hurth was tried and convicted in the Alabama courts of
robbery in the first degree. Because he was a habitual offender, Hurth was
sentenced to life imprisonment without parole. Hurth v. State, 688 So. 2d 275,
276 (Ala. Crim. App. 1995), overruled by Morgan v. State, 733 So. 2d 940 (Ala.
Crim. App. 1999). On direct appeal the Court of Criminal Appeals remanded the
case to the trial court for further proceedings relating to the sentence. Id. at
276–77.
On remand the trial court re-imposed the same sentence, and on return of
the case from remand that sentence as well as the conviction were affirmed by the
Court of Criminal Appeals. Id. at 277 n.* (subsequent history note by Reporter of
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Decisions). That appellate court also denied Hurth’s request for a rehearing, id.,
and following the Alabama Supreme Court’s denial of his petition for a writ of
certiorari, id., it issued a certificate of judgment in the case on December 20, 1996.
On February 5, 1999, which was more that two years after issuance of the
certificate of judgment, Hurth filed the Ala. R. Crim. P. 32 collateral petition that
would lead to this case. In that petition he raised the ineffective assistance of
counsel claims that he would later assert in this federal habeas proceeding. The
state trial court did not address the merits of any of the claims raised in Hurth’s
Rule 32 petition. Instead, the court dismissed the petition as untimely under the
two-year statute of limitations in Rule 32.2(c). That provision specifies that:
“[T]he court shall not entertain any petition for relief from a conviction [on
specified grounds, including federal constitutional violations] unless the petition is
filed . . . within two (2) years after the issuance of the certificate of judgment by
the Court of Criminal Appeals.” Ala. R. Crim. P. 32.2(c) (2002) (amended to
lower the period in which a petition may be filed from two years to one year on
March 22, 2002, effective August 1, 2002).
The Court of Criminal Appeals affirmed the trial court ruling, and in doing
so held that: “Because Hurth’s petition was barred from review by the two-year
limitation period provided in Rule 32.2(c), the trial court was authorized to
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dismiss the petition without an evidentiary hearing, and without requiring a
response from the state.”
Hurth then filed this 28 U.S.C. § 2254 petition raising the same ineffective
assistance of counsel claims he had asserted in his Rule 32 proceeding in state
court. The magistrate judge issued a report and recommendation that the petition
be denied; it was based on the claim being procedurally barred as a result of
Hurth’s failure to file his Rule 32 petition in state court within the two-year statute
of limitations contained in Ala. R. Crim. P. 32.2(c). Over Hurth’s objections the
district court adopted the report and recommendation, and denied the petition for
federal habeas relief.
After Hurth appealed, this Court issued a certificate of appealability on the
following issue: “Whether the district court erred in dismissing the claims in
appellant’s federal habeas corpus petition, 28 U.S.C. § 2254, as procedurally
defaulted when it is arguable among jurists of reason that the state’s rationale for
failing to reach the merits of appellant’s claims was not consistently applied.”
II.
Hurth stakes his position that the statute of limitations provision contained
in Alabama’s Rule 32.2(c) is not firmly established and regularly followed—or
consistently applied, as the question is phrased in the certificate of appealability
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that he was granted—solely upon this Court’s prior decision in Moore v.
Campbell, 344 F.3d 1313 (11th Cir. 2003) (per curiam). In that case, the State of
Alabama had failed to plead the Rule 32.2(c) statute of limitations in the state
collateral proceeding, id. at 1320, and the trial court had denied the claims on the
merits, id. at 1317. The Court of Criminal Appeals had affirmed, but on the
ground that Moore’s state collateral petition was time-barred because it had not
been brought within Rule 32.2(c)’s two-year limitations period. Id. at 1317–18.
The federal district court in the Moore case denied habeas relief, reasoning
that Moore’s claims were without merit. At the same time, it rejected the State of
Alabama’s alternative argument that the claims were also procedurally barred
because of Moore’s failure to comply with the two-year statute of limitations in
Alabama’s Rule 32.2(c). Id. at 1318–19. Moore appealed the district court’s
denial of his petition, and the State cross-appealed the district court’s ruling
rejecting the procedural bar defense. Id. at 1319.
This Court affirmed the district court’s denial of Moore’s federal habeas
petition, agreeing with the district court both that the claims were not procedurally
barred and that they lacked merit. In the course of rejecting the State of
Alabama’s procedural bar argument based on the Rule 32.2(c) statute of
limitations, this Court recognized that failure to comply with a state court
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procedural rule does bar federal habeas review of claims “if the state procedural
ruling rests upon an ‘independent and adequate’ state ground.” Id. at 1320. As we
added, however, “[o]nly rules that are ‘firmly established and regularly followed’
qualify as adequate state grounds for precluding substantive review of federal
claims.” Id. So far, so good.
The problem is that this Court then erroneously concluded that Alabama’s
Rule 32.2(c) was not firmly established and regularly followed when Moore filed
his state collateral petition more than two years after the 1989 issuance of the
certificate of judgment in his direct appeal. Id. How this Court went astray in its
reasoning is apparent from the explanation it gave. That explanation in its entirety
consists of the following two sentences:
This Court in Siebert v. Campbell, 334 F.3d 1018 (11th Cir. 2003),
concluded that, before the Alabama Supreme Court’s decision in Williams
v. State, 783 So. 2d 135, 137 (Ala. Crim. App. 2000), the jurisdictional
character of Alabama Rule of Criminal Procedure 32.2(c) was not firmly
established and not regularly followed. Because the jurisdictional rule in
Williams was rendered well after the Alabama courts ruled on Moore’s Rule
32 petition in 1998 and 1999, the district court properly concluded that
Moore’s claims were not procedurally barred.
Id. If Moore’s error is not apparent from that passage alone, it becomes apparent
after close examination of the Siebert decision, which is the only authority Moore
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cited for the proposition that a state rule is firmly established and regularly
followed only if it is jurisdictional in nature.
That proposition is not supported by Siebert. This Court did not decide in
Siebert that Alabama’s Rule 32.2(c) statute of limitations provision was not firmly
established and regularly followed for purposes of determining whether a
petitioner’s failure to abide by it would support a procedural bar to federal habeas
relief. The Siebert case did not present that issue; it did not even involve the
procedural bar doctrine. Instead, it involved the question of whether that
petitioner had complied with the one-year statute of limitations on filing federal
habeas petitions that is contained in 28 U.S.C. § 2244(d)(1). Siebert, 334 F.3d at
1021–22. More specifically, the issue in the Siebert case was whether the one-
year period for filing in federal court had been tolled while the state collateral
petition was pending in the Alabama courts. Id. It was all a matter of federal
statutory interpretation.
The federal statute being interpreted in Siebert provided that “[t]he time
during which a properly filed application for State post-conviction or other
collateral review” is pending would not count toward the running of the federal
period of limitations. 28 U.S.C. § 2244(d)(2). Because the petitioner had not filed
his state collateral petition within the time required by Alabama’s Rule 32.2(c), the
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respondent argued that the state petition had not been “properly filed” within the
meaning of § 2244(d)(2). As a result, the argument went, there could be no tolling
of the federal statute of limitations for filing federal habeas petitions. Siebert, 334
F.3d at 1020, 1022. Only in that context did Alabama’s Rule 32.2(c) come up in
the Siebert case. This Court held in Siebert that in order for a state collateral
petition in Alabama to have been “properly filed” for §2244(d)(1) tolling
purposes, it is not necessary for that petition to have met the state’s own statute of
limitations, unless that statute of limitations is jurisdictional in nature. See id. at
1032.
The Siebert Court then concluded that Rule 32.2(c) was jurisdictional, but
only from the date of the decision in Williams v. State, 783 So. 2d 135, 137 (Ala.
Crim. App. 2000), forward. In Williams the Alabama appellate court had held
“that the Rule 32 statute of limitations is a jurisdictional bar that may be noticed at
any stage of proceedings and always requires dismissal.” Siebert, 334 F.3d at
1025. The Siebert court decided, however, that Rule 32.2(c) had not been
jurisdictional in nature before the Williams decision was announced. Id. at
1026–27. Because the Williams decision came out too late to apply to petitioner
Siebert’s own case, the Court held that he had “properly filed” his state collateral
petition for § 2244(d)(2) purposes even though it was untimely under Rule
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32.2(c). Id. at 1032. It is critically important to note, however, that in Siebert we
held nothing and said nothing about whether Alabama’s Rule 32.2(c) had been
firmly established and regularly followed for federal habeas procedural bar
purposes. That was simply not the issue.
The mistake this Court made in the Moore case was to take the
jurisdictional criterion from Siebert’s holding about when a state procedural rule is
cognizable for § 2244(d)(2) “properly filed” purposes, and insert it into the
different context of whether the violation of a state procedural rule is cognizable
in federal habeas proceedings. See Moore, 344 F.3d at 1320–21. The purpose and
functioning of the “properly filed” requirement of § 2244(d)(2) is different from
that of the procedural bar doctrine. Artuz v. Bennett, 531 U.S. 4, 9, 121 S. Ct.
361, 364 (2000) (“[T]he question whether an application has been ‘properly filed’
is quite separate from the question whether the claims contained in the application
are meritorious and free of procedural bar.”); see also Estes v. Chapman, 382 F.3d
1237, 1239 (11th Cir. 2004) (discussing Artuz); Wade v. Battle, 379 F.3d 1254,
1259–60 (11th Cir. 2004) (quoting Artuz).
Following the Artuz distinction between “proper filing” and “procedural
bar,” we said in Siebert of Alabama’s Rule 32.2(c) before Williams made it
jurisdictional, that although the “enforcement of the limitations period was
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committed to the circuit court’s discretion . . . Siebert . . . could not demand that he
be exempted from the time bar’s application.” Siebert, 334 F.3d at 1029. We also
said that “compliance with Rule 32.2(c)’s two-year deadline should be regarded as
a condition to obtaining relief rather than a condition to filing.” Id. at 1030. This
means that the jurisdictional nature criterion applies in the “properly filed” context
of § 2244(d)(2) but not in the procedural bar context. The criterion in the
procedural bar context is whether the rule is firmly established and regularly
applied, not whether it is jurisdictional in nature. See, e.g., Hill, 81 F.3d at 1023.
Nowhere in Siebert did we hold, state, or imply that Rule 32.2(c) was not firmly
established and regularly followed (as a non-jurisdictional rule) by the Alabama
courts before Williams.
Siebert’s holding is consistent with the Supreme Court’s decision and
opinion in Artuz about what “properly filed” in § 2244(d)(2) means, but Moore’s
holding is not consistent with our previous decisions about what “firmly
established and regularly followed” means for procedural bar purposes. That lack
of consistency is important because, under our prior panel precedent rule,
consistency with earlier decisions is everything. While we are not permitted to
reach a result contrary to a prior panel’s decision merely because we are convinced
it is wrong, Smith v. GTE Corp., 236 F.3d 1292, 1301–03 (11th Cir. 2001), United
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States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998), we must reach a
contrary result where the prior panel decision is itself inconsistent with earlier
ones. This is but another way of saying that where two or more decisions of this
Court are inconsistent, we follow the earliest one. United States v. Hornaday, 392
F.3d 1306, 1316 (11th Cir. 2004); Cohen v. Office Depot, Inc., 204 F.3d 1069,
1072 (11th Cir. 2000).
In comparing the prior precedent to the Moore decision, we keep in mind
Moore’s exact holding: the failure of a petitioner to comply with Alabama’s Rule
32.2(c) is not to be applied as a procedural bar in federal habeas proceedings
where that failure occurred before the rule was made jurisdictional by the Alabama
courts in Williams, which was issued on October 27, 2000. Moore, 344 F.3d at
1320. The Moore opinion was itself issued on September 15, 2003. Id. at 1313.
What is relevant, then, is any decision of this Court issued before September 15,
2003 that decides whether a claim is procedurally barred from federal habeas
review where the petitioner failed to comply with Alabama’s Rule 32.2(c) and that
failure to comply occurred before October 27, 2000. There are several decisions
meeting that description. They establish that Moore failed to follow established
circuit law.
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Our pre-Moore decisions, which are also pre-Siebert, hold that Alabama’s
Rule 32.2(c) statute of limitations is firmly established and regularly followed in
the courts of that state. The most recent decision on point before Moore is
Franklin v. Hightower, 215 F.3d 1196 (11th Cir. 2000) (per curiam). The
Alabama Court of Criminal Appeals had affirmed the denial of Franklin’s Rule 32
petition because he had not filed it within the two-year statute of limitations.
When Franklin later sought federal habeas relief, the district court denied relief on
the ground that Franklin’s claims were procedurally defaulted because his attempt
to raise them in state court had run afoul of Alabama’s Rule 32.2(c). Id. at 1198.
In affirming the district court’s denial of relief in Franklin, we rejected the
petitioner’s argument “that the time-bar relied on by the Alabama courts is not
consistently applied—and thus not a procedural bar under federal law.” Id. at
1199. Our holding in Franklin that Rule 32.2(c) was consistently applied and
would support a procedural bar, id. at 1199–1201, came two years before the
Moore decision. It also came before the Alabama decision in Williams made Rule
32.2(c) jurisdictional in nature. Therefore, the rule of Franklin is that a failure to
comply with Alabama’s statute of limitations on the filing of collateral
proceedings supports a procedural bar in federal habeas even though Rule 32.2(c)
was not considered jurisdictional at the time of the default. Otherwise, we would
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not have affirmed the district court’s application of the procedural bar to
Franklin’s claims.
In Bailey v. Nagle, 172 F.3d 1299, 1305–06 (11th Cir. 1999) (per curiam),
decided four-and-a-half years before Moore, we held that various claims in a §
2254 petition were procedurally defaulted in part because the claims would have
been barred in the state courts of Alabama because of the Rule 32.2(c) statute of
limitations. In Kennedy v. Herring, 54 F.3d 678, 684 & n.3 (11th Cir. 1995),
decided eight years before Moore, we held that a federal habeas petitioner’s
ineffective assistance claim was procedurally barred for two reasons. One of those
reasons was that the claim had not been timely brought in state court given the
two-year statute of limitations then contained in Alabama’s Temporary Rule of
Criminal Procedure 20.2(c), id. at 684 n.3, which was the predecessor to Rule
32.2(c). Both the Bailey and the Kennedy decisions preceded the Moore decision
by years. They also preceded Williams, which means they came before Rule
32.2(c) was regarded as having any jurisdictional significance. Both Bailey and
Kennedy would have come out differently on the Rule 32.2(c) procedural bar issue
had the Moore rule been applied in them. Moore is inconsistent with those two
earlier decisions.
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Moore is also inconsistent with Gordon v. Nagle, 19 F.3d 640, 641 (11th
Cir. 1994), a decision that preceded it by nearly a decade. In the Gordon case we
held that a federal habeas claim was procedurally barred because of the
petitioner’s pre-Williams failure to comply with Alabama’s Rule 32.2(c). Id. at
641. It is impossible to reconcile our Gordon decision with Moore’s later holding
that only procedural bars that divest state courts of jurisdiction to decide defaulted
claims can be enforced in federal habeas proceedings.
We recognize that Esslinger v. Davis, 44 F.3d 1515, 1525–26 (11th Cir.
1995), concluded that Alabama Temporary Rule 20(c), the earlier version of Rule
32.2(c), would not support a procedural bar in a federal habeas proceeding where
the state had expressly waived in state court the defense that the petitioner had
failed to file his petition within the two-year limitations period. We explained that
where the state had waived the state court rule “invoking the bar would serve no
important federal interest.” Id. The Esslinger decision has no bearing here
because the state has never waived its Rule 32.2(c) defense in this case. Any
attempt to extend Esslinger beyond the waiver facts of that case would run afoul of
our earlier decisions which are binding precedent and which enforce Rule 32.2(c)
where the state has not waived it.
15
Our holdings enforcing Alabama’s Rule 32.2(c) statute of limitations as a
procedural bar in federal habeas proceedings, even when the default occurred
before that rule was transformed into a jurisdictional one by the Williams decision
in 2000, cover a period of a half dozen years. They begin with the Gordon
decision in 1994 and run through the Franklin decision in 2000, with the Kennedy
(1995) and Bailey (1999) decisions in between. Each of those four decisions,
when read against the prior precedent rule, prevents us from following Moore’s
later holding that the enforceability of Rule 32.2(c) in federal habeas proceedings
depends on that rule being jurisdictional in nature at the time of the default. It
does not.
III.
The sole basis that Hurth has put forward to support his contention that
Alabama’s Rule 32.2(c) was not firmly established and regularly followed is that,
at the time he failed to comply with it, that rule was not jurisdictional in nature.
Having rejected Hurth’s proposition that the violation of a rule must actually
divest the state courts of jurisdiction to decide a claim before the rule will be
respected in federal habeas proceedings, we reject his contention that his failure to
comply with Rule 32.2(c) did not procedurally bar his ineffective assistance claim.
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It did. The district court’s judgment denying and dismissing Hurth’s federal
habeas petition is AFFIRMED.
17