Lott v. Hargett

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.

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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).

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 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.

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 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

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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."

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 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

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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.

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 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.

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