Glendle Ray Sones, Petitioner-appellant, v. Edward Hargett, Superintendent, Mississippi Statepenitentiary, Respondent-appellee, 61 F.3d 410 (5th Cir. 1995)

Petitioner-appellant Glendle Ray Sones (Sones) appeals the district court's denial of his section 2254 petition for a writ of habeas corpus. We affirm.

Facts and Proceedings Below

Following a March 1980 bench trial in Mississippi state court, Sones was convicted of burglary and, pursuant to the state's habitual offender statute, sentenced to life in prison without parole.¹  Miss.Code Ann. Sec. 99-19-83 (1994). At sentencing, the state called B.C. Ruth (Ruth), a former records custodian for the Mississippi Department of Corrections, to prove up the prior convictions that were alleged in the indictment as the predicate for Sones's sentence as a habitual offender. See id. (requiring at least two prior felony convictions "where any one (1) of such felonies shall have been a crime of violence" and where both of the convictions resulted in separate prison terms of one year or more in any state or federal penal institution). Ruth, who was records custodian at the time of Sones's prior convictions, identified Sones's original prison file and identified him as the person who had served the terms reflected in the file. Ruth also authenticated original commitment papers issued by the circuit clerks of the counties where Sones had been sentenced. These papers reflected that Sones had been convicted of three felonies and had actually served sentences based on these convictions.²  Sones objected to the introduction of this evidence, arguing that to prove that he was a habitual offender the State needed to produce the actual judgments of conviction instead of merely the commitment papers. Sones also argued at sentencing that the habitual offender statute was unconstitutional.

Sones appealed his conviction and sentence to the Mississippi Supreme Court, Pace v. State, 407 So. 2d 530 (Miss.1981), contending, inter alia, that the State had not adequately proved his prior convictions because Ruth was not the records custodian at the time he testified and because the actual judgments of convictions had not been produced. Id. at 533-34. The Mississippi Supreme Court rejected these arguments, concluding that Ruth was qualified to testify and, further, that the commitment papers, although not the best evidence, were adequate proof of Sones's prior convictions. Id. at 534-35. Sones also argued on his direct appeal that the state habitual offender statute, both facially and as applied, violates the Constitution, specifically the protections against ex post facto laws, double jeopardy, and cruel and unusual punishment. Id. at 535. Sones argued in particular, apparently with regard to his claim of cruel and unusual punishment, that his prior convictions were too remote in time to be relevant to the determination whether he should be treated as a habitual offender. The Mississippi Supreme Court rejected all these arguments and affirmed the conviction and sentence.³  Id. On January 6, 1982, the court denied Sones's petition for rehearing.

On June 5, 1989, more than seven years after his unsuccessful direct appeal, Sones moved the Mississippi Supreme Court for leave to pursue post-conviction relief in the trial court,⁴  Miss.Code Ann. Sec. 99-39-1 et seq., claiming that his life sentence should be set aside for violating the Ex Post Facto and Cruel and Unusual Punishment Clauses of the Federal Constitution; he also reasserted that the proof of his prior convictions was inadequate to support the trial court's finding that he was a habitual offender. On July 26, 1989, the Mississippi Supreme Court denied Sones's motion, concluding that his claims were time barred under the applicable three-year statute of limitations on claims for post-conviction relief. See id. Sec. 99-39-5(2). The court, accordingly, did not reach the merits of his claims.

On May 31, 1991, Sones filed the instant habeas petition, his first in federal court. In the district court, Sones raised the following six claims: (1) that his sentence as a habitual offender constituted cruel and unusual punishment; (2) that the habitual offender statute is itself unconstitutional; (3) that there was insufficient evidence to establish whether he was a habitual offender; (4) that the indictment was fatally defective; (5) that his arrest was the result of entrapment; and (6) that his trial counsel was constitutionally ineffective for failing to object to the allegedly defective indictment. On May 3, 1993, the district court entered a memorandum opinion concluding that all Sones's claims were time barred and, in the alternative, meritless and ordering that the petition be dismissed with prejudice. The district court thereafter granted Sones's motion for an extension of time to file "objections" to the memorandum opinion. Thereafter, Sones, on June 1, 1993, filed his "Plaintiff's Objections To The Judge's Memorandum Opinion," in which he raised a new basis for his Sixth Amendment claim: that his trial counsel was ineffective for failing to investigate and challenge the validity of his prior conviction for armed robbery, his only prior crime of violence. The district court in a September 7, 1993, memorandum opinion overruled these objections, rejecting the additional Sixth Amendment claim because Sones did not "specify how the prior convictions were invalid." On the same date, the district court entered judgment dismissing the case with prejudice. This Court granted Sones a certificate of probable cause and appointed appellate counsel for him.

Discussion

We must first decide which of Sones's claims are properly before us. Federal courts will generally not consider claims in a section 2254 habeas petition that have not been first presented to the state courts. 28 U.S.C. § 2254(b). In other words, the petitioner must exhaust all available state remedies before he may obtain federal habeas relief. Rodriguez v. McKaskle, 724 F.2d 463, 466 (5th Cir.), cert. denied, 469 U.S. 1039, 105 S. Ct. 520, 83 L. Ed. 2d 408 (1984); see also Sterling v. Scott, 57 F.3d 451, 454 (5th Cir. 1995). "To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his claims to the state courts." Vela v. Estelle, 708 F.2d 954, 958 (5th Cir. 1983) (citations omitted), cert. denied, 464 U.S. 1053, 104 S. Ct. 736, 79 L. Ed. 2d 195 (1984). "Normally, the exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in his petition to the federal court." Id. (footnote omitted). This exhaustion rule requires the dismissal of any habeas petition that contains claims not yet raised in available state court proceedings, even if such claims are mixed with exhausted ones. Rose v. Lundy, 455 U.S. 509, 513-519, 102 S. Ct. 1198, 1201-03, 71 L. Ed. 2d 379 (1982); Rodriguez, 724 F.2d at 464.

In his federal habeas petition, Sones essentially raised all those issues decided by the Mississippi Supreme Court in his direct appeal, but added for the first time in any court the claim that his trial counsel was constitutionally ineffective.⁵  In his motion for post-conviction relief in state court, moreover, Sones did not raise any claims that had not already been disposed of on direct appeal, although he did not raise every issue submitted on direct appeal or in the instant federal petition. So long as the claims have been presented to the state supreme court, however, it is not necessary for the prisoner to ask the state for collateral relief on the same issues.⁶  Brown v. Allen, 344 U.S. 443, 448 n. 3, 73 S. Ct. 397, 403 n. 3, 97 L. Ed. 469 (1953). Section 2254 does not require "repetitious applications to state courts." Id. The exhaustion of state remedies can be accomplished either directly or collaterally. Myers v. Collins, 919 F.2d 1074, 1076-77 (5th Cir. 1990); see also 17A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure Sec. 4264 (" [I]t is settled that Sec. 2254 is satisfied if the federal issue has once been properly presented to the highest court of the state."). Consequently, we hold that Sones has adequately exhausted available state remedies for those claims presented to the Mississippi Supreme Court. Although these claims are thus properly before us, we agree, essentially for the reasons stated by the Mississippi Supreme Court and by the district court below, that these claims must fail on the merits. In particular, we agree with the Mississippi Supreme Court that the proof of Sones's prior convictions was adequate to support the finding that he is a habitual offender.⁷  See also King v. State, 527 So. 2d 641, 646 (Miss.1988).

For the first time, Sones argues in the instant federal proceeding, in his objections to the district judge's May 3, 1993, memorandum opinion directing that the habeas petition be dismissed, that trial counsel was ineffective for not challenging the validity of his prior convictions; specifically, he contends that his trial counsel should have objected to the use of his 1960 conviction for armed robbery because, allegedly, he was without counsel during the preliminary hearing and sentencing phase for that particular conviction. See Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205, 51 L. Ed. 2d 393 (1977) (" [S]entencing is a critical stage of the criminal proceeding at which [a defendant] is entitled to the effective assistance of counsel."). Because further review in state court is time barred under Miss.Code Ann. Sec. 99-39-5(2), the state's three-year statute of limitations on post-conviction relief, see Teague v. Lane, 489 U.S. 288, 298, 109 S. Ct. 1060, 1068, 103 L. Ed. 2d 334 (1989), there are no longer any state remedies available for Sones to exhaust. Consequently, because state court collateral relief was no longer available at the time Sones filed the instant petition in federal court, he has technically exhausted all available state remedies regarding this ineffective assistance of counsel claim. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S. Ct. 1558, 1570-71 n. 28, 71 L. Ed. 2d 783 (1982).

When, however, state remedies are rendered unavailable by the petitioner's own procedural default, federal courts are barred from reviewing those claims. As the Supreme Court stated in Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991),

" [I]f the petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ... [then] there is a procedural default for purposes of federal habeas...." Id. at 735 n. 1, 111 S. Ct. at 2557 n. 1.⁸ 

There is no question that Sones is now unable to pursue his Sixth Amendment claim in state court.⁹  Sones concedes that this claim would have been time barred had it been included in his prior state petition and that, consequently, a refiling in state court would be futile. Sones has thus defaulted this claim. See Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (holding that when "it is obvious that the unexhausted claim would be procedurally barred in state court, we will forego the needless 'judicial ping-pong' and hold the claim procedurally barred from habeas review").

Sones contends first that his claim should not be considered defaulted because Mississippi's statute of limitations is not an independent and adequate procedural rule.¹⁰  The doctrine of procedural default presupposes that a state court's reliance on a procedural bar functions as an independent and adequate ground in support of the judgment. Coleman, 501 U.S. at 731, 111 S. Ct. at 2554; Smith v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992). We presume the adequacy and independence of a state procedural rule when the state court expressly relies on it in deciding not to review a claim for collateral relief, as the Mississippi Supreme Court did here. Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989). The presumption of adequacy can be rebutted in certain circumstances, however, if the state's procedural rule is not "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587, 108 S. Ct. 1981, 1987, 100 L. Ed. 2d 575 (1988) (citations and internal quotation marks omitted); see Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S. Ct. 2421, 2426, 72 L. Ed. 2d 824 (1982) ("State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims.").

Section 99-39-5(2), the state procedural bar in question, provides as follows:

"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...."¹¹ 

In Odom v. State, 483 So. 2d 343 (Miss.1986), the Mississippi Supreme Court determined that this section applied prospectively to convictions occurring before April 17, 1984, the date of enactment of the Post-Conviction Collateral Relief Act, Miss.Code Ann. Secs. 99-39-1 et seq. Id. at 344. Sones, whose conviction was affirmed in 1982, thus had until April 17, 1987, to bring an action in state court for collateral relief from the judgment of conviction. As he failed to do so, the Mississippi Supreme Court held his petition time barred.

Sones has failed to demonstrate that Mississippi's three-year limitations rule is not regularly followed. In Luckett v. State, 582 So. 2d 428 (Miss.1991), the only decision he cites that even involves section 99-39-5(2), the Mississippi Supreme Court held that it may consider " [e]rrors affecting fundamental constitutional rights" despite the strict terms of the procedural bar. Id. at 430. In so holding, the court indicated, as it has in other contexts, that the limitations rule would not prohibit the court from noticing plain errors. See Grubb v. State, 584 So. 2d 786, 789 (Miss.1991); Smith v. State, 477 So. 2d 191, 195 (Miss.1985). We have held, however, that noticing plain error does not "detract [ ] from the consistency of ... the [procedural] rule." Smith v. Black, 970 F.2d 1383, 1387 (5th Cir. 1992) (quoting Wiley v. Puckett, 969 F.2d 86 (5th Cir. 1992)). Instead, the issue is whether Mississippi has been consistent in its application of the limitations rule to "classes of claims" such as Sones's. Id. 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. See, e.g., Campbell v. State, 611 So. 2d 209, 210 (Miss.1992); Harveston v. State, 597 So. 2d 641, 642 (Miss.1992).¹² 

The only cases Sones cites, besides Luckett, are Grubb and Smith v. State, and they do not advance his argument. Neither case involved any limitations rule, much less the one at issue here, nor did they involve Sixth Amendment claims. Although the petition in Smith v. State was filed four years after the petitioner's conviction, that fact had nothing to do with the court's disposition. Indeed, Smith's claims were not time barred; he had until April 17, 1987, to raise them, Odom, 483 So. 2d at 344, and Smith v. State was decided in 1985. Likewise, in Grubb, the petition for post-conviction relief was not untimely; it was successive. 584 So. 2d at 788. In short, none of the cases on which Sones relies rebut the presumption of adequacy raised by the state court's express reliance on the three-year limitations rule to bar collateral review.¹³  We thus hold that section 99-39-5(2) functions as an independent and adequate procedural bar to review of Sones's ineffective assistance of counsel claim in federal court.¹⁴ 

Because section 99-39-5(2) operates as an independent and adequate state ground, the procedural default doctrine applies, and federal review of his Sixth Amendment claim is barred unless Sones "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 a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. See also Engle, 456 U.S. at 128-131, 102 S. Ct. at 1572-73; Wainwright v. Sykes, 433 U.S. 72, 85-93, 97 S. Ct. 2497, 2506-09, 53 L. Ed. 2d 594 (1977). Sones has never alleged cause or prejudice,¹⁵  but instead contends that denying federal review of his claim will result in a fundamental miscarriage of justice. More particularly, Sones argues that he should be excused from having to demonstrate cause and prejudice for his procedural default because he is "actually innocent" of the sentence imposed. Sawyer v. Whitley, 505 U.S. 333, 339-42, 112 S. Ct. 2514, 2519-20, 120 L. Ed. 2d 269 (1992). In order to be actually innocent of a non-capital sentence, the petitioner must show that "but for the constitutional error he would not have been legally eligible for the sentence he received." Smith v. Collins, 977 F.2d 951, 959 (5th Cir. 1992), cert. denied, --- U.S. ----, 114 S. Ct. 97, 126 L. Ed. 2d 64 (1993).¹⁶  Sones must therefore establish that, but for his counsel's deficiency, he would not have been found to be a habitual offender and thus would not have received a sentence of life imprisonment.

Sones has failed to demonstrate actual innocence. The error he alleges is, essentially, that trial counsel should have attacked the validity of his prior convictions at sentencing. Sones has alleged, both belatedly below and on this appeal, that he was without counsel at the sentencing and preliminary hearing phases of his 1960 conviction for armed robbery.¹⁷  Consequently, he argues, trial counsel was ineffective for not challenging his sentence as a habitual offender on that basis.¹⁸  The Mississippi Supreme Court has made it clear, however, that attacks on prior convictions that are not facially invalid must be made collaterally, in a motion for relief from the prior judgment of conviction, not at trial or sentencing:

"In fulfilling its mission to determine whether a prior conviction is constitutionally valid for the purpose of enhancing a defendant's sentence, the trial court must not be placed in position of 'retrying' the prior case. Certainly any such frontal assault upon the constitutionality of a prior conviction should be conducted in the form of an entirely separate procedure solely concerned with attacking that conviction. This role is neither the function nor the duty of the trial judge in a hearing to determine habitual offender status." Phillips, 421 So. 2d at 481-82.

See also Culberson, 612 So. 2d at 344 (" [A]n assault upon the constitutionality of a prior conviction used for sentence enhancement should be conducted in a proceeding in the court in which such conviction occurred and should be solely concerned with attacking that conviction"). See supra note 14.

On the face of the commitment papers there is no affirmative indication that Sones was not represented by counsel. Citing Burgett v. Texas, 389 U.S. 109, 113-116, 88 S. Ct. 258, 261-62, 19 L. Ed. 2d 319 (1967), counsel for Sones insisted at oral argument that we must presume the invalidity of any prior conviction when the evidence supporting it is silent on the issue of representation. We rejected this exact position in Mattheson v. Maggio, 714 F.2d 362, 365 (5th Cir. 1983) (holding that Burgett neither creates a "general presumption of invalidity" nor lightens the petitioner's "burden of proving that the convictions used by the State to enhance his sentence were uncounseled"); see also United States v. Barlow, 17 F.3d 85, 89 (5th Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 148, 130 L. Ed. 2d 88 (1994). As we explained in Mattheson, any presumption of invalidity raised in Burgett was based on evidence of the prior conviction that, on its face, affirmatively reflected that the conviction was in fact uncounseled.¹⁹  Id. Here, there is no such affirmative indication in the record, and so the evidence in the March 1980 conviction and sentencing does not reveal a facially invalid prior conviction.²⁰  Counsel therefore could not have successfully challenged the constitutionality of the prior convictions in the sentencing phase; as mentioned above, in Mississippi constitutional challenges to the validity of prior convictions that are not facially invalid must be made collaterally, see Phillips, 421 So. 2d at 481,²¹  and Sones has never sought collateral relief from the prior convictions that qualify him as a habitual offender. See supra note 14. We perceive no attorney constitutional ineffectiveness, nor any but for which Sones would not have received a life sentence. Accordingly, we reject Sones's contention that denying federal review of his Sixth Amendment claim would result in a fundamental miscarriage of justice.

Conclusion

For the foregoing reasons, the judgment of the district court is

AFFIRMED.