Smith v. Morgan
| Citation | 980 F.2d 731 |
| Decision Date | 30 November 1992 |
| Docket Number | No. 91-6320,91-6320 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Odell SMITH, Petitioner-Appellant, v. Jack MORGAN, Warden, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Before DAVID A. NELSON and BOGGS, Circuit Judges, and ROSENN, Senior Circuit Judge. *
Odell Smith, pro se, appeals the district court's order dismissing his petition for a writ of habeas corpus which he filed under 28 U.S.C. § 2254. By order dated October 3, 1991, the district court granted a certificate of probable cause in this matter.
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
In 1978, a jury found Smith guilty of third degree burglary, robbery with a deadly weapon, receiving stolen property and habitual criminality. Based on a receiving stolen property charge, Smith later pled guilty to a second charge of habitual criminality. He was sentenced to serve two concurrent life sentences for the habitual criminality convictions. These habitual criminality counts were based upon six prior felony convictions to which Smith had pled guilty, including five counts of grand larceny and one count of third degree burglary.
After filing three post-conviction petitions in state court, Smith filed the petition for habeas relief now before this court. On appeal, Smith presents the following four questions for review: 1) whether petitioner's claims should be reviewed under a fundamental miscarriage of justice standard by the federal court; 2) whether the petitioner has waived his constitutional right to challenge the validity of his prior convictions by failing to raise such grounds in previously filed petitions for post-conviction relief; 3) whether petitioner's prior guilty pleas, upon which his habitual criminal convictions were based, were involuntary because the trial judge did not advise petitioner of his right against self-incrimination; and 4) whether petitioner was denied the effective assistance of counsel because counsel failed to assert the unconstitutionality of the Habitual Criminal Statute.
A writ of habeas corpus may issue to correct a fundamentally unfair trial or proceeding resulting in the unjust confinement of a petitioner. Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir.1989), cert. denied, 495 U.S. 950 (1990). The Supreme Court has defined the category of infractions that violate "fundamental fairness" very narrowly. Dowling v. United States, 493 U.S. 342, 352 (1990).
In regard to the first ground presented in his petition, the district court correctly found that any future post-conviction petition would be barred by Tennessee's three year statute of limitations applicable to post-conviction petitions in that state. See Tenn.Code Ann. § 40-30-102. Therefore, Smith is required to show cause for his failure to present this ground in state court and actual prejudice to his case, therefrom. Coleman v. Thompson, 111 S.Ct. 2546, 2565 (1991).
Looking to the last "reasoned" state judgment rejecting the federal claims presented, pursuant to Ylst v. Nunnemaker, 111 S.Ct. 2590, 2594 (1991), we conclude that the issues raised by Smith enumerated as two, three, and four in his federal habeas petition have been waived for...
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