Hurth v. Mitchem, No. 03-11471.

• Decision Date: 16 February 2005
• Docket Number: No. 03-11471.
• Parties: Alonzo HURTH, Petitioner-Appellant, v. Billy MITCHEM, Warden, Attorney General for the State of Alabama, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

400 F.3d 857

Alonzo HURTH, Petitioner-Appellant, v. Billy MITCHEM, Warden, Attorney General for the State of Alabama, Respondents-Appellees.

No. 03-11471.

United States Court of Appeals, Eleventh Circuit.

February 16, 2005.

Thomas Martele Goggans (Court-Appointed), Montgomery, AL, for Petitioner-Appellant.

Cecil G. Brendle, Jr., Montgomery, AL, Michael Boysie Billingsley, Birmingham, AL, for Respondents-Appellees.

Appeal from the United States District Court for the Northern District of Alabama.

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, 151 L.Ed.2d 820 (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.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 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 than 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 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 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 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 Court of Criminal Appeals' 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 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...