Lott v. Hargett, 94-60846

• Decision Date: 16 April 1996
• Docket Number: No. 94-60846,94-60846
• Citation: 80 F.3d 161
• Parties: John LOTT, Petitioner-Appellant, v. Edward M. HARGETT, Superintendant, Mississippi State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 161

80 F.3d 161

John LOTT, Petitioner-Appellant, v. Edward M. HARGETT, Superintendant, Mississippi State

Penitentiary, Respondent-Appellee.

No. 94-60846.

United States Court of Appeals, Fifth Circuit.

April 16, 1996.

John Lott, Parchman, MS, pro se.

Jo Anne McFarland McLeod, Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, Chief Judge, and GOODWIN ¹ and DUHE, 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 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).

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 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.

                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
                

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 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.

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, 410 n. 6, 109 S.Ct. 1211, 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 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...