Martin v. Maxey

• Decision Date: 01 November 1996
• Docket Number: No. 96-60110,96-60110
• Citation: 98 F.3d 844
• Parties: Milton MARTIN, Petitioner-Appellant, v. Ruble MAXEY, the Attorney General of the State of Mississippi, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 844

98 F.3d 844

Milton MARTIN, Petitioner-Appellant, v. Ruble MAXEY, the Attorney General of the State of Mississippi, Respondents-Appellees.

No. 96-60110.

United States Court of Appeals Fifth Circuit.

Nov. 1, 1996.

Milton Martin, Holly Springs, MS, pro se.

Jo Anne Mc Farland McLeod, Office of the Attorney General for the State of Mississippi, Jackson, MS, for respondents-appellees.

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

Before SMITH and PARKER, Circuit Judges, and JUSTICE ^*, District Judge.

JUSTICE, District Judge:

Appellant, Milton Martin, appeals the denial of his 28 U.S.C. § 2254 habeas petition. Martin contends that he was denied his Sixth Amendment rights to a speedy trial and effective assistance of counsel. The district court found that Martin's claims were procedurally barred. We affirm in part, reverse in part, and remand the district court's denial of relief.

I. BACKGROUND

Martin is currently in the custody of the Mississippi Department of Corrections, serving a 20-year sentence, after having been convicted of manslaughter by a jury. Following his conviction, Martin, represented by his trial counsel, filed a direct appeal to the Mississippi Supreme Court raising the following issues: 1) the verdict was contrary to the weight of the evidence; 2) the state trial court erred in overruling his objection to the state's closing argument; and 3) the state trial court erred in refusing to give a "Weathersby" ¹ instruction. The Mississippi Supreme Court affirmed Martin's conviction and sentence.

Thereafter, Martin, proceeding pro se, filed an application for post conviction relief with the Mississippi Supreme Court presenting the same or substantially the same issues presented in his federal petition. The state court denied Martin's claims, reasoning that the issues were "barred from consideration by Miss.Code Ann. § 99-39-21 of the Mississippi Uniform Collateral Relief Act and fail to present a substantial showing of the denial of a state or federal right."

Still proceeding pro se, Martin filed a 28 U.S.C. § 2254 habeas petition. The magistrate judge granted Martin leave to proceed in forma pauperis and ordered Martin to file an amended petition clearly setting forth his claims. In the amended petition, Martin contended that his constitutional rights were violated because: 1) he received ineffective assistance of counsel (a) because counsel failed to argue adequately a motion to suppress evidence or to raise that issue on appeal and (b) because counsel failed to obtain a preliminary hearing; 2) a witness gave perjured testimony at his trial; ² and 3) he was not given a speedy trial.

The magistrate judge recommended denying the petition on the ground that Martin's claims were procedurally barred. In this relation, the magistrate judge found that Martin had not demonstrated the necessary cause and prejudice to overcome the procedural default, holding that there was no ineffective assistance of counsel constituting cause for the procedural default. The magistrate judge also found that there was no showing of a fundamental miscarriage of justice.

Martin filed objections to the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The district court, under the de novo standard of review, issued an order adopting the magistrate's report and recommendation in full. The court granted Martin's motion for a certificate of probable cause to appeal and found that Martin is entitled to proceed in forma pauperis. ³

Martin challenges the court's dismissal of the following claims as procedurally barred: ⁴ 1) he received ineffective assistance of counsel (a) because counsel failed to argue adequately a motion to suppress evidence or to raise that issue on appeal and (b) because counsel failed to obtain a preliminary hearing; and 2) he was not given a speedy trial. To the extent Martin raises other claims in his appeal that he did not raise before the district court, these claims are not considered. Smith v. Black, 970 F.2d 1383, 1389 (5th Cir.1992).

II. DISCUSSION

"A district court's denial of federal habeas review based on a state procedural ground presents a legal question that we review de novo." Amos v. Scott, 61 F.3d 333, 338 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995).

Under the procedural default doctrine, a federal court may not consider a state prisoner's federal habeas claim when the state based its rejection of that claim on an adequate and independent state ground. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); see 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). In cases where a state court decision "fairly appears" to rest primarily on federal law, the state must make a "plain statement" that the state's review of the claim is procedurally barred. Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 1042, 103 L.Ed.2d 308 (1989). The Mississippi Supreme Court made such a statement when it held that Martin's habeas claims are "barred from consideration by Miss.Code Ann. § 99-39-21 of the Mississippi Uniform Post-Conviction Collateral Relief Act ⁵ and fail to present a substantial showing of the denial of a state or federal right as required by Miss.Code Ann. § 99-39-27 ⁶." Section 99-39-21(1) prevents a defendant from raising issues in federal court that he did not raise on his direct appeal.

Additionally, in order to be "adequate," a procedural bar rule must be "strictly or regularly" applied by the state to the "vast majority of similar claims." Amos v. Scott, 61 F.3d 333, 339 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995); see also Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 1217 n. 6., 103 L.Ed.2d 435 (1989); Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982). This circuit has found that there is a "time window" in which Mississippi did not strictly or regularly apply the direct appeal bar of § 99-39-21(1). See, e.g., Wheat v. Thigpen, 793 F.2d 621, 627 (5th Cir.1986) (holding that 8th amendment challenge to prosecutor's closing argument is not procedurally barred despite petitioner's failure to raise claim on direct appeal), cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987); Wilcher v. Hargett, 978 F.2d 872, 879 (5th Cir.1992) (holding that Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) claim is not procedurally barred even though claim was not raised on direct appeal), cert. denied, 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993). The Fifth Circuit has yet to determine whether Mississippi has begun to apply its direct appeal bar strictly and regularly, and if so, when this application began. The burden is on Martin to establish that the Mississippi procedural bar rule was not strictly and regularly followed at the time of his direct appeal. Sones v. Hargett, 61 F.3d 410, 416 (5th Cir.1995).

A state has failed to strictly and regularly apply a procedural rule only when the state "clearly and unequivocally excuse[s] the procedural default." Amos v. Scott, 61 F.3d 333, 342 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 557, 133 L.Ed.2d 458 (1995). Moreover, the state must fail to apply the rule to claims "identical or similar " to the petitioner's claim. Id. at 341 (emphasis in the original). De minimis exceptions will not preclude the state from asserting the procedural default doctrine; "an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate." Id. at 342. Because this exception to the procedural bar doctrine is claim specific, each of Martin's claims will be examined individually to see if the Mississippi Supreme Court has failed to apply its direct appeal bar rule to each specific type of claim.

A. Ineffective Assistance of Counsel Claim

The district court concluded that Martin's ineffective assistance of counsel claim is procedurally barred. We reverse the district court's holding. Under Mississippi law, the failure to raise an ineffective assistance of counsel claim on direct review does not constitute a procedural bar where, as in this case, the litigant was represented by the same counsel at trial and on direct appeal. Smith v. Black, 904 F.2d 950, 976 n. 8 (5th Cir.1990) (citing Read v. State, 430 So.2d 832, 836-38 (Miss.1983)), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992); see also Sones v. Hargett, 61 F.3d 410, 416 n. 9 (5th Cir.1995).

The district court found that there was no cause to excuse Martin's procedural default of the ineffective assistance of counsel claim, but did not proceed to the merits of Martin's ineffective assistance of counsel claim, which involves a second and different type of "cause" standard. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The district court notes correctly that the Supreme Court has stated that "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it" does not constitute ineffective assistance of counsel and therefore does not constitute cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 2644, 91 L.Ed.2d 397 (1986). However, Martin is not alleging a "mere failure" of his counsel to raise a claim. Martin's ineffective assistance of counsel claim alleges that his counsel failed to adequately argue a motion to suppress evidence that was obtained in violation of his Fourth Amendment rights or to raise that issue on appeal, and that his counsel failed to obtain a preliminary hearing on the suppression issues. This circuit has held that counsel's failure to move to suppress evidence,...