Smith v. Johnson, No. 99-20524
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before HIGGINBOTHAM, DeMOSS, and STEWART; PER CURIAM |
| Citation | 216 F.3d 521 |
| Parties | (5th Cir. 2000) GRAYLING LAMAR SMITH, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee. Summary Calendar |
| Docket Number | No. 99-20524 |
| Decision Date | 12 July 2000 |
Page 521
v.
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.
Page 522
Appeal from the United States District Court for the Southern District of Texas
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
Grayling Lamar Smith appeals the district court's dismissal of his petition for habeas relief. For the following reasons, we AFFIRM.
A jury found Grayling Lamar Smith guilty of possession with intent to deliver a controlled substance, and he was sentenced to 99 years' imprisonment. The Texas Court of Appeals affirmed the conviction and sentence.
Smith filed a state habeas petition in which he alleged that his appellate counsel was ineffective for failing to advise him that his direct appeal had been affirmed, which prevented him from filing a timely petition for discretionary review (PDR). The Texas Court of Criminal Appeals granted the petition on that claim and granted Smith leave to file an out-of-time PDR, but then refused review.
Smith filed a second state habeas petition, in which he argued that his trial attorney was ineffective for failing to inform him of the State's plea offer of twenty-five years' imprisonment. The state trial court rejected Smith's petition on the merits, but the Texas Court of Criminal Appeals dismissed the petition as successive pursuant to article 11.07 § 4 of the Texas Criminal Procedure Code. Smith then filed a third state habeas petition, which was similarly dismissed.
Smith then filed the instant federal habeas petition in which he alleged that (1) the evidence was insufficient; (2) his counsel was ineffective for failing to advise him of a plea offer from the State, for failing
Page 523
"to advance material witnesses" who were not present for trial, and for failing to object to the improperly pleaded enhancement paragraph; and (3) the state trial court had erred when it failed to suppress evidence seized by the arresting officer. Smith also argued that his petition was timely filed because the limitations period was tolled while the second and third state habeas petitions were pending.
Respondent filed a motion to dismiss the petition as time-barred, expressly reserving its right to address exhaustion. Smith opposed the Respondent's motion. The district court granted Respondent's motion and dismissed the petition as time-barred. Alternatively, the court determined that Smith's petition failed on the merits. The district court denied Smith a certificate of appealability (COA) to appeal.
In his COA application to this court, Smith made a credible showing that the district court had erred in applying the limitations bar. A COA then issued as to whether this court may sua sponte apply the procedural bar and, if so, whether Smith is procedurally barred from raising his claim that his trial counsel failed to convey a plea offer to him; alternatively, if the procedural bar is not applied, whether the district court erred in ruling on disputed factual issues relating to whether Smith's trial counsel conveyed a plea offer to Smith on the basis of the state habeas trial...
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...where the petitioner can make a persuasive showing that he is actually Page 847 innocent of the charges against him); Smith v. Johnson, 216 F.3d 521, 524 (5th Cir.2000) (holding that the fundamental miscarriage of justice exception is confined to cases of actual innocence where the petition......
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Green v. Davis, Civil Action No. H-13-1899
...barred by Article 11.07 § 4(a) – (c), which represents an adequate state procedural bar to federal habeas review. See Smith v. Johnson , 216 F.3d 521, 523 (5th Cir. 2000). In sum, because Green did not fairly present the issue of his competence to stand trial before any state court, and bec......
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Masterson v. Thaler, CIVIL ACTION NO. 4:09-CV-2731
...errors in the application of state law or reconsider whether a state court improperly applied its own procedure. See Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). If otherwise independent and adequate, this Court generally must honor a State's application of its own law. See Barnes v......
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Atkins v. Hooper, No. 19-30018
...and had a reasonable opportunity to respond, and whether the government intentionally waived the possible default. Smith v. Johnson , 216 F.3d 521, 524 (5th Cir. 2000). Here, the district court identified a possible defense of procedural default and instructed the State to raise the defense......
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Masterson v. Thaler, CIVIL ACTION NO. 4:09-CV-2731
...errors in the application of state law or reconsider whether a state court improperly applied its own procedure. See Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). If otherwise independent and adequate, this Court generally must honor a State's application of its own law. See Barnes v......
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Green v. Davis, Civil Action No. H-13-1899
...barred by Article 11.07 § 4(a) – (c), which represents an adequate state procedural bar to federal habeas review. See Smith v. Johnson , 216 F.3d 521, 523 (5th Cir. 2000). In sum, because Green did not fairly present the issue of his competence to stand trial before any state court, and bec......
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Lorraine v. Coyle, No. 01-3464.
...Morse v. Trippett, No. 00-1868, 2002 WL 257207, at *9 n. 4 (6th Cir. Feb.20, 2002) (applying Elzy in § 2254 context); Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir.2000) (raising procedural default in a § 2254 case sua sponte at the appellate 2. Failure to Attach Documentation Respondent ......
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Atkins v. Hooper, No. 19-30018
...and had a reasonable opportunity to respond, and whether the government intentionally waived the possible default. Smith v. Johnson , 216 F.3d 521, 524 (5th Cir. 2000). Here, the district court identified a possible defense of procedural default and instructed the State to raise the defense......