Smith v. Johnson

• Decision Date: 12 July 2000
• Docket Number: No. 99-20524,99-20524
• 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
• Court: U.S. Court of Appeals — Fifth Circuit

Page 521

216 F.3d 521 (5th Cir. 2000)

GRAYLING LAMAR SMITH, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

No. 99-20524

Summary Calendar

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 12, 2000

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.

I

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 "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 court's findings given that the Texas Court of Criminal Appeals had dismissed the petition as successive.

II

As a threshold matter, we find that Smith's notice of appeal was timely filed. The district court's judgment was entered on April 23, 1999. Smith therefore had until Monday, May 24, 1999, to file a timely notice of appeal. See Fed. R. App. P. 4(a)(1)(A). Smith's notice of appeal, filed on May 26, 1999, and only two business days late, is deemed timely filed because Smith is a pro se prisoner. See United States v. Young, 966 F.2d 164, 165 (5th Cir. 1992).

Although Smith's appeal was timely, we find that his initial request for habeas relief is procedurally barred. Smith's claim that his trial counsel was ineffective for failing to inform him of the State's plea offer was first raised in Smith's second state habeas application. As noted, the Texas Court of Criminal Appeals dismissed the petition pursuant to article 11.07 § 4 of the Texas Criminal Procedure Code. That provision states that a court may not consider the merits of a subsequent application for habeas relief after final disposition of an initial application challenging the same conviction. See Tex. Crim. P. Code Ann. art. 11.07 § 4.

Smith argues that the Texas Court of Criminal Appeals incorrectly dismissed his second habeas application as "successive" because his first habeas application did not actually challenge his conviction but only challenged the adequacy of Smith's counsel post-conviction. Nevertheless, "[a] basic tenet of federal habeas review is that a federal court does not have license to question a state court's finding of procedural default, if based upon an adequate and independent state ground," Barnes v. Thompson, 58 F.3d 971 (4th Cir. 1995), and this court has held that article 11.07 § 4 is an adequate and independent state procedural ground to bar federal habeas review and that it has been strictly and regularly applied since 1994. See Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995...