Smith v. Jones

• Citation: 256 F.3d 1135
• Decision Date: 10 July 2001
• Docket Number: No. 00-12314,00-12314
• Parties: (11th Cir. 2001) JOHNNY HOWARD SMITH, Petitioner-Appellant, v. RON JONES, Dr., Warden, ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1135

256 F.3d 1135 (11th Cir. 2001)

JOHNNY HOWARD SMITH, Petitioner-Appellant, v. RON JONES, Dr., Warden, ATTORNEY GENERAL OF THE STATE OF ALABAMA, Respondents-Appellees.

No. 00-12314

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

July 10, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Northern District of Alabama. D. C. Docket No. 99-01519 CV-AR-S

Before CARNES and MARCUS, Circuit Judges, and PROPST^*, District Judge.

CARNES, Circuit Judge:

This appeal from the denial of 28 U.S.C. § 2254 relief brings us procedural bar issues of first impression relating to O'Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728 (1999), and its application to Alabama prisoners whose direct appeal process was completed before that decision was released.

In Smith v. White, 719 F.2d 390 (11th Cir. 1983), we held that a defendant whose conviction was affirmed by the Alabama Court of Criminal Appeals did not need to file a petition for discretionary certiorari review in the Alabama Supreme Court in order to exhaust state remedies and avoid an appellate default procedural bar. We had already reached a similar holding about discretionary review in the Florida Supreme Court, Williams v. Wainwright, 452 F.2d 775 (5th Cir. 1971), and a year after Smith we came to the same conclusion about discretionary review in the Georgia Supreme Court, Buck v. Green, 743 F.2d 1567, 1569 (11th Cir. 1984). In this § 2254 case involving an Alabama prisoner, we must now decide if Boerckel applies to habeas cases in which the direct appeal was completed before the rule of that case was announced; whether Boerckel overruled our Smith decision; and, if so, whether reliance upon our Smith decision is adequate cause to excuse a prisoner's failure to comply with the Boerckel rule. We answer those questions "yes," "yes," and "no."

Johnny Howard Smith is an Alabama prisoner serving concurrent life and life without parole sentences imposed after he was convicted by a jury of first degree robbery, attempted murder, and conspiracy to commit robbery. He appealed to the Alabama Court of Criminal Appeals, raising four issues, but that court affirmed his convictions without opinion on October 31, 1997. Smith v. State, 727 So.2d 177 (Ala. Crim. App. 1997).¹ Under Alabama Rule of Appellate Procedure 39(b), Smith had fourteen days to file a petition for certiorari review in the Alabama Supreme Court. Although the scope of discretionary review under that rule is broad, see infra note 6, Smith's attorney did not file a certiorari petition on his behalf in the Alabama Supreme Court. Under the law of this circuit at that time, it was not necessary to do so in order to preserve a prisoner's full federal habeas review options.²

On June 7, 1999, which was over a year and a half after the time had run for Smith to file his direct appeal certiorari petition in the Alabama Supreme Court, the United States Supreme Court issued its Boerckel decision. Resolving a circuit split, see Boerckel, 526 U.S. at 842, 119 S. Ct. at 1731, against the law of this circuit, Boerckel held that in order to exhaust state remedies as to a federal constitutional issue a prisoner is required to file a petition for discretionary review in the state's highest court raising that issue, if discretionary review is part of the appellate procedure in the state, id. at 845 - 47, 119 S. Ct. at 1732 - 34. That requirement is true even if, as is often the case, the state supreme court rarely grants such petitions and usually confines itself to answering questions of broad significance. The requirement for exhaustion of discretionary direct review steps exists where state rules give a petitioner the "right ... to raise" the federal claims in that manner and the federal court cannot conclude that review of them is "unavailable." Id. at 845 - 46, 119 S. Ct. at 1733.

The teeth of the exhaustion requirement comes from its handmaiden, the procedural default doctrine. If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established. Id. at 848 - 49, 119 S. Ct. at 1734; see also Coleman v. Thompson, 501 U.S. 722, 750 - 51, 111 S. Ct. 2546, 2565 (1991). That is what happened to Boerckel. He actually did file a state discretionary review petition, but he left out of it three of the federal constitutional issues that he later included in his federal habeas petition. Boerckel, 526 U.S. at 840 - 42, 119 S. Ct. at 1730 - 31. By the time Boerckel got to federal habeas, it was too late for him to go back and include those three issues in the long-since denied petition for discretionary review he had filed with the state supreme court. What Boerckel's failure to take full advantage of his state discretionary review remedies meant, the Supreme Court held, is that he had failed to exhaust his state remedies as to those three federal constitutional issues, and his failure to exhaust had matured into a procedural default as soon as the once available remedy was closed. Id. at 848, 119 S. Ct. at 1734.

Because Boerckel had failed to establish either cause for and prejudice from his procedural default, or that a fundamental miscarriage of justice would result from not considering the forfeited claims, id. at 841 - 842, 119 S. Ct. at 1731, the district court held that he was not entitled to federal habeas review of those claims. Id. The Supreme Court agreed and reversed the Seventh Circuit's reversal of the district court's decision. Id. at 849, 119 S. Ct. at 1734. The end result was that the federal claims Boerckel had not included in his application to the state supreme court for discretionary review were barred from federal habeas review. See Boerckel v. O'Sullivan, 234 F.3d 1272 (7th Cir. 2000) (unpublished) (on remand from the Supreme Court) ("Because of Boerckel's procedural defaults we now AFFIRM the district court's denial of habeas corpus relief.").

Where does that leave our Alabama petitioner, Johnny Howard Smith, who failed to file a certiorari petition in the Alabama Supreme Court during his direct appeal? He filed his federal habeas petition, pro se, on June 11, 1999, which was four days after the Supreme Court handed down the Boerckel decision. The State responded by asserting, among other defenses, that some of Smith's claims were procedurally barred under the Boerckel decision because of his failure to file a certiorari petition in the Alabama Supreme Court during the direct appeal process. The district court agreed, holding that three of Smith's claims were procedurally defaulted for that reason even though he had presented them to the Alabama Court of Criminal Appeals which had rejected them.³ In the district court, Smith argued that the Boerckel decision ought not be applied to his case, because it was unforeseeable, and in later filings he also said that he had relied upon this Court's Smith v. White holding that it was unnecessary to file a certiorari petition in the Alabama Supreme Court in order to exhaust state remedies and avoid a procedural default. The district court rejected Smith's argument that Boerckel was inapplicable, and finding no cause and prejudice, and no fundamental miscarriage of justice, the district court applied the procedural bar and denied Smith's habeas petition without considering the merits of the three claims that Smith could have but did not raise in a direct appeal certiorari petition to the Alabama Supreme Court.

Picking up in this Court where his client left off in the district court, counsel we appointed to represent Smith in this appeal has tried to convince us that the non-retroactivity doctrine announced in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), bars application of the Boerckel rule to any cases which had completed the direct appeal process at the time the rule was announced. But that is not what the Teague doctrine is about. As the Supreme Court has explained, "Teague stands for the proposition that new constitutional rules of criminal procedure will not be announced or applied on collateral review," a proposition that is based upon respect for the strong interest of states in the finality of criminal convictions, and the nature of the Teague rule is such that it is not applicable for the benefit of habeas petitioners. Lockhart v. Fretwell, 506 U.S. 364, 372 - 73, 113 S. Ct. 838, 844 (1993); see also Teague, 489 U.S. at 310, 109 S. Ct. at 1075 ("Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced."). Neither the purpose nor the terms of the Teague rule have any application to new rules of federal habeas procedure, such as the Boerckel rule on what is required for exhaustion of state direct appeal remedies.

Any contrary holding about the applicability of the Boerckel decision would be inconsistent with the result in that decision itself. Boerckel's failure to raise all his federal issues in his state court petition for discretionary review occurred in 1979 or 1980.⁴ The Supreme Court's decision announcing the rule under which Boerckel's conduct constituted a failure to exhaust amounting to a procedural default did not come until twenty years after his conduct, yet the Supreme Court applied the new rule to Boerckel. The Boerckel rule must be applied with equal force to any other habeas petitioner, regardless of when the failure to seek state discretionary review occurred.

Any other result would be inconsistent with the Boerckel decision itself, and with the general doctrine that when the Supreme Court announces a rule of federal law and applies it to the parties in that case, the rule is to be given full retroactive effect and applied to all...