Sones v. Hargett, 93-7646

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GARWOOD, JOLLY and BARKSDALE; GARWOOD
• Citation: 61 F.3d 410
• Parties: Glendle Ray SONES, Petitioner-Appellant, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, Respondent-Appellee.
• Docket Number: No. 93-7646,93-7646
• Decision Date: 21 August 1995

Page 410

61 F.3d 410 Glendle Ray SONES, Petitioner-Appellant,
v.
Edward HARGETT, Superintendent, Mississippi State
Penitentiary, Respondent-Appellee. No. 93-7646. United States Court of Appeals,
Fifth Circuit. Aug. 21, 1995.

Page 413

Gail Nicholson (Court-Appointed), Gulfport, MS, for appellant.

Marvin L. White, Jr., Jo Anne McFarland McLeod, Asst. Attys. Gen., Mike Moore, Atty. Gen., Jackson, MS, for appellee.

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

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Glendle Ray Sones (Sones) appeals the district court's denial of his section 2254 petition for a writ of habeas corpus. We affirm.

Facts and Proceedings Below

Following a March 1980 bench trial in Mississippi state court, Sones was convicted of burglary and, pursuant to the state's habitual offender statute, sentenced to life in prison without parole. ¹ Miss.Code Ann. Sec. 99-19-83 (1994). At sentencing, the state called B.C. Ruth (Ruth), a former records custodian for the Mississippi Department of Corrections, to prove up the prior convictions that were alleged in the indictment as the predicate for Sones's sentence as a habitual offender. See id. (requiring at least two prior felony convictions "where any one (1) of such felonies shall have been a crime of violence" and where both of the convictions resulted in separate prison terms of one year or more in any state or federal penal institution). Ruth, who was records custodian at the time of Sones's prior convictions, identified Sones's original prison file and identified him as the person who had served the terms reflected in the file. Ruth also authenticated original commitment papers issued by the circuit clerks of the counties where Sones had been sentenced. These papers reflected that Sones had been convicted of three felonies and had actually served sentences based on these convictions. ² Sones objected to the introduction of this evidence, arguing that to prove that he was a habitual offender the State needed to produce the actual judgments of conviction instead of merely the commitment papers. Sones also argued at sentencing that the habitual offender statute was unconstitutional.

Sones appealed his conviction and sentence to the Mississippi Supreme Court, Pace v. State, 407 So.2d 530 (Miss.1981), contending, inter alia, that the State had not adequately proved his prior convictions because Ruth was not the records custodian at the time he testified and because the actual judgments of convictions had not been produced. Id. at 533-34. The Mississippi Supreme Court rejected these arguments, concluding that Ruth was qualified to testify and, further, that the commitment papers, although not the best evidence, were adequate proof of Sones's prior

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convictions. Id. at 534-35. Sones also argued on his direct appeal that the state habitual offender statute, both facially and as applied, violates the Constitution, specifically the protections against ex post facto laws, double jeopardy, and cruel and unusual punishment. Id. at 535. Sones argued in particular, apparently with regard to his claim of cruel and unusual punishment, that his prior convictions were too remote in time to be relevant to the determination whether he should be treated as a habitual offender. The Mississippi Supreme Court rejected all these arguments and affirmed the conviction and sentence. ³ Id. On January 6, 1982, the court denied Sones's petition for rehearing.

On June 5, 1989, more than seven years after his unsuccessful direct appeal, Sones moved the Mississippi Supreme Court for leave to pursue post-conviction relief in the trial court, ⁴ Miss.Code Ann. Sec. 99-39-1 et seq., claiming that his life sentence should be set aside for violating the Ex Post Facto and Cruel and Unusual Punishment Clauses of the Federal Constitution; he also reasserted that the proof of his prior convictions was inadequate to support the trial court's finding that he was a habitual offender. On July 26, 1989, the Mississippi Supreme Court denied Sones's motion, concluding that his claims were time barred under the applicable three-year statute of limitations on claims for post-conviction relief. See id. Sec. 99-39-5(2). The court, accordingly, did not reach the merits of his claims.

On May 31, 1991, Sones filed the instant habeas petition, his first in federal court. In the district court, Sones raised the following six claims: (1) that his sentence as a habitual offender constituted cruel and unusual punishment; (2) that the habitual offender statute is itself unconstitutional; (3) that there was insufficient evidence to establish whether he was a habitual offender; (4) that the indictment was fatally defective; (5) that his arrest was the result of entrapment; and (6) that his trial counsel was constitutionally ineffective for failing to object to the allegedly defective indictment. On May 3, 1993, the district court entered a memorandum opinion concluding that all Sones's claims were time barred and, in the alternative, meritless and ordering that the petition be dismissed with prejudice. The district court thereafter granted Sones's motion for an extension of time to file "objections" to the memorandum opinion. Thereafter, Sones, on June 1, 1993, filed his "Plaintiff's Objections To The Judge's Memorandum Opinion," in which he raised a new basis for his Sixth Amendment claim: that his trial counsel was ineffective for failing to investigate and challenge the validity of his prior conviction for armed robbery, his only prior crime of violence. The district court in a September 7, 1993, memorandum opinion overruled these objections, rejecting the additional Sixth Amendment claim because Sones did not "specify how the prior convictions were invalid." On the same date, the district court entered judgment dismissing the case with prejudice. This Court granted Sones a certificate of probable cause and appointed appellate counsel for him.

Discussion

We must first decide which of Sones's claims are properly before us. Federal courts will generally not consider claims in a section 2254 habeas petition that have not been first presented to the state courts. 28 U.S.C. Sec. 2254(b). In other words, the petitioner must exhaust all available state remedies before he may obtain federal habeas relief. Rodriguez v. McKaskle, 724 F.2d 463, 466 (5th Cir.), cert. denied, 469 U.S. 1039, 105 S.Ct. 520, 83 L.Ed.2d 408 (1984); see also Sterling v. Scott, 57 F.3d 451, 454 (5th Cir.1995). "To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his claims to

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the state courts." Vela v. Estelle, 708 F.2d 954, 958 (5th Cir.1983) (citations omitted), cert. denied, 464 U.S. 1053, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984). "Normally, the exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in his petition to the federal court." Id. (footnote omitted). This exhaustion rule requires the dismissal of any habeas petition that contains claims not yet raised in available state court proceedings, even if such claims are mixed with exhausted ones. Rose v. Lundy, 455 U.S. 509, 513-519, 102 S.Ct. 1198, 1201-03, 71 L.Ed.2d 379 (1982); Rodriguez, 724 F.2d at 464.

In his federal habeas petition, Sones essentially raised all those issues decided by the Mississippi Supreme Court in his direct appeal, but added for the first time in any court the claim that his trial counsel was constitutionally ineffective. ⁵ In his motion for post-conviction relief in state court, moreover, Sones did not raise any claims that had not already been disposed of on direct appeal, although he did not raise every issue submitted on direct appeal or in the instant federal petition. So long as the claims have been presented to the state supreme court, however, it is not necessary for the prisoner to ask the state for collateral relief on the same issues. ⁶ Brown v. Allen, 344 U.S. 443, 448 n. 3, 73 S.Ct. 397, 403 n. 3, 97 L.Ed. 469 (1953). Section 2254 does not require "repetitious applications to state courts." Id. The exhaustion of state remedies can be accomplished either directly or collaterally. Myers v. Collins, 919 F.2d 1074, 1076-77 (5th Cir.1990); see also 17A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure Sec. 4264 ("[I]t is settled that Sec. 2254 is satisfied if the federal issue has once been properly presented to the highest court of the state."). Consequently, we hold that Sones has adequately exhausted available state remedies for those claims presented to the Mississippi Supreme Court. Although these claims are thus properly before us, we agree, essentially for the reasons stated by the Mississippi Supreme Court and by the district court below, that these claims must fail on the merits. In particular, we agree with the Mississippi Supreme Court that the proof of Sones's prior convictions was adequate to support the finding that he is a habitual offender. ⁷ See also King v. State, 527 So.2d 641, 646 (Miss.1988).

For the first time, Sones argues in the instant federal proceeding, in his objections to the district judge's May 3, 1993, memorandum

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opinion directing that the habeas petition be dismissed, that trial counsel was ineffective for not challenging the validity of his prior convictions; specifically, he contends that his trial counsel should have objected to the use of his 1960 conviction for armed robbery because, allegedly, he was without counsel during the preliminary hearing and sentencing phase for that particular conviction. See Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977) ("[S]entencing is a critical stage of the criminal proceeding at which [a defendant] is entitled to the effective assistance of counsel."). Because...