Wallace v. Mississippi

• Decision Date: 08 August 2022
• Docket Number: 20-60098
• Citation: 43 F.4th 482
• Parties: Reginald Desmond WALLACE, Petitioner—Appellant, v. State of MISSISSIPPI; Burl Cain, Commissioner, Mississippi Department of Corrections, Respondents—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

43 F.4th 482

Reginald Desmond WALLACE, Petitioner—Appellant,

v.State of MISSISSIPPI; Burl Cain, Commissioner, Mississippi Department of Corrections, Respondents—Appellees.

No. 20-60098

United States Court of Appeals, Fifth Circuit.

FILED August 8, 2022

Jennifer Sheffield Freel, Jackson Walker, L.L.P., Austin, TX, Emily M. Rhine, Vinson & Elkins, L.L.P., Dallas, TX, for Petitioner-Appellant.

Erin E. Rutherford, Office of the Attorney General for the State of Mississippi - Criminal Division, Jackson, MS, Bridgette Grant, Office of the Attorney General for the State of Mississippi, Jackson, MS. for Respondents-Appellees.

Before Barksdale, Stewart, and Dennis, Circuit Judges.

Rhesa Hawkins Barksdale, Circuit Judge:

This appeal pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq. , is by a Mississippi state prisoner seeking habeas relief under 28 U.S.C. § 2254. Following a state trial court's Judgment of Conviction based on guilty pleas and a much later Order of Sentence (collectively the judgment), petitioner, under state law, could not take a direct appeal to a state court. Nor did he seek direct review by the Supreme Court of the United States. The failure to do so underlies the following compelled and complex analysis.

Because direct review by the Supreme Court was not pursued, primarily at issue is: For determining the date on which AEDPA's one-year limitations period (one-year period) to seek federal habeas relief from a state-court judgment begins running, when does the judgment resulting from a guilty-plea conviction and sentence in Mississippi, for which there is no direct appeal to a Mississippi state court, become final. Does it become final the day the judgment is filed, or 90 days later, when, pursuant to Supreme Court Rule 13(1), the time has expired for seeking direct review from the Supreme Court of the United States by filing a petition for writ of certiorari (90-day period)?

Reginald Desmond Wallace, a Mississippi inmate who pleaded guilty to felony charges, contests his 28 U.S.C. § 2254 petition's being dismissed on the basis that it was filed 61 days late, using for finality of judgment the date his Order of Sentence was filed. He contends the judgment did not become final until the 90-day period expired because Mississippi law prohibited his seeking direct state-court review of his guilty-plea convictions and sentence and, therefore, he instead could have pursued direct review by the Supreme Court of the United States (finality issue). Therefore, had the 90-day period been accorded Wallace by the district court, his petition would have been filed timely.

Although our court granted Wallace a certificate of appealability (COA) on this finality issue, Wallace did not assert in district court, or in his pro se motion to our court for the COA, that the judgment became final only upon the 90-day period's expiration. To the contrary, Wallace's counsel in district court conceded it did not. Accordingly, the threshold question for our considering this finality issue is whether Wallace preserved it.

Wallace also raises an alternative issue: whether our court should vacate the dismissal of his petition and remand to district court for him to present an equitable-tolling issue with conflict-free counsel, in the light of Christeson v. Roper , 574 U.S. 373, 135 S.Ct. 891, 190 L.Ed.2d 763 (2015) (explaining, in context of AEDPA's statute of limitations, conflict of interest generally arises when counsel asserts equitable tolling should apply because of counsel's failure to meet deadline). Wallace also moved to expand his COA to cover this alternative issue, noting it was unclear whether the COA encompassed it.

For Wallace's finality issue, we hold: his judgment became final upon the 90-day period's expiration; and, therefore, his petition was filed timely. Accordingly, it is not necessary to consider Wallace's alternative equitable-tolling issue, including whether to expand the COA. VACATED and REMANDED.

I.

This appeal centers on whether Wallace's habeas petition was filed timely. Therefore, an extremely detailed chronology of his lengthy state and federal proceedings is required.

A.

Wallace and four codefendants were indicted in April 2012 in a Mississippi circuit court of armed robbery, kidnapping, and conspiracy to commit armed robbery, in violation of Mississippi Code Annotated §§ 97-1-1, 97-3-53, 97-3-79. Wallace retained counsel (state counsel). (As provided in his later state-court post-conviction proceeding, he allegedly insisted to state counsel that: he did not plan the crime; and he learned of the plan once the robbery had begun.)

On 12 September 2012, Wallace filed a motion to suppress a handgun that was seized during a search of his home. Asserting that "the State intend[ed] to convince the jury that this handgun was the one used in the" three charged offenses, he challenged law enforcement's assertion that the handgun had been in plain view.

Wallace contended in his later state-court post-conviction proceeding that the trial court declined to consider the motion unless he proceeded to trial.

In any event, Wallace on 24 September 2012 filed a petition to plead guilty to the three charged offenses. The court accepted his pleas that same day, and filed a Judgment of Conviction, in which sentencing was set for 5 November 2012.

Sentencing, however, was reset numerous times. During the sentencing phase, Wallace retained new counsel. Pursuant to an Order of Sentence filed on 6 June 2013, he was sentenced to, inter alia , concurrent terms of: 30 years' imprisonment for the armed robbery and kidnapping offenses; and five years' for the conspiracy offense.

Critical to this appeal, Mississippi law proscribed Wallace's filing a direct appeal because he pleaded guilty and was sentenced. MISS. CODE ANN. § 99-35-101 ("Any person convicted of an offense in a circuit court may appeal to the [Mississippi] Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed".). Wallace did not seek a writ of certiorari from the Supreme Court of the United States (Court).

Ten months after being sentenced, Wallace on 10 April 2014 filed in circuit court a pro se motion for state post-conviction relief, contending, inter alia : his guilty plea was involuntary; and he received ineffective assistance from state counsel. (The motion was docketed on 14 April, but because Mississippi's prisoner-mailbox rule applied, it was effectively filed on 10 April.)

In response, the State on 3 July 2014 presented, inter alia , an affidavit by Wallace's state counsel, providing Wallace had: rejected an offer to plead guilty to the lesser charge of "simple robbery" (robbery plea-offer); and lied to state counsel about his involvement in the armed robbery. (The Mississippi Court of Appeals later explained: "In Mississippi, there is no offense titled ‘simple’ robbery". Wallace v. State , 264 So. 3d 1, 3 n.1 (Miss. Ct. App. 2018) (en banc). Accordingly, that court "expressed [its] understanding to be that the characterization in [Wallace's state-counsel's] affidavit refers to robbery ... ". Id. )

By a letter to the circuit court filed 21 July 2014, Wallace stated he first learned of the robbery plea-offer in state-counsel's affidavit. Wallace's motion was dismissed on 6 August 2014 without a hearing.

He appealed through new counsel (who also later represented him in district court). The Mississippi Court of Appeals, inter alia : ruled there was no merit in Wallace's claims presented in his pro se motion for post-conviction relief; but, reversed and remanded for an evidentiary hearing on whether state counsel provided ineffective assistance by failing to inform Wallace of the robbery plea-offer, as claimed in his letter to the circuit court. Wallace v. State , 184 So. 3d 993, 1001–03 (Miss. Ct. App. 2016).

On remand, the circuit court on 3 October 2016 conducted a hearing, including admission of evidence, and subsequently denied post-conviction relief. Wallace appealed, and the Mississippi Court of Appeals affirmed on 24 July 2018. Wallace , 264 So. 3d at 2.

The Mississippi Supreme Court on 14 February 2019 denied Wallace's request for certiorari. Wallace v. State , 263 So. 3d 664 (Miss. 2019). The mandate issued on 7 March 2019. In short, Wallace's state post-conviction proceedings took 1,792 days, approximately five years.

B.

On 3 July 2019, four months after the state mandate issued, Wallace, through counsel who had represented him on appeal from the dismissal of his motion for state post-conviction relief (hereinafter district-court counsel), filed for 28 U.S.C. § 2254 relief, contending the Mississippi Court of Appeals' affirming the denial of his ineffective-assistance-of-counsel claim—that state counsel failed to communicate to Wallace an offer to plead guilty—was not supported by the facts presented at the circuit court hearing.

The State moved to dismiss the petition as untimely under AEDPA. As discussed infra , AEDPA imposes the above-referenced one-year period to file a § 2254 petition for habeas relief from a state-court judgment. The one-year period begins running from the latest of, inter alia , the state-court judgment of conviction's "bec[oming] final by the conclusion of direct review or the expiration of the time for seeking such review ". 28 U.S.C. § 2244(d)(1)(A) (emphasis added). (As explained infra , the expiration of time for seeking direct review includes the above-referenced 90-day period.) And, the one-year period is tolled "during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending". 28 U.S.C. § 2244(d)(2) ; Lawrence v. Florida , 549 U.S. 327, 331, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007).

Without expressly claiming, as it does now, that Wallace was not entitled to the 90-day period before his judgment...