FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 19 2000

THOMAS K. KAHN

CLERK

* Honorable Lloyd D. George, Senior U. S. District Judge for the District

of Nevada, sitting by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 98-6684

________________________

D. C. Docket No. 96-00113-CIV-C-S

LARRY FRANKLIN,

Petitioner-Appellant,

versus

ROY HIGHTOWER, Warden,

BILL PRYOR, The Attorney General of the State of Alabama,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(June 19, 2000)

Before COX and HULL, Circuit Judges, and GEORGE*

, Senior District Judge.

PER CURIAM:

Larry Franklin appeals the district court’s denial of his petition under 28 U.S.C.

§ 2254. We affirm.
1 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969).

2 Both Franklin and the State seem to assume that this claim is the same

as the Boykin claim Franklin pursued in the state courts, and we have no reason to

challenge their assumption here.

2

In 1982, an Alabama circuit court convicted Franklin, on pleas of guilty, of

three counts of third-degree burglary. Franklin served his sentence without any

collateral attack on his convictions. In 1993, a jury found Franklin guilty of firstdegree robbery, and the circuit court sentenced Franklin to life without parole under

Alabama’s Felony Habitual Offender Act. Franklin then filed a petition under

Alabama Rule of Criminal Procedure 32 challenging his 1982 convictions on the

grounds that neither the court nor his counsel advised him of the rights he was

waiving by pleading guilty, thus violating his right to due process under Boykin v.

Alabama1

 and depriving him of effective assistance of counsel. The circuit court

denied the petitions as barred by Rule 32’s two-year statute of limitations. The

Alabama Court of Criminal Appeals affirmed for the same reason.

Franklin then filed this § 2254 petition. The petition asserted three challenges

to the 1982 convictions: (1) the circuit court violated Franklin’s due-process rights by

permitting him to plead guilty without being informed of the charges against him;2

 (2)

the indictment was void because it was not signed by the grand jury foreperson, and

the circuit court therefore lacked jurisdiction; and (3) his counsel was ineffective for
3

failing to address these irregularities. While this petition was pending, Franklin filed

another Rule 32 petition in an Alabama circuit court to assert his claim that the

indictment was void under Alabama law. The district court stayed this proceeding

while the state courts addressed the second Rule 32 petition. The circuit court refused

to permit in forma pauperis filing, and the Alabama Court of Criminal Appeals

affirmed because the second petition was time-barred, like the first. The district court

then resumed the proceedings and, on recommendation from the magistrate judge,

denied the petition on the grounds that the claims were procedurally defaulted, and

that Franklin had failed to show either cause and prejudice or actual innocence to

excuse his default.

In 1998, Franklin sought a certificate of probable cause to appeal (CPC), which

the district court denied and this court granted. At the time, it was proper procedure

in this circuit to apply the CPC rules developed under the old version of 28 U.S.C. §

2253 to all petitions (like Franklin’s) filed before the April 1996 effective date of the

Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), regardless of

when the petitioner sought to appeal. See Tompkins v. Moore, 193 F.3d 1327, 1330

(11th Cir. 1999). Since this court granted Franklin a CPC, however, the Supreme

Court has decided that the AEDPA amendments to 28 U.S.C. § 2253 govern all
4

appeals perfected after AEDPA’s effective date, regardless of the petition filing date.

See Slack v. McDaniel, 120 S. Ct. 1595, 1600 (2000).

As this court has explained before, AEDPA amended 28 U.S.C § 2253 to

relabel the order a “certificate of appealability” (COA) and to add a statutory standard

for its issuance. See Henry v. Department of Corrections, 197 F.3d 1361, 1363-64

(11th Cir. 1999) (describing statutory history). Two important differences between

a CPC and a COA cast doubt on the validity of the current CPC to permit Franklin’s

appeal to proceed. First, unlike a CPC, a COA “shall indicate which specific issue or

issues” show “the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)-(3); see

Tompkins, 193 F.3d at 1330 (noting that CPC did not necessarily specify issues).

Second, to grant a COA on a procedural question — as would be appropriate here,

since the district court denied Franklin’s petition on procedural grounds — we must

evaluate not only the merit of the procedural arguments, but also the merit of the

underlying claims. If “jurists of reason” would not find it debatable both whether

“the petition states a valid claim of the denial of a constitutional right” and whether

“the district court was correct in its procedural ruling,” then we may not grant a COA

on a procedural issue. See Slack, 120 S. Ct. at 1600-01.

While these differences matter, the grant of a CPC rather than a COA here is

not fatal to the appeal. By applying AEDPA’s standards to this appeal and issuing a
5

proper COA (if warranted), this panel may “fix” the inadequacies of the present CPC.

The CPC was issued by a single judge, and as a panel we may revisit the ruling. See

Fed. R. App. P. 27(c); 11th Cir. R. 27-1(g). A past panel has indeed revisited a COA

granted by a single judge in order to confirm that it complies with statutory standards.

See Henry, 197 F.3d at 1363-64. And the Court in Slack remanded the case in part for

the court of appeals to apply the appropriate standard, thus implying that defective

leave to appeal neither dooms the appeal nor deprives the appellate courts of

jurisdiction. See Slack, 120 S. Ct. at 1607. So we proceed to reevaluate the appeal

under Slack.

Franklin’s appeal presents two distinct procedural questions. The first is

whether Franklin has procedurally defaulted his claim that the 1982 indictment was

void because the foreperson of the grand jury did not sign it, and that the circuit court

therefore lacked jurisdiction. Because this procedural question is not debatable among

jurists of reason, we do not need to evaluate the merit of the claim here. Franklin

presented this claim in state courts in a successive petition filed two years after his

first state-court petition; he has offered no reason for not including the claim in his

first state petition. Rather, he argues that the time-bar relied on by the Alabama courts
3 See Johnson v. Mississippi, 486 U.S. 578, 589, 108 S. Ct. 1981, 1988

(1988).

6

is not consistently applied — and thus not a procedural bar under federal law3

 —

because the defect in the indictment was jurisdictional, and under Alabama law

jurisdiction may be reviewed at any time. This argument is patently meritless because

its premise is wrong: the foreperson’s failure to sign the indictment is not

jurisdictional under Alabama law. See In re Goulden, 299 So. 2d 325, 326 (Ala.

1974) (“The failure of the foreman of the grand jury to endorse the indictment as a

true bill did not deprive the circuit court of jurisdiction . . . .”). There is no reason,

therefore, to think that this defect under Alabama law is any less subject to Rule 32’s

time bar than other claims. This claim is undisputably procedurally defaulted, and

Franklin is thus not entitled to a COA for us to consider the question of its procedural

default.

The Slack analysis yields a different result, however, for the second procedural

question. That question is whether the late filing of Franklin’s first Rule 32 petition

bars Franklin’s claims that he was denied due process because the trial court did not

inform him of the charges against him before he pleaded guilty, and that his counsel

was constitutionally ineffective in failing to object or inform him. Slack’s first prong

is satisfied here because at least one of the two claims affected by this procedural
7

question is of debatable merit — indeed, in this case the merits of both of the

underlying claims are debatable among jurists of reason. Having no record of the

1982 proceedings, for the moment we take Franklin’s allegations as true. If we

believe the allegations, the first claim’s merit is certainly debatable among jurists of

reason: A guilty plea is not voluntary “in a constitutional sense” unless “the defendant

received ‘real notice of the true nature of the charge against him, the first and most

universally recognized requirement of due process.’” Henderson v. Morgan, 426 U.S.

637, 645, 96 S. Ct. 2253, 2257-58 (1976) (quoting Smith v. O’Grady, 312 U.S. 329,

334, 61 S. Ct. 572, 574 (1941)). Reasonable jurists could debate as well whether

Franklin’s counsel was ineffective for permitting him to enter a guilty plea when he

was not properly informed of the premises. Cf. Finch v. Vaughn, 67 F.3d 909, 916-17

(11th Cir. 1995). Under Slack, therefore, Franklin is entitled to a COA on the

procedural default question relating to these claims if he can satisfy Slack’s second

prong by showing that the procedural question itself is debatable among jurists of

reason.

There is no dispute that the Alabama courts have held that Franklin has

procedurally defaulted these claims under Alabama law. Rather, Franklin argues

either that the state’s ruling is not due any respect, or alternatively that he has cause

and prejudice to excuse his default under Coleman v. Thompson, 501 U.S. 722, 750,
4 The Seventh Circuit’s reasoning is that federal courts may consider such

“look through” challenges to prior convictions under § 2254, see Fox v. Kelso, 911

F.2d 563, 568 (11th Cir. 1990), and that it would be unfair, given this jurisdiction, to

allow the state to procedurally bar claims falling within it. See Tredway, 35 F.3d at

294.

8

111 S. Ct. 2546, 2565 (1991). (The cause he points to is the pointlessness of

challenging his 1982 convictions at any time before they were used to enhance his

1993 sentence.) The Seventh Circuit has accepted Franklin’s first argument and

concluded that a state rule requiring prisoners to challenge convictions soon after they

are made, rather than when they are later used to enhance a sentence, cannot bar

consideration of challenges to the old convictions under § 2254.4

 See Tredway v.

Farley, 35 F.3d 288 (1994). The Fifth Circuit has rejected both of Franklin’s

arguments, both disagreeing with Tredway and holding that pointlessness is not

sufficient cause to excuse a procedural default. See Moore v. Roberts, 83 F.3d 699,

704 (1996). Having reviewed these opinions, we think that these issues are debatable

among jurists of reason, and Franklin is thus due a COA on them. These are issues

of law, and our review is de novo. See Kennedy v. Hopper, 156 F.3d 1143, 1145 (11th

Cir. 1998).

On the merits, we agree with the Fifth Circuit rather than the Seventh.

Tredway’s holding completely ignores the pedestal of the entire procedural-default

doctrine, which is respect for state procedural rules. See Coleman, 501 U.S. at 726,
9

111 S. Ct. at 2552 (“This is a case about federalism. It concerns the respect that

federal courts owe the States and the States’ procedural rules . . . .”). If that respect

means anything, states must be able to direct defendants when to seek relief in the

state system. The Seventh Circuit effectively tells petitioners that they need not

comply with state procedural rules if the Seventh Circuit thinks they are not “fair,”

because the federal courts will consider the claims whether or not the states have had

the opportunity to reach the claims’ merits. Like the Fifth Circuit, therefore, we

conclude that the “Supreme Court in Coleman intended the independent and adequate

state ground doctrine to encompass all federal habeas cases including those in which

a prisoner challenges a prior conviction that has subsequently been used to enhance

a prisoner’s sentence.” Moore, 83 F.3d at 703 (internal quotation omitted).

Alabama’s conclusion that Franklin did not timely challenge his 1982 convictions is

due respect; Franklin has procedurally defaulted the claims attacking his 1982

convictions.

We agree with the Fifth Circuit, moreover, that Franklin has not shown

sufficient cause to excuse his default. A legally sufficient cause is one that arises from

some objective external impediment to raising a claim properly in state court. See

Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). As the Fifth Circuit has put

it, “The fact that [Franklin] was not interested in implementing a challenge until after
10

he had committed more crimes is not an objective, external factor that impeded his

ability to raise these claims within [Alabama’s] time period.” Moore, 83 F.3d at 704.

Because Franklin’s claims are procedurally defaulted and he has failed to show

sufficient cause to excuse the default, the district court’s denial of relief is affirmed.

AFFIRMED.