1 United States Court of Appeals,

Fifth Circuit.

No. 94-40515.

Richard F. TREST, Petitioner-Appellant,

v.

John P. WHITLEY, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

Sept. 17, 1996.

App eal from the United States District Court for the Western

District of Louisiana.

Before JONES, STEWART and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Richard F. Tr est ("Trest") appeals the district

court's denial of his petition for a writ of habeas corpus.

Because his petition raises forfeited claims that are procedurally

barred from review by this court, the judgment of the district

court is AFFIRMED.

FACTUAL BACKGROUND

After a jury trial, Trest was convicted in 1979 of armed

robbery in Bossier Parish, Louisiana. Three years before this

conviction Tr est had pleaded guilty to five felony counts of

burglary in Mississippi. The Mississippi state court sentenced

Trest to serve concurrent four year terms for his offenses, and he

was released fromprison in Mississippi in 1978. Based on these

prior felony convictions for burglary in Mississippi, the Louisiana

trial court adjudicated T rest an habitual offender and sentenced

him to 35 yea rs imprisonment, without possibility of parole,1 To buttress the claim that the Mississippi convictions are

somehow unconstitutional, Trest relies on Boykin v. A labama, 395

U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969), in which

the Supreme Court held that "[i]t was error, plain on the face of

the record, for the trial judge to accept petitioner's guilty plea

w ithout an affirmative showing that it was intelligent and

voluntary."

2 pro bation, or suspended sentence. S ee La.R.S. 15:529.1. Trest

concedes that during his habitual offender proceedings he failed to

object to the Louisiana court's reliance on the Mississippi

convictions on the basis that the se convictions were somehow

constitutionally invalid. Trest did not appeal his convictions in

Mississippi and has never chall enged their validity in any

Mississippi court, either on direct or collateral appeal. Rather,

he served his concurrent sentences until he became eligible for

release from prison.

Trest filed his petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254 on September 30, 1991. In this petition, Trest

alleges for the first time that the Louisiana trial court erred in

relying on his prior Mississippi convictions because these

predicate convictions were unconstitutional. Specifically, Trest

contends, inter a lia, that because the Mississippi court

purportedly failed to advise him of his constitutional rights and

of the maximum sentence he could receive, the convictions used to

enhance his Louisiana sentence were constitutionally infir m. 1 To

support his petition, Trest submi tted a copy of the habitual

offender bill of information filed against him and the transcript

o f the hearing on this bill. The government did not respond

specifically to this potential ground for relief in its answer to2 Inexplicably, neither of the parties cited Sones or discussed

it in their briefs, oral arguments, or memoranda to this court.

3 Trest's petit ion. Likewise, the magistrate judge's report and

recommendation did not directly address the issue. Trest stressed

t his silence in his objections to the report and recommendation.

While Trest acknowledged that his claim had been poorly

articulated, he rearticul ated it, and attached for the district

court a copy of the transcript of his 1976 guilty pleas in

Mississippi state court. After considering Trest's petition for

writ of habeas corpus, the district court denied it.

DISCUSSION

When considering requests for federal habeas corpus relief,

this court has frequently explained that we review the district

court's factual findings for clear error, but review issues of law

de novo. S ee, e.g., Myers v. Johns on, 76 F.3d 1330, 1333 (5th

Cir.1996).

In the instant case, however, this court's decision in Sones

v. Hargett, 61 F.3d 410 (5th Cir.1995), precludes us from reviewing

the merits of Trest's habeas challenge to the constitutionality of

his Mississippi convictions because his petition raises claims that

were forfeited by Trest and are procedurally barred from appellate

scrutiny. 2 In S ones, this court held that an inmate who had been

sentenced under Mississippi's habitual offender statute to life in

prison without parole wa s properly denied habeas relief for his

claim that his trial counse l was constitutionally ineffective

because this claim would have been time barred had it been included4

in a state petition for habeas and, thus, was procedu rally

defaulted for purposes of federal habeas. Sones, 61 F.3d at 416.

The procedural default in Sones is replicated in the instant

appeal. As S ones observes, Mississippi imposes the following

procedu ral bar on all efforts at collateral relief from a

conviction and sentence:

A motion for relief under this chapter shall be made within

three years after the time in which the prisoner's direct

appeal is ruled upon by the Supreme Court of Mississippi or,

in case no appeal is taken, within three (3) years after the

time for taking an appeal from the judgment of conviction or

sentence has expired, or in case of a guilty plea, within

three (3) years after entry of the judgment of conviction.

Miss.Code Ann. § 99-39-5(2) (emphasis added); S ones, 61 F.3d at

417 (emphasis added); s ee also, Lott v. Hargett, 80 F.3d 161, 163

(5th Cir.1996). In Odom v. State, 483 So.2d 343 (Miss.1986), the

Mississippi Supreme Court declared that this procedural bar applied

prospectively to all convictions occurring prior to April 17, 1984,

the statute's effective date; hence, Mississippi convictions

before April 17, 1984 can be challenged collaterally only if the

challenge is filed in a petition for post-conviction relief by

April 17, 1987. S ones further explains that Mississipp i's

procedural bar also extends to consti tutional challenges against

the predicate convictions triggering habitual offender status:

the Mississippi Sup reme Court has consistently held that an

attack on a facially valid prior conviction, used either as an aggravating circumstance in capital sentencing or as a basis

for a sentence as a habitual offender, must be brought after

sentencing in a petition for post-conviction relief from that

prior judgment of conviction.

See Sones, 61 F.3d at 4 18 n. 14 (emphasis added); s ee also,

Phillips v. State, 421 So.2d 476, 481 (Miss.1982); C ulberson v.3 Indeed, because Sones's attorney could not have raised these

forfeited challenges to the prior convictions at sentencing for the

enhanced conviction, this court denied Sones's habeas claim that he

suffered from constitutionally ineffective counsel. As the panel

explained,

[c]ounsel therefore could not have successfully

challenged the constitutionality of the prior convictions

in the sent encing phase; as mentioned above, in

Mississippi constitutional challenges to the validity of

prior convictions that are not facially invalid must be

made collaterally, and Sones has never sought collateral

relief from the prior convictions that qualify him as a

habitual offender. We perceive no attorney

constitutional ineffectiveness.... Accordingly, we

reject Sones's contention that denying federal review of

his Sixth Amendment claim would result in a fundamental

5 State, 612 So.2d 342, 343-47 (Miss.1992).

Because Sones did not challenge the prior convictions used to

trigger the career offender enhancement in petiti ons for

post-conviction re l ief filed within the three-year statute of

limitations, this court c onsidered the challenge forfeited. We

reasoned that,

[f]or the first time on appeal, Sones's counsel argue s that

his prior convictions are void on their face for failing to

indicate whether the guilty pleas on which they were based

were knowing and voluntary. We consider this novel argument

forfeited. Although we may consider a forfeited claim if it

presents a purely legal question and if failure to consider it

will result in manifest injustice, the issue whether Sones's

prior convictions were based on voluntary and knowing pleas is

not purely a question of law.... Because this issue thus

involves factual as well as legal questio ns, w e will not

consider it for the first time on appeal.

Sones, 61 F.2d at 419 n. 18 (citations omitted) (emphasis added);

see also, Lott, 80 F.3d at 164-66 (inmate in Mississippi denied

federal habeas co rpus review of his B oykin claim because

Mississippi's procedural default statute is an independent and

adequate rule barring such review). 3 Indeed, the importance ofmiscarriage of justice.

Sones, 61 F.3d at 420. Trest confronts precisely the same

predicament as he has never challenged the prior convictions

that qualify him as a habitual offender in any post-conviction

or collateral proceeding in Mississippi.

6 enforcing Mississippi's procedura l bar and of preventing the

retrial of th e predicate offenses used to trigger a habitual

offender enhancement has been reiterated by the Mississippi Supreme

Court, which has stressed that

[i]n fulfilling its mission to determine whether a prior

conviction is constitut ionally valid for the purpose of

enhancing a defendant's sentence, the trial court must not be

placed in position of "retrying' th e prior case. Certainly

any such frontal assault upon the constitutionality of a prior

conviction should be conducted in the form of an entirely

separate procedure solely concerned with attacking that

conviction. This role is neither the function nor the duty of

the trial judge in a hearing to determine habitua l offender

status.

Phillips v. State, 421 So.2d 476, 481-82 (Miss.1982); S ones, 61

F.3d at 419.

For the same reasons that Sones was procedurally barred from

challenging the prior c onvictions used to trigger his career

off ender enhancement, Trest is likewise barred. As has been

discussed, while Trest was convicted in 1979 for armed robbery in

Louisiana, hi s prior convictions occurred in Mississippi. The

Mississippi convictions that provided the basis for the enhancement

of the Louisiana sentence arose as a result of Trest 's pleas of

guilty to five counts of burglary on May 24, 1976. Trest neither

appealed these convictions nor challenged them collaterally.

Although he was sentenced to serve concurrent four year terms of

imprisonment on the five counts, he left prison when he became7

eligible for release, in February of 1978.

Mississippi's procedural bar, the Mississippi Supreme Court,

and this court in Sones mandate that Trest had until April 17, 1987

to file a petition for post-conviction relief from his Mississippi

convictions. Since Sones did not comply with this requirement, his

challenges to the constitutionality of his Mississippi convictions

have been procedurally defaulted. Put differently, because the

potential remedies in Mississippi courts for the constitutional

defects alleged by Sones were rendered unavailable by his own

procedural default, federal courts, including those in Louisiana,

a re barred from reviewing these claims. S ones, 61 F.3d at 416;

Lott, 80 F.3d at 164. As the Supreme Court has instructed,

[I]f the petitioner failed to exhaust state remedies and the

cou rt to which petitioner would be required to present his

claims in order to meet the exhaustion requirement would now

find the claims procedurally barred,

... [the n] there is a

procedural default for purposes of federal habeas.

Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557

n. 1, 115 L.Ed.2d 640 (1991).

The only p otential remedies available to cure Trest's

p rocedural default are to demonstrate either cause and prejudice

for the default or that a fundamental miscarriage of justice will

result from our failure to analyze his claims. Again, the Supreme

Court has explained that procedural default will block all federal

review of a claim that a conviction was unconstitutional unless the

prisoner "can demonstrate cause f or the default and actual

prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a8

fundamental miscarriage of justice. " C oleman, 501 U.S. at 750, 111

S.Ct. at 2565 (emphasis added). In the instant case, Trest neither

alleges such cause and prejudice nor a fundamental miscarriage of

justice; indeed, Trest has not even attempted to bear this burden.

Hence, a fede ral district court in Louisiana cannot consider

Trest's claims that his Mississippi convictions were somehow

unconstitutional. As a result, this court is bound to conclude as

we did in Sones: "section 99-39-5(2) functions as an independent

and adequate procedural bar to review [of the constitutional claims

raised by Trest] in federal court." S ones, 61 F.3d 410, 417- 18;

see also, Lott, 80 F.3d at 165.

Because this court concludes that it is foreclosed from

considering the merits of Trest's habeas petition, we need not

decide whether Custis v. United States, 511 U.S. 485, 114 S.Ct.

1732, 128 L.Ed.2d 517 (1994) would entitle Trest, had he not

procedurally defaulted, to review in a federal habeas corpus

proceeding of his claim that his prior Mississippi convictions were

unconstitut ional and that, as a result of this alleged

constitutional infirmity, his current sentence has been improperly

enhanced.

CONCLUSION

For the foregoing reasons, the judgment of the district court

denying Trest 's petition for federal habeas corpus relief is

AFFIRMED.

ROBERT M. PARKER, Circuit Judge, dissenting:

The independent and adequate state ground doctrine applies to9

bar federal habeas corpus relief when a state court declines to

address a prisoner's federal claims because the prisoner has failed

to meet a state procedural requirement. Coleman v. Thompson, 501

U.S. 722, 729, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991).

For the i ndependent and adequate state ground doctrine to apply,

the state court a djudicating a habeas petitioner's claims must

explicitly rely on a state procedura l rule to dismiss the

petitioner's claims. S ones v. Hargett 61 F.3d 410, 416 (5th

Cir.1995). The procedural default doctrine presumes that the state

court's express reliance on a pro cedural bar functions as an

independent and adequate ground in support of the judgment. I d.

The petitioner can rebut this presumption by establishing that the

procedural rule is not strictly or regularly followed. Id.; see

also, Moore v. Roberts, 83 F.3d 699 (5th Cir.1996). Additionally,

Petitioner might defend his position by demonstrating cause and

prejudice for his failure to raise the claim in state proceedings.

See Gray v. Netherland,

--- U.S. ----, ----, 116 S.Ct. 2074, 2082,

135 L.Ed.2d 457 (1996). By failing to raise the procedural default

as a defense, the State lost the right to assert that defense. I d.

In this case, the Louisiana court did not explicitly rely on

the Mississippi statute of limitations, nor did the petitioner have

the opportunity to rebut any resulting presumption. The majority's

observation that Trest did not even attempt to bear his burden of

establishing cause and prejudice is central to the flaw in their

reasoning. How can this Court penalize Trest for failing to

respond to the state's affirmative defense of procedural bar, when10

the State declined to raise such a defense?

For these reasons, I dissent from the majority's holding that

petitioner was procedurally barred from challenging the prior

convictions.