1

United States Court of Appeals,

Fifth Circuit.

No. 93-7370.

Charles Lee GLOVER, Petitioner-Appellant,

v.

Edward M. HARGETT, Respondent-Appellee.

June 29, 1995.

Appeal from the United States District Court for the Southern

District of Mississippi.

Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Charles Glover appeals from the district court's dismissal of

his application for a writ of habeas corpus. We affirm.

I

Glover pled guilty to one count of armed robbery in

Mississippi state court in 1971 and was sentenced to serve

ninety-nine years in prison. Following his conviction in

Mississippi, he was returned to Alabama where he had been serving

a term of life imprisonment for murder. When he was released from

the Alabama prison on parole in 1988, he was returned to

Mississippi to serve his ninety-nine-year sentence for armed

robbery. In 1989, Glover filed a motion for post-conviction relief

in Mississippi state court, contending that he had not received

effective assistance of counsel, that the indictment against him

was defective, and that his sentence was excessive under

Mississippi law.

The Lauderdale County Circuit Court denied Glover's motion on
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the grounds that his claims were time-barred, see Miss.Code Ann. §

99-39-5(2) (1994); Odom v. State, 483 So.2d 343, 344 (Miss.1986)

(interpreting § 99-39-5(2) and holding that "[i]ndividuals

convicted prior to April 17, 1984, have three (3) years from April

17, 1984, to file their petition for post conviction relief"), and

the Mississippi Supreme Court affirmed.

Glover then filed a petition for a writ of habeas corpus under

28 U.S.C. § 2254 (1988) in federal court. He alleged (1) that he

had been denied his right to a speedy trial, (2) that his counsel

had been ineffective, (3) that the Mississippi courts had denied

him due process by holding that his claims were time-barred, (4)

that his guilty plea was invalid because of the trial court's

failure to satisfy his right to a speedy trial, and (5) that his

extradition from Alabama to Mississippi in 1971 was unlawful. The

district court dismissed the first, second, fourth, and fifth of

these claims without prejudice for failure to exhaust state

remedies, and it dismissed the third with prejudice.

After exhausting his state remedies, Glover filed a second

habeas petition in which he reiterated all of his earlier claims

except for his challenge to his extradition. The district court

dismissed Glover's second petition, holding that Glover had

procedurally defaulted his federal claims in state court. Glover

appealed to this Court pro se, and we appointed counsel to

represent him on appeal.

II

A
3

 Glover argues that the district court erroneously dismissed

his ineffective assistance of counsel claim without a hearing. The

district court declined to reach Glover's ineffective assistance of

counsel claim because the Mississippi Supreme Court had rejected it

as time-barred under the applicable Mississippi statute of

limitations. The district court concluded that because the

Mississippi court's decision rested on an adequate and independent

state law ground, Glover's claim was procedurally defaulted.

"In a federal habeas corpus proceeding, we review the district

court's legal determinations de novo." Johnson v. Puckett, 929

F.2d 1067, 1070 (5th Cir.), cert. denied, 502 U.S. 898, 112 S.Ct.

274, 116 L.Ed.2d 226 (1991). In Coleman v. Thompson, 501 U.S. 722,

111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated

the procedural default doctrine as follows:

In all cases in which a state prisoner has defaulted his

federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the

claim is barred unless the prisoner can demonstrate cause for

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 fundamental miscarriage of

justice.

Id. at 750, 111 S.Ct. at 2565.

Glover did not allege in his habeas petition that he had cause

for his default or that it caused him actual prejudice, and he made

no showing of cause or prejudice in the district court. On appeal,

Glover argues that he can demonstrate cause for his procedural

default because he was incarcerated in Alabama for the period of

time when the post-conviction statute of limitations went into

effect and ran on his claims. We do not reach this argument,
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however, because Glover did not assert it in the district court.

"We have repeatedly held that a contention not raised by a habeas

petitioner in the district court cannot be considered for the first

time on appeal from that court's denial of habeas relief." Johnson

v. Puckett, 930 F.2d 445, 448 (5th Cir.) (citing cases), cert.

denied, 502 U.S. 890, 112 S.Ct. 252, 116 L.Ed.2d 206 (1991); see

also Lincecum v. Collins, 958 F.2d 1271, 1280-81 (5th Cir.)

(holding that petitioner had waived one of two specific bases for

ineffective assistance of counsel claim by failing to present it to

the district court), cert. denied, --- U.S. ----, 113 S.Ct. 417,

121 L.Ed.2d 340 (1992). Because Glover has not demonstrated cause

for his procedural default, we need not consider whether his

inability to bring his Sixth Amendment claim prejudiced him. See

Murray v. Carrier, 477 U.S. 478, 494-95, 106 S.Ct. 2639, 2649, 91

L.Ed.2d 397 (1986) (holding that habeas petitioner must demonstrate

both cause and prejudice to overcome procedural default).

In addition, Glover has not contended, either in the district

court or on appeal, that he is actually innocent of the armed

robbery to which he plead guilty. Indeed, he clearly admits in his

habeas pleadings that he committed the crime. Therefore, the

"manifest miscarriage of justice" exception to the procedural

default rule does not apply, see id. at 496, 106 S.Ct. at 2649

("[I]n an extraordinary case, where a constitutional violation has

probably resulted in the conviction of one who is actually

innocent, a federal habeas court may grant the writ even in the

absence of a showing of cause for the procedural default."), and
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the district court correctly held that it was barred from

considering Glover's ineffective assistance of counsel claim, see

Coleman, 501 U.S. at 757, 111 S.Ct. at 2568 (holding that because

habeas petitioner had failed to demonstrate cause and had not

argued on appeal that federal review of his claim was necessary to

prevent a fundamental miscarriage of justice, he was "barred from

bringing the[ ] claims in federal habeas").

B

Glover also argues that the district court erroneously

dismissed his excessive sentence claim as procedurally defaulted.

Specifically, he contends that Mississippi's post-conviction

statute of limitations cannot bar federal habeas review of his

claim because the Mississippi Supreme Court does not consistently

apply its statute of limitations to excessive sentence claims. See

Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72

L.Ed.2d 824 (1982) ("[A] state procedural ground is not "adequate'

unless the procedural rule is "strictly or regularly followed.' "

(quoting Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct.

1734, 1736, 12 L.Ed.2d 766 (1964))). We do not address this

argument, however, because we hold that even if Mississippi courts

do not regularly apply the post-conviction relief statute of

limitations to excessive sentence claims, Glover's claim fails on

the merits. See Wiley v. Puckett, 969 F.2d 86, 104 (5th Cir.1992)

(declining to decide whether Mississippi regularly enforced its
 

1See also Smith v. Black, 904 F.2d 950, 971 (5th Cir.1990)

(assuming without deciding that claim was not procedurally barred

because it failed on its merits), vacated on other grounds, 503

U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992); Johnson v.

Thigpen, 806 F.2d 1243, 1252 (5th Cir.1986) (rejecting claim

because "[t]o the extent the claim may not be procedurally barred

it nevertheless fails" on the merits), cert. denied, 480 U.S.

951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987). 

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procedural bar because claim failed on its merits).1

Glover contends that his sentence was excessive under the

Mississippi Supreme Court's decision in Stewart v. State, 372 So.2d

257 (Miss.1979). In Stewart, the defendant was convicted of armed

robbery under Section 97-3-79 of the Mississippi Code, which

provides: "Every person who [commits armed robbery] shall be

imprisoned for life in the state penitentiary if the penalty is so

fixed by the jury; and in cases where the jury fails to fix the

penalty at imprisonment for life in the state penitentiary the

court shall fix the penalty at imprisonment in the state

penitentiary for any term not less than three (3) years."

Miss.Code Ann. § 97-3-79 (1994). The court interpreted this

provision to mean that only the jury could sentence a defendant to

life, and if the jury did not do so, the court lacked authority to

impose a life sentence. Id. at 258. Consequently, in cases in

which the jury does not fix a defendant's sentence at life, the

court must sentence the defendant to a "definite term reasonably

expected to be less than life." Id. at 259.

Glover argues that his sentence was excessive under Stewart

because the trial court sentenced him to ninety-nine years in

prison, a term that is not "reasonably expected to be less than
 

2The Mississippi legislature amended the armed robbery

statute in 1974. See Act of Apr. 23, 1974, ch. 576, § 4, 1974

Miss. Laws 863, 865. 

 

3The Mississippi Supreme Court referred to its holding in

Stewart in its recitation of the procedural history of Glover's

case and pointed out that Glover had not sought review of his

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life." Glover's argument fails, however, because he was sentenced

under an earlier and crucially different version of the armed

robbery statute. The version under which Glover was sentenced

provided in pertinent part: "Every person who [commits armed

robbery] shall be punished by death if the penalty is so fixed by

the jury; and in cases where the jury fails to fix the penalty at

death, the court shall fix the penalty at imprisonment in the

penitentiary for any term not less than three years." Miss.Code

Ann. § 2367 (1942) (emphasis added).2 Thus, the trial court's

imposition of a ninety-nine-year term of imprisonment was perfectly

proper. See Allen v. State, 440 So.2d 544, 545-46 (Miss.1994)

(holding that sixty-year sentence for armed robbery, which would be

excessive under Stewart, was permissible because defendant was

sentenced under pre-1974 armed robbery statute); see also Flegg v.

State, 202 Miss. 179, 30 So.2d 615, 616 (1947) (holding that, under

pre-1974 statute, sentence of life imprisonment was within

sentencing court's discretion when jury failed to fix penalty at

death).

Glover argues that the state courts' references to Stewart in

their decisions rejecting his petition for post-conviction relief

imply that they considered his sentence excessive under Mississippi

law.3 Although we agree that the Mississippi Supreme Court is "the
sentence in light of the Stewart decision within the applicable

statute of limitations. See Glover v. State, 572 So.2d 881

(Miss.1990). Because it ruled on procedural grounds, however,

the court did not reach the question of whether Glover's sentence

was excessive under Stewart. Id.

The Circuit Court of Lauderdale County had similarly

held that Glover's excessive sentence claim was time-barred,

but it stated, in dicta:

The third ground asserted by the Petitioner is

intriguing. Stewart v. State, 372 So.2d 257

(Miss.1979) did declare that a trial judge has no

authority to sentence a defendant convicted of armed

robbery to a term in the penitentiary exceeding his

life expectancy absent a jury verdict of a life

sentence. Obviously, a 99 year sentence given to this

defendant in 1971 is excessive under the Stewart

criteria.

Glover v. State, No. 89-CV-045-(R), slip op. at 2

(Lauderdale County Cir.Ct. May 5, 1989), aff'd, 572 So.2d

881 (Miss.1990). The court did not consider the Mississippi

Supreme Court's decision in Allen, however, and the

reasoning behind its dicta is unclear. 

 

4In his pro se brief, Glover also argues that the

Mississippi statute of limitations for petitions for

post-conviction relief cannot apply to him on collateral review

because it is a new rule under Teague v. Lane, 489 U.S. 288, 109

S.Ct. 1060, 103 L.Ed.2d 334 (1989). This argument fails,

however, because Teague concerned the retroactive application of

court-made rules of criminal procedure, not state statutes. See

489 U.S. at 299-300, 109 S.Ct. at 1069.

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final authority on the meaning of Mississippi law," Stringer v.

Black, 503 U.S. 222, 234, 112 S.Ct. 1130, 1139, 117 L.Ed.2d 367

(1992), the Mississippi Supreme Court did not hold that Glover's

sentence was excessive. Instead, it ruled on procedural grounds,

and any implication regarding the legality of Glover's sentence

under Stewart is merely dicta. Therefore, based on the Mississippi

Supreme Court's decision in Allen, we hold that Glover's excessive

sentence claim fails on the merits.4
Glover also raises a number of claims in his pro se

reply brief, but "[t]his Court will not consider a claim

raised for the first time in a reply brief." Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir.1993). 

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III

For the foregoing reasons, we AFFIRM the district court's

dismissal of Glover's habeas petition.