UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 95-60126

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GARY LEE MOORE,

Petitioner-Appellant,

versus

EDWARD HARGETT, SUPERINTENDENT OF MISSISSIPPI

STATE PENITENTIARY; MICHAEL C. MOORE, Attorney

General, State of Mississippi,

Respondent-Appellees.

__________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

__________________________________________________ May 10, 1996

Before WISDOM, EMILIO M. GARZA, and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Petitioner Gary Lee Moore filed a habeas corpus petition

pursuant to 28 U.S.C. § 2254(b) challenging several prior

convictions which were used to enhance a new sentence. The

distri ct court rejected Moore's challenge as procedurally barred

for untimeliness, and a lternatively as being without merit. We

affirm.

I

In 1991, Moore was convicted of burglary in a Mississippi

state court. At sentencing, the judge enhanced Moore's sentence,1 Specifically, Moore contends that the court failed to inform him of

the possible minimum sentence that he could receive for these crimes and failed

to state explicitly that Moore had the right to be free from self-incrimination.

2 Miss. Code Ann. § 99-39-5(2) (Supp. 1995).

-2- finding that Mo ore's prior convictions in 1983 for burglary and

forgery rendered him a habitual offender under Missi ssippi law.

Moore is currently serving this sentence.

After the sentencing hearing, Moore sought post-conviction

relief in Mississippi state court, requesting the court to dismiss

his 1983 convictions on the basis that his guilty pleas upon which

the convictions were based were obtained in viol ation of his

constitutional rights. 1 The state circuit court dismissed his

petition on the sole basis that Moore's challenge was untimely

because he failed to bring his post-conviction challenge within the

statutory time period "after entry of judgment of conviction." 2

Moore appe aled this decision to the Mississippi Supreme Court,

which denied his petition for a writ of mandamus tha t would have

directed the district court to consider the merits of his claim.

After exhausting his state remedies, Moore filed this habeas

petition in federal district cou rt. The district court assigned

the matter to a magistrate, who recommended that the court deny

Moore's claim because the state circuit court di smissed his

petition on the "independent and adequate" ground that he failed to

follow state procedural rules, thereby barring federal review, or,

alternatively, because even if his petition was timely, his claims

lack merit. The district court conducted a d e novo review and3 Miss. Code Ann. § 99-39-5(2) (Supp. 1995).

4 The statute also provides several exceptions for situations in which

the Mississippi or United States Supreme Court renders a decision that would have

adversely affe cted his conviction, the defendant discovers new evidence, not

reasonably discove rable at trial, that would have resulted in a different

outcome, or the defendant claims his sentence is expired or his parole has been

unlawfully revoked. Moore, however, does not claim that any of these exceptions

apply.

5 Under Mississippi law, a defendant cannot attack prior convictions

used as a basis for an enhanced sentence during the sentencing hearing; rather,

the defendant must bri ng a post-conviction petition for relief from the prior

convictions. S ones v. Hargett, 61 F.3d 410, 418 n.14 (5th Cir. 1995) (citing

Phillips v. State, 421 So. 2d 476, 481 (Miss. 1982)).

-3- adopted the magistrate's r ecommendation. Moore filed a timely

notice of appeal.

II

The Mississippi courts dismissed Moore's petition because he

failed to file his petition within the time period required by the

Mississippi Uniform Post-Conviction Collateral Relief Act

(UPCCRA). 3 The UPCCRA, which became effective in 1984, provides:

A motion for relief under this chapter shall be made

within t hree (3) years after the time in which the

prisoner's dire ct appeal is ruled upon by the Supreme

Court of Mississippi or, in case no appeal is taken,

within three (3) years a fter the time for taking an

appeal from the judgment o f 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). 4 With respect to defendants like

Moore who were convicted before the effective date of the UPCCRA,

the three year time limit runs from the effec tive date of the

UPCCRA, thereby giving Moore until 1987 to raise his appeal. 5

Patterson v. State, 594 So. 2d 606, 607-08 (Miss. 1992).

When a state court decision rests on a state law ground that-4-

is independent of a federal question and adequate to support the

judgment, federal courts lack jurisdiction to review the merits of

the case. C oleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546,

2553, 115 L. Ed. 2d 640 (1991). The independent and adequate state

ground doctrine "applies to bar federal habeas when a state court

decline[s] to address a prisoner's federal claims because the

prisoner ha[s] failed to meet a state procedural requirement." I d.

at 729-20, 111 S. Ct. at 2554.

For the independent and ad equate state ground doctrine to

apply, the state courts adjudicating a habeas petitioner's claims

must explicitly rely on a state procedural rule to dismiss the

petitioner's claims. S ones, 61 F.3d at 416. The procedural

default doctrine pre sumes that the "state court's [express]

reliance on a procedural bar functions as an independent and

adequate ground in support of the judgment." I d. The petitioner,

however, can rebut this presumption by establish ing that the

procedural rule is not "strictly or regularly followed." I d. Even

if the state procedural rule is strictly and regularly followed,

the defendant still can prevail by demonstrating "c ause 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 a fundamental miscarriage of justice." C oleman, 501

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

In Sones , a panel of the Fifth Circuit stated in dicta that

"it is arguable" that a state procedural bar that prevents a-5-

defendant, such as Moore, from challenging prior convictions that

occurred before 1984, but are subsequently used to sentence a

defendant as a habitual offender, "may not be considered an

independent and adequate state ground to bar federal relief."

Sones, 61 F.3d at 418 n.14. The court reasoned that this might be

so because the procedural bar would not provide an "opportunity at

or after the enhancement proceeding for collateral relief from the

new use of prior convictions ," which the Seventh Circuit had

recently held was necessary. I d. (citing Smith v. Farley, 25 F.3d

1363, 1369-70 (7th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.

Ct. 908, 130 L. Ed. 2d 791 (1995); Tredway v. Farley, 35 F.3d 288,

294 (7th Cir. 19 94), c ert. denied,

___ U.S.

___, 115 S. Ct. 941,

130 L. Ed. 2d 885 (1995)). However, the court in S ones

specifically noted that this issue was not before it. Id.

In Smith and Tredway, the Seventh Circuit held that "`the

systemic concerns of both fairne ss and efficiency'" require that

"`if a defenda nt does not have access to a fair procedure in a

state court affording him a review, on the merits, of the

constitutionality of a prior conviction after it has been

incorporated into a new, enhanced sentence, a federal court may

properly grant him such review.'" T redway, 35 F.3d at 293 (citing

Smith, 25 F.3d at 1367-68)); see Smith, 25 F.3d at 1368-69

(describing fairness and efficiency concerns). The Seventh Circuit

distinguished Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct.

2546, 2565, 115 L. Ed. 2d 640 (1991), on the gro und that the-6-

petitioner in Coleman had not been "sentenced under a state

recidivist statute and was not collaterally challeng ing a prior

conviction w hich had been used to enhance his present sentence."

Tredway, 35 F.3d at 294. Therefore, the court concluded, the

Supreme Court had not consid ered the fairness and efficiency

concerns that compelled the court's decision in Farley

. Id.

The Seventh Circuit's reasoning ignores the concerns of comity

and federalism that un derlie the adequate and independent state

ground doctrine. S ee Coleman, 501 U.S. at 730, 111 S. Ct. at 2554

(stating that the doctrine is gro unded in comity and federalism

concerns). The C oleman court noted that wit hout the independent

and adequate sta te ground doctrine, a federal habeas court could

release a prisoner held pursuant to a state court judgment that

rests on an independent and adequate state ground, thereby

rendering ineffective the state procedural rule just as completely

as if the Supreme Court had reversed the state judgment on direct

review. Id. Without the doctrine, state prisoners whose custody

was supported by an independent and adequate state ground would be

entitled to an "end run around the limits of [the federal courts']

jurisdiction and a means to undermine the Stat e's interest in

enforcing its laws." Id.

The Coleman Court noted there are a lso comity concerns that

arise when the independent and adequate state law ground is a

procedural default.

This Court has long held that a state prisoner's federal

habeas petition should be dismissed if the prisoner has-7-

not exhausted available state remedies as to any of his

federal claims. This exhaustion requirement is also

grounded in principles of comity; in a f ederal system,

the States should have the first opportunity to address

and correct alleged violations of state prisoner's

federal rights. . . . "The exhaustion doctrine is

principally designed to protect the state courts' role in

the enforcement of federal law and prevent disruption of

state judicial p roceedings." . . . . Just as in those

cases in whi ch a state prisoner fails to exhaust state

remedies, a habeas petitioner who has failed to meet the

State's procedural requirements for presenting his

federal claims has deprived the state courts of an

opportunity to address those claims in the first

i nstance. A habeas petitioner who has defaulted his

federal claims in state court meets the technical

requirements for exhaustion; there are no state remedies

any longer "available" to him. In the absence of the

independent and adequate state ground doctrine in federal

habeas , habeas petitioners would be able to avoid the

exhaustion requirement by defaulting their federal claims

in state court. The independent and adequate state

ground doctrine ensures that the S tates' interest in

correcting their own mistakes is respected in all federal

habeas cases.

Id. at 731-32, 111 S. Ct. at 2554-55 (emphasis added) (quoting Rose

v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203, 71 L. Ed . 2d

379 (1982)).

In addi tion to ignoring federalism and comity concerns, the

Seventh Circui t's conclusion that the C oleman decision does not

"encompass all collateral challenges to prior convictions used to

enhance subsequent sentences" creates finality problems and a

preference for repeat offenders. T redway, 35 F.3d at 294. The

Supreme Court h as emphasized that "principles of finality

associated with habeas corpus actions apply with at least equal

force when a defendant seeks to attack a previous conviction used

for sentencing." Custis v. United States, ___ U.S. ___, ___, 1146 We recognize that the Supreme Court has recently suggested that the

issue of whether due process mandates that states "allow recidivism defendants

to challenge prior guilty pleas" is unresolved. P arke v. Raley, 502 U.S. 20, 28,

113 S. Ct. 517, 523, 121 L. Ed. 2d 391 (1992).

-8- S. Ct. 1732, 1739 (1994). The Seventh Circuit rule would bar a

state prisoner's appeal of an initial habeas ruling because he

filed the appeal on day la te, yet allow that same defendant the

opportunity to challenge that same conviction many years later once

that defendant had committed another crime. As noted by Judge

Trott of the Ninth Circuit, it is not "necessary to bend over

backwards to the point of standing on our heads to indulge repeat

offen ders whose 'standing' to reopen closed cases is based on

having committed another criminal offense." U nited States v.

Davis, 15 F.3d 902, 917 (9th Cir.) (Trott, J., concurring in part,

dissenting in part), withdrawn and superseded by 36 F.3d 1424 (9th

Cir. 1994).

W e conclude that the Supreme Court in Coleman intend ed the

independent and adequate state ground doctrine to encompass "all

federal habeas cases" including those in which a prisoner

challenges a prior conviction th at was subsequently been used to

enhance a pris oner's sentence. 6 The Mississippi circuit court

dismissed Moore's suit under the UPCCRA as being untimely on its

face; thus, it is clear that the state expressly relied on a

procedural rule to dismiss Moore's challeng e, raising the

presumption that the UPCCRA qualifies as an independe nt and

ad equate state ground to bar federal review of Moore's claim.7 See e.g., Fortson v. Hargett, 662 So. 2d 633, 635 (Miss. 1995)

(applying the parole exception of § 99-39-5(2) to hold that the time bar did not

apply); Lockett v. State, 656 So. 2d 68, 71 (Miss.) (upholding the application

of the time bar to a collateral appeal by a death row inmate), cert. denied,

___ U.S. ___, 115 S. Ct. 2595, 132 L. Ed. 2d 29 (1995); Brown v. State, 643 So. 2d

937, 938-39 (Miss. 1994); Campbell v. State, 611 So. 2d 209, 210 (Miss. 1992);

Cole v. State, 608 So. 2d 1313, 1317 (Miss. 1992), cert. denied, ___ U.S. ___,

113 S. Ct. 2936, 124 L. Ed. 2d 685 (1993); Patterson, 594 So. 2d at 608 (barring

the defendant's claim as t ime barred because three years had passed and no

fundamental constitutional right was involved in the claim); Luckett v. State,

582 So. 2d 428, 430 (Miss. 1991). Notably, this Court reached the same

conclusion in Sones, 61 F.3d at 417-18.

-9- Moore contends that the UPCCRA is not an independent and adequate

state ground because it is not strictly and regularl y enforced.

After reviewing the cases in which the Mississippi courts have

applied the UPCCRA, we do not find any evidence that the

Mississippi courts have applied the UPCCRA in an inconsistent

manner. 7

Moore also attempts to overcome the bar to federal review of

his claim by demonstra ting cause for his procedural default and

prejudice stemming from the alleged constitutional errors. Cause

is defined as "something external to the petitioner, something that

cannot fairly be attributed to him" that impedes his efforts to

comply with the procedural rule. C oleman, 501 U.S. at 753, 111 S.

Ct. at 2566. Moore's stated excuse for his procedural default is

that he is challenging these prior convictions only to reduce his

enhanced 1991 sentence, an issue that did not arise until after his

1991 conviction. This argument, however, fails to explain why

Moore failed to challenge his 1983 guilty plea s within the

statutory time period. Moore had until 1987 to raise these claims,

yet failed to do so. The fact that he was not interested in-10-

implementing a challenge until after he had committed more crimes

is not an objective, external factor that impeded his ability to

raise these claims within Mississippi's time period. H erbst v.

Scott, 42 F.3d 902, 905-06 (5th Cir.), cert. denied

,

___ U.S.

___,

115 S. Ct. 2590, 132 L. Ed. 2d 838 (1995). Accordingly, we find

that Moore has not established cause for his failure to comply with

§ 99-39-5(2). Because we decide that no cause exists, we need not

inquire into actual prejudice. H erbst, 42 F.3d at 906. Moore has

failed to allege or demonstrate that a failure to consider his

claims will res ult in a fundamental miscarriage of justice.

Therefore, we hold that we lack jurisdiction to consider Moore's

claims because they were dismissed on an independent and adequate

state ground.

III

For the foregoing reasons, we AFFIRM the decision of the

district court.