Bowie v. Cain ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-30709
__________________________
HERMAN BOWIE,
Petitioner-Appellant,
versus
BURL CAIN,
Respondent-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(No. 98-CV-2020-T)
___________________________________________________
March 7, 2002
Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.
PER CURIAM*:
Petitioner-Appellant Herman Bowie appeals the denial of his
petition for a writ of habeas corpus.1 We affirm.
I. FACTS AND PROCEEDINGS
In 1988, a jury found Bowie guilty of heroin distribution, and
he was sentenced to life imprisonment. His conviction was affirmed
on direct appeal.2 After the United States Supreme Court decided
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Bowie filed his initial brief pro se. His reply and
supplemental briefs were prepared by counsel.
2
State v. Bowie, 557 So. 2d 478 (La. Ct. App. 1990).
Cage v. Louisiana3 in 1990, and as a result of Bowie’s first
application for state postconviction relief, he was allowed a
second appeal. Louisiana’s Fourth Circuit Court of Appeal held
that Bowie had not preserved for review his Cage claim, regarding
the reasonable-doubt instruction to the jury, because he had not
contemporaneously objected at trial.4 Bowie sought a writ
invalidating this decision from the Louisiana Supreme Court, which
denied his request in 1994.5
Bowie filed a second application for postconviction relief in
state court. The date of this application is somewhat unclear, but
the Fourth Circuit Court of Appeal accepted Bowie’s representation
that he filed the application on March 18, 1996, and the District
Attorney concedes that Bowie did file sometime in that month. The
state district court denied this application on January 8, 1997.
Bowie sought review of this denial by applying for a writ from the
Fourth Circuit Court of Appeal on February 28, 1997; that court
tersely denied his application on March 25, 1997. Then, on May 28,
1997, Bowie sought a further writ from the Louisiana Supreme Court,
which also tersely denied his request on December 19, 1997.
Bowie filed the instant petition for federal habeas review on
July 7, 1998 in the Eastern District of Louisiana. The magistrate
3
Cage v. Louisiana, 498 U.S. 39 (1990).
4
The ruling is recorded in table form at State v. Bowie, 625
So. 2d 393 (La. Ct. App. 1993), cert. denied, 513 U.S. 990 (1994).
5
State v. Bowie, 640 So. 2d 1339 (La. 1994).
2
judge, finding insufficient information in the record as it then
stood to determine whether the petition was time-barred, made
several recommendations on the merits: that the district court hold
alternatively that (1) Cage did not invalidate Bowie’s conviction
because it had not been decided before his trial, and (2) the
reasonable-doubt instruction was not as defective as that in Cage,
so that it was not “reasonabl[y] likel[y]” that the jurors who
convicted Bowie “applied the instructions in a way that violated
the Constitution.”6 The district court adopted these
recommendations, dismissed Bowie’s petition with prejudice, and
entered final judgment on the merits on May 6, 1999.
Bowie then sent a letter to our Clerk of Court indicating his
intent to appeal.7 The letter is dated “June 7, 1999” —— the last
day for Bowie, proceeding pro se, to appeal by depositing documents
in the prison mail system —— but the letter lacked a declaration or
a notarization supporting its date.8 We received it on June 14,
1999, and forwarded it to the district court. The district court
declined to issue Bowie a certificate of appealability (COA), but
we did so on the question whether the reasonable-doubt instruction
was defective. We also remanded for a determination whether Bowie
had given timely notice of appeal, and the district court
6
Bowie v. Cain, 1999 WL 191449, *4 (E.D. La. 1999) (quoting
Victor v. Nebraska, 511 U.S. 1, 22–23 (1994)).
7
Pursuant to FED. R. APP. P. 4(d), we consider this letter filed
as having been filed in the district court.
8
FED. R. APP. P. 4(c)(1).
3
determined that he had. We therefore have jurisdiction of this
appeal.
II. ANALYSIS
We need decide only two issues: first, whether Bowie’s federal
petition was timely under 28 U.S.C. § 2254, and, second, whether
Louisiana’s contemporaneous-objection rule is an independent
procedural bar that precludes Bowie’s Cage claim.9
A. Timeliness
As Bowie’s conviction became final before the effective date
of the Antiterrorism and Effective Death Penalty Act (AEDPA), he
had until April 24, 1997, to file his § 2254 petition.10 The
statute also provides, however, that this period is tolled during
the pendency of “a properly filed application for State post-
conviction or other collateral review.”11
The state argues that because Bowie’s application for a writ
from the Louisiana Supreme Court was not properly filed, Bowie is
entitled to no more than 365 days of tolling —— a time equivalent
to the post-AEDPA pendency of his applications in the state
district court and court of appeal, plus thirty days after the
9
These issues distinguish this case from Cockerham v. Cain,
No. 99-31044 (Feb. 20, 2002), where we affirmed the district
court’s grant of a writ of habeas corpus to a prisoner who timely
pressed a Cage claim on collateral review and whose counsel, the
record suggested, had raised the objection at trial.
10
Flanagan v. Johnson, 154 F.3d 196, 201–02 (5th Cir. 1998).
11
28 U.S.C. § 2244(d)(2).
4
latter’s refusal to issue a writ.12 Bowie urges that his
application to the Louisiana Supreme Court was properly filed
because, he insists, that court gave him sixty more days to file,
extending his filing deadline from late April 1997 to June 1997.
Thus, he reasons, his filing on May 28, 1997, was timely. Because
the state supreme court considered his application for another six
months, the timeliness of his federal petition (filed in July 1998)
depends on whether Bowie “properly filed” his application to the
state supreme court.
Bowie has not provided us the extension letter he says he
received from the state supreme court, but he has given us, as an
exhibit, a similar letter from that court to another prisoner.
This letter appears to be a standard form, is unsigned, and
contains the following paragraph, checked with a typed “X”:
(x) The Court has filed your letter as an application
for writs and has assigned it the above number.
You may have an additional 60 days from the date of
this letter to complete your application.
Sincerely,
Central Staff
Even if Bowie accurately describes both the facts of his
application and the Louisiana Supreme Court’s general procedure in
such cases, that court’s acceptance and liberal construction of
Bowie’s letter as a timely application for relief do not determine
whether the application was “properly filed” under § 2244(d)(2).
12
We did not decide in Williams v. Cain, 217 F.3d 303, 309–11
(5th Cir. 2000), whether a state application remains pending during
the 30-day period for filing. We here assume without granting that
it does.
5
We have adopted a narrow view of the “properly filed” requirement,
stating that “an application is not ‘properly filed’ if it fails to
meet a filing deadline clearly established in state law.”13 And we
have applied this standard rigorously to applications for writs
from the Louisiana Supreme Court, in part because of the wording of
the relevant court rule14:
A straightforward application of the above cases to the
thirty-day time limit established by Louisiana Supreme
Court Rule X, § 5(a) supports the conclusion that [an]
“application” for post-conviction relief in the Louisiana
courts ceased to be “properly filed” for the purpose of
section 2244(d)(2) when [the applicant] failed to file
his application for a supervisory writ with the Louisiana
Supreme Court within the time allowed by Rule X, § 5(a).
Rule X, § 5(a) is a procedural requirement governing the
time of filing. The rule sets out no specific exceptions
to, or exclusions from, this requirement. Indeed, the
rule forbids any extension of the thirty-day limit.15
Therefore, despite the alleged extension letter, our precedent does
not permit us to construe either that letter or the Louisiana
Supreme Court’s subsequent one-word denial of Bowie’s application
as a waiver of Rule X, § 5(a) that renders his federal petition
timely.
Bowie’s federal petition was therefore filed over two months
after the statutory period of limitation expired. We must perforce
13
Williams, 217 F.3d at 307 (citing cases).
14
See LA. SUP. CT. R. X, § 5(a) (emphasis added):
An application seeking to review a judgment of the court
of appeal . . . shall be made within thirty days of the
mailing of the notice of the original judgment of the
court of appeal . . . . No extension of time therefor
will be granted.
15
Williams, 217 F.3d at 308.
6
dismiss his petition as untimely.
B. Procedural Bar
Even if, in dismissing this petition as untimely, we are
misconstruing the rules and practice of the Louisiana Supreme Court
(to whatever extent its extension letter should control our
interpretation of § 2244), there is an alternative and more
substantive basis for dismissal. The last reasoned state court
judgment addressing Bowie’s Cage claim held that it was barred by
his failure to object contemporaneously to the jury instruction at
trial. When a state court has denied a petitioner’s claim on an
independent and adequate state-law ground, federal habeas review is
barred unless the petitioner shows cause for the default and actual
prejudice from the alleged violation of federal law, or
demonstrates that a fundamental miscarriage of justice will occur
if the claims are not considered.16 The independence of the
contemporaneous-objection rule as applied here is not in doubt.17
16
Coleman v. Thompson, 501 U.S. 722, 729–30, 750 (1991).
17
The Fourth Circuit Court of Appeal clearly and expressly
relied on a state procedural bar, not federal law. See Glover v.
Cain, 128 F.3d 900, 902 (5th Cir. 1997). In affirming Bowie’s
conviction for the second time, that court stated that:
By his first assignment of error defendant assails the
trial court’s instruction to the jury on reasonable doubt
which is essentially the same as the one condemned in
Cage v. Louisiana [citation omitted]. Because there was
no contemporaneous objection the alleged error was not
preserved for appellate review. C. Cr. P. art. 801;
State v. Dobson, 578 So. 2d 533 (La. App. 4th Cir. 1991),
writ denied, 588 So. 2d 1110 (La. 1991).
7
Neither is that rule constitutionally inadequate.18
Cause for a default may include the reasonable unavailability
of the legal basis for the claim.19 If Cage had struck like a bolt
from the blue, Bowie’s claim might have been reasonably
unavailable. But we have held that “[b]ecause it is clear that
claims of defective ‘reasonable doubt’ instructions have been
percolating in the Louisiana courts at least since 1982, there is
no excuse for [a petitioner’s] failure to allege the definitional
defect” in habeas applications filed before Cage was announced.20
Therefore Bowie lacks cause excusing his procedural default.
Finally, to meet the fundamental-miscarriage-of-justice
standard, a petitioner must show, “as a factual matter, that he did
not commit the crime of conviction.”21 Bowie does not argue that
he is actually innocent of distributing heroin. Therefore, he has
not shown a fundamental miscarriage of justice.
18
Muhleisen v. Ieyoub, 168 F.3d 840, 843 (5th Cir. 1999) (“We
believe Louisiana’s use of the contemporary [sic] objection rule,
as applied specifically to Cage claims, is constitutionally
adequate.”). Muhleisen expressed some doubt as to whether this
rule was being consistently applied, but the rule appears to have
reestablished itself even in capital cases in the wake of State v.
Taylor, 669 So. 2d 364 (La. 1996). See State v. Smith, 793 So. 2d
1199, ___ *12 (La. 2001) (internal quotation marks and citation
omitted) (“Applied in any case, the contemporaneous objection rule
prevent[s] a defendant from gambling for a favorable verdict and
then resorting to appeal on errors that might easily have been
corrected by objection.”).
19
Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997).
20
James v. Cain, 50 F.3d 1327, 1333 (5th Cir. 1995).
21
Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995).
8
III. CONCLUSION
For the foregoing reasons, we determine that Bowie’s habeas
petition is time-barred and, in the alternative, that it fails to
overcome an adequate and independent state procedural bar. The
district court’s denial of the requested writ is
AFFIRMED.
9