Wallace v. State of Mississippi ( 2022 )

Case: 20-60098 Document: 00516423193 Page: 1 Date Filed: 08/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 8, 2022
No. 20-60098
Lyle W. Cayce
Clerk
Reginald Desmond Wallace,
Petitioner—Appellant,
versus
State of Mississippi; Burl Cain, Commissioner,
Mississippi Department of Corrections,
Respondents—Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CV-465
Before Barksdale, Stewart, and Dennis, Circuit Judges.
Rhesa Hawkins Barksdale, Circuit Judge:
This appeal pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq., is by a Mississippi
state prisoner seeking habeas relief under 28 U.S.C. § 2254. Following a state
trial court’s Judgment of Conviction based on guilty pleas and a much later
Order of Sentence (collectively the judgment), petitioner, under state law,
could not take a direct appeal to a state court. Nor did he seek direct review
by the Supreme Court of the United States. The failure to do so underlies
the following compelled and complex analysis.
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Because direct review by the Supreme Court was not pursued,
primarily at issue is: For determining the date on which AEDPA’s one-year
limitations period (one-year period) to seek federal habeas relief from a state-
court judgment begins running, when does the judgment resulting from a
guilty-plea conviction and sentence in Mississippi, for which there is no
direct appeal to a Mississippi state court, become final. Does it become final
the day the judgment is filed, or 90 days later, when, pursuant to Supreme
Court Rule 13(1), the time has expired for seeking direct review from the
Supreme Court of the United States by filing a petition for writ of certiorari
(90-day period)?
Reginald Desmond Wallace, a Mississippi inmate who pleaded guilty
to felony charges, contests his 28 U.S.C. § 2254 petition’s being dismissed
on the basis that it was filed 61 days late, using for finality of judgment the
date his Order of Sentence was filed. He contends the judgment did not
become final until the 90-day period expired because Mississippi law
prohibited his seeking direct state-court review of his guilty-plea convictions
and sentence and, therefore, he instead could have pursued direct review by
the Supreme Court of the United States (finality issue). Therefore, had the
90-day period been accorded Wallace by the district court, his petition would
have been filed timely.
Although our court granted Wallace a certificate of appealability
(COA) on this finality issue, Wallace did not assert in district court, or in his
pro se motion to our court for the COA, that the judgment became final only
upon the 90-day period’s expiration. To the contrary, Wallace’s counsel in
district court conceded it did not. Accordingly, the threshold question for
our considering this finality issue is whether Wallace preserved it.
Wallace also raises an alternative issue: whether our court should
vacate the dismissal of his petition and remand to district court for him to
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present an equitable-tolling issue with conflict-free counsel, in the light of
Christeson v. Roper, 574 U.S. 373 (2015) (explaining, in context of AEDPA’s
statute of limitations, conflict of interest generally arises when counsel
asserts equitable tolling should apply because of counsel’s failure to meet
deadline). Wallace also moved to expand his COA to cover this alternative
issue, noting it was unclear whether the COA encompassed it.
For Wallace’s finality issue, we hold: his judgment became final upon
the 90-day period’s expiration; and, therefore, his petition was filed timely.
Accordingly, it is not necessary to consider Wallace’s alternative equitable-
tolling issue, including whether to expand the COA. VACATED and
REMANDED.
I.
This appeal centers on whether Wallace’s habeas petition was filed
timely. Therefore, an extremely detailed chronology of his lengthy state and
federal proceedings is required.
A.
Wallace and four codefendants were indicted in April 2012 in a
Mississippi circuit court of armed robbery, kidnapping, and conspiracy to
commit armed robbery, in violation of Mississippi Code Annotated §§ 97-1-
1, 97-3-53, 97-3-79. Wallace retained counsel (state counsel). (As provided
in his later state-court post-conviction proceeding, he allegedly insisted to
state counsel that: he did not plan the crime; and he learned of the plan once
the robbery had begun.)
On 12 September 2012, Wallace filed a motion to suppress a handgun
that was seized during a search of his home. Asserting that “the State
intend[ed] to convince the jury that this handgun was the one used in the”
three charged offenses, he challenged law enforcement’s assertion that the
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handgun had been in plain view. Wallace contended in his later state-court
post-conviction proceeding that the trial court declined to consider the
motion unless he proceeded to trial.
In any event, Wallace on 24 September 2012 filed a petition to plead
guilty to the three charged offenses. The court accepted his pleas that same
day, and filed a Judgment of Conviction, in which sentencing was set for 5
November 2012.
Sentencing, however, was reset numerous times. During the
sentencing phase, Wallace retained new counsel. Pursuant to an Order of
Sentence filed on 6 June 2013, he was sentenced to, inter alia, concurrent
terms of: 30 years’ imprisonment for the armed robbery and kidnapping
offenses; and five years’ for the conspiracy offense.
Critical to this appeal, Mississippi law proscribed Wallace’s filing a
direct appeal because he pleaded guilty and was sentenced. Miss. Code
Ann. § 99-35-101 (“Any person convicted of an offense in a circuit court
may appeal to the [Mississippi] Supreme Court. However, where the
defendant enters a plea of guilty and is sentenced, then no appeal from the
circuit court to the Supreme Court shall be allowed”.). Wallace did not seek
a writ of certiorari from the Supreme Court of the United States (Court).
Ten months after being sentenced, Wallace on 10 April 2014 filed in
circuit court a pro se motion for state post-conviction relief, contending, inter
alia: his guilty plea was involuntary; and he received ineffective assistance
from state counsel. (The motion was docketed on 14 April, but because
Mississippi’s prisoner-mailbox rule applied, it was effectively filed on 10
April.)
In response, the State on 3 July 2014 presented, inter alia, an affidavit
by Wallace’s state counsel, providing Wallace had: rejected an offer to plead
guilty to the lesser charge of “simple robbery” (robbery plea-offer); and lied
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to state counsel about his involvement in the armed robbery. (The
Mississippi Court of Appeals later explained: “In Mississippi, there is no
offense titled ‘simple’ robbery”. Wallace v. State, 264 So. 3d 1, 3 n.1 (Miss.
Ct. App. 2018) (en banc). Accordingly, that court “expressed [its]
understanding to be that the characterization in [Wallace’s state-counsel’s]
affidavit refers to robbery . . . ”. Id.)
By a letter to the circuit court filed 21 July 2014, Wallace stated he first
learned of the robbery plea-offer in state-counsel’s affidavit. Wallace’s
motion was dismissed on 6 August 2014 without a hearing.
He appealed through new counsel (who also later represented him in
district court). The Mississippi Court of Appeals, inter alia: ruled there was
no merit in Wallace’s claims presented in his pro se motion for post-
conviction relief; but, reversed and remanded for an evidentiary hearing on
whether state counsel provided ineffective assistance by failing to inform
Wallace of the robbery plea-offer, as claimed in his letter to the circuit court.
Wallace v. State, 184 So. 3d 993, 1001–03 (Miss. Ct. App. 2016).
On remand, the circuit court on 3 October 2016 conducted a hearing,
including admission of evidence, and subsequently denied post-conviction
relief. Wallace appealed, and the Mississippi Court of Appeals affirmed on
24 July 2018. Wallace, 264 So. 3d at 2.
The Mississippi Supreme Court on 14 February 2019 denied
Wallace’s request for certiorari. Wallace v. State, 263 So. 3d 664 (Miss.
2019). The mandate issued on 7 March 2019. In short, Wallace’s state post-
conviction proceedings took 1,792 days, approximately five years.
B.
On 3 July 2019, four months after the state mandate issued, Wallace,
through counsel who had represented him on appeal from the dismissal of his
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motion for state post-conviction relief (hereinafter district-court counsel),
filed for 28 U.S.C. § 2254 relief, contending the Mississippi Court of
Appeals’ affirming the denial of his ineffective-assistance-of-counsel claim—
that state counsel failed to communicate to Wallace an offer to plead guilty—
was not supported by the facts presented at the circuit court hearing.
The State moved to dismiss the petition as untimely under AEDPA.
As discussed infra, AEDPA imposes the above-referenced one-year period to
file a § 2254 petition for habeas relief from a state-court judgment. The one-
year period begins running from the latest of, inter alia, the state-court
judgment of conviction’s “bec[oming] final by the conclusion of direct
review or the expiration of the time for seeking such review”. 28 U.S.C.
§ 2244(d)(1)(A) (emphasis added). (As explained infra, the expiration of
time for seeking direct review includes the above-referenced 90-day period.)
And, the one-year period is tolled “during which a properly filed application
for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending”. 28 U.S.C. § 2244(d)(2); Lawrence
v. Florida, 549 U.S. 327, 331 (2007).
Without expressly claiming, as it does now, that Wallace was not
entitled to the 90-day period before his judgment became final, the State
maintained the judgment became final on 6 June 2013 (when Order of
Sentence filed). The State accounted for the 1,792 days of statutory tolling
under AEDPA’s tolling provision, between 10 April 2014 (the effective filing
date of Wallace’s pro se motion for state post-conviction relief under
Mississippi’s prisoner-mailbox rule) and 7 March 2019 (when the Mississippi
Court of Appeals’ mandate issued). See 28 U.S.C. § 2244(d)(2). The State,
therefore, maintained that Wallace’s petition: had to have been filed by 3
May 2019 to have been timely; but instead was filed on 3 July, 61 days later.
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In response, Wallace agreed his petition was untimely. Of importance
to this appeal, district-court counsel stated in Wallace’s response: although
she informed Wallace’s mother that Wallace was allowed one year and 90
days (district-court counsel presumably referenced the 90-day period,
although she cited no authority regarding it) to file a habeas petition, district-
court counsel missed the filing deadline because she “rel[ied] on past
experience and did not realize that the ninety days allowed for United States
Supreme Court review applied only to cases on direct appeal and not to cases
like Wallace’s that were on post-conviction”. District-court counsel
requested the court to apply equitable tolling because Wallace should not be
penalized for district-court counsel’s negligence.
The magistrate judge’s (MJ) report and recommendation (R & R)
stated: Wallace’s judgment became final on 6 June 2013 (when Order of
Sentence filed) because Mississippi law prohibits a direct appeal from a guilty
plea and sentence; applied statutory tolling from 10 April 2014 (the date
Wallace signed his pro se motion for post-conviction relief) until 7 March 2019
(the date the mandate issued); and, taking statutory tolling into account,
Wallace’s petition had to have been filed by 3 May 2019 to be timely, but was
instead filed 426 non-tolled days after his judgment became final.
Accordingly, the MJ recommended that Wallace’s petition be dismissed with
prejudice.
Notably, and presumably in reference to the 90-day period, the MJ
stated: “[Wallace’s district-court] counsel argues that she was not aware the
90 days allowed for United States Supreme Court review applied only to
cases on direct appeal and not to cases on post-conviction review”. In any
event, the R & R does not discuss why Wallace’s judgment became final
before the expiration of the 90-day period, including why he was not entitled
to that 90-day period.
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The MJ also recommended that Wallace’s requested equitable tolling
not be granted. This was based on recommending that Wallace’s district-
court counsel’s negligence did not rise to the level required for such relief.
Wallace did not object to the R & R on the basis that the 90-day period
applied, resulting in the petition’s being filed timely. Instead, Wallace
objected only to not being accorded equitable tolling. In doing so, district-
court counsel raised a similar, but different, issue in favor of applying such
tolling: “Wallace should not be penalized because of his [district-court]
counsel’s failure to realize that the [90] days for seeking certiorari review
with the United States Supreme Court appl[i]es only on direct appeal and not
to a petitioner who had pleaded guilty and, therefore [under Mississippi law],
has no direct appeal”.
The district court in its order: stated it had reviewed Wallace’s
equitable-tolling objection, but did not state it had reviewed the record;
adopted the R & R; like the R & R, did not discuss why Wallace’s judgment
became final before the expiration of the 90-day period; and dismissed the
action with prejudice, without addressing the merits of Wallace’s claims. In
the order, it also denied sua sponte a COA without identifying the underlying
issues, stating: “While petitioner has demonstrated that ‘jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right,’ he has not shown that ‘jurists of reason would find
it debatable whether [this] court was correct in its procedural ruling’” (citing
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For the referenced
“procedural ruling”, there was again no discussion about whether it included
Wallace’s not being entitled to the 90-day period.
Appealing to our court, Wallace filed a pro se motion for a COA on two
issues. He first raised whether the district court erred in dismissing his
habeas petition as time barred, noting district-court counsel: “failed to file a
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timely habeas corpus application or brief in support which resulted in
dismissal for procedural bar”; delayed in filing because of “a financial
situation where [counsel] was not being paid as fast as was planned”; and
“actively mislead [him] by lies or deception” that the petition would be filed
timely. (As stated supra, district-court counsel did not file Wallace’s petition
until four months after the state mandate issued.) Attached as an exhibit to
his motion was an email to his mother from district-court counsel, in which she
changed her explanation for why Wallace’s petition was filed late:
“[Wallace]’s case was dismissed because I missed the deadline – there was no
extra 90 days for persons who pleaded guilty. I had never filed a habeas [petition]
from a guilty plea before and did not know that”. (Emphasis added.)
Wallace’s second issue in seeking a COA was whether his
“attorneys” rendered ineffective assistance in violation of the Sixth
Amendment (incorporated in the Fourteenth Amendment); his
memorandum in support addresses whether state counsel rendered ineffective
assistance during the guilty-plea stage in circuit court in 2012.
A judge on our court granted a COA for “whether the district court
erred by dismissing [Wallace’s] petition as time barred”, ruling: “Wallace
. . . demonstrated that jurists of reason could find the district court’s
determination that his § 2254 petition was untimely debatable”, stating in
support: “Although Mississippi law does not allow for direct review of a
guilty plea conviction, Miss. Code Ann. § 99-35-10, it is unclear whether
a criminal defendant who is sentenced after pleading guilty [in Mississippi] is
entitled to the 90-day period to seek certiorari from the United States
Supreme Court”. As required for when a COA is granted for a procedural
ruling, as discussed infra, the judge also addressed Wallace’s constitutional
claim: “[R]easonable jurists would debate whether Wallace has stated a valid
claim of the denial of a constitutional right with respect to his claims that
[state] counsel rendered ineffective assistance”.
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In addition, our court appointed Wallace counsel. He then filed his
opening brief and included a second, alternative issue: whether this court
should remand so that he may present his equitable-tolling challenge without
conflicted counsel. He asserted: under Christeson, 574 U.S. at 373, it was a
conflict of interest for district-court counsel to have asserted equitable tolling
applied because of her own actions; and district-court counsel misled Wallace
due to a payment dispute. Wallace added it was unclear whether his COA
extended to this alternative issue; as a result, he moved to expand the COA
to cover it.
Our court ordered the motion carried with the case, and, inter alia,
directed Wallace to file a supplemental brief regarding expanding the COA.
II.
For the following reasons, Wallace prevails on the 90-day-period
issue. Therefore, as stated supra, we need not consider his equitable-tolling
issue, including whether to expand the COA.
For purposes of determining whether Wallace filed timely his habeas
petition, only one date is at issue: the day when his judgment became final
and, therefore, when the one-year period began running. Wallace contends:
because he was entitled to seek direct review by the Supreme Court of his
state-court judgment, the district court committed reversible plain error by
concluding his judgment became final on the filing of his Order of Sentence,
instead of when the subsequent 90-day period expired (finality conclusion).
The State counters, inter alia, that Wallace’s judgment became final
on the filing of his Order of Sentence in 2013, asserting, pursuant to 28
U.S.C. § 1257(a), that he was not entitled to seek direct review by the Court:
it would have lacked jurisdiction over Wallace’s claims because the circuit
court was not the highest state court in “which a decision could [have been]
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had”; and, even if it was, the Court would have lacked jurisdiction to review
federal claims raised for the first time in a petition for writ for certiorari.
A.
The threshold inquiry for our court is whether we may consider
Wallace’s claim that his judgment became final upon the 90-day period’s
expiration because Wallace did not raise the claim either in district court after
the State and the MJ used for finality the date the Order of Sentence was
filed, or in his pro se motion in our court for a COA.
As noted, our court, through a single judge, granted Wallace the COA
on the claim. But, “because a ruling by a motions judge in the initial stages
of an appeal is not binding on the later merits panel, we have the
responsibility to determine whether the [COA granting review of this claim]
is valid”. Black v. Davis, 902 F.3d 541, 544 (5th Cir. 2018) (reviewing
whether our court’s grant of COA on issues not presented in district court
valid).
1.
AEDPA in 1996 introduced both “simple logic” to the federal habeas
landscape, Smith v. Titus, 141 S. Ct. 982, 987 (2021) (Sotomayor, J.,
dissenting from denial of cert.), and uniform rules for federal courts to apply,
Day v. McDonough, 547 U.S. 198, 202 n.1 (2006) (referring to uniformity of
AEDPA’s one-year period). Namely, it implemented a host of greatly
needed procedural requirements for petitioners seeking habeas relief. See
Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022) (noting “[i]n many ways,
[AEDPA] represented a sea change in federal habeas law”). One such
requirement, pursuant to 28 U.S.C. § 2253(c), is obtaining a COA—an
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extension of the former requirement for state prisoners to obtain a certificate
of probable cause. Black, 902 F.3d at 544 n.1.
The COA requirement is to “oblig[e] applicants to make a threshold
showing before their cases are aired out on appeal”, and, therefore, “serves
an important screening function and conserves the resources of appellate
courts”. Medellin v. Dretke, 544 U.S. 660, 678 (2005) (O’Connor, J.,
dissenting); United States v. Castro, 30 F.4th 240, 244 (5th Cir. 2022) (“In
short, the COA requirement serves a gatekeeping function.”). This goes
hand in hand with Congress’ intent in passing AEDPA: “to further the
principles of comity, finality, and federalism”, Williams v. Taylor, 529 U.S.
420, 436 (2000); and “to curb the abuse of the statutory writ of habeas
corpus”, Graham v. Johnson, 168 F.3d 762, 780 (5th Cir. 1999) (citation
omitted).
Obtaining a COA from either the district court or our court is a
jurisdictional prerequisite to our court’s considering an appeal in habeas.
Gonzalez v. Thaler, 565 U.S. 134, 140 (2012) (quoting 28 U.S.C. § 2253). Our
court generally lacks jurisdiction to issue a COA for a claim that was not
raised in district court. Black, 902 F.3d at 544–47. Moreover, the district
court must first deny a COA before petitioner may seek one from our court.
E.g., Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998); Black, 902 F.3d
at 543. In that regard, as was done in this instance, it is “perfectly lawful”
for a district court sua sponte to deny a COA before petitioner seeks one in
that court, as § 2253(c) does not require petitioner to make such request,
stating only “that an appeal may not be taken without a [COA’s] having been
issued”. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (citing 28
U.S.C. § 2253).
As reflected supra, to obtain a COA, petitioner must make “a
substantial showing of the denial of a constitutional right”. 28 U.S.C.
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§ 2253(c)(2); Slack, 529 U.S. at 483–84. This requires showing that
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong”. Slack, 529 U.S. at 484. The
inquiry is “limited to a threshold examination that ‘requires an overview of
the claims in the habeas petition and a general assessment of their merits’”.
Smith v. Dretke, 422 F.3d 269, 273 (5th Cir. 2005) (quoting Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003)).
And, as was also done in this instance, if the district court in ruling on
issuance of a COA denies relief on procedural grounds, an additional element
is added: petitioner must demonstrate not only that “jurists of reason would
find it debatable whether the [§ 2254] petition states a valid claim of the
denial of a constitutional right”, but also that “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling”.
Slack, 529 U.S. at 484–85.
Our court has made limited exceptions to the understandable
requirement that petitioner must raise a claim in district court before he can
receive a COA on that claim from our court. An example is provided by
Callicut v. Quarterman, 246 F. App’x 247 (5th Cir. 2007), which is factually
similar to this case. The district court dismissed Callicut’s § 2254 petition
as time barred after Callicut had submitted a document to the court reflecting
that his petition had been filed timely. Id. at 248. At issue was whether our
court lacked jurisdiction to consider his appeal because “[he] did not
specifically argue in his COA motion to the district court that [its] finding
concerning the date that his state habeas application was filed was incorrect”.
Id.
Our court held it had jurisdiction “because the district court implicitly
considered the issue when it denied Callicut’s COA motion”. Id. (citing
Whitehead, 157 F.3d at 387–88). The decision in Callicut finds support in
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“the existence of a COA [being] a ‘jurisdictional prerequisite’ to an appeal”,
but “the content of the COA required by § 2253(c) [being] ‘a mandatory but
nonjurisdictional rule’”. United States v. Smith, 945 F.3d 860, 863 (5th Cir.
2019) (emphasis in original) (quoting Miller-El, 537 U.S. at 336, and
Gonzalez, 565 U.S. at 154).
Another example is in Reece v. Johnson, 208 F.3d 1006 (Table), 2000
WL 177900 (5th Cir. 18 Jan. 2000). Reece, challenging the denial of his
§ 2254 petition as time barred by AEDPA’s one-year period, moved pro se for
our court to issue a COA. Id. at *1. Our court granted the COA, noting the
district court misapplied the mailbox rule in its timeliness calculation, in the
light of a decision issued after the district court’s ruling. Id.
Reece’s COA motion to our court, however, did not raise that error
but instead asserted “state action impeded him from timely filing his § 2254
[petition]”. Id. Our court reasoned that, because Reece’s challenge was
based on the calculation of AEDPA’s limitations period and his state habeas
application’s filing date, his pro se COA motion “should be liberally construed
as alleging the identified errors”. Id. (emphasis added).
Consistent with the district court’s sua sponte denial of a COA when
Wallace had counsel, with our required liberal review of Wallace’s pro se
motion for a COA in our court, e.g., id.; United States v. Comeaux, 811 F.
App’x 887, 887–88 (5th Cir. 2020), and the analyses in Callicut and Reece,
our court has jurisdiction to consider Wallace’s claim that his judgment
became final upon the 90-day period’s expiration. In that regard, the 90-day
period was referenced in district court at least three times.
First, in response to the State’s motion to dismiss, Wallace’s district-
court counsel explained that she relied on her “past experience and did not
realize that the ninety days allowed for United States Supreme Court review
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applied only to cases on direct appeal and not to cases like Wallace’s that were
on post-conviction”. (Emphasis added.)
Second, the R & R notes “[Wallace’s district-court] counsel argues
that she was not aware the 90 days allowed for United States Supreme Court
review applied only to cases on direct appeal and not to cases on post-conviction
review”. (Emphasis added.)
And, third, Wallace’s objection to the R & R’s recommending denial
of equitable tolling includes district-court counsel’s different explanation for
why she missed the filing deadline: “Wallace should not be penalized
because of [district-court] counsel’s failure to realize that the ninety days for
seeking certiorari review with the United States Supreme Court appl[i]es only on
direct appeal and not to a petitioner who had pleaded guilty and, therefore, has no
direct appeal”. (Emphasis added.) (At long last, the issue at hand, for which
our court subsequently granted a COA, was at least approached, though not
stated precisely.)
Although Wallace’s district-court counsel stated, for various reasons,
she misunderstood how, and if, the 90-day period applied to Wallace, the
possibility of Wallace’s judgment becoming final upon the 90-day period’s
expiration was still brought to the district court’s attention. For example, the
district court reviewed the objection to the R & R and adopted the R & R. As
in Callicut, 246 F. App’x at 248, it can be said the district court “implicitly
considered” the issue when both dismissing Wallace’s petition as time
barred and denying sua sponte a COA on procedural grounds.
Moreover, Wallace generally challenged the district court’s finality
conclusion in his pro se motion for a COA to our court, also noting that, due
to a payment dispute, district-court counsel “failed to file a timely habeas
corpus application or brief in support which resulted in dismissal for
procedural bar”. Wallace’s attachment to his motion, the email from district-
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court counsel to Wallace’s mother, included: “[Wallace]’s case was
dismissed because I missed the deadline – there was no extra 90 days for
persons who pleaded guilty. I had never filed a habeas [petition] from a guilty
plea before and did not know that”. Accordingly, his pro se COA motion can
be liberally construed to include a claim that his judgment did not become
final until expiration of the 90-day period. Reece, 2000 WL 177900, at *1.
Although a merits panel can overturn a single-judge ruling on a motion
for a COA, consideration should be afforded that judge’s analysis. In this
instance, it appears the motions judge deemed the 90-day-period issue
sufficiently raised in district court and our court.
2.
Our holding we have jurisdiction through our court’s COA to
consider when Wallace’s judgment became final prompts our determining
our standard of review. Arguably, because Wallace has a COA from our court
for, inter alia, the procedural 90-day-period issue, review is de novo. E.g.,
Giesberg v. Cockrell, 288 F.3d 268, 270 (5th Cir. 2002). On the other hand,
because Wallace did not object to the R & R’s recommending Wallace’s
habeas petition was untimely and did not contest expressly the district
court’s finality conclusion, review is arguably only for plain error. Starns v.
Andrews, 524 F.3d 612, 617 (5th Cir. 2008) (in habeas proceeding, reviewing
claim for plain error because party failed to raise it as objection to R & R).
As noted supra, in adopting the R & R, the district court did not state
it had made an independent review of the record. Therefore, regarding the
R & R, it has long been established that, when the district court has not made
an independent review of the record, e.g., Alexander v. Verizon Wireless Servs.,
L.L.C., 875 F.3d 243, 248 (5th Cir. 2017), failure to object to an issue in the
R & R, when warned of the requirement to file timely objections, results in
plain-error review applying to that issue when raised in our court. Douglass
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v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc)
(holding “party’s failure to file written objections to the proposed findings,
conclusions, and recommendation in a [R & R] . . . after being served with a
copy shall bar that party, except upon grounds of plain error, from attacking
on appeal the unobjected-to proposed factual findings and legal conclusions
accepted by the district court, provided that the party has been served with
notice that such consequences will result from a failure to object”),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1); Alexander, 875
F.3d at 248 (“When a party who is warned of the requirement to file timely
objections to a [R & R] fails to file any such objections, and the [MJ’s] factual
findings and legal conclusions are accepted by the district court, our review
is for plain error”.). Wallace was so warned in the R & R.
Of considerable interest, and as noted supra, Wallace’s appointed
counsel states plain-error, rather than the less restrictive de novo, review
applies; but, no authority need be cited for the well-established rule that we,
not the parties, decide which standard of review to employ. Wallace prevails
under either standard of review, as shown infra. Therefore, it is not
necessary to decide which of the two standards of review applies. In the light
of the failures to present in district court the specific issue permitted by the
COA granted Wallace by our court, we assume, without deciding, that review
for this civil proceeding is for plain error. Hernandez v. Thaler, 630 F.3d 420,
424 (5th Cir. 2011) (stating “[h]abeas proceedings are civil actions”); Starns,
524 F.3d at 617 (as stated supra, reviewing claim in habeas proceeding for
plain error); Alliance for Good Gov’t v. Coalition for Better Gov’t, 998 F.3d 661,
673 n.4 (5th Cir. 2021) (Dennis, J., dissenting) (“Decades ago, our Court . . .
adopted the practice of reviewing unpreserved error in a civil case using the
plain-error standard of review”. (citation omitted)); Douglass, 79 F.3d at
1424 (“Although the Federal Rules of Civil Procedure do not contain a plain
error rule, our court has applied the plain error standard of [Federal Rule of
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Criminal Procedure] 52(b) in civil cases”.). Such application of plain-error
review finds support in Federal Rule of Civil Procedure 51(d)(2), which
permits “[a] court [to] consider a plain error in the [jury] instructions” that
was not properly preserved under the rule, “if the error affects substantial
rights”.
Reviewing pursuant to the plain-error standard demonstrates fully
why Wallace prevails on the finality issue. In addition, our assuming review
is for plain error imposes the more restricted and difficult review upon
Wallace, especially when, as noted, he would prevail under our less difficult
de novo review for the issue of law at hand. Nevertheless, we assume plain-
error, rather than de novo, review applies to highlight, enforce, and protect
the importance, for numerous obvious reasons, of properly preserving an
issue in district court. E.g., United States v. Chavez-Hernandez, 671 F.3d 494,
497 (5th Cir. 2012) (“The purpose of plain error review is to instill in
litigators the importance of preparing adequately before appearing in the trial
court and, as necessary, clarifying issues to that court. Timely, adequate
objections allow the trial court to rule in the first instance and, if necessary,
correct itself without spawning an appeal. This standard usually shields the
district court from reversal because of error that was unwittingly committed,
because not brought to its attention. The standard also shields this court
from ruling on issues that have been insufficiently vetted below. Plain error
review implicitly acknowledges that, in many cases, an appeal represents the
triumph of hindsight, as a party attempts to shore up objections ineffectively
lodged in the trial court, or not lodged at all, by adducing after-the-fact
support for its position.”); United States v. Delgado, 672 F.3d 320, 332 (5th
Cir. 2012) (en banc) (“It is worth reiterating that the limitations imposed by
the plain-error test promote important judicial policies. With respect to
unpreserved errors, these limitations serve to induce the timely raising of
claims and objections, which gives the district court the opportunity to
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consider and resolve them”. (citation omitted)); United States v. Mares, 402
F.3d 511, 521 (5th Cir. 2005) (noting prejudice prong enforces policies
underpinning Federal Rule of Criminal Procedure 52(b): “to encourage
timely objections and reduce wasteful reversals by demanding strenuous
exertion to get relief for unpreserved error” (citation omitted)). See also
United States v. Olano, 507 U.S. 725, 732 (1993) (“Although a rigid and
undeviating judicially declared practice under which courts of review would
invariably and under all circumstances decline to consider all questions which
had not previously been specifically urged would be out of harmony with . . .
the rules of fundamental justice, the authority created by Rule 52(b) is
circumscribed”. (citation and alteration omitted)).
Under the plain-error standard, Wallace must show for reversible
plain error: (1) a forfeited error; (2) that was plain (clear or obvious error,
rather than one subject to reasonable dispute); and (3) that affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009); Quinn
v. Guerrero, 863 F.3d 353, 358 (5th Cir. 2017) (citing United States v.
Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)). And (4), if he
makes that showing, we have the discretion to correct the reversible plain
error, but generally should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Puckett, 556 U.S. at
135 (citation omitted); Williams v. Trader Publ’g Co., 218 F.3d 481, 488 (5th
Cir. 2000).
B.
For the following reasons, the district court committed reversible
plain error for the finality issue. And, applying our discretion for the fourth
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and final step of plain-error review, we hold the error requires vacating the
judgment of dismissal and remanding for further proceedings.
1.
As noted supra, the first of the four steps in plain-error review is
whether the issue was forfeited, as opposed to being waived. It was not
waived because Wallace did not “intentionally relinquish[] or abandon[]” in
district court his claim on appeal (as allowed by our court’s COA) that his
judgment became final when the 90-day period expired. Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1904 (2018).
This is reflected by district-court counsel’s shifting positions on the
finality issue and claiming negligence in not filing the § 2254 petition timely.
Therefore, Wallace “forfeited the claim of error” by failing to raise the
finality issue in district court. Puckett, 556 U.S. at 138 (emphasis omitted);
see also Douglass, 79 F.3d at 1420 (“Whereas forfeiture is the failure to make
the timely assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right.” (quoting Olano, 507 U.S. at 733)).
2.
For the next step, the district court’s concluding Wallace’s judgment
became final on the date his Order of Sentence was filed is “clear or obvious”
error because, as referenced supra and discussed infra, it is “not subject to
reasonable dispute”. Puckett, 556 U.S. at 135; United States v. Davis, 967 F.3d
441, 442 (5th Cir. 2020). As noted supra, in addition to the COA
requirement, AEDPA imposes the one-year period for an individual in
custody pursuant to a state-court judgment to file a § 2254 petition for habeas
relief. 28 U.S.C. § 2244(d). The one-year period begins running from the
latest of four events. Id. As stated, Wallace’s challenge relies on the
following from the four: “the date on which the [state] judgment became
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final by the conclusion of direct review or the expiration of the time for seeking such
review”. Id. at § 2244(d)(1)(A) (emphasis added).
For determining such finality of a state-court judgment, “the
conclusion of direct review” and “the expiration of the time for seeking such
review” obviously refer to “distinct categor[ies] of petitioners”. Gonzalez,
565 U.S. at 150 (emphasis added). The first category applies to those who
pursued direct review from the Court. Id. In that instance, “the judgment
becomes final at the conclusion of direct review” when the Court “affirms a
conviction on the merits or denies a petition for certiorari”. Id. (emphasis
added).
The second category refers to petitioners, like Wallace, who did not
seek direct review. In that instance, “the judgment becomes final at the
‘expiration of the time for seeking [direct] review’ . . . when the time for
pursuing direct review in [the] Court, or in state court, expires”. Id.; see also
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003). In other words, if
petitioner may pursue direct state-court review, but does not, his conviction
becomes final when the time for seeking such review expires. See Roberts, 319
F.3d at 693–94.
This case, however, turns on when petitioner could seek direct review
by the Court. As noted and discussed infra, the Court may review a final
state-court judgment if, inter alia, it is “rendered by the highest court of a State
in which a decision could be had”. 28 U.S.C. § 1257(a) (emphasis added). In
that instance, AEDPA’s finality provision accounting for “time for seeking
such review” includes the 90-day period for filing a petition for writ of
certiorari. Lawrence, 549 U.S. at 333; Roberts, 319 F.3d at 694; Sup. Ct. R.
13(1). At issue is whether Wallace was entitled to pursue direct review by the
Court during the 90-day period from the date of his judgment (6 June 2013).
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a.
As noted supra, the State, pursuant to 28 U.S.C. § 1257(a), primarily
contends: in the district court’s finality conclusion, there was no error. In
other words, the State for its primary bases of support does not rely upon the
less arduous element for it in plain-error review: that there was no clear or
obvious error.
Section 1257(a) provides:
Final judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by the
Supreme Court by writ of certiorari where . . . any . . . right . . .
is specially set up or claimed under the Constitution or the
treaties or statutes of . . . the United States.
The State maintains that, for purposes of triggering the one-year period,
Wallace’s judgment became final on the date of his Order of Sentence being
filed in 2013, not after the 90-day period: direct review by the Court was not
permitted because the Mississippi trial (circuit) court was not “the
[requisite] highest court of [Mississippi] in which a decision could [be] had”;
and, even if it was, the Court would have lacked jurisdiction to review any
federal claims raised by Wallace in a petition for writ of certiorari because he
did not raise such claims in state (circuit) court.
i.
As for the State’s first ground, the “highest court . . . in which a
decision could be had” is the “state court of last resort”. Gonzalez, 565 U.S.
at 154. In that regard, the state-court judgment must be: “subject to no
further review or correction in any other state tribunal”; and “the final word
of a final court”. Mkt. St. Ry. v. R.R. Comm’n, 324 U.S. 548, 551 (1945).
The “state court of last resort” can, of course, be a court other than
the highest in the State. E.g., Grovey v. Townsend, 295 U.S. 45 (1935) (on writ
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of certiorari to Texas justice court); Canizio v. New York, 327 U.S. 82, 84–85
(1946) (holding jurisdiction existed to consider appeal from New York
county court on denial of writ of coram nobis because state law did not permit
appeal to higher court); Bates v. Sec’y Dep’t of Corr., 964 F.3d 1326, 1329 (11th
Cir. 2020) (concluding Florida intermediate appellate court was “court of
last resort” because Supreme Court of Florida jurisdictionally barred from
reviewing unelaborated per curiam opinion).
The State contends: because Wallace could pursue state post-conviction
review, the trial (circuit) court was not the “state court of last resort”. Not
so.
First, 28 U.S.C. § 2244(d) distinguishes between direct and collateral
review: again, the one-year period begins running at the expiration of time to
seek direct review; and “the time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of
limitation under this subsection [(d)]”. 28 U.S.C. § 2244(d) (emphasis
added); Wall v. Kholi, 562 U.S. 545, 547 (2011) (holding “the phrase
‘collateral review’ in § 2244(d)(2) means judicial review of a judgment in a
proceeding that is not part of direct review” (emphasis added)). At issue
here, in determining whether the 90-day period applies, is whether the period
for direct review, not collateral review, expired. See Roberts, 319 F.3d at 694.
Moreover, the State’s contention that the trial court was not the
“state court of last resort” is inconsistent with its position that Wallace’s
judgment became final when his Order of Sentence was filed. Along that line,
the State concedes: under Mississippi Code Annotated § 99-35-101,
Wallace’s judgment was final because he could not appeal his guilty plea and
sentence to a higher Mississippi court. As such, Wallace’s guilty-plea
conviction was “the [requisite] final word of a final [Mississippi] court”.
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Mkt. St. Ry., 324 U.S. at 551. The command of Roberts, therefore, is clear:
the 90-day period for seeking a writ of certiorari from the Court was available
to Wallace and was triggered when the judgment was filed after sentencing.
ii.
For its second primary ground, the State relies on 28 U.S.C.
§ 1257(a)’s requiring the claim for which review by the Court is requested to
be “under the Constitution or the treaties or statutes of the United States”
(federal-law claim). The State asserts that, under § 1257(a), the Court could
not review a federal-law claim raised for the first time in a petition for writ of
certiorari: the “Court has almost unfailingly refused to consider any federal-
law challenge to a state-court decision unless the federal claim was either
addressed by or properly presented to the state court that rendered the
decision [it has] been asked to review”, Howell v. Mississippi, 543 U.S. 440,
443 (2005); and no federal-law claims were presented to the circuit court, nor
decided by it.
The State, however, cites no decisions supporting its position that the
90-day period would not apply because the Court would have lacked
jurisdiction to review federal-law claims raised by Wallace for the first time
in seeking direct review of his guilty plea. More to the point, § 2244(d)(1)(A)
imposes no requirement that, for the 90-day period to apply, the Court must
have jurisdiction over a petition for writ of certiorari, if filed.
And, as discussed supra, Wallace did raise a Fourth Amendment
claim, applicable to the States through the Fourteenth Amendment, in circuit
court before he pleaded guilty. Moreover, he later contended in his state-
court post-conviction proceeding that the circuit court declined to consider
the challenge unless he proceeded to trial. Who is to say that claim, as well
as that ruling, could not have been raised as Fourteenth Amendment claims
in a petition for writ of certiorari?
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In addition, in instances following a guilty plea and sentence in a
Mississippi state court in which, as here, direct review is not requested from
the Supreme Court, how would a federal district or circuit court in a habeas
proceeding determine whether, for purposes of the Supreme Court’s having
jurisdiction vel non to consider a petition for writ of certiorari, a federal-law
claim had been raised adequately in the Mississippi state court, or would be
otherwise sufficient to ensure jurisdiction for review by the Court? Such
inquiry and conjuncture fly in the face of the certainty in procedures and rules
AEDPA in part was enacted to achieve.
Our court’s decisions analyzing when the 90-day period applies
support that we need not look to whether the Court would have jurisdiction
over a petition for writ of certiorari, if filed. For example, in Flanagan v.
Johnson, our court: considered whether dismissal as time barred of a petition
for habeas relief from a Texas state-court judgment resulting from a jury
conviction was proper; and noted that, because petitioner (who pursued
unsuccessfully direct state-court review) did not seek a writ of certiorari from
the Court, his conviction became final 90 days after the judgment following
appeal was entered. 154 F.3d 196, 197 (5th Cir. 1998) (citing Caspari v.
Bohlen, 510 U.S. 383 (1994) (discussing finality in the context of Teague
nonretroactivity)). Our court did not address whether the Court would have
had jurisdiction had a petition for writ of certiorari been filed. Id.b.
Accordingly, the State’s two primary bases for the 90-day period’s not
being applicable fail. But, in this instance, because plain-error review applies,
the underlying error must be more than simply an error, it must be “plain”:
“clear” or “obvious”. Along that line, the State contends: because our court
has not addressed previously whether, under Mississippi law, the judgment
of defendant who pleaded guilty and was sentenced became final upon the
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90-day period’s expiration, the district court’s error was not clear or obvious.
(The State belatedly raised this issue in a Rule 28(j) letter after oral argument
in our court. The issue warrants consideration because the letter relies upon
an opinion issued after oral argument and the issue is a necessary inquiry for
plain-error review.)
In that regard, our court will “ordinarily [] not find plain error when
[it has] not previously addressed an issue. Even where the argument requires
only extending authoritative precedent, the failure of the district court cannot
be plain error”. United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009)
(emphasis added) (citation omitted); see also United States v. Ellis, 564 F.3d
370, 377–78 (5th Cir. 2009) (explaining why our court did not decide whether
there was “any error at all” because, inter alia, lack of clarity in the law
rendered any such error less than “plain”).
Our court has held an error “clear or obvious”, however, when the
result was plainly dictated by relevant laws and decisions. E.g., United States
v. Insaulgarat, 378 F.3d 456, 471 (5th Cir. 2004) (holding court plainly erred
because claim at issue “clearly and plainly follow[ed]” from direct language
of, inter alia, Sentencing Guideline, statute, and decisions construing
Guideline); see also United States v. Spruill, 292 F.3d 207, 215 & n.10 (5th Cir.
2002) (“The fact that the particular factual and legal scenario here presented
does not appear to have been addressed in any other reported opinion does
not preclude the asserted error in this respect from being sufficiently clear or
plain to authorize vacation of the conviction on direct appeal.”).
Wallace’s judgment becoming final upon the 90-day period’s
expiration clearly flows from § 2244(d)(1) and our court’s prior decisions
applying that statute, such as in Roberts, 319 F.3d at 694. Unlike in Evans,
such a conclusion does not expand § 2244(d)(1)’s application. 587 F.3d at
667. To hold otherwise is to turn a blind eye to both a needed bright-line rule
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compelled by the plain wording of § 2244(d)(1) and one of the underlying
goals of AEDPA: to provide uniform rules to ensure certainty in procedural
requirements for federal habeas relief. (Though not discussed by the parties,
it appears, by our independent research, that only one other State statutorily
imposes such broad restrictions as Mississippi. See Ariz. Rev. Stat.
§ 13-4033(B) (“In noncapital cases a defendant may not appeal from a
judgment or sentence that is entered pursuant to a plea agreement or an
admission to a probation violation.”).)
3.
For the next step in plain-error review, the error obviously affected
Wallace’s substantial rights because it precluded his pursuing federal habeas
relief on the merits. See Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999)
(noting, in the context of equitable tolling, dismissal of first habeas petition
“is a particularly serious matter, for that dismissal denies the petitioner the
protections of the Great Writ entirely, risking injury to an important interest
in human liberty”); Price v. City of San Antonio, 431 F.3d 890, 894 (5th Cir.
2005) (holding appellant’s substantial rights were affected by “dismissal
with prejudice . . . because it resulted in the permanent loss of . . . claims”),
abrogated on other grounds by Bradley v. Sheriff’s Dep’t St. Landry Par., 958
F.3d 387, 391–92 (5th Cir. 2020).
4.
Having held the first three steps of plain-error review are satisfied, we
hold the district court’s error requires reversal because it “seriously affect[s]
the fairness, integrity, or public reputation of judicial proceedings”. Puckett,
556 U.S. at 135 (citation omitted). At hand is whether Wallace, a state
prisoner, may pursue habeas relief at all. Foreclosing judicial review of a
habeas petition on the ground it was filed untimely, when it was not,
undermines “the public legitimacy of our justice system[, which] relies on
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procedures that are neutral, accurate, consistent, trustworthy, and fair”.
Rosales-Mireles, 138 S. Ct. at 1908 (citation omitted). And, because the
district court’s finality conclusion resulted from error in applying AEDPA’s
limitations period, it may now be easily corrected. See id.III.
For the foregoing reasons, the dismissal of Wallace’s habeas petition
is VACATED; and this matter is REMANDED to district court for
further proceedings consistent with this opinion. (Accordingly, it is not
necessary to consider Wallace’s motion to expand the COA.)
28