Scott v. Hubert ( 2010 )


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  •      Case: 09-30543     Document: 00511021740          Page: 1    Date Filed: 02/05/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 5, 2010
    No. 09-30543
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    WARREN SCOTT, III,
    Petitioner-Appellant
    v.
    CORNEL H. HUBERT,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Middle District of Louisiana
    USDC No. 3:08-CV-11
    Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Warren Scott, III, Louisiana prisoner # 463618, filed a 
    28 U.S.C. § 2254
    petition. Scott challenged two convictions for unauthorized entry of an inhabited
    building, one for aggravated burglary, and one for sexual battery. The district
    court found Scott’s petition untimely to the extent that it challenged the
    unauthorized entries and the aggravated burglary. The district court found
    Scott’s ineffective assistance of counsel claims challenging the sexual battery
    conviction unexhausted and procedurally barred from federal habeas review.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-30543         Document: 00511021740 Page: 2             Date Filed: 02/05/2010
    No. 09-30543
    Scott – now represented by counsel – seeks a certificate of appealability (COA)
    to appeal the district court’s dismissal of his petition.
    Scott has not shown that reasonable jurists would find debatable or
    incorrect the district court’s untimeliness ruling regarding his unauthorized
    entry convictions.1 Scott’s motion for a COA is denied with respect to those
    claims.
    On the other hand, Scott argues that – due to a resentencing – his federal
    petition was timely regarding his conviction for aggravated burglary. We hold
    that reasonable jurists would find the district court’s timeliness determination
    here to be debatable or incorrect. The debate would focus on whether the district
    court erred in calculating the date on which the aggravated burglary judgment
    “became final” for the purposes of 
    28 U.S.C. § 2244
    (d).
    The Supreme Court has explained that “[f]inal judgment in a criminal case
    means sentence. The sentence is the judgment.” 2 The record indicates that
    Scott’s sentence for the aggravated burglary did not become final until May
    2005, but the district court found that the limitations period began to run in
    March 2004 – when the conviction became final. Scott thus raises a debatable
    procedural question. Because he also raises several substantive constitutional
    issues (including involuntariness of guilty plea) underlying his aggravated
    burglary conviction and sentence, he has made the necessary showing to obtain
    a COA.3
    1
    See Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000).
    2
    Burton v. Stewart, 
    549 U.S. 147
    , 156 (2007) (citation and quotation marks omitted).
    3
    See Slack, 
    529 U.S. at 484
     (“When the district court denies a habeas petition on
    procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA
    should issue when the prisoner shows, at least, that jurists of reason would find it debatable
    whether the petition states a valid claim of the denial of a constitutional right and that jurists
    of reason would find it debatable whether the district court was correct in its procedural
    ruling.”); Houser v. Dretke, 
    395 F.3d 560
    , 562 (5th Cir. 2004) (“Assume that petitioner has
    stated a ‘debatable’ issue concerning the correctness of the district court’s procedural denial
    of habeas relief. Then, if the district court pleadings, the record, and the COA application
    2
    Case: 09-30543         Document: 00511021740 Page: 3         Date Filed: 02/05/2010
    No. 09-30543
    Scott further argues that the district court erred in finding his ineffective
    assistance of counsel claims procedurally defaulted in his sexual battery case.
    The district court ruled that Scott had not raised the claims in state court. Here
    again reasonable jurists might debate or disagree, insofar as Scott’s ineffective
    assistance claim relates to the all-white composition of his jury.
    “To exhaust available state court remedies, a habeas petitioner must fairly
    present all the claims in his habeas corpus petition to the highest available state
    court, alerting the court to the federal nature of his claim. A prisoner fairly
    presents a claim to the state court when he . . . alleges a pattern of facts that is
    well within the mainstream of constitutional litigation.” 4 Scott may have done
    so here, handwriting in his application for state post-conviction relief – under
    the heading “Ineffective Assistance of Counsel” – “On February 12, 2003, my
    rights to a jury trial of my peers was violated. And I was wrongfully convicted
    due to same prior ineffective assistance of counsel Sherman Ruth that was ill
    prepared for my jury trial and inexperienced. And due to an all white jury
    selection.” Reasonable jurists could debate whether Scott fairly presented in
    state court an argument that a failure to object to the jury composition on
    Batson 5 grounds contributed to his lawyer’s ineffectiveness.
    To sum up, we GRANT Scott a COA on two issues: (1) whether Scott
    timely filed his federal petition regarding his aggravated burglary judgment; and
    (2) whether in his sexual battery case Scott procedurally defaulted his ineffective
    assistance claim relating to Batson.
    COA GRANTED IN PART, DENIED IN PART.
    demonstrate that reasonable jurists could debate whether the petitioner has made a valid
    claim of a constitutional deprivation, a COA will issue.”).
    4
    Kittelson v. Dretke, 
    426 F.3d 306
    , 315 (5th Cir. 2005) (citations and quotation marks
    omitted).
    5
    Batson v. Kentucky, 
    476 U.S. 79
     (1986).
    3
    

Document Info

Docket Number: 09-30543

Judges: Higginbotham, Clement, Southwick

Filed Date: 2/5/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024