Switzer v. State of Mississippi ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-60104
Summary Calendar
RICHARD MERLE SWITZER,
Petitioner-Appellant,
versus
STATE OF MISSISSIPPI;
DAVID TURNER, Mississippi Department
of Corrections Superintendent,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:01-CV-205-RRo
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Richard Merle Switzer, Mississippi prisoner # 47818,
appeals from the denial of his 28 U.S.C. § 2254 petition
challenging his felony escape conviction and sentence as an
habitual offender. Switzer has also moved for leave to file a
reply brief.
A certificate of appealability was granted on the issue
whether Switzer’s counsel was ineffective in failing to file a
*
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opinion should not be published and is not precedent except under the limited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.
direct appeal. Switzer v. Mississippi, No. 04-60104 (5th Cir.
Jul. 1, 2004) (unpublished). That claim, however, was not raised
in state court, and when Switzer returned to state court in an
attempt to satisfy the exhaustion requirement, his petition was
dismissed pursuant to MISS. CODE ANN. § 99-39-23(6), as successive.
Switzer’s claim that counsel failed to file a direct appeal is
therefore procedurally barred from federal habeas review. Lott v.
Hargett, 80 F.3d 161, 164-65 (5th Cir. 1996).
Switzer cannot establish cause to overcome the default
because any error on the part of habeas counsel in failing to raise
the ineffective assistance claim on state postconviction review
cannot provide cause for a procedural default. See Coleman v.
Thompson, 501 U.S. 722, 755 (1991); Martinez v. Johnson, 255 F.3d
229, 240-41 (5th Cir. 2001). Federal review of Switzer’s claim may
therefore be had only if necessary to avoid a fundamental
miscarriage of justice. Coleman, 501 U.S. 750. Switzer, however,
has failed to brief the fundamental miscarriage of justice issue,
and, therefore, its consideration is waived. See Elizalde v.
Dretke, 362 F.3d 323, 328 n.3 (5th Cir.), cert. denied, 125 S. Ct.
293 (2004). The dismissal of Switzer’s petition is consequently
affirmed, albeit on grounds other than those cited by the district
court. See Bickford v. Int’l Speedway Corp., 654 F.2d 1028, 1031
(5th Cir. 1981).
AFFIRMED; MOTION TO FILE REPLY BRIEF GRANTED.
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