Marks v. Johnson ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-41178
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JEROME ALEXANDER MARKS,
Petitioner-Appellant,
v.
GARY L. JOHNSON, Director, Texas Department of
Criminal Justice, Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:94-CV-157)
_________________________________________________________________
July 7, 1999
Before WIENER and PARKER, Circuit Judges, and LAKE,* District
Judge.
PER CURIAM:*
Petitioner, Jerome Alexander Marks, appeals from the district
court’s denial of his petition for writ of habeas corpus.
Respondent, Gary L. Johnson, argues that the district court was
correct and also moves to dismiss the appeal for failure to comply
with appellate filing deadlines. We will deny the motion to
dismiss and affirm the judgment of the district court.
I. BACKGROUND
*
District Judge of the Southern District of Texas, sitting by
designation.
*
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this opinion should not be published and is not precedent except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.
A state grand jury indicted Marks for possession of a
controlled substance, pentazocine. He pleaded not guilty and went
to trial in 1986. The state trial court impaneled thirty-six
potential jurors. After voir dire, both Marks and the state used
all of their available peremptory challenges. All of the ten
venire members struck by the state were African-American. The jury
ultimately seated for the trial included two African-Americans.
Marks, who is African-American, objected to the state’s use of
peremptory challenges, claiming that the state exercised its
challenges on the basis of race. The prosecutor replied that the
ages and occupations of the ten challenged venire members motivated
the strikes. The trial court overruled Marks’ objection. The jury
convicted Marks and sentenced him to ten years in prison. The
state court of appeals affirmed. See Marks v. State, 721 S.W.2d
401, 402, 405 (Tex. App. -- Beaumont 1986, no pet.). Marks did not
petition the Texas Court of Criminal Appeals for discretionary
review.
Marks filed two applications for writ of habeas corpus in the
state courts. The Texas Court of Criminal Appeals denied the first
application without written order on February 27, 1991. See Ex
Parte Marks, No. 21,995-01 (Tex. Crim. App. Feb. 27, 1991). It
denied the second application on October 20, 1993. See Ex Parte
Marks, No. 21,995-02 (Tex. Crim. App. Oct. 20, 1993). Marks then
filed a petition for writ of habeas corpus in federal district
court. The district court denied the petition on the recommenda-
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tion of the magistrate judge. The district court entered a final
judgment on August 27, 1997. The district court clerk received
Marks’ notice of appeal on September 29, 1997.
On April 24, 1998, a member of this court granted Marks a
certificate of probable cause limited to Marks’ claims that:
(1) the state’s peremptory strikes were unconstitution-
ally racially motivated, and
(2) defects in the indictment deprived the state trial
court of jurisdiction.
On June 12, 1998, Johnson filed a motion to dismiss, arguing that
the court does not have jurisdiction under 28 U.S.C. § 2107(a) and
Fed. R. App. P. 4(a)(1) because Marks did not timely file notice of
appeal.
II. STANDARD OF REVIEW
Because Marks did not object to the magistrate judge’s
recommendation, we review the findings of fact and conclusions of
law of the magistrate judge for plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)
(en banc). We review fact issues addressed by the district court
for plain error and issues of law de novo. See Mann v. Scott, 41
F.3d 968, 973 (5th Cir. 1994).
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III. MOTION TO DISMISS
Johnson moves to dismiss Marks’ appeal because Marks did not
timely file his notice of appeal. To invoke the jurisdiction of
this court, appellants must file a timely notice of appeal. See
Nelson v. Foti, 707 F.2d 170, 171 (5th Cir. 1983). Pro se
litigants are not exempt from the filing requirements. See United
States v. Merrifield, 764 F.2d 436, 437 (5th Cir. 1985). Marks was
required to file his notice of appeal with the clerk of the
district court within thirty days from the entry of the judgment or
the order being appealed. See Fed. R. App. P. 4(a)(1). The
appellate time period begins to run on the date that the judgment
or order is entered on the docket, not the date it is filed. See
Barksdale v. Blackburn, 670 F.2d 22, 23 (5th Cir. 1982).
When an inmate confined in prison files a notice of appeal,
the notice is considered timely if the inmate deposited it in the
prison mail system by the filing deadline. See Fed. R. App.
P. 4(c); Houston v. Lack, 108 S. Ct. 2379, 2385 (1988). In
applying Houston, we have directed that “if the pro se prisoner’s
notice of appeal is received by the district court within two
business days after the last day for filing, it is to be treated as
timely, as we will presume that it was timely delivered for mailing
via the prison mail system.” Sonnier v. Johnson, 161 F.3d 941, 945
(5th Cir. 1998) (per curiam).
The district court entered its final judgment on August 27,
1997. The thirty-day appellate filing period expired on Friday,
September 26, 1997. The district court clerk received Marks’
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notice of appeal on the following Monday, September 29, 1997.
Since Marks filed the notice one business day after the appellate
filing period had expired, he is entitled to the presumption of
timely delivery to the prison mail system.
Noting that another inmate’s name appears on the return
address of the envelope that contained Marks’ notice of appeal,
Johnson argues that Marks should not enjoy the benefit of Rule 4(c)
and Houston v. Lack because Marks had a fellow inmate mail his
notice. Marks responds that he was confined in administrative
segregation during the relevant period and that prison officials
would not allow him to meet with the inmate who was assisting him
in his litigation, Terry Beck, in order to prepare the notice of
appeal. Marks also alleges that because all mailboxes had been
removed from the administrative segregation facilities, he had to
allow Beck to prepare the notice of appeal and mail it for him.
Because the envelope was postmarked September 27, 1997, the
day after the appellate deadline, and the prison mailroom records
do not reflect that Marks mailed any legal or certified mail from
August 26, 1997, through October 4, 1997, Johnson speculates that
whoever deposited the notice in the prison mail system might not
have done so until September 27, 1997. Speculation, however, does
not rebut a presumption. Johnson does not affirmatively allege
that the notice was mailed on September 27.
We are not persuaded. Johnson did not investigate whether
Beck sent any mail to the district court during the relevant time
period. The key issue under Rule 4(a) is when the district clerk
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received the notice of appeal. Here, the district clerk received
the notice of appeal one business day after the appellate deadline
expired. Under Sonnier, we therefore presume Marks delivered the
notice before the filing deadline. Because Johnson has not
rebutted this presumption, we will deny Johnson’s motion to
dismiss.
IV. DEFECTIVE INDICTMENT
Although the certificate of probable cause authorized Marks to
raise a defective indictment claim on appeal, he has waived this
issue by not briefing it. See Brinkmann v. Abner, 813 F.2d 744,
748 (5th Cir. 1987).
V. BATSON CLAIM
After voir dire, Marks objected when the prosecution used all
ten of its peremptory challenges to exclude African-American venire
members. The trial court overruled the objection. Three months
after Marks’ trial, in Batson v. Kentucky, 106 S. Ct. 1712 (1986),
the Supreme Court articulated a burden-shifting scheme for
analyzing claims of racially discriminatory peremptory challenges.
Although Marks raised this claim in his direct appeal, which was
pending when Batson was decided, the state court of appeals held
that Batson did not apply retroactively. See Marks v. State, 721
S.W.2d 401, 402-403 (Tex. App. -- Beaumont 1986, no pet.).
Nevertheless, “concerned that some higher court might disagree”
with that holding, the court considered the merits of Marks’ Batson
claim. Marks, 721 S.W.2d at 403. The court concluded that Marks
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established a prima facie claim of purposeful discrimination but
that the record “was inconclusive as to whether the state
sufficiently explained its challenges on ‘neutral’ grounds.”
Marks, 721 S.W.2d at 404. The court declined to remand for further
findings by the trial court since it concluded that Batson did not
apply retroactively.
Marks did not petition the Texas Court of Criminal Appeals for
discretionary review. The next year, the Supreme Court held that
Batson applied retroactively to cases pending on appeal when Batson
was issued. See Griffith v. Kentucky, 107 S. Ct. 708, 716 (1987).
The state habeas courts rejected Marks’ Batson claim, however,
because the court of appeals had already adversely decided the
issue on direct appeal before Griffith was issued.
The Equal Protection Clause prohibits prosecutors from
striking venire members solely on the basis of race. See Batson,
106 S. Ct. at 1719. The Batson Court articulated a three-step,
burden-shifting scheme for reviewing claims of discriminatory
peremptory challenges. First, the defendant must make a prima
facie case that the prosecutor exercised a challenge on the basis
of race. If the defendant makes such a showing, the burden shifts
to the state to articulate a race-neutral reason for striking the
juror. If the state articulates such a reason, the court must
decide whether the defendant has carried his burden of establishing
purposeful discrimination. See id. at 1723-24; United States v.
Clemons, 941 F.2d 321, 324 (5th Cir. 1991). A reason is race-
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neutral if it is based upon a facially valid ground other than the
race of the juror. See United States v. Fields, 72 F.3d 1200, 1206
(5th Cir. 1996). “Unless a discriminatory intent is inherent in
the prosecutor’s explanation, the reason given by the prosecution
[is] deemed race-neutral.” Id.
The Report and Recommendation of the magistrate judge, which
the district court adopted, concluded that Marks was not entitled
to federal habeas relief on his Batson claim because Marks had not
presented any facts to show purposeful discrimination after the
state articulated race-neutral reasons for striking the African-
American members of the venire. The district court did not err in
rejecting the Batson claim. Although the magistrate judge and the
district court erred in applying the new standard of deference
contained in the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and codified
at 28 U.S.C. § 2254(d), even under pre-AEDPA law1 federal courts
presume correct the factual findings of a state court. See
Marshall v. Lonberger, 103 S. Ct. 843, 850 (1983). Determining
whether a prosecutor intended to discriminate is a question of
fact. See Hernandez v. New York, 111 S. Ct. 1859, 1870 (1991).
Although the state court of appeals did not reach the ultimate
issue of whether Marks had proven discrimination, the trial court
1
Marks filed his federal petition well before the effective
date of the AEDPA. The Act does not apply to noncapital federal
habeas cases filed before its effective date, April 24, 1996. See
Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997).
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did when it overruled Marks’ motion. We presume correct the trial
court’s finding of no discriminatory intent. See Washington v.
Johnson, 90 F.3d 945, 954 (5th Cir. 1996), cert. denied, 117 S. Ct.
1259 (1997). Marks does not point to anything in the record
indicating discriminatory intent. He offers nothing to rebut the
presumption of correctness beyond his own unspecified allegations.
Such allegations, unsupported by evidence, do not raise
constitutional issues. See McCoy v. Lynaugh, 874 F.2d 954 (5th
Cir. 1989). Moreover, because discriminatory intent is not
inherent in the prosecutor’s explanation, we deem the state’s
motives to be race-neutral. See Fields, 72 F.3d at 1206. Because
Marks has failed to establish a Batson claim, the district court’s
decision was not plain error.
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VI. CONCLUSION
Johnson’s Motion to Dismiss is DENIED, and the judgment of the
district court is AFFIRMED.
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