Chancellor v. State of Mississippi ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 31, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60606
Summary Calendar
MAURICE DAMON CHANCELLOR,
Petitioner-Appellee,
versus
STATE OF MISSISSIPPI; JIM HOOD,
Respondents-Appellants.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CV-426-BN
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
The district court dismissed the 28 U.S.C. § 2254 habeas
petition by petitioner-appellee Maurice Chancellor, a Mississippi
prisoner (# L0909), “without prejudice,” for failure to exhaust
state remedies. The respondents-appellants have filed an appeal
from the “without prejudice” designation; they argue that the
dismissal should have been based on the procedural-default
doctrine and that it should have been “with prejudice.” They
contend that, because Chancellor has already filed an
unsuccessful postconviction application in the Mississippi state
*
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that this opinion should not be published and is not precedent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.
No. 04-60606
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courts, any future attempt to exhaust state remedies would be
barred by Mississippi’s successive-petition rule, MISS. CODE ANN.
§ 99-39-23(6).
The procedural-default doctrine precludes federal habeas
review when the last reasoned state-court opinion addressing a
claim explicitly rejects it on a state procedural ground. Ylst
v. Nunnemaker, 501 U.S. 797, 801, 803 (1991). When the state
court has relied on an independent and adequate state procedural
rule, federal habeas review is barred unless the petitioner
demonstrates either cause and prejudice or that a failure to
address the claim will result in a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In the instant case, no state procedural bar was ever
applied to Chancellor’s claims by the state courts, but it is
undisputed that Chancellor failed to exhaust the claims he is now
raising. Ordinarily, a habeas petition must be dismissed,
without prejudice, if any issue has not been exhausted in the
state courts. Rose v. Lundy, 455 U.S. 509, 513-19 (1982).
However, “[w]hen . . . state remedies are rendered unavailable by
the petitioner’s own procedural default, federal courts are
barred from reviewing those claims.” Sones v. Hargett, 61 F.3d
410, 416 (5th Cir. 1995). “‘[I]f the petitioner failed to
exhaust state remedies and the [state] court to which petitioner
would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally
barred, . . . [then] there is procedural default for the purposes
of federal habeas. . . .’” Id. (quoting Coleman, 501 U.S. at 735
No. 04-60606
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n.1); Wilder v. Cockrell, 274 F.3d 255, 262 (5th Cir. 2001). The
petitioner bears the burden of showing that the state did not
strictly or regularly follow a procedural bar. See Stokes v.
Anderson, 123 F.3d 858, 860 (5th Cir. 1997).
The respondents argued in their answer in district court
that Chancellor’s 28 U.S.C. § 2254 petition should be dismissed
as procedurally defaulted. Chancellor has not filed any
pleadings or papers in this case since July 2003, prior to the
date that the respondents filed their answer. Chancellor has
thus made no effort to sustain his burden of showing that
Mississippi’s successive-petition provision, MISS. CODE ANN. § 99-
39-23(6), was not an “adequate and independent” state procedural
ground upon which to base a procedural-default ruling, and we
have indicated that § 99-39-23(6) is indeed an adequate and
independent rule. See Moawad v. Anderson, 143 F.3d 942, 947 (5th
Cir. 1998); Lott v. Hargett, 80 F.3d 161, 164-65 (5th Cir. 1996).
Accordingly, we conclude that Chancellor’s habeas petition should
have been dismissed “with prejudice” as procedurally defaulted.
We thus VACATE and REMAND with instructions that the district
court re-enter judgment in favor of the respondents, dismissing
Chancellor’s petition “with prejudice” as procedurally defaulted.
VACATED AND REMANDED.