Mitchell v. Puckett

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60126
Summary Calendar
DARIES F. MITCHELL,
Petitioner-Appellant,
versus
STEVE PUCKETT,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:94-CV-550 RR
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January 20, 1998
Before JONES, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Daries F. Mitchell, Mississippi prisoner No. 68075, has
requested a certificate of appealability (COA) to appeal the
district court’s denial of his federal habeas corpus petition.
Because Mitchell’s petition was filed in the district court prior
to the April 24, 1996, effective date of the Antiterrorism and
Effective Death Penalty Act (AEDPA), Mitchell’s appeal is
governed by pre-AEDPA law, and it may not proceed unless he
obtains a certificate of probable cause (CPC). Green v. Johnson,
*
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that this opinion should not be published and is not precedent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. 97-60126
-2-
116 F.3d 1115, 1120 (5th Cir. 1997). We construe the district
court’s denial of a COA as a denial of a CPC and Mitchell’s
motion for a COA as a motion for a CPC. See id.
In the district court, Mitchell advanced eighteen separate
grounds for obtaining federal habeas relief. The district court
determined that all of Mitchell’s claims were procedurally
barred; however, the district court nevertheless addressed and
rejected on the merits Mitchell’s arguments that he was not
indicted by a grand jury; that the respondent did not timely file
Mitchell’s state court records in the district court; and that
Mitchell’s conviction violated principles of due process because
of unrelated crimes committed by a law enforcement officer
involved in the investigation of Mitchell’s case.
Mitchell argues that the district court should have
addressed the merits of all of his arguments and that it erred in
determining that his claims were procedurally barred under state
law.
Mitchell’s claims that his signature was forged on a
consent-to-search-form, that he was denied a speedy trial, and
that he was denied a change of venue were raised in his direct
appeal; therefore, those claims are not procedurally barred under
Mississippi law. MISS. CODE ANN. § 99-39-21(1) (1994); see
Mitchell v. State, 609 So. 2d 416, 421-22 (Miss. 1992).
Mitchell’s ineffective-assistance-of-counsel claim is also not
subject to dismissal on the basis of a state procedural bar. See
No. 97-60126
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Smith v. Black, 904 F.2d 950, 976 & n.8 (5th Cir. 1990), vacated
on other grounds, 503 U.S. 930 (1992). The district court did
not err in dismissing Mitchell’s Fourth Amendment claim, however,
because that claim is not cognizable in federal habeas. Stone v.
Powell, 428 U.S. 465, 482-83 (1976).
Mitchell also argues in this court that he is entitled to
federal habeas relief because he was not properly indicted; his
conviction violates principles of due process due to unrelated
crimes committed by a law enforcement officer involved in
Mitchell’s prosecution; the respondent failed timely to file his
state records in the district court; and the district court
delayed in ruling on his federal habeas petition. Mitchell has
failed to make a substantial showing of the denial of a federal
right with regard to these claims. Barefoot v. Estelle, 463 U.S.
880, 893 (1983).
Mitchell has abandoned his request for a COA/CPC as to the
other issues raised in his federal habeas petition by failing to
explain the factual or legal basis of those claims in this court.
Yohey v. Collins, 985 F.2d 222, 223-24 (5th Cir. 1993); FED. R.
APP. P. 28(a)(6).
Mitchell’s motion for a CPC is GRANTED. The denial of his
federal habeas petition is AFFIRMED IN PART and VACATED IN PART.
The case is remanded to the district court for consideration of
Mitchell’s claims that he was denied a speedy trial; that he was
denied a change of venue; and that he received ineffective
No. 97-60126
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assistance of counsel. See Clark v. Williams, 693 F.2d 381, 382
(5th Cir. 1982).
CPC GRANTED; AFFIRMED IN PART AND VACATED AND REMANDED IN
PART.