Lamont A. Fultz v. Carl White

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No. 95-3942
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Lamont A. Fultz, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Carl White, *
* [UNPUBLISHED]
Appellee. *
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Submitted: November 19, 1996
Filed: February 26, 1997
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Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS
SHEPPARD ARNOLD, Circuit Judge.
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HENLEY, Senior Circuit Judge.
Lamont Fultz, a Missouri inmate, appeals from a judgment of the
district court1 denying his petition for a writ of habeas corpus under 28
U.S.C. § 2254. We affirm.
In October 1992 Fultz was convicted of second-degree drug
trafficking, in violation of Mo. Rev. Stat. § 195.223.3(1). Fultz claims
that before trial he filed a Missouri Supreme Court Rule 91 motion for
habeas corpus relief, raising search and seizure and Miranda v. Arizona,
384 U.S. 436 (1966), issues. Apparently, the motion was dismissed. Fultz
also filed an untimely post-conviction motion, which was dismissed.
Fultz's conviction was affirmed on direct appeal. State v. Fultz, 864
S.W.2d 434 (Mo. Ct. App. 1993) (per curiam). On appeal, Fultz did not
raise search and seizure
The Honorable Edward L. Fillipine, United States Senior
District Judge for the Eastern District of Missouri.
and Miranda issues.
In his federal habeas petition, Fultz raised six grounds for relief,
including search and seizure, Miranda, and defective information claims.
The district court found that the claims were defaulted and that Fultz had
not demonstrated cause and prejudice or actual innocence to excuse the
default.
On appeal, Fultz first argues that his search and seizure and Miranda
claims were not defaulted because he raised them in a Rule 91 motion.
However, a Rule 91 motion was not the proper vehicle to raise pre-trial
suppression issues. See Simmons v. White, 866 S.W.2d 443, 445 & n.3 (Mo.
1993). Moreover, Fultz did not raise the issues on direct appeal.
Although Fultz alleges ineffective assistance of appellate counsel as cause
to excuse the default, because Fultz "never challenged the effectiveness
of his appellate counsel in a motion to recall the mandate, that claim
cannot serve as cause to excuse his procedural default." Whitmill v.
Armontrout, 42 F.3d 1154, 1157 (8th Cir. 1994), cert denied, 116 S. Ct. 249
(1995). In addition, Fultz's inexperience or lack of legal training cannot
serve as cause to excuse his failure to file a timely post-conviction
motion. See Duvall v. Purkett, 15 F.3d 745, 748 (8th Cir.), cert. denied,
114 S. Ct. 2753 (1994).
We also reject Fultz's argument that his defaulted defective
information claim is reviewable. He argues that because his claim
implicates jurisdictional concerns, it would be a "manifest injustice" to
deny federal habeas review. He is wrong. In the context of a federal
habeas corpus review, although there is a "fundamental miscarriage of
justice" exception to procedural bars, the exception is confined to a
showing of factual innocence, a showing Fultz has not attempted to make.
See Frizzell v. Hopkins, 87 F.3d 1019, 1021 (8th Cir. 1996).
In support of his argument, Fultz mistakenly relies on Duvall
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v. Purkett, 15 F.3d at 747. In Duvall, the issue before this court was
exhaustion of state remedies, not the miscarriage of justice exception to
procedural bar. In addressing the question of whether a Rule 91 proceeding
was an available state remedy, we noted that the motion "'may be used to
challenge a final judgment after an individual's failure to pursue
appellate and post-conviction remedies only to raise jurisdictional issues
or in circumstances so rare and exceptional that a manifest injustice
results.'" Id. (quoting Simmons v. White, 866 S.W.2d at 446).
As the state notes, although Fultz suggests that his defective
information claim raises jurisdictional concerns, Fultz could not obtain
Rule 91 relief. In Simmons, the supreme court held that if a defendant
first challenged the sufficiency of an information after conviction and
sentencing, a trial court was deprived of jurisdiction only if "the
information failed 'by any reasonable construction [to] charge the offense
of which the defendant was convicted' or prejudiced the substantial rights
of the defendant to defend." Simmons, 866 S.W.2d at 446 (quoting State V.
Parkhurst, 845 S.W.2d 31, 35 (Mo. 1992) (en banc)). In fact, Fultz's
argument on appeal relating to the information is without merit. He
argues that the information was defective because it failed to allege that
he possessed cocaine base and the time and place of the offense. However,
the information charged that on March 25, 1992 in the City of St. Louis,
Missouri, Fultz possessed more than 2 grams of a substance containing
cocaine base.2
2
In the district court, Fultz argued that the information was
defective because it charged him with a Class B felony, which
required that he possess more than 2 but less than 6 grams of
cocaine base. However, he did not allege any prejudice. To the
contrary, he asserted that he should have been charged with a Class
A felony, because he possessed more than 6 grams of cocaine base.
His reliance on State v. Smith, 825 S.W.2d 388, 390-91 (Mo. Ct.
App. 1992), was misplaced. In that case, the court found that an
information charging a Class A felony was defective because it
alleged that the defendant possessed 6 grams of cocaine, instead of
6 grams of cocaine base, as Mo. Rev. Stat. § 195.223.3(2) required.
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Accordingly, the judgment of the district court is affirmed.3
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Fultz, who is represented by counsel on appeal, has filed a
pro se supplemental brief. As a general rule, we do not "consider
a pro se brief of a party represented by counsel." Howard v.
Caspari, 99 F.3d 895, 898 (8th Cir. 1996). In any event, we do not
consider Fultz's pro se arguments concerning the merits of his
defaulted claims.
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