Filed: Dec. 29, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-30948 _ DARRYL A. CROCKETT, Petitioner-Appellant, versus BURL CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Louisiana (97-CV-1515) _ December 28, 1999 Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges. PER CURIAM:* The case before us is a federal habeas appeal stemming from Darryl Crockett’s thirty-year sentence imposed by t
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-30948 _ DARRYL A. CROCKETT, Petitioner-Appellant, versus BURL CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Louisiana (97-CV-1515) _ December 28, 1999 Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges. PER CURIAM:* The case before us is a federal habeas appeal stemming from Darryl Crockett’s thirty-year sentence imposed by th..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30948
_____________________
DARRYL A. CROCKETT,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-1515)
_________________________________________________________________
December 28, 1999
Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The case before us is a federal habeas appeal stemming from
Darryl Crockett’s thirty-year sentence imposed by the Louisiana
state court for aggravated burglary. The district court denied
habeas relief, but our court granted Crockett’s request for a
certificate of appealability (“COA”) on the issue of whether his
plea of guilty in Case No. 288-151 was rendered involuntary because
of an alleged breach of his plea agreement. For the reasons stated
herein, we deny Crockett’s petition for federal habeas relief.
I
*
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this opinion should not be published and is not precedent except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 Louisiana jury found Crockett guilty of aggravated burglary
in Case No. 288-383 on April 27, 1982. He was sentenced to 30
years under Louisiana’s habitual offender statute. See
La.Rev.Stat.Ann. § 15:529.1 (West 1982). On the same day as his
conviction in Case No. 288-383, he pled guilty to a second count of
aggravated burglary (Case No. 288-151) based on a deal he had with
prosecutors that he would be sentenced to twenty years’
imprisonment instead of the maximum thirty years. Immediately
after his plea and sentencing in Case No. 288-151, Crockett was
adjudicated a habitual felony offender and resentenced to a thirty-
year term instead.1 On May 12, 1986, the Louisiana Fourth Circuit
Court of Appeals affirmed the judgment and sentence.
Crockett’s original petition for federal habeas relief raised
thirteen claims for relief. The district court denied this
petition. The issue on which our court granted his request for a
COA is: “Whether petitioner’s guilty plea was rendered involuntary
by the prosecutor’s breach of the plea agreement.” The district
court dismissed this claim for two reasons:
(1) It was procedurally barred because it was time-barred
under Louisiana law.2
1
This sentence was imposed to run concurrently with Crockett’s
thirty-year sentence imposed in Case No. 288-383. Consequently, a
ruling in Crockett’s favor in this appeal may have no effect on the
net amount of time he will serve, as a result of his conviction and
sentence in Case No. 288-383.
2
We note that the district court’s decision to raise
procedural default sua sponte was appropriate under Magouirk v.
Phillips, 144 F.3d 348, 358 (5th Cir. 1998). An opportunity to
2
(2) The plea was made knowingly and voluntarily, as
demonstrated by the failure of Crockett and his lawyer to
object to the longer sentence.
Finding that this claim is procedurally barred, we affirm the
district court.
II
We begin our analysis by noting that Crockett’s claim was
never raised in state court; in short, his state habeas remedies
have not been exhausted on this claim. By the time it was raised
for the first time in federal court, the doors of the state court
had been closed to the claim. Article 930.8 of the Louisiana Code
of Criminal Procedure states:
No application for post conviction relief, including
applications which seek an out-of-time appeal, shall be
considered if it is filed more than three years after the
judgment of conviction and sentence has become final
under the provisions of Article 914 or 922, unless any of
the following apply:
(1) The application alleges, and the petitioner proves
or the state admits, that the facts upon which the claim
is predicated were not known to the petitioner or his
attorney.
(2) The claim asserted in the petition is based upon a
final ruling of an appellate court establishing a
theretofore unknown interpretation of constitutional law
and petitioner establishes that this interpretation is
retroactively applicable to his case, and the petition is
filed within one year of the finality of such ruling.
(3) The application would already be barred by the
provisions of this Article, but the application is filed
on or before October 1, 1991.
(4) The person asserting the claim has been sentenced
to death.
respond was not necessary because no reasonable response exists.
3
La. Code Crim. Proc. Ann. art. 930.8 (West 1999)(emphasis added).
Crockett’s conviction and sentence became final under article 922
of the Louisiana Code of Criminal Procedure in 1986 after a
Louisiana appellate court affirmed them. As a result, this claim
is not simply unexhausted, but cannot be addressed by Louisiana
courts because of the state law that bars raising a
thirteen-year-old habeas claim.
A limit on the scope of federal habeas review is the doctrine
of procedural default. Here, the procedural default arises because
the petitioner failed to exhaust available state habeas remedies
and “the court to which the petitioner would be required to present
his claim in order to meet the exhaustion requirement would now
find the claims procedurally barred.” Nobles v. Johnson, 127 F.3d
409, 420 (5th Cir. 1997).
Procedural default may be excused upon a showing of cause and
prejudice or that application of the doctrine will result in a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.
722, 748-50,
111 S. Ct. 2546,
115 L. Ed. 2d 640 (1991). But Crockett
has not attempted to, nor could he, make a showing of cause and
prejudice for failing to raise this issue until eleven years after
his sentence became final. He was represented at the time of
sentencing and on appeal in state court and has had opportunities
to raise this claim previously. Furthermore, the ten-year increase
in sentence is not a fundamental miscarriage of justice. A
"fundamental miscarriage" implies that a constitutional violation
4
probably caused the conviction of an innocent person. McCleskey v.
Zant, 499 U.S. 467, 502,
111 S. Ct. 1454,
113 L. Ed. 2d 517 (1991).
Crockett makes no such claim here.
III
For the reasons stated herein, the district court’s judgment
denying federal habeas relief is
A F F I R M E D.
5
