Berry v. Roberts

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-60542 Summary Calendar __________________

PATRICK BERRY,

Petitioner-Appellant,

versus

RAYMOND ROBERTS, Superintendent, Mississippi State Penitentiary,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:93CV742BN - - - - - - - - - - May 3, 1996 Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:*

Mississippi prisoner Patrick Berry appeals the district

court's denial of his federal habeas corpus petition. Berry's

appeal may not proceed unless this court grants a certificate of

probable cause to appeal (CPC). 28 U.S.C. § 2253; see FED. R.

APP. P. 22(b). The court issues a CPC when the petitioner makes

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-60542 -2-

a substantial showing of the denial of a federal right. Barefoot

v. Estelle, 463 U.S. 880, 893 (1983).

Berry's federal habeas petition alleges that his guilty plea

was involuntary because he did not understand the consequences of

his plea and his attorney was ineffective for advising him to

plead guilty instead of challenging the indictment on speedy

trial grounds. The district court dismissed Berry's petition

without addressing his argument that counsel should have moved to

dismiss the indictment on speedy trial grounds. Although Berry

did not timely file a notice of appeal, he filed a FED. R. CIV. P.

60(b) motion for reconsideration within the time for filing an

appeal. In light of the extraordinary circumstance that the

district court failed to address a potentially meritorious legal

argument raised in both Berry's pleadings and his objections to

the magistrate judge's recommendation, the district court abused

its discretion by denying the Rule 60(b) motion. Batts v. Tow-

Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995); Harrison v.

Byrd, 765 F.2d 501, 503 (5th Cir. 1985). According, Berry's

motion for a CPC is GRANTED and the matter is VACATED AND

REMANDED to the district court. Clark v. Williams, 693 F.2d 381,

382 (5th Cir. 1982).

On remand, the district court should consider whether, by

failing to raise the issue at the proper time, the respondent

waived exhaustion of Berry's argument that counsel was

ineffective for failing to present a speedy trial defense. McGee No. 95-60542 -3-

v. Estelle, 722 F.2d 1206, 1213-14 (5th Cir. 1984)(en banc); see

Nelson v. Hargett, 989 F.2d 847, 850-51 (5th Cir. 1993); Smith v.

State, 550 So.2d 406, 408 (Miss. 1989). The district court

should also consider whether Berry's ineffective counsel claim is

procedurally barred under MISS. CODE ANN. § 99-39-5(2), or whether

the state forfeited its right to impose the § 99-39-5(2)

procedural bar because no state court has denied Berry relief

based on his procedural default. Sones v. Hargett, 61 F.3d 410,

416-18 (5th Cir. 1995); see Teague v. Lane, 489 U.S. 288, 299

(1989); see also Wiggins v. Procunier, 753 F.2d 1318, 1321 (5th

Cir. 1985).

The state court papers submitted by the respondent appear to

be incomplete, and it is impossible from the current record to

evaluate the merits of Berry's ineffective counsel argument or

his claim that counsel's advice to plead guilty without

challenging the indictment on speedy trial grounds rendered his

plea involuntary. On remand, the district court should direct

the parties to brief the issues of exhaustion and procedural bar

and direct the respondent to supplement Berry's state court

papers. The court may find it necessary to obtain an affidavit

from Berry's attorney and/or hold an evidentiary hearing to

explore the ineffective counsel/speedy trial issue. We note that

we have reviewed Berry's argument that his guilty plea was

involuntary because he misunderstood the penalty involved and

find it frivolous. As to that issue, we affirm. No. 95-60542 -4-

MOTION GRANTED.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.