United States Court of Appeals,

Fifth Circuit.

No. 96-60549

Summary Calendar.

Phillip STOKES, Petitioner-Appellant,

v.

James V. ANDERSON, Superintendent, Mississippi State Penitentiary, Respondent-Appellee.

Oct. 6, 1997.

Appeal from the United States District Court for the Southern District of Mississippi.

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

A Mississippi state jury convicted Phillip Stokes of murder

during the commission of a robbery; the court then sentenced him

to life imprisonment. Stokes appealed, and the Mississippi Supreme

Court affirmed his conviction. Stokes v. State,

(Miss. 1989), cert. denied,

,

,

(1990).

After collateral appeals in state and federal court, Stokes

filed a second petition for federal habeas relief, raising

seventeen claims. A magistrate judge determined that nine of

Stokes' claims were procedurally barred,1 some did not sound in

1 The nine claims the magistrate judge suggested were procedurally barred included those pertaining to the admission of enlarged fingerprint evidence, the failure to grant a motion for acquittal, the failure to sequester the jury, the denial of a motion for a mistrial, allowing the prosecutor to lead witnesses, permitting the admission of hearsay testimony by a police officer, the denial of an impartial jury, the denial of the right to testify by being forced to appear in court while bleeding and suffering head injuries, and the refusal to use proffered jury instructions. federal habeas, and the rest failed on the merits. The district

court then adopted the findings of the magistrate judge (with some

changes) and dismissed Stokes' petition.

After the district court denied Stokes a certificate of

appealability ("COA"), Stokes moved this court for a COA, arguing

that the district court erred by dismissing any of his claims as

procedurally barred. This court granted Stokes a partial COA on

the issue of "whether the Mississippi courts have consistently and

regularly applied [the appellate bars of] MISS.CODE ANN. § 99-39-

27(5) (1994) and MISS.CODE ANN. § 99-39-21(1) (1994)."2

I

We review de novo a district court's denial of federal habeas

review based on a state procedural ground. Amos v. Scott,

(5th Cir.), cert. denied, --- U.S. ----,

,

(1995). Where a state prisoner has defaulted his

federal claims in state court pursuant to an independent and

adequate state procedural rule, this court may not review the

prisoner's habeas petition unless he can demonstrate cause for the

default and actual prejudice as a result of the alleged violation

of federal law, or demonstrate that failure to consider the claims

will result in a fundamental miscarriage of justice. Coleman v.

Thompson,

,

,

(1991). A

2 The only issue on appeal is the adequacy of the appellate bars of §§ 99-39-27(5) and 99-39-21(1). Thus, we will not examine whether Stokes can show cause and prejudice or whether the court's failure to consider his claims would result in a fundamental miscarriage of justice. See generally Wainwright v. Sykes,

,

,

(1977). state procedural rule that bars consideration of an issue is not

adequate unless it is "strictly or regularly followed." Johnson v.

Mississippi,

,

,

(1988); see also Hathorn v. Lovorn,

,

,

(1982) ("State courts may not

avoid deciding federal issues by invoking procedural rules that

they do not apply evenhandedly to all similar claims").

The Mississippi Supreme Court held that Stokes' claims were

procedurally barred under §§ 99-29-21(1) and 99-39-27(5). Section

99-39-21(1) states that

[f]ailure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

MISS.CODE ANN. § 99-39-21(1). In turn, § 99-39-27(5) provides that

[u]nless it appears from the face of the application, motion, exhibits, exhibits and the prior record that the claims presented by such are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application. The court may, in its discretion, require the attorney general upon sufficient notice to respond to the application.

MISS.CODE ANN. § 99-39-27(5).

As a threshold matter, we first determine that we need not

consider whether Mississippi applies § 99-39-27(5) strictly or

regularly. This section cannot operate as a procedural bar to

review because it requires some evaluation, however cursory, of the

merits of a petitioner's claim. Similarly, § 99-39-27(5) cannot be

an independent state ground because it is not separate from the merits of Stokes' claim under

(a) that he is being

held in custody in violation of the Constitution or federal law.

In contrast, § 99-39-21(1) does contain an independent state

procedural bar. The question, then, is whether this bar is

"adequate," and this hinges on whether Mississippi has strictly or

regularly applied it. Lott v. Hargett,

(5th

Cir. 1996). As a general rule, a procedural bar must be "firmly

established and regularly followed by the time as of which it is to

be applied." Ford v. Georgia,

,

,

(1991). However, a state fails to strictly

or regularly apply a procedural bar only when the state "clearly

and unequivocally excuse[s] the procedural default." Amos,

.

The petitioner bears the burden of showing that the state did

not strictly or regularly follow a procedural bar around the time

of his direct appeal. Sones v. Hargett,

(5th

Cir. 1995). Moreover, the petitioner must demonstrate that the

state has failed to apply the procedural bar rule to claims

identical or similar to those raised by the petitioner himself.

Martin, 98 F.3d at 848; Amos,

.

In attempting to show that Mississippi has not strictly or

regularly applied the § 99-39-21(1) procedural bar, Stokes cites

twenty-two Mississippi Supreme Court cases. However, none of these

cases is particularly relevant, and most miss the mark by a wide

margin. Twelve cases, for instance, do not involve any discussion

of § 99-39-21(1), and another four cases are orders of the

Mississippi Supreme Court granting Stokes leave to proceed in the trial court. Two cases pertain to § 99-39-27(9) of the Mississippi

Code. This provision generally bars second or successive state

habeas petitions except in a number of specific situations,

including "those cases in which the prisoner can demonstrate ...

that there has been an intervening decision of the supreme court of

either the state of Mississippi or the United States which would

have actually adversely affected the outcome of his conviction or

sentence...." One case deals with time and res judicata bars, not

the § 99-39-21(1) procedural bar. In a couple of other cases, the

Mississippi Supreme Court recognized plain error despite the fact

that the time bar of § 99-39-5(2) or the bar on second or

successive writs applied.

Only one of twenty-two cases Stokes cites involves the § 99-

39-21(1) procedural bar. In this case, Smith v. State,

(Miss. 1985), the court reversed and remanded to correct a

sentencing mistake, even though the § 99-39-21(1) procedural bar

applied. The court explicitly waived the bar because it found that

the sentencing mistake rose to a level of plain error and affected

Smith's fundamental rights. However, Stokes does not allege that

the state court made a error in sentencing him. Thus, he may not

rely on Smith to show that the Mississippi Supreme Court does not

strictly or regularly apply the § 99-39-21(1) procedural bar.

In short, Stokes has not pointed to a single case where the

Mississippi Supreme Court case has failed to apply the § 99-39-

21(1) procedural bar to a claim identical or similar to one of his

own procedurally barred claims. Accordingly, Stokes has failed to

carry his burden of showing inconsistent and irregular application of the § 99-39-21(1) bar; he has defaulted his federal claims in

state court pursuant to an independent and adequate state

procedural rule.

II

For the foregoing reasons, we AFFIRM the judgment of the

district court. We also DENY Stokes' motion to file a reply brief

in excess of the page limit set forth in Fifth Circuit Rule 28.1.