                        UNITED STATES COURT OF APPEALS
                                 FIFTH CIRCUIT


                                 ____________

                                 No. 95-60126
                                 ____________


          GARY LEE MOORE,

                                     Petitioner-Appellant,

          versus

          EDWARD HARGETT, SUPERINTENDENT OF MISSISSIPPI
          STATE PENITENTIARY; MICHAEL C. MOORE, Attorney
          General, State of Mississippi,

                                     Respondent-Appellees.

          __________________________________________________

             Appeal from the United States District Court
               for the Northern District of Mississippi
          __________________________________________________
                             May 10, 1996



Before WISDOM, EMILIO M. GARZA, and PARKER, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

     Petitioner Gary Lee Moore filed a habeas corpus petition

pursuant    to     28   U.S.C.   §    2254(b)   challenging   several   prior

convictions which were used to enhance a new sentence.                   The

district court rejected Moore's challenge as procedurally barred

for untimeliness, and alternatively as being without merit.               We

affirm.

                                         I

     In 1991, Moore was convicted of burglary in a Mississippi

state court.       At sentencing, the judge enhanced Moore's sentence,
finding that Moore's prior convictions in 1983 for burglary and

forgery rendered him a habitual offender under Mississippi law.

Moore is currently serving this sentence.

      After the sentencing hearing, Moore sought post-conviction

relief in Mississippi state court, requesting the court to dismiss

his 1983 convictions on the basis that his guilty pleas upon which

the convictions were based were obtained in violation of his

constitutional rights.1        The state circuit court dismissed his

petition on the sole basis that Moore's challenge was untimely

because he failed to bring his post-conviction challenge within the

statutory time period "after entry of judgment of conviction."2

Moore appealed this decision to the Mississippi Supreme Court,

which denied his petition for a writ of mandamus that would have

directed the district court to consider the merits of his claim.

      After exhausting his state remedies, Moore filed this habeas

petition in federal district court.           The district court assigned

the matter to a magistrate, who recommended that the court deny

Moore's   claim    because   the   state   circuit    court   dismissed    his

petition on the "independent and adequate" ground that he failed to

follow state procedural rules, thereby barring federal review, or,

alternatively, because even if his petition was timely, his claims

lack merit.       The district court conducted a de novo review and


     1
            Specifically, Moore contends that the court failed to inform him of
the possible minimum sentence that he could receive for these crimes and failed
to state explicitly that Moore had the right to be free from self-incrimination.
      2
             Miss. Code Ann. § 99-39-5(2) (Supp. 1995).

                                     -2-
adopted the magistrate's recommendation.              Moore filed a timely

notice of appeal.

                                       II

         The Mississippi courts dismissed Moore's petition because he

failed to file his petition within the time period required by the

Mississippi       Uniform    Post-Conviction      Collateral     Relief     Act

(UPCCRA).3     The UPCCRA, which became effective in 1984, provides:

         A motion for relief under this chapter shall be made
         within three (3) years after the time in which the
         prisoner's direct appeal is ruled upon by the Supreme
         Court of Mississippi or, in case no appeal is taken,
         within three (3) years after the time for taking an
         appeal from the judgment of conviction or sentence has
         expired, or in case of a guilty plea, within three (3)
         years after entry of the judgment of conviction.

Miss. Code Ann. § 99-39-5(2).4           With respect to defendants like

Moore who were convicted before the effective date of the UPCCRA,

the three year time limit runs from the effective date of the

UPCCRA, thereby giving Moore until 1987 to raise his appeal.5

Patterson v. State, 594 So. 2d 606, 607-08 (Miss. 1992).

         When a state court decision rests on a state law ground that


         3
              Miss. Code Ann. § 99-39-5(2) (Supp. 1995).
     4
            The statute also provides several exceptions for situations in which
the Mississippi or United States Supreme Court renders a decision that would have
adversely affected his conviction, the defendant discovers new evidence, not
reasonably discoverable at trial, that would have resulted in a different
outcome, or the defendant claims his sentence is expired or his parole has been
unlawfully revoked. Moore, however, does not claim that any of these exceptions
apply.
         5
            Under Mississippi law, a defendant cannot attack prior convictions
used as a basis for an enhanced sentence during the sentencing hearing; rather,
the defendant must bring a post-conviction petition for relief from the prior
convictions. Sones v. Hargett, 61 F.3d 410, 418 n.14 (5th Cir. 1995) (citing
Phillips v. State, 421 So. 2d 476, 481 (Miss. 1982)).

                                       -3-
is independent of a federal question and adequate to support the

judgment, federal courts lack jurisdiction to review the merits of

the case.   Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546,

2553, 115 L. Ed. 2d 640 (1991).    The independent and adequate state

ground doctrine "applies to bar federal habeas when a state court

decline[s] to address a prisoner's federal claims because the

prisoner ha[s] failed to meet a state procedural requirement." Id.

at 729-20, 111 S. Ct. at 2554.

     For the independent and adequate state ground doctrine to

apply, the state courts adjudicating a habeas petitioner's claims

must explicitly rely on a state procedural rule to dismiss the

petitioner's claims.     Sones, 61 F.3d at 416.              The procedural

default   doctrine   presumes   that    the   "state    court's   [express]

reliance on a procedural bar functions as an independent and

adequate ground in support of the judgment."           Id.   The petitioner,

however, can rebut this presumption by establishing that the

procedural rule is not "strictly or regularly followed."           Id. Even

if the state procedural rule is strictly and regularly followed,

the defendant still can prevail by demonstrating "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, 501

U.S. at 750, 111 S. Ct. at 2565.

     In Sones, a panel of the Fifth Circuit stated in dicta that

"it is arguable" that a state procedural bar that prevents a


                                  -4-
defendant, such as Moore, from challenging prior convictions that

occurred before 1984, but are subsequently used to sentence a

defendant       as   a    habitual      offender,        "may    not    be   considered       an

independent and adequate state ground to bar federal relief."

Sones, 61 F.3d at 418 n.14.                 The court reasoned that this might be

so because the procedural bar would not provide an "opportunity at

or after the enhancement proceeding for collateral relief from the

new use of prior convictions," which the Seventh Circuit had

recently held was necessary.                 Id. (citing Smith v. Farley, 25 F.3d

1363, 1369-70 (7th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.

Ct. 908, 130 L. Ed. 2d 791 (1995); Tredway v. Farley, 35 F.3d 288,

294 (7th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 941,

130   L.    Ed.      2d   885    (1995)).             However,    the    court     in    Sones

specifically noted that this issue was not before it.                             Id.

      In Smith and Tredway, the Seventh Circuit held that "`the

systemic concerns of both fairness and efficiency'" require that

"`if a defendant does not have access to a fair procedure in a

state    court       affording        him   a    review,    on    the    merits,        of   the

constitutionality           of    a    prior      conviction       after     it    has       been

incorporated into a new, enhanced sentence, a federal court may

properly grant him such review.'"                     Tredway, 35 F.3d at 293 (citing

Smith,     25   F.3d      at    1367-68));       see    Smith,    25    F.3d      at    1368-69

(describing fairness and efficiency concerns). The Seventh Circuit

distinguished Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct.

2546, 2565, 115 L. Ed. 2d 640 (1991), on the ground that the


                                                -5-
petitioner     in     Coleman   had    not    been   "sentenced    under    a     state

recidivist statute and was not collaterally challenging a prior

conviction which had been used to enhance his present sentence."

Tredway, 35 F.3d at 294.              Therefore, the court concluded, the

Supreme Court had not considered the fairness and efficiency

concerns that compelled the court's decision in Farley.                     Id.

     The Seventh Circuit's reasoning ignores the concerns of comity

and federalism that underlie the adequate and independent state

ground doctrine.        See Coleman, 501 U.S. at 730, 111 S. Ct. at 2554

(stating that the doctrine is grounded in comity and federalism

concerns).         The Coleman court noted that without the independent

and adequate state ground doctrine, a federal habeas court could

release a prisoner held pursuant to a state court judgment that

rests   on    an     independent      and    adequate   state     ground,   thereby

rendering ineffective the state procedural rule just as completely

as if the Supreme Court had reversed the state judgment on direct

review.      Id.    Without the doctrine, state prisoners whose custody

was supported by an independent and adequate state ground would be

entitled to an "end run around the limits of [the federal courts']

jurisdiction and a means to undermine the State's interest in

enforcing its laws."        Id.

     The Coleman Court noted there are also comity concerns that

arise when the independent and adequate state law ground is a

procedural default.

     This Court has long held that a state prisoner's federal
     habeas petition should be dismissed if the prisoner has

                                            -6-
     not exhausted available state remedies as to any of his
     federal claims.    This exhaustion requirement is also
     grounded in principles of comity; in a federal system,
     the States should have the first opportunity to address
     and correct alleged violations of state prisoner's
     federal rights. . . .      "The exhaustion doctrine is
     principally designed to protect the state courts' role in
     the enforcement of federal law and prevent disruption of
     state judicial proceedings." . . . . Just as in those
     cases in which a state prisoner fails to exhaust state
     remedies, a habeas petitioner who has failed to meet the
     State's procedural requirements for presenting his
     federal claims has deprived the state courts of an
     opportunity to address those claims in the first
     instance.   A habeas petitioner who has defaulted his
     federal claims in state court meets the technical
     requirements for exhaustion; there are no state remedies
     any longer "available" to him. In the absence of the
     independent and adequate state ground doctrine in federal
     habeas, habeas petitioners would be able to avoid the
     exhaustion requirement by defaulting their federal claims
     in state court.     The independent and adequate state
     ground doctrine ensures that the States' interest in
     correcting their own mistakes is respected in all federal
     habeas cases.

Id. at 731-32, 111 S. Ct. at 2554-55 (emphasis added) (quoting Rose

v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203, 71 L. Ed. 2d

379 (1982)).

     In addition to ignoring federalism and comity concerns, the

Seventh Circuit's conclusion that the Coleman decision does not

"encompass all collateral challenges to prior convictions used to

enhance subsequent sentences" creates finality problems and a

preference for repeat offenders.        Tredway, 35 F.3d at 294.    The

Supreme   Court    has   emphasized   that   "principles   of   finality

associated with habeas corpus actions apply with at least equal

force when a defendant seeks to attack a previous conviction used

for sentencing."    Custis v. United States, ___ U.S. ___, ___, 114


                                  -7-
S. Ct. 1732, 1739 (1994).          The Seventh Circuit rule would bar a

state prisoner's appeal of an initial habeas ruling because he

filed the appeal on day late, yet allow that same defendant the

opportunity to challenge that same conviction many years later once

that defendant had committed another crime.                   As noted by Judge

Trott of the Ninth Circuit, it is not "necessary to bend over

backwards to the point of standing on our heads to indulge repeat

offenders whose 'standing' to reopen closed cases is based on

having committed another criminal offense."                       United States v.

Davis, 15 F.3d 902, 917 (9th Cir.) (Trott, J., concurring in part,

dissenting in part), withdrawn and superseded by 36 F.3d 1424 (9th

Cir. 1994).

      We conclude that the Supreme Court in Coleman intended the

independent and adequate state ground doctrine to encompass "all

federal    habeas     cases"    including      those    in    which    a   prisoner

challenges a prior conviction that was subsequently been used to

enhance a prisoner's sentence.6               The Mississippi circuit court

dismissed Moore's suit under the UPCCRA as being untimely on its

face; thus, it is clear that the state expressly relied on a

procedural    rule     to    dismiss    Moore's     challenge,        raising    the

presumption    that    the     UPCCRA   qualifies      as    an    independent   and

adequate state ground to bar federal review of Moore's claim.



      6
            We recognize that the Supreme Court has recently suggested that the
issue of whether due process mandates that states "allow recidivism defendants
to challenge prior guilty pleas" is unresolved. Parke v. Raley, 502 U.S. 20, 28,
113 S. Ct. 517, 523, 121 L. Ed. 2d 391 (1992).

                                        -8-
Moore contends that the UPCCRA is not an independent and adequate

state ground because it is not strictly and regularly enforced.

After reviewing the cases in which the Mississippi courts have

applied    the   UPCCRA,   we   do    not    find    any     evidence   that   the

Mississippi courts have applied the UPCCRA in an inconsistent

manner.7

      Moore also attempts to overcome the bar to federal review of

his claim by demonstrating cause for his procedural default and

prejudice stemming from the alleged constitutional errors.                 Cause

is defined as "something external to the petitioner, something that

cannot fairly be attributed to him" that impedes his efforts to

comply with the procedural rule.            Coleman, 501 U.S. at 753, 111 S.

Ct. at 2566.     Moore's stated excuse for his procedural default is

that he is challenging these prior convictions only to reduce his

enhanced 1991 sentence, an issue that did not arise until after his

1991 conviction.       This argument, however, fails to explain why

Moore   failed   to   challenge      his    1983    guilty    pleas   within   the

statutory time period. Moore had until 1987 to raise these claims,

yet failed to do so.         The fact that he was not interested in


      7
            See e.g., Fortson v. Hargett, 662 So. 2d 633, 635 (Miss. 1995)
(applying the parole exception of § 99-39-5(2) to hold that the time bar did not
apply); Lockett v. State, 656 So. 2d 68, 71 (Miss.) (upholding the application
of the time bar to a collateral appeal by a death row inmate), cert. denied, ___
U.S. ___, 115 S. Ct. 2595, 132 L. Ed. 2d 29 (1995); Brown v. State, 643 So. 2d
937, 938-39 (Miss. 1994); Campbell v. State, 611 So. 2d 209, 210 (Miss. 1992);
Cole v. State, 608 So. 2d 1313, 1317 (Miss. 1992), cert. denied, ___ U.S. ___,
113 S. Ct. 2936, 124 L. Ed. 2d 685 (1993); Patterson, 594 So. 2d at 608 (barring
the defendant's claim as time barred because three years had passed and no
fundamental constitutional right was involved in the claim); Luckett v. State,
582 So. 2d 428, 430 (Miss. 1991).       Notably, this Court reached the same
conclusion in Sones, 61 F.3d at 417-18.

                                      -9-
implementing a challenge until after he had committed more crimes

is not an objective, external factor that impeded his ability to

raise these claims within Mississippi's time period.               Herbst v.

Scott, 42 F.3d 902, 905-06 (5th Cir.), cert. denied, ___ U.S. ___,

115 S. Ct. 2590, 132 L. Ed. 2d 838 (1995).          Accordingly, we find

that Moore has not established cause for his failure to comply with

§ 99-39-5(2).    Because we decide that no cause exists, we need not

inquire into actual prejudice.       Herbst, 42 F.3d at 906.       Moore has

failed to allege or demonstrate that a failure to consider his

claims   will   result   in   a   fundamental   miscarriage   of    justice.

Therefore, we hold that we lack jurisdiction to consider Moore's

claims because they were dismissed on an independent and adequate

state ground.

                                     III

     For the foregoing reasons, we AFFIRM the decision of the

district court.




                                    -10-
