                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0296n.06
                             Filed: April 27, 2007

                                      Case Nos. 05-5705/5823

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


                                                )
MARK W. BRYAN,                                  )
                                                )
        Petitioner-Appellee/                    )       ON APPEAL FROM THE UNITED
        Cross-Appellant,                        )       STATES DISTRICT COURT FOR
                                                )       THE WESTERN DISTRICT OF
                v.                              )       TENNESSEE AT MEMPHIS
                                                )
WAYNE BRANDON, Warden,                          )
                                                )
                Respondent-Appellant/           )
                Cross-Appellant.                )


Before: BOGGS, Chief Judge and MOORE, Circuit Judge; and SARGUS, District
Judge.*

        SARGUS, District Judge. Pursuant to a 1986 negotiated plea agreement, Petitioner-

Appellee Mark Bryan pled guilty to a reduced charge of second degree murder. He was sentenced

to 60 years of imprisonment as a result of his classification under Tennessee law as a persistent

offender, meaning, for purposes of this case, he had been convicted of two or more felonies within

five years of the instant offense. Bryan later filed a petition for a writ of habeas corpus in federal

district court challenging the constitutionality of his plea. Bryan asserted that because the three 1983

convictions that supported the persistent-offender designation had since been vacated, his sentence

was no longer consistent with Tennessee law and violated the federal constitution. The district court

        *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
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agreed, concluding that the persistent-offender designation was predicated on the vacated 1983

convictions. Because such convictions were vacated, the sentence was subsequently rendered

unconstitutional, in violation of the Due Process Clause of the Fourteenth Amendment. The court

accordingly granted Bryan’s petition for a writ of habeas corpus and vacated his 1986 conviction for

second degree murder. On cross-appeal, Bryan contends that the state failed to fulfill the terms of

his plea agreement. The district court denied relief on this claim but granted a Certificate of

Appealability for review by this court.1

       For the following reasons, the judgment of district court granting the writ of habeas corpus

is affirmed.

                                                  I.

       Prior to his 1986 conviction, on which this appeal is based, Bryan had been convicted in

August 1983 of three criminal offenses (the “1983 convictions”). Bryan was sentenced to one to five

years by the trial judge. Thereafter, on March 29, 1985, Timothy J. Ross was fatally stabbed in

Shelby County, Tennessee. Bryan was indicted and charged with the murder, but entered a

negotiated plea of guilty for a sixty-year sentence to be served as a Range II “persistent offender.”

In the document memorializing the negotiated plea agreement, the answer “yes” was circled in

response to the statement “The defendant is a PERSISTENT OFFENDER.” The form offered two

options to support that designation and the word “yes” is circled with respect to the first option:

“[t]wo or more prior felony convictions for offenses committed within five (5) years immediately


       1
        The relief sought on the cross-appeal, based on a breach of the plea agreement would, if
granted, be coextensive with the relief ordered by the district court on the due-process claim.
Because we affirm the habeas relief granted by the district court, we need not decide the issues
raised on cross-appeal.
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preceding the commission of the instant offense.” Following a hearing, the trial court accepted the

plea and sentenced Bryan to sixty years of imprisonment on February 27, 1986. Under Tennessee

law, a sentence of sixty years of imprisonment on this charge was authorized only if appellee was

a persistent offender.2

       In August 1988, April 1989, and November 1989, Bryan filed in state court pro se petitions

for post-conviction relief, which were later consolidated. Bryan asserted that the State breached his

plea agreement by sentencing him as a “Class X” felon3 and that the plea hearing did not comply

with the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), or of state law. Following an

evidentiary hearing, the trial court denied relief. In March 1991, the Tennessee Court of Criminal

Appeals affirmed. The appellate court found that avoidance of the Class X designation was not a

material component of, or an inducement for, the plea agreement, as Bryan argued, but rather the

Class X designation was mandated by state law, and no deviation from that designation was

permitted. Bryan’s application for permission to appeal to the Tennessee Supreme Court was denied

in June 1991.


       2
         According to Tennessee law in effect at the time, a defendant could be a “persistent
offender” if he or she had received “[t]wo (2) or more prior felony convictions for offenses the
convictions for which occurred within five (5) years immediately preceding the commission of
the instant offense.” Tenn. Code Ann. § 40-35-106(a)(1)(repealed). Persistent offenders were
sentenced within Range II of the state sentencing guidelines. Id. § 40-35-106(c). Moreover,
Bryan pleaded to second degree murder, a Class A felony. The full, authorized term of
imprisonment for a Class A felony is not less than fifteen years nor more than sixty years. Tenn.
Code Ann. § 40-35-111(b)(1).
       3
         The Class X Felonies Act of 1979, which was repealed by the State of Tennessee in 1989
but applicable to Bryan at the time of his sentencing, dictated that any felony designated as
“Class X” would carry a sentence that could not be reduced based on the inmate’s post-
conviction behavior. It prohibited a reduction in a sentence for “good time” and mandated that a
felon serve the entire sentence. Tenn. Code Ann. § 39-1-703 (repealed).
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       Before the resolution of the 1986 post-conviction proceedings, Bryan filed another post-

conviction petition in June 1989 challenging his guilty pleas to the three criminal offenses in 1983.

Bryan v. State of Tenn., 848 S.W.2d 72 (Tenn. Crim. App. 1992). Bryan contended that the pleas

were not voluntarily, knowingly, and intelligently entered and thus constitutionally defective under

Boykin. The trial court denied post-conviction relief, but the Tennessee Court of Criminal Appeals

reversed and remanded the case to the trial court for a new hearing on the voluntariness of Bryan’s

1983 pleas. On remand, the post-conviction court voided the 1983 pleas as having been obtained

in violation of his constitutional rights and ordered the 1986 guilty plea be reviewed by the state and

set for retrial or resentencing within one year. On appeal in January 1999, the Court of Criminal

Appeals affirmed the trial court’s post-conviction findings as to the 1983 convictions, but reversed

the court’s order with regard to the 1986 plea, finding that the trial court had no jurisdiction to

entertain a challenge to that conviction. The Court of Criminal Appeals found that Bryan had

already sought post-conviction relief on the 1986 guilty plea, and that Tennessee law allows only one

petition for post-conviction relief to be filed attacking a single judgment. See Tenn. Code Ann. §

40-30-102(c). The court therefore reversed the trial court’s order directing a rehearing on the 1986

conviction.

       On June 25, 2001, Bryan filed a petition for a writ of habeas corpus in the United States

District Court for the Middle District of Tennessee challenging the constitutionality of his 1986 plea

agreement, the petition at issue here.4 Bryan’s habeas petition raised three claims for relief:

       1.      Whether Bryan’s 1986 plea negotiation, guilty plea, conviction, and sentence


       4
        The petition was subsequently transferred to Judge Mays in the United States District
Court for the Western District of Tennessee.
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               as a “persistent offender” violates the Due Process Clause of the Fourteenth
               Amendment where the sole basis of the “persistent offender” status is the
               void 1983 convictions;

       2.      Whether Bryan’s guilty plea and conviction based upon a written negotiated plea
               agreement, the terms of which were not fulfilled by the State, violates due process;
               and

       3.      Whether the totality of the circumstances of the 1986 guilty-plea proceedings failed
               to meet the requirements of Boykin v. Alabama, 385 U.S. 238 (1969).

The district court entered an order in February 2004 granting the respondent’s motion to dismiss

Claims Two and Three. In that same order, the district court denied the respondent’s motion to

dismiss Claim One—Bryan’s claim that the 1986 plea and sentence as a persistent offender were

based on the vacated 1983 convictions and therefore in violation of due process—as procedurally

defaulted.

       In March 2005, the district court found with regard to Claim One that “[t]he evidence

submitted by Bryan and, in particular, the references to the 1983 convictions in the documents

concerning the 1986 guilty plea, are sufficient to permit the Court to conclude that the persistent

offender designation was based on the 1983 convictions. Respondent has offered no evidence to the

contrary.” The court accordingly found that the sentence was not valid under Tennessee law. The

district court further found that Supreme Court precedent supported the proposition that a sentence

imposed on the basis of invalid prior convictions is unconstitutional. The court therefore held that

Bryan’s sentence as a persistent offender was constitutionally invalid and granted his petition for a

writ of habeas corpus vacating Bryan’s 1986 conviction for second degree murder.

       On May 2, 2005, respondent filed a timely notice of appeal from the order granting habeas

corpus relief on Claim One. Bryan filed a cross-appeal, claiming that the State failed to fulfill the
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                                                -6-

terms of his plea agreement.

                                                 II.

Bryan’s Persistent Offender Status

       Bryan asserts that his 1986 plea negotiation, guilty plea, conviction, and sentence as a

“persistent offender” violated the Due Process Clause of the Fourteenth Amendment where the sole

basis of his “persistent offender” status is his voided 1983 convictions. Respondent asserts that: (1)

the district court erred in holding that Bryan did not procedurally default his challenge to his 1986

plea agreement; and (2) the district court erred in concluding that Bryan’s sentence was inconsistent

with Tennessee law and violated the federal Constitution.

       A.      Procedural Default

       A claim that has not been presented to the state courts and is subsequently barred because

of a procedural rule is precluded from federal habeas corpus review, absent a showing of cause and

prejudice. Coleman v. Thompson, 501 U.S. 722, 751-53 (1991). Respondent asserts that by limiting

his constitutional challenges to his 1986 plea in the state post-conviction proceeding, Bryan

procedurally defaulted any claim that his sentence as a persistent offender is unconstitutional.

       The district court addressed this issue in two separate orders, first in February 2004 and later

in March 2005. In both orders, the district court concluded that Bryan had not procedurally defaulted

the issues raised in Claim One. The court acknowledged that Bryan had never filed an application

to reopen the post-conviction proceeding as to his 1986 conviction in order to obtain a ruling that

his application was barred by the Tennessee law, but ultimately found this did not present a

procedural bar.
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        This court has explained the doctrine of procedural default as follows:

        When a habeas petitioner fails to obtain consideration of a claim by a state court,
        either due to the petitioner’s failure to raise that claim before the state courts while
        state-court remedies are still available or due to a state procedural rule that prevents
        the state courts from reaching the merits of the petitioner’s claim, that claim is
        procedurally defaulted and may not be considered by the federal court on habeas
        review.

Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000).

        Procedural default arguments are analyzed under this court’s three-part test articulated in

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Under Maupin, the court must determine: (1)

if there is a state procedural rule that applies and petitioner failed to comply with that rule; (2) if the

state court actually enforced the state procedural sanction; and (3) if the state procedural ground is

an “adequate and independent” ground to refuse review. See James v. Brigano, 470 F.3d 636, 640

(6th Cir. 2006). To be “adequate,” a state procedural rule must be “firmly established and regularly

followed.” Smith v. Ohio Dep’t of Rehab. & Corrs., 463 F.3d 426, 430-31 (6th Cir. 2006). An

“independent” state procedural rule is one not relying on federal law. Id. If these three factors are

satisfied (thus imposing the procedural bar), the petitioner can overcome the procedural default by

either “demonstrating cause for the procedural default and actual prejudice as a result of the alleged

violation of federal law, or demonstrating that failure to consider the claims will result in a

fundamental miscarriage of justice.” Id. at 431 (citing Coleman, 501 U.S. at 732).

        The district court explicitly referenced Maupin and directly applied its three-part test, but also

approached the respondent’s procedural default argument as one of exhaustion. The district court

partially relied on the 28 U.S.C. § 2254(b)(1)(B)(i) exception to the exhaustion requirement in

concluding that Bryan’s claim was not procedurally defaulted. The court concluded that because of
                                        Nos. 05-5705/5823
                                                -8-

the changes in the Post-Conviction Procedure Act that occurred while Bryan was attempting to

exhaust this claim, his case fits within 28 U.S.C. § 2254(b)(1)(B)(i)’s exception if “there is an

absence of available State corrective process.”

       Effective May 13, 1996, Tennessee law directly prohibited the reopening of closed post-

conviction proceedings to litigate claims of this nature. See Tenn. Code Ann. §§ 40-30-102(c) (only

one post-conviction petition may be filed attacking a single judgment); 40-30-102(b) (exception to

one-year statute of limitations does not apply to “a guilty plea with an agreed sentence”); 40-30-

117(a)(3) (authorizing the reopening of a post-conviction petition to obtain relief from a sentence

that was enhanced because of a previous conviction that was later invalidated, but only if the

“conviction in the case in which the claim is asserted is not a guilty plea with an agreed sentence”).

The state court also “actually enforced” the state procedural rule, finding that “[b]ecause there was

no motion to reopen the post-conviction petition or any post-conviction proceeding before the trial

court giving the court jurisdiction to rule on the 1986 guilty plea, the court was utterly without

jurisdiction to render any orders concerning the 1986 conviction.” (March 15, 2000 Order of

Tennessee Court of Criminal Appeals reversing trial court’s ruling on 1986 convictions.) In this

Order, the Tennessee Court of Criminal Appeals, while affirming the vacation of the 1983 prior

felonies, found that § 40-30-102(c) barred any review of the 1986 sentence, since Bryan had already

sought and was denied post-conviction relief on matters unrelated to the vacated convictions.

       The district court concluded that Bryan’s claim was not procedurally defaulted under the third

prong of the Maupin test because the state procedural ground was not an “adequate and independent”

ground to refuse review. The district court did not err in this conclusion. Respondent argues that
                                        Nos. 05-5705/5823
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Bryan failed to comply with the post-conviction procedures articulated in the Tennessee Supreme

Court’s decisions in State v. McClintock, 732 S.W.2d 268 (Tenn. 1987), and State v. Prince, 781

S.W.2d 846 (Tenn. 1989). However, as the district court emphasized, McClintock did not require

that Bryan, before his 1983 convictions had been invalidated, include a claim challenging the 1986

conviction on the basis that his sentence enhancement was unlawful. Further, McClintock did not

establish any requirement that Bryan move to consolidate his post-conviction petitions challenging

the 1983 and 1986 convictions. Finally, the district court found that “[t]o the extent respondent

contends that Bryan’s failure to obtain consolidation of the 1983 and 1986 postconviction petitions

means that his claim has been procedurally defaulted, the Court is unable to conclude that the

procedure set forth in Prince was ‘firmly established and regularly followed’ when both petitions

were pending in the Shelby County Criminal Court. (JA at 224 (citing Ford v. Georgia, 498 U.S.

411, 423-24 (1991)). As a result, the procedural ground was not an “adequate and independent”

ground to refuse review and therefore Bryan’s claim was not procedurally barred under Maupin.

       Simply put, the facts on which Bryan’s claim is based--the vacation of the three prior felony

convictions long after his sentencing as a persistent offender--arose under circumstances where

Tennessee law permitted no further effort at post conviction relief. Bryan was barred by Tennessee

law from seeking relief in state court. The district court correctly determined that Claim One of

Bryan’s petition was not procedurally defaulted.

       B.      Merits of Claim One

       A federal court is authorized to issue a writ of habeas corpus on behalf of a state prisoner

“only on the ground that he is in custody in violation of the Constitution or laws or treaties of the
                                         Nos. 05-5705/5823
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United States.” 28 U.S.C. § 2254(a). The district court relied on Townsend v. Burke, 334 U.S. 736

(1948), and United States v. Tucker, 404 U.S. 443 (1972), for the proposition that a sentence based

on invalid prior convictions is unconstitutional. Respondent asserts that the district court’s holding

that Bryan’s sentence is inconsistent with Tennessee law is in error, and even if inconsistent with

Tennessee law, the sentence did not violate the federal constitution.

       Federal habeas relief is available only if a defendant is in custody in violation of federal law;

error in the application of state law is not cognizable in a federal habeas proceeding. 28 U.S.C. §

2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (emphasizing that “it is not the province of

a federal habeas court to reexamine state-court determinations on state-law questions”).

Accordingly, this court must evaluate whether Bryan’s sentence as a persistent offender is

constitutionally invalid.

       Both Tucker and Townsend support the district court’s conclusion that a sentence imposed

on the basis of prior felony convictions that have since been found invalid is unconstitutional. As

noted by the district court, the Townsend Court emphasized that “it is the careless or designed

pronouncement of sentence on a foundation so extensively and materially false, which the prisoner

had no opportunity to correct by the services which counsel would provide, that renders the

proceedings lacking in due process.” Townsend, 334 U.S. at 741 (finding that “this prisoner was

sentenced on the basis of assumptions concerning his criminal record which were materially

untrue”). Relying on Townsend, the Tucker Court granted the petitioner’s writ of habeas corpus on

finding that the sentencing court erroneously relied upon defendant’s three prior felony convictions,

two of which were constitutionally invalid. Tucker, 404 U.S. at 446-49 (noting that “we deal here,
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not with a sentence imposed in the informed discretion of a trial judge, but with a sentence founded

at least in part upon misinformation of constitutional magnitude”). The Tucker Court emphasized

that “the real question here is . . . whether the sentence . . . might have been different if the

sentencing court [had not relied on erroneous information].” Id. at 448.

       Respondent seeks to distinguish Bryan’s situation from those found constitutionally invalid

in Townsend and Tucker. Respondent contends that this court’s decision in Arnett v. Jackson, 393

F.3d 681 (6th Cir. 2005), characterized the Townsend and Tucker decisions as “cases which provide

the general rule that a violation of due process exists when a sentencing judge relies upon ‘erroneous

information.’” Respondent asserts that the circumstances found to be constitutionally repugnant in

Townsend and Tucker simply do not exist in this case, because the sentence is actually “based” on

the guilty plea rather than any previous information. Respondent’s reading of Townsend and Tucker,

however, is flawed. Although the facts of both cases differ somewhat from those at issue here, both

cases stand for the proposition that a sentence imposed on the basis of an erroneous prior conviction

is constitutionally invalid. It is apparent from the record that Bryan’s sentence as a persistent

offender was predicated on his invalid 1983 guilty pleas. As a consequence, his sentence is

unconstitutional under Townsend and Tucker.5

                                                 III.

       The decision of the district court granting habeas relief on Claim One is AFFIRMED in all

respects. The petitioner shall be released from custody within fourteen days from the date of this



       5
        Counsel for both Bryan and Brandon acknowledged during oral argument that, because
the sentence was imposed pursuant to a plea agreement, a vacation of the sentence also results in
a vacation of the plea.
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                                                 -12-

decision, unless the state prosecutor initiates further legal proceedings regarding the underlying 1986

offense within that time period. In the event the state prosecutor initiates such proceedings, it is left

to the state courts of Tennessee to address issues of bail which petitioner has raised in the course of

this appeal.
