Opinion
CA 00-0601-CB-C.
September 15, 2000.
JUDGMENT
In accordance with the order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the petition for writ of habeas corpus be DENIED, that the writ not issue and that this cause be and it hereby is DISMISSED.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B) and dated August 15, 2000, is ADOPTED as the opinion of this Court.
REPORT AND RECOMMENDATION
Nicholas Swann Martin, a state prisoner presently in the custody of the respondent, has petitioned this Court for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Petitioner is challenging the validity of his March 10, 1994 first-degree assault conviction in the Circuit Court of Escambia County, Alabama. Martin entered a counseled guilty plea to the charge and was sentenced to a twenty-year term of imprisonment. No direct appeal was filed challenging petitioner's conviction and sentence but Martin did collaterally attack his conviction and sentence via a Rule 32 petition filed in the Circuit Court of Escambia County, Alabama on July 10, 1998. The petition was dismissed by the trial court on February 22, 1999 and the Alabama Court of Criminal Appeals affirmed the dismissal of the petition by memorandum opinion dated June 18, 1999. Martin's petition for writ of certiorari to the Alabama Supreme Court was denied on November 19, 1999.
This term of imprisonment was made to run concurrently with a forty-year sentence Martin received in 1990 following a murder conviction.
In his petition before this Court, Martin raises the following grounds which he claims entitle him to relief:
(1) his conviction was obtained by a plea of guilty which was unlawfully induced and not made voluntarily with a full understanding of the nature of the charge against him and the consequences of the plea inasmuch as he was informed by his attorney that his previous 40-year sentence would "eat up" his assault sentence so that he would essentially serve just the 40-year sentence and his parole eligibility would not be affected;
(2) ineffective assistance of counsel due to trial counsel's advice that his 20-year sentence on the assault conviction would run concurrent to the forty years he was serving so that his "out date" and parole eligibility would not be affected; and
(3) he should be allowed to withdraw his plea of guilty since he cannot get the benefit of his bargain.
Respondent admits that petitioner has presented all of these claims to the state courts of Alabama and that they are therefore exhausted for federal habeas corpus purposes. Therefore, this case is ripe for a decision by this Court. Respondent does contend, however, that this Court should dismiss the entire petition as barred by the one-year limitations provision contained in 28 U.S.C. § 2244(d)(1) and further, that this Court is procedurally barred from reaching the merits of ground two of the petition.
This cause is before the Court on the petition and respondent's answer with attachments. The Magistrate Judge has made a careful review of the record and finds that it contains sufficient facts upon which the issues under consideration may be properly resolved. Therefore, no evidentiary hearing is required.
FINDINGS OF FACT
1. On March 10, 1994, plaintiff entered a counseled guilty plea to first-degree assault. (Doc. 6, Respondent's Exhibit 1, Guilty Plea Colloquy)
THE COURT: This is the State of Alabama versus Martin — Nicholas Swann Martin, CC-94-01. And you are Nicholas Martin?
THE DEFENDANT: Yes, sir.
THE COURT: And how old are you?
THE DEFENDANT: I'm twenty-three (23).
THE COURT: Twenty-three. Okay. And the Defendant's arraignment has been continued.
Mr. Martin, it's my understanding that you are here today and you wish to enter a guilty plea to Count One. Is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And, before I let you do that, we need to go over some things and make sure you understand your rights.
What I am looking at is Defendant's Exhibit 1, which we call an Ireland form, which is a written explanation of your rights. And I'll ask you if this is your signature here?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Now, has your attorney gone over this and explained it to you or have you read it or had it read to you?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And I am going to be covering the same things. And, if you have any questions, you let me know.
Now, you're charged in Count One and it says that you did, with intent to cause serious physical injury to another person, cause serious physical injury to Charles James Spencer by means of a deadly weapon or a dangerous instrument, to-wit: one pair of scissors, a better description to the Grand Jury is otherwise unknown, in violation of 13A-6-20 of the Code of Alabama. That is what is known as Assault in the First Degree.
So, do you understand what you are charged with and the elements of the offense?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Now, this is a Class B felony. Normally for a Class B felony the minimum sentence that you could receive would be two(2) years up to a maximum of 20 years and a $10,000 fine.
Now, obviously, you are an inmate and you have at least one prior felony conviction. Do we know how many priors —
MR. GODWIN: Your Honor, we have got one prior felony. We did not give an actual written notice, but his attorney and I have discussed that many times. I believe they are prepared to waive that written notification.
MR. WHITE: That's correct, Your Honor.
MR. GODWIN: It would be for murder out of Morgan County.
MR. WHITE: That's correct, Judge. He would be willing to acknowledge that he has one prior felony. If you would like to ask him any questions about that, he'll be glad to answer those.
THE COURT: Mr. Martin, first of all, you understand you could make them file a written notice in this case saying you had this prior felony to put you on notice that they were going to proceed under the Habitual Offender Act. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Are you willing [to] waive that requirement and go ahead and admit that you have a prior felony conviction for the offense of murder out of — what county?
MR. GODWIN: Morgan.
THE COURT: — Morgan County?
THE DEFENDANT: Yes, sir.
THE COURT: So, do you admit that you have this prior felony?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. So, since you have one prior felony, if you plead guilty to this offense, which is a Class B felony, the minimum sentence that you could receive would be 10 years up to a maximum of 99 years or life, and a $20,000.00 fine. Furthermore, you can be ordered to pay restitution, court costs, a crime victims' assessment of not less than $50.00 up to a maximum of $10,000.00. And I could also order you to pay a recoupment to the State for the services of the Public Defender.
So, do you understand the minimum and maximum punishment that you can receive in this case if you plead guilty?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Do you understand that you have the right to enter a not guilty plea or not guilty by reason of mental disease or defect plea in this case, and to have a jury trial in this case, and to have your lawyer represent you at that trial?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand at the trial the burden of proof would be on the State of Alabama to prove your guilt beyond a reasonable doubt, and that you would come into court presumed to be innocent?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that at that trial you would have the right to confront and cross examine all witnesses that the State put on the stand to testify against you?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that you could call witnesses into court to testify in your behalf at that trial and we can make those witnesses come to court to testify, and that you could testify at that trial if you wanted to but no one could make you testify and no one could comment on your failure to testify?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand all those rights I just explained to you?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that if you plead guilty today there would be no trial to determine your guilt or innocence?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Has anybody promised you any reward or hope of reward or any kind of favor to get you to plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Has anybody threaten[ed], intimidated or coerced you to get you to plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Are you under the influence of any drugs or alcohol at this time?
THE DEFENDANT: No, sir.
THE COURT: You've got a clear head and you understand what you're doing, and you've thought about it and talked about it with your lawyer. Is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Do you understand you should enter a guilty plea only if you are guilty of the crime charged?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. I'll ask you then, how do you plead to the charge contained in Count One, which is Assault in the First Degree?
THE DEFENDANT: Guilty.
THE COURT: Okay. Mr. Godwin can you establish a factual basis for this plea?
MR. GODWIN: Yes, Your Honor. The Defendant had been transferred to Fountain Correctional Center in Atmore, Alabama, and in August of 1993 had words with the victim in this case, Charles James Spencer. Later the Defendant went to a room where the victim was seated and, using half a pair of scissors, stabbed him in the back of the neck. This was observed by many inmates in the area and correctional officers recovered the weapon from the Defendant.
Your Honor, the evidence would also show that the victim, Charles James Spencer, suffered a permanent paralysis as a result — partial paralysis as a result of the assault.
THE COURT: Mr. White, do you recommend that the Court accept his plea?
MR. WHITE: Yes, sir, Judge, I do. And, for the record, I have explained to him those rights contained in the Ireland form. I also explained to him his right to have the State produce certified copies of his prior convictions. And he has acknowledged and he would waive that per our discussion earlier.
THE COURT: All right, sir. I failed to mention that to you also. You have the right to make them produce — in addition to giving you advance notice of the prior conviction, that you could also make them produce a certified copy of the court record showing that you were convicted out of whatever county that was. I can't remember.
MR. GODWIN: Morgan.
MR. WHITE: Morgan.
THE COURT: Morgan County. And are you willing to waive that requirement as well?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Are you satisfied with the job that you attorney has done for you?
THE DEFENDANT: Yes, sir.
THE COURT: I accept your guilty plea. Are we going to go ahead and sentence today?
MR. GODWIN: Yes, sir.
THE COURT: Does the Defendant waive a pre-sentence report?
MR. WHITE: Yes, sir.
THE COURT: Does the State also?
MR. GODWIN: Yes, sir.
THE COURT: All right. Then, what is the State's recommendation?
MR. GODWIN: Your Honor, this wasn't on the record at first: Subject to the plea to Count One the State is going to move to nol-pros Counts Two and Three in the indictment.
THE COURT: All right, sir.
MR. GODWIN: The State recommends that the Defendant be sentenced to 20 years in the state penitentiary; that the sentence run concurrent with the present sentence he is serving from Morgan County; that he be ordered to pay court costs, a crime victim's assessment of $50.00, a recoupment for the services of the Public Defender to be determined; and restitution to the victim, Charles James Spencer, in the amount of $5,000.00.
THE COURT: Mr. Martin, do you have anything to say why the sentence of the law should not be imposed upon you?
THE DEFENDANT: No, sir.
THE COURT: Okay. I am going to accept the recommendation of the State that's been entered pursuant to the Plea Agreement that's been filed in this case and sentence you for this offense to a term of 20 years in the state prison. This sentence is to run concurrent with the sentence you are now serving.
You will be required to pay the court costs in this case, a crime victim's assessment of $50.00, a recoupment of $200.00 for the services of the Public Defender, and $5,000.00 restitution to the victim, Charles James Spencer.
Even though you have plead guilty, you have a right to appeal. If you cannot afford an attorney or a copy of the transcript for appeal purposes, that will be provided to you at no cost.
So, do you understand you have the right to appeal?
THE DEFENDANT: Yes, sir.
THE COURT: Good luck to you.
MR. WHITE: Thank you, Judge.
THE COURT: All right.
( Id., at R. 2-12)
2. Being satisfied with his guilty plea, Martin did not appeal his conviction and sentence. Over four years later, however, on July 10, 1998, Martin collaterally attacked his conviction and sentence after family members contacted the Alabama Board of Pardons and Paroles in March of 1998 regarding the parole board's failure to review petitioner's status as scheduled and were told that petitioner's status could not be reviewed until he served his entire twenty-year assault conviction in accordance with Ala. Code § 15-22-27.1. (Doc. 6, Exhibit 1, PETITION FOR RELIEF FROM CONVICTION OR SENTENCE; see id. ("It should be noted by the Court, that during a four . . . year period, beginning March 10, 1994 . . . the parole board made no attempt to, and did not notify the petitioner that he was restricted from review per the statute 15-22-27.1, and that these facts and laws could not have been discovered by petitioner through the exercise of reasonable diligence."))
3. The State of Alabama filed a motion to dismiss the petition on December 3, 1998 (Doc. 6, Exhibit 1, MOTION TO DISMISS); this motion was denied by order dated December 17, 1998 ( id., ORDER). The State of Alabama filed a second motion to dismiss on February 19, 1999, which reads, in pertinent part, as follows: "The relief sought by the Petitioner is moot in light of Willie G. Goldsmith v. Alabama Board of Pardons and Paroles (Cr.App. August 14, 1998). This Petitioner has been granted relief from the bar of parole pursuant to Section 15-22-27.1,Code of Alabama, 1975, and a parole review date has been set for April, 2014 as indicated on a facsimile of the inmate's time sheet received in the District Attorney's office on February 19, 1999 attached as Exhibit A." ( Id., MOTION TO DISMISS (footnote added)) This motion to dismiss was granted by docket entry dated February 22, 1999 and written notice of appeal was filed on March 17, 1999. ( Id., Case Action Summary Sheet)
This is truly an amazing and misleading statement since Martin will have done nothing less than served his entire twenty-year sentence day-for-day in April of 2014.
4. The trial court's denial of Martin's Rule 32 petition was affirmed by memorandum opinion. (Doc. 6, Exhibit 4)
The appellant alleges that his 1994 guilty plea conviction for assault should be reversed because he was not informed that he was ineligible for parole pursuant to § 15-22-27.1, Ala. Code 1975. The appellant raised this claim in his petition under the newly discovered evidence provision of Rule 32.1(e), Ala.R.Crim.P., because he said he discovered his ineligibility for parole within the past 6 months, as required by Rule 32.2(c). He argued that at the time he entered his plea the trial court improperly informed him of the maximum and minimum sentence by omitting that he was ineligible for parole, that his trial counsel was ineffective for not informing him of his ineligibility for parole, and that his plea was involuntary because he relied on the written plea agreement with the state which did not inform him that he was ineligible for parole.
With regard to this evidence being newly discovered, the appellant's claim does not meet the requirements for newly discovered evidence claims as provided in Rule 32.1(e). The United States Supreme Court has made clear that a trial court's failure to inform the defendant of his parole eligibility is not a basis for invalidating a guilty plea on voluntariness grounds. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Therefore, the evidence presented by the appellant does not constitute newly discovered evidence and the claim is precluded by the two-year statute of limitations. Rule 32.2(c), Ala.R.Crim.P. To the extent that the appellant claims his sentence is illegal, the record indicates that the appellant was informed of the appropriate range of punishment and that his sentence is within the statutory range.
The appellant's claims that his trial counsel was ineffective and that his plea was involuntary in this regard are also barred by Rule 32.2(c), Ala.R.Crim.P.
"`[W]here the judgment of the circuit court denying a petition for post-conviction relief is correct for any reason, it will be affirmed by this Court, even if the circuit court stated an incorrect reason for its denial.'" Long v. State, 675 So.2d 532, 533 (Ala.Cr.App. 1996), quoting Swicegood v. State, 646 So.2d 159, 160 (Ala.Cr.App. 1994).
Because the appellant's petition was not meritorious on its face, there was no error in the trial court's failure to hold an evidentiary hearing on the claims in his petition. Moore v. State, 502 So.2d 819, 820 (Ala. 1986). See Rule 32.7(d), Ala.R.Crim.P.
( Id.) Martin's petition for writ of certiorari to the Alabama Supreme Court was denied on November 19, 1999. (Doc. 6, Exhibit 5)
CONCLUSIONS OF LAW A. Procedural Default .
The respondent contends, almost as an afterthought, that Martin's petition should be dismissed as time-barred under the Anti-Terrorism and Effective Death Penalty Act's one-year limitations provision contained in 28 U.S.C. § 2244(d). The undersigned is of the opinion that respondent's argument in this regard is due to be rejected. Section 2244(d)(1)(D) provides that the one-year limitations period can run from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Certainly, this is the date upon which petitioner's one-year limitations period should run since it is clear that he was all too happy with his plea agreement on the assault case until learning sometime in March of 1998 that he would have to serve his entire 20-year assault sentence before becoming eligible for parole. Martin cannot be expected to have unearthed something that neither his attorney or the court had any idea about and about which the Supreme Court of the United States does not expect a sentencing court to appraise a petitioner. See Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) ("We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of pleas in the federal courts."). Therefore, it is the undersigned's opinion that petitioner's one-year limitations period began to run in March of 1998 and that period was tolled from July 10, 1998, when Martin filed his Rule 32 petition, through November 19, 1999, when the Alabama Supreme Court denied his petition for writ of certiorari. The instant petition which was executed by Martin on June 20, 2000 (Doc. 1) is clearly timely.
1. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court stated that it would "not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729, 111 S.Ct. at 2553-2554. This rule applies whether the state law ground is procedural or substantive. Id. at 729, 111 S.Ct. at 2554. The doctrine applies to bar federal habeas review when a state court declines to address a petitioner's federal claims because the petitioner fails to meet a state procedural requirement. Id. at 729-730, 111 S.Ct. at 2554; see also Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (federal courts must honor legitimate state trial and appellate procedural rules when enforced by state courts and must decline to review on the merits claims that the state treats as barred absent a showing of cause for non-compliance with such rules and resulting prejudice); Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.) ("Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution[al] claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default."), cert. denied sub nom. Alderman v. Thomas, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). "In these cases, the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 730, 111 S.Ct. at 2554 (citations omitted).
2. The application of the independent and adequate state ground doctrine in the habeas context is grounded in concerns of federalism and comity. Id.
Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-731, 111 S.Ct. at 2554.
3. An additional consideration comes to the fore when the independent and adequate state ground supporting a petitioner's custody is a state procedural default. Id. at 731, 111 S.Ct. at 2554. The Supreme Court has long held
that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. (citations omitted) This exhaustion requirement is also grounded in principles of comity; in a federal system, the States should have the opportunity to address and correct alleged violations of state prisoners' federal rights.
. . .
[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 requirement for exhaustion; there are no state remedies any longer "available" to him. (citations omitted) 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, 732, 111 S.Ct. at 2554-2555, 2555.
4. In the habeas context, federal courts are to "presume that there is no independent and adequate state ground for a state court decision when the decision `fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'" Id. at 735, 111 S.Ct. at 2557 (quoting Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983)); see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989) ("[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar."). In all other cases, the presumption is not applicable. See Coleman, 501 U.S. at 739, 111 S.Ct. at 2559. In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court held that the Harris v. Reed presumption is inapplicable to a claim that is never presented to the state courts. Id. at 299, 109 S.Ct. at 1069 ("The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding."). Moreover, the presumption "looks through" unexplained orders to the last reasoned decision, Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 2595, 115 L.Ed.2d 706 (1991).
Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion "fairly appear[s] to rest primarily upon federal law," Coleman, [___ U.S., at ___, 111 S.Ct., at 2559], we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where . . . the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.501 U.S. at 803, 111 S.Ct. at 2594. Also, the presumption may not be applied in cases in which the state court opinion did not, at a minimum, discuss the federal grounds at issue." Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993) (" Coleman and Ylst lead us to conclude that we may not assume that had the state court issued an opinion, it would have ignored its own procedural rules and reached the merits of this case. In fact, the most reasonable assumption is that had the state court ruled, it would have enforced the procedural bar."). Finally, "where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim." Alderman v. Zant, supra, 22 F.3d at 1549.
5. When a petitioner has procedurally defaulted a claim, a federal court is barred from reaching the merits of that claim unless the petitioner "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 claim will result in a fundamental miscarriage ofjustice." Coleman, supra, 501 U.S. at 750, 111 S.Ct. at 2565. The cause and prejudice standard applies "uniformly to all independent and adequate state procedural defaults." Id. at 750-751, 111 S.Ct. at 2565.
In procedural default cases, the cause standard requires the petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court. (citation omitted). Objective factors that constitute cause include "`interference by officials'" that makes compliance with the state's procedural rule impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." (citation omitted). In addition, constitutionally "[i]neffective assistance of counsel . . . is cause." (citation omitted). Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default. (citation omitted). Once the petitioner has established cause, he must show "`actual prejudice' resulting from the errors of which he complains." (citation omitted).
Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice. (citation omitted).McCleskey v. Zant, 499 U.S. 467, 493-494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991).
6. Respondent argues that this Court is procedurally barred from reaching the merits of only ground two of the petition even though it is clear that the Alabama Court of Criminal Appeals actually determined all three grounds raised before it (and basically the same grounds raised herein) to be procedurally defaulted. Accordingly, the respondent has waived the procedural default defense respecting the first and third claims of the petition and this Court need only address that defense as it relates to the second ground of the petition, i.e., Martin's ineffective assistance of counsel claim. The undersigned, however, cannot agree with the respondent or the Alabama Court of Criminal Appeals that this Court is procedurally barred from reaching the merits of this claim on the basis of Alabama's two-year statute of limitations contained in Ala.R.Crim.P. 32.2(c), any more than it can be believed that petitioner is barred by the one-year limitations period in § 2244(d), since it is undisputed that Martin did not know until March of 1998 that he would be ineligible for parole until he completed his entire twenty-year assault sentence.
B. Merits of the Claims .
7. As aforesaid, petitioner alleges (1) that his conviction was obtained by a plea of guilty which was unlawfully induced and not made voluntarily with a full understanding of the nature of the charge against him and the consequences of the plea inasmuch as he was informed by his attorney that his previous 40-year sentence would "eat up" his assault sentence so that he would essentially serve just the 40-year sentence and his parole eligibility would not be affected; (2) that he was deprived of his right to effective assistance of counsel due to trial counsel's advice that his 20-year sentence on the assault conviction would run concurrent to the forty years he was serving and his "out date" and parole eligibility would not be affected; and (3) that he should be allowed to withdraw his plea of guilty since he cannot get the benefit of his bargain. The grounds of Martin's petition have evolved somewhat since the filing of his Rule 32 petition, when he stated those grounds to be the following: (1) he was misinformed of the correct range of punishment he might receive by pleading guilty inasmuch as he was not informed of the impact of Ala. Code § 15-22-27.1; (2) ineffective assistance of counsel due to counsel's failure to advise him that any sentence impose by the court would be served without the benefit of parole; and (3) the guilty plea "rested on the state's promise, and signed agreement that could never be fulfilled due to section 15-22-27.1 Code of Alabama 1975, restricting him from any benefit of parole on the twenty (20) year sentence." (Doc. 6, Exhibit 1, Rule 32 Petition) It is assumed by the undersigned that petitioner still wants to attack the voluntariness of his plea as well as his attorney's performance and therefore, both claims are considered herein.
8. Once a criminal defendant enters a guilty plea, he waives all non-jurisdictional challenges to the conviction's constitutionality and only an attack on the voluntary and knowing nature of the plea can be raised. See McMann v. Richardson, 397 U.S. 759, 772, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Stated differently, "a voluntary and intelligent plea made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-2547, 81 L.Ed.2d 437 (1984).
9. "In order for a guilty plea to be entered knowingly and intelligently, the defendant must have not only the mental competence to understand and appreciate the nature and consequences of his plea but he also must be reasonably informed of the charges against him, the factual basis underlying those charges, and the legal options and alternatives that are available." LoConte v. Dugger, 847 F.2d 745, 751 (11th Cir.) (citations omitted), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988); see also Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir.) ("A reviewing federal court may set aside a state court guilty plea only for failure to satisfy due process: If a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced, the guilty plea . . . will be upheld on federal review."), cert. denied sub nom. Stano v. Singletary, 502 U.S. 835, 112 S.Ct. 116, 116 L.Ed.2d 85 (1991), remanded on other grounds, 952 F.2d 1273 (11th Cir. 1992).
10. The defendant must have full knowledge of the consequences of entering a plea of guilty to the charge to withstand challenge under the Due Process Clause, see Mabry, supra, 467 U.S. at 509, 104 S.Ct. at 2547, as a plea of guilty is a waiver of several constitutional rights, including the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and the right to insist on a jury trial and to confront one's accusers guaranteed by the Sixth Amendment, Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). " Boykin stands for the proposition that a defendant is constitutionally entitled to have information concerning the range of punishment prescribed by act to which he may be sentenced and the consequences of the conviction at the time he enters his plea." Coleman v. Alabama, 827 F.2d 1469, 1473 (11th Cir. 1987).
11. However, the Supreme Court of the United States has never held "that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of guilty pleas in the federal courts." Hill v. Lockhart, supra. Therefore, to the extent petitioner intends to argue in the first and third grounds of the petition that his guilty plea should be found unconstitutional based upon a lack of information received from the trial court or the State, those claims are found lacking in merit.
12. To be sure, it is Martin's primary contention that his trial attorney was ineffective in failing to inform him that upon entering a guilty plea to assault he would be ineligible for parole until his sentence on that conviction had been served day-for-day since some four years previously he had been convicted of murder. See Ala. Code § 15-22-27.1 ("Any person convicted of any act, or attempt to commit the act, of murder, rape, robbery or assault with a deadly weapon, the commission of which directly and proximately resulted in serious physical injury to another and the commission of which follows within five years a previous conviction of another felony, or attempt thereof, resulting in serious physical injury to another, shall upon conviction serve such sentence as may be imposed without benefit of parole, notwithstanding any law to the contrary.").
13. In order to establish a claim of ineffective assistance of counsel, petitioner is required to show (1) that his attorney's representation fell below "an objective standard of reasonableness" and (2) that a reasonable probability exists that but for counsel's unprofessional conduct, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland v. Washington standard for evaluating claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. at 58 106 S.Ct. at 370.
To succeed on such a claim, "the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In addition, the defendant must establish that "counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59, 106 S.Ct. at 370. In other words, . . . [a petitioner] "must show that there is a reasonable probability that, but for counsel's errors, he would . . . have pleaded [not] guilty and would . . . have insisted on going to trial." Hill, 474 U.S. at 59, 106 S.Ct. at 370.Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (footnote, brackets and ellipses added), cert. denied sub nom. Coulter v. Jones, 516 U.S. 1122, 116 S.Ct. 934, 133 L.Ed.2d 860 (1996).
"When analyzing ineffective-assistance claims, reviewing courts must indulge a strong presumption that counsel's conduct fell within the wide range of reasonably professional assistance." Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (citations omitted).
14. Even assuming that petitioner's trial counsel provided constitutionally ineffective assistance when he failed to advise him of the applicability of § 15-22-27.1 of the Alabama Code and/or otherwise told him that his forty-year murder sentence would "eat up" his twenty-year assault sentence and therefore, not affect his eligibility for parole, petitioner's claim must fail since his allegations are insufficient to establish the prejudice requirement of the Strickland v. Washington standard. Although petitioner conclusorily avers in the petition that had counsel informed him of the applicability of Ala. Code § 15-22-27.1 he would not have pled guilty and would have insisted on going to trial, the remainder of the petition's allegations belie this conclusory statement. Martin admits in the petition that he stabbed fellow inmate Charles James Spencer ( see Doc. 1, Supplemental Page 1 ("Petitioner at the age of 20 years was convicted of murder in 1990 and sentenced to a term of 40 years. While serving this term of imprisonment at the Fountain Correctional Facility in Atmore, Alabama, petitioner, because of his age and race was continually pressured for homosexual favors by older prisoners, especially black prisoners. Petitioner, who is not a homosexual, got into an altercation with one such prisoner and stabbed him.")) and avers, moreover, that "[t]he court was sympathetic with petitioner and a plea bargain was struck by which petitioner would enter a plea of guilty on Assault 1° for a sentence of 20 years to run concurrent with his previous sentence of 40 years." ( Id.) In light of these petition allegations and it being clear that Martin's assault of Spencer occurred in August of 1993 (Doc. 6. Exhibit 1, Guilty Plea Tr. at 8) and therefore, within five years of his 1990 murder conviction (Doc. 1), § 15-22-27.1 by its very terms was applicable to petitioner whether he pled guilty or went to trial and was convicted. What petitioner admittedly gained by entering a guilty plea was a concurrent twenty-year sentence from a sympathetic judge rather than taking the chance of receiving a forty or fifty year consecutive sentence from an unsympathetic judge following a jury trial and being made to serve those forty or fifty years, day-for-day, pursuant to Ala. Code § 15-22-27.1 before becoming eligible for parole. Since "`[a] guilty plea entered with the advice of counsel is not rendered invalid if made to avoid a harsher penalty[,]'" Grantling v. Balkcom, 632 F.2d 1261, 1264 (5th Cir. 1980), quoting Roberts v. United States, 472 F.2d 1195, 1196 (5th Cir. 1973), the undersigned does not hesitate in finding that petitioner has not shown, and cannot show, that he was prejudiced by his trial attorney's failure to inform him about the applicability of Ala. Code § 15-22-27.1.
In addition, the remaining two counts of a three-count indictment were nol-prosed by the State. (Doc. 6, Exhibit 1, Guilty Plea Tr. at 10)
CONCLUSION
The Magistrate Judge is of the opinion that petitioner's rights were not violated in this cause and that his request for habeas corpus relief should be denied.