Opinion
Civil Action No. 98-0065-CB-L
February 13, 2001
REPORT AND RECOMMENDATION
Michael Lamar Powell, a former state prisoner currently on supervised release, filed his complaint for habeas corpus relief pursuant to 28 U.S.C. § 2254 on January 21, 1998. (Doc. 1). Also filed was a brief in support of the petition numbering 173 pages. (Doc. 2.) The Court ordered petitioner to pay the filing fee and to file a brief statement of each ground presented (Doc. 3), and petitioner complied (Doc. 5). After service of the complaint, respondent filed an answer on May 14, 1998 (Doc. 13). This case was transferred to the undersigned on January 5, 2000.
This action has been referred to the undersigned for entry of proposed findings of fact and a recommendation as to the appropriate disposition of the issues in the complaint 28 U.S.C. § 636 (b)(1)(B); 28 U.S.C. foll. § 2254, Rule 8(b)(1). The undersigned finds that a hearing is not necessary. L.R. 72.1(c). After a complete review of this action, the undersigned determines that Powell's petition should be denied.
FINDINGS OF FACT
1. Petitioner is attacking his December 3, 1991, guilty plea in the Circuit Court of Mobile County to two counts of burglary in the third degree (CC 91-2382 and 91-2383), two counts of possession of a controlled substance (CC91-2384 and 91-2385), and one count of illegal possession of a credit card (CC9I-2386). (See Doc. 14, Exhibit A, at 1, 12, 23, 33, 43.)
Petitioner's burglary in the second degree case, CC91-2383, was amended at the request of the prosecutor, with the consent of petitioner and petitioner's counsel at the December 3, 1991, guilty plea hearing. See Doc. 14, Exhibit B, at 180.
2. Petitioner was represented at the guilty plea hearing on December 3, 1991, by Sandra Rander. Assistant District Attorney Jo Beth Murphree appeared for the State. (Doc. 14, Exhibit B, at 175.) After a lengthy colloquy with the defendant, the Court sentenced petitioner to 30 years in each of the five cases, each sentence to run concurrently, and also to run concurrently with petitioner's 15 year sentence from case CC87-1047. (Doc. 14, Exhibit B, at 192.)
4. The petitioner did not file a direct appeal.
5. The signed sentencing order in CC-91-2383 (burglary third), which was entered on the docket sheet, contained an error. Inconsistent with the Court's amendment of the charge to burglary third and the pronouncement at the guilty plea hearing, the order stated that Powell was adjudged "guilty of burglary in the second degree for which he was indicted," and sentenced petitioner to 30 years. (Doc. 14, Exhibit A, at 13.)
5. The facts of subsequent events were succinctly laid out by the Alabama Supreme Court in its opinion on Powell's writ of mandamus:
The Court has inserted citations to the record where appropriate.
On February 13, 1992, Powell, claiming indigency, filed his first motion for a free copy of the transcript of his sentencing hearing of December 3, 1991, contending that the Department of Corrections had listed one or more of his five concurrent 30-year sentences as being consecutive to his 15-year sentence in case CC-87-1047, rather than being concurrent as to that sentence. On February 27, apparently because of a clerical error, Judge Layden amended his sentencing order of December 3, 1991, to note that Powell's 30-year sentence in the five cases was to "run concurrent with any other time the defendant is presently serving." [Doc. 14, Exhibit A, at 3, 14, 25, 35, 45.] In April 1992, Powell filed several motions, alleging that there was still error in his sentences, seeking to have the sentences corrected, and attempting to obtain a free copy of the transcript of his December 3, 1991, sentencing hearing. A hearing on these motions regarding Powell's sentence was held on May 5, 1992. On June 2, Judge Layden signed an order intended to correct Powell's sentences in cases CC-91-2382 through CC-91-2386 to accurately reflect Powell's plea agreement. [Doc. 1, Exhibit 18.] The sentencing order also noted that Powell had violated his probation in case CC-87-1047, revoked his probation in that case, and ordered that the remainder of his sentence in that case run concurrently with his sentences in CC-91-2382 through CC-91-2386 and that he be given credit for time served. [Doc. 14, Exhibit A, at 190-192.] On April 12, 1993, Powell filed another motion seeking a free copy of the transcript of the December 3, 1991, sentencing hearing and also seeking a free copy of the transcript of the May 5, 1992, hearing; the circuit court denied that motion on April 30, 1993. Judge Zoghby ordered that a copy of the case action summary sheets for each of Powell's convictions be sent to Powell in lieu of the requested transcripts. On June 1, 1993, Powell filed a notice of appeal of the denial of his motion. The Court of Criminal Appeals dismissed his appeal. Thereafter, in September 1993, Powell filed in the Court of Criminal Appeals a petition for a writ of mandamus, requesting that court to order the Mobile Circuit Court to grant his motion for free transcripts of his December 1991 and May 1992 sentencing hearings. The Court of Criminal Appeals summarily denied the petition on September 29, 1993, 635 So.2d 922. Powell filed his mandamus petition in this Court on October 14, 1993. Finally, on December 22, 1993, Powell filed in the Mobile Circuit Court a petition for post-conviction relief under Rule 32, A.R.Cr.P.Ex parte Michael Lamar Powell, 641 So.2d 772, 774-775 (Ala. 1994).
6. Based on the legal distinction between an appeal, where a defendant is entitled to a copy of the transcript, and a Rule 32 collateral attack, which is not an appeal, the Supreme Court of Alabama held that "an indigent defendant has no constitutional right to a free transcript of his trial or some other proceeding once that defendant has foregone the privilege of appealing from the judgment based on the trial or other proceedings." Id., at 776 (citations omitted). The Court concluded that "because Powell failed to appeal from his conviction and sentence, he has no `clear legal right' to a free transcript of his sentencing hearings. Accordingly, his petition for a writ of mandamus is denied." Id.
5. Powell filed a Rule 32 petition in the Circuit Court of Mobile County on December 27, 1993 (while the writ of mandamus was pending with the Alabama Supreme Court), attacking his guilty plea in cases CC91-2382 through 91-2386. (Doc. 14, Exhibit A, at 55; Exhibit B, at 7.) He added four more grounds in an amendment filed April 29, 1994. (Doc. 14, Exhibit A, at 9.) In his Rule 32 petition, Powell raised the following grounds:
i. Double jeopardy. Judge Layden's June 2, 1992, re-sentencing order was unconstitutional, as it placed petitioner in double jeopardy. (Doc. 14, Exhibit A, at 64.)
ii. Confrontation clause. Petitioner's absence when the June 2, 1992, order was issued correcting petitioner's sentence violated the Sixth Amendment confrontation clause. ( Id., at 69.)
iii. Due Process/Equal Protection. June 2, 1992, order amounted to a violation of plea agreement, entitling petitioner to resentencing by a different judge. ( Id., at 72.)
iv. Cruel and unusual punishment. The sentencing judge's June 2, 1992, order addressing concurrent and consecutive sentences contains "irreconcilable and irredeemable conflict" amounting to cruel and unusual punishment. ( Id., at 74.)
v. Jurisdiction. The sentencing judge, a District Judge sitting as Circuit Judge, lacked jurisdiction to sentence petitioner, in violation of the Sixth Amendment.( Id., at 78.)
vi. Ineffective assistance of counsel. Petitioner's counsel at the May 5, 1992, hearing was unprepared and "blatantly incompetent", amounting to a complete denial of counsel. ( Id., at 82.)
vii. No oral pronouncement of sentence at May 5, 1992, hearing. The failure of the sentencing judge to make an oral pronouncement of sentence at the May 5, 1992, hearing violated petitioner's rights under the Sixth Amendment. ( Id. at 90.)
viii. Double jeopardy. February 27, 1992, order correcting a clerical error in petitioner's sentence constituted double jeopardy. ( Id., at 92.)
ix. Insufficient indictment and ineffective assistance of counsel. Counsel failed to object and permitted petitioner to plead guilty on a defective indictment in case CC9I-2383. ( Id., at 98, 99.)
x. Ineffective assistance of counsel. Concerning the jurisdiction of the sentencing judge, petitioner's counsel "made no effort" to verify the designation of District Judge Layden as a Circuit Judge. ( Id., 105.)
xi. Flawed indictment. The indictment in case CC91-2382 failed to allege a date of the offense. ( Id., at 110.)
xii. Arraignment. Petitioner's "boilerplate-assembly line arraignment" on July 25, 1991, was "so fundamentally unfair that it deprived petitioner of his constitutional rights to a fair criminal proceeding, effective assistance of counsel, and equal protection and due process of law." ( Id., at 115.)
xiii. Plea agreement. The state and the trial court have "violated the terms of the plea agreement as they were reasonably understood by the petition on December 3, 1991." ( Id., at 134.)
xiv. Plea agreement was not knowing and voluntary. Petitioner alleges that the prosecutor and petitioner's counsel misled petitioner "as to the possible punishment he was subject to for the offenses he was pleading to," thus, petitioner's plea was not knowing and voluntary. ( Id., at 155, 156.)
xv. Alabama Habitual Felony Offender Act. The state gave no notice of intent to proceed under the Habitual Felony Offender Act and did not prove prior convictions at sentencing; plaintiffs counsel failed to make objections on the issue. ( Id., at 167.)
xvi. Ineffective assistance of counsel. Petitioner's counsel's failure to file a direct appeal amounted to ineffective assistance of counsel. ( Id., at 182.)
The following issues were added by the amendment petitioner filed on April 29, 1994.
xvii. Flawed indictment. The indictment in case CC9I-2385 alleged a date "on or about January 29, 1990," on which petitioner was incarcerated. ( Id, at 300.)
xviii. Ineffective assistance of counsel. Petitioner's counsel failed to have independent testing done on the controlled substances (cocaine) which petitioner was charged with possession in cases CC91-2384 and 91-2385. ( Id., at 307.)
xix. Exvarte communication. In an April 11, 1991, hearing, Judge Layden, the prosecutor, and police officers, discussed the cases pending against petitioner, which formed the basis for petitioner's bond of $125,000. ( Id., at 315.)
xx. Defense counsel / prosecutor personal relationship. The alleged personal friendship between "Wanda Rahman, a member of the prosecution team," and petitioner's counsel deprived petitioner of effective assistance of counsel. ( Id., at 322.)
6. The state responded with a general denial and demanded strict proof. (Doc. 14, Exhibit A, at 358.)
7. No hearing was held. The Circuit Court issued an order on September 11, 1995, dismissing Powell's Rule 32 petition ( Id., at 463-469). The Circuit Court ruled that Powell's petition was "due to be dismissed pursuant to Rule 32.7(d) of the Alabama Rules of Criminal Procedure." Id., at 463. Judge Johnstone found that Petitioner had waived several issues; that some issues failed to state cognizable claims for post conviction relief, that the facts did not support some claims; that petitioner's plea was knowingly and voluntarily entered; that the indictments were sound; that there was no evidence of ineffective assistance of counsel. Id., at 463-469.
Ala.R.Cr.P. 32.7(d) states, Summary Disposition. If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition. Leave to amend shall be freely granted. Otherwise, the court shall direct that the proceedings continue and set a date for hearing. (West 1999.)
Rather than recount Judge Johnstone's opinion in its entirety, this Court will cite or quote the opinion, when necessary, infra.
8. Powell appealed the denial of his Rule 32 petition. In his pro se brief, Powell argued that the "trial court fail[ed] to sufficiently address and refute all issues raised in the appellant's Rule 32 petition." (Doc. 14, Exhibit C, at 1.)
9. The Alabama Court of Criminal Appeals affirmed the Circuit Court's denial of Powell's Rule 32 petition in a memorandum opinion handed down on August 23, 1996. The opinion stated in its entirety,
AFFIRMED BY MEMORANDUM. The appellant's argument, that the trial court erred in failing to address and refute all of the issues raised in his Rule 32, A.R.Cr.P. petition, is without merit. Summary disposition of the petition was proper, pursuant to Rule 32.7(d); specific findings under Rule 32.9(d), A.R.Cr.P. therefore were not required. All judges concur.
(Doc. 14, Exhibit E.)
10. The Court of Criminal Appeals denied rehearing on September 27, 1996. Powell v. State,
89 So.2d 1010 (Ala.Crim.App. 1996) (Table).
11. The Supreme Court of Alabama denied certiorari on January 24, 1997. Ex parte Michael Lamar Powell, 696 So.2d 302 (Ala. 1997) (Table).
12. Powell also filed a state habeas corpus petition in Limestone County, Alabama. Based on the reported opinion in the case, this Court concludes that the petition was denied by the Circuit Court of Limestone County. On appeal, the Alabama Court of Criminal Appeals addressed two issues concerning Powell's sentence:
The Court of Criminal Appeals also addressed Powell's claims of alleged mistreatment by prison officials, not relevant to the pending habeas petition. The Court conluded that petitioner's claims of mistreatment did not "relate to the legality of his confinement or to the legal sufficiency of the criminal proceedings that resulted in his incarceration. There is nothing for this court to review with regard to this issue." Powell, 726 So.2d at 737.
The appellant, Michael Lamar Powell, an inmate in the Alabama prison system, appeals from the Limestone Circuit Court's denial of his petition for a writ of habeas corpus. In his petition, the appellant contends that he is entitled to be released from prison because, he says, his sentence has expired. The relevant portion of the record reflects that in 1987, the appellant was convicted in the Mobile Circuit Court for unlawfully breaking and entering a motor vehicle and was sentenced to 15 years in prison; that sentence was split and he was ordered to serve 3 years in confinement and then the balance on probation. The appellant was subsequently released from prison and placed on probation. While on probation, he committed several new offenses. In 1991, pursuant to a plea agreement relating to these new offenses, the appellant pleaded guilty and was convicted in the Mobile Circuit Court of two counts of third-degree burglary, two counts of the unlawful possession of a controlled substance, and one count of illegal use of a credit card. In accordance with the plea agreement, the appellant was sentenced on December 3, 1991, to 30 years' imprisonment for each of the five cases, the five sentences to be served concurrently with each other and with the remainder of the appellant's sentence for his 1987 conviction, which the appellant became obligated to serve after his probation was revoked. On April 15, 1996, pursuant to an agreement reached after the appellant filed a Rule 32, Ala.R.Crim.P., petition, the Mobile Circuit Court issued an order stating that the appellant had completed his sentence for the 1987 conviction. The appellant maintains that he is being unlawfully incarcerated because, he says, his five 1991 sentences, which were to run concurrently with his 1987 sentence, "expired" in April 1996, when the Mobile court issued the order stating that he had completed his sentence for the 1987 conviction. This claim is without merit. Section 14-9-41(g)(2), Ala. Code 1975, provides, in pertinent part: "When a prisoner is serving two or more sentences which run concurrently, the sentence which results in the longer period of incarceration yet remaining shall be considered the term to which such prisoner is sentenced for the purpose of computing his release date and correctional incentive time under the provisions of this article." Under § 14-9-41 (g)(2), the date of the commencement of the five sentences of 30 years' imprisonment, i.e., December 3, 1991, is the starting point for computing the appellant's remaining sentence. Because the 30-year sentences were ordered to run concurrently with the 15-year sentence imposed in 1987 and because the expiration date of the 30-year sentences was beyond the expiration date of the 1987 sentence, the sentences imposed on December 3, 1991. effectively mooted the 1987 sentence. This would have been so even if the Mobile Circuit Court had not issued the April 1996 order stating that the appellant's sentence for the 1987 conviction had been satisfied. Morrison v. State, 687 So.2d 1259 (Ala.Cr.App. 1996) (prisoner received a 15-year sentence in 1986 and a concurrent 10-year sentence in 1993; because the expiration date of the 1993 sentence was beyond the expiration date of the 1986 sentence, the sentence imposed in 1993 caused the 1986 sentence to cease to exist). See Henley v. Johnson, 885 F.2d 790, 793-94 (11th Cir. 1989). Thus, the appellant's sentences imposed in 1991 have not expired, and he is not entitled to be released from prison. The Limestone Circuit Court correctly denied the appellant relief on this claim.726 So.2d 735, 736 (Ala.Crim.App. 1997).
The Court also addressed another issue raised in the present federal habeas petition, concerning petitioner's sentence:
Finally, the appellant contends that under the 1991 plea agreement, he pleaded guilty to and was convicted of two counts of third-degree burglary, but that the Department of Corrections inmate summary sheet erroneously reflects that one of those burglary convictions was for second degree burglary. Furthermore, the appellant contends that the inmate summary sheet erroneously reflects that the sentence for the second-degree burglary conviction was to be served consecutively, rather than concurrently, with the sentences he received for all his other 1991 convictions. The state does not specifically refute these claims. The appellant maintains that as a result of these errors, the Department of Corrections has miscalculated his date of eligibility for parole consideration. As the appellant alleges, his inmate summary sheet indeed reflects convictions in 1991 for seconddegree burglary and third-degree burglary and also reflects that the sentence for his second degree burglary conviction was to be served consecutively with the sentences for his other 1991 convictions. The record contains a transcript of the guilty plea proceedings that took place in 1991. The transcript of the guilty plea proceedings clearly reflects that, although the appellant was originally charged with one count of second-degree burglary, the appellant pleaded guilty to and was convicted of two counts of third-degree burglary; the transcript further reflects that the appellant's sentences for both of these convictions were to be served concurrently with each other and with the sentences for his other 1991 convictions. See Exparte Powell, 641 So.2d 772, 774 ((Ala. 1994) (detailing the convictions and sentences at issue in this appeal). In order to avoid any confusion over the length of the appellant's sentence, in terms of his earliest possible parole release date, we remand this case to the Limestone County Circuit Court with instructions that the court order the Department of Corrections to correct its records to accurately reflect the appellant's conviction for third-degree burglary, rather than second-degree burglary, in case no. CC-91-2383 and to reflect that the appellant's 30-year conviction was to be served concurrently, rather than consecutively, with the order sentences the appellant received in 1991. Furthermore, the Limestone Circuit Court is ordered to hold an evidentiary hearing to determine whether these changes would affect the appellant's parole review date.Id., at 737.
12. Petitioner's time limitation for direct appeal had expired before April 24, 1996, the enactment date of 28 U.S.C. § 2244 (d) under the Anti-Terrorism and Effective Death Penalty Act of 1996. Petitioner therefore had until April 23, 1997-one year from the date of enactment of 2244(d) — in which to file a federal habeas petition. However, under 28 U.S.C. 2244(d)(2), that time period was tolled during the time which Powell's "properly filed application for state postconviction review" was pending. Powell's Rule 32 petition was pending on April 24, 1996, and became final on January 24, 1997. Thus, Powell's one year statute of limitation began to run on January 25, 1997, expiring on January 24, 1998. The federal habeas petition before this Court (Doc. 1) was filed on January 21, 1998, and is therefore timely.
Under Rule 4(b) of the Alabama Rules of Appellate procedure, Powell had 42 days after pronouncement of sentence on December 3, 1991, in which to file notice of appeal. Thus, petitioner had until January 14, 1992, to file notice of appeal.
13. Powell was released on parole on May 24, 1999. (Doc. 34, at 1.) As a parolee, petitioner "remains in the legal custody of the warden of the prison from which he is paroled until the expiration of the maximum term specified in his sentence or until he is pardoned." ALA. CODE § 15-22-26. Powell's habeas petition is not moot, because there remains a "possibility for the imposition of collateral legal consequences on the basis of the challenged conviction." Minor v. Dugger, 864 F.2d 124, 125 (11th Cir. 1989). See Carafas v. LaVallee, 391 U.S. 234 (1968).
14. In the present habeas corpus petition, Powell raised the following 21 grounds:
The issue statements are quoted substantially from petitioner's "Addendum of Brief Statement of Each Ground Presented," (Doc. 5), filed in response to this Court's order. (See Doc. 4.)
i. Ineffective assistance of counsel. Powell's court-appointed trial counsel and assistant district attorney Wanda Rahman joined together to induce Powell to plead guilty. This collaboration and personal friendship between petitioner's trial counsel and district attorney Rahman resulted in ineffective assistance of counsel.
ii. Ex parte conversation. On April 11, 1991, the police and the prosecutor Wanda Rahman discussed with Judge Lionel L. Layden the merits of the instant underlying cases and conveyed to this judge information relating to the merits of the these same underlying cases, without the presence of Powell or Powell's counsel. The sentencing judge should have recused himself, and the facts establish ineffective assistance of counsel and prosecutorial misconduct.
iii. Ineffective assistance of counsel. Powell's counsel failed to investigate the surrounding circumstances and provided petitioner with erroneous information about whether independent testing could be done on the alleged controlled substances, but for which petitioner would not have pled guilty.
iv. Flawed indictment. In case CC91-2385, Powell was deprived of notice of the charges against him, because the indictment alleged unlawful possession of a controlled substance "on or about January 29, 1990," when he was "in prison and incarcerated at G.K. Fountain Correctional Facility" and therefore he was convicted as a result of ineffective assistance of counsel.
v. Failure to appeal! ineffective assistance of counsel. Powell alleges ineffective assistance of counsel because he did not knowingly and voluntarily waive his right to appeal, and his counsel refused Powell's requests to appeal.
vi. Alabama Habitual Felony Offender Act. The state gave no notice of its intent to invoke the Habitual Felony Offender Act; the state failed to prove prior convictions; petitioner's counsel failed to make proper and timely objections concerning the Habitual Felony Offender Act.
vii. Ineffective assistance of counsel/range of sentence. Petitioner's counsel misled him as to the sentence he was facing without a plea, and his guilty plea was therefore not knowingly and voluntarily made.
viii. Consecutive/Concurrent sentence. In violation of the plea agreement, the sentence in case number CC9 1-2383 is shown as a consecutive sentence rather than concurrent as it was originally imposed.
ix. Sentence. The order of April 15, 1996, implicitly rendered the sentences in these instant underlying cases [CC9 1-2381-2386] co-terminus with the sentence in case number CC87-1047, and thus the sentences in these instant underlying cases should have expired and ended with the expiration of the sentence in case number CC87-1047, just as they began with it.
x. Ineffective assistance of counsel. Petitioner's counsel failed to raise "his valid Fourth Amendment claims" at arraignment or within 20 days of arraignment.
xi. Defective indictment/ineffective assistance of counsel. Petitioner's counsel failed to investigate the facts and law in case CC9 1-2382, where the indictment failed to allege the date of the offense, a material element.
xii. Trial court jurisdiction. The trial judge lacked jurisdiction in petitioner's case because he was a District Court Judge, not a Circuit Court Judge.
xiii. No charge supporting CC91-2383 conviction. Petitioner pled guilty to a charge of third degree burglary, but the charge was never actually charged until some six years later. Instead, petitioner remained incarcerated on a charge of second degree burglary, but has never been tried and convicted for this crime.
xiv. Amendment to sentence. The February 27, 1992, amendment to petitioner's sentence was illegal and amounted to a sentencing in absentia.
xv. Oral pronouncement of sentence. There was no oral pronouncement of sentence on May 5, 1992, when petitioner was supposedly resentenced; the June 2, 1992, order is thus illegal.
xvi. Ineffective assistance of counsel. Petitioner was deprived of counsel on May 5, 1992, because his appointed counsel was totally unprepared.
xvii. Jurisdiction. Judge Layden lacked the jurisdiction to amend petitioner's sentence by written order on June 2, 1992.
xviii. Sentencing order. The June 2, 1992, sentencing order is rendered illegal by its being ambiguous, self-contradictory, and erroneous.
xix. Resentencing. Because the resentencing order implicitly finds a violation of the plea agreement, petitioner should have been resentenced by a different judge.
xx. Resentencing. The order of June 2, 1992, is illegal because he was not present for this alleged resentencing.
xxi. Resentencing. The order of June 2, 1992, unlawfully modifies and enlarges the judgment to express things which the court did not pronounce as the original sentencing of December 3, 1991, and violates the principles of double jeopardy.
The record indicates that the prosecutor was Jo Beth Murphree. (Doc. 14, Exhibit B,. p. 175)
DISCUSSION
The undersigned has consolidated petitioner's issue statements as follows.
1. Ineffective Assistance of Counsel. Petitioner alleges specific instances of ineffective assistance of counsel in habeas ground one (friendship between A.D.A. Wanda Rahman and court appointed counsel); ground two (counsel not present at ex parte conversation between judge and prosecutor); ground three (counsel failed to investigate facts and test controlled substances); ground four (counsel failed to recognize flawed indictment); ground five (counsel failed to appeal the guilty plea); ground six (failure to object concerning Alabama Habitual Felony Offender Act); ground seven (counsel misled petitioner as to sentence range which petitioner was facing on conviction); ground ten (failure to raise Fourth Amendment claims); ground eleven (failure to investigate date of burglary offense in CC91-2382);ground twelve (failure to inquire of the jurisdiction of the trial judge); ground sixteen (appointed counsel was unprepared at May 5, 1992, hearing).
2. Sentence. Petitioner addresses alleged problems with his sentence in habeas ground eight (sentence for CC91-2383 "shown" as consecutive rather than concurrent); ground nine (sentences for the five 1991 convictions should have terminated with the end of petitioner's sentence in his 1987 breaking-and entering conviction, CC87-1047); ground fourteen (February 27, 1992, order amounted to an illegal amendment to petitioner's sentence); ground fifteen (no oral pronouncement of sentence on May 5, 1992, rendering June 2, 1992, order "illegal"); ground eighteen (June 2, 1992, order is "ambiguous, self-contradictory, and erroneous"); ground nineteen (error in original sentencing order required resentencing by a different judge); ground twenty (petitioner was not present when June 2, 1992, order was issued); and ground twenty-one (June 2, 1992, order "unlawfilly modifies and enlarges the judgment").
3. Judge's Authority. Petitioner attacks the authority of Judge Layden in ground seventeen (judge lacked authority to amend petitioner's sentence by the June 2, 1992, order).
4. Third degree burglary charge. Petitioner asserts in habeas ground thirteen that there was no charge supporting his conviction for third degree burglary in CC91-2683.
For the reasons more fully stated herein, the Court has analyzed Powell's ineffective assistance of counsel claims to the extent that they allege that his guilty plea to the five felony convictions was not knowingly and voluntarily entered, and recommends that all such claims (habeas grounds one, two, three, four, five, six, seven, ten, eleven, twelve and sixteen) be denied. The undersigned recommends that the remainder of Powell's claims (habeas grounds eight, nine, thirteen, fourteen, fifteen, seventeen, eighteen, nineteen, twenty, and twenty-one) be denied.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner seeks federal habeas review of his guilty plea and conviction on five felony indictments. The scope of habeas review in such circumstances is extremely limited, for 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).
"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).
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).
At the guilty plea hearing on December 3, 1991, the Court engaged in a colloquy with the defendant. (See Doc. 14, Exhibit B, at 177-192.) The Court asked plaintiff to confirm his written notice of intent to plead guilty. The Court noted that a plea to second degree burglary would in petitioner's case would require a sentence of life without parole. He granted the state's motion, with defendant's assent, to amend the second degree burglary charge in CC9I-2383 to third degree burglary, so that petitioner would face sentencing for five class C felonies. ( Id., at 179-180. Assistant District Attorney Murphree gave notice of intent to proceed under the Habitual Felony Offender Act, and supplied certified copies of defendant's prior convictions. Defense counsel examined the certified copies of the convictions and disputed one conviction. Even so, the defendant stipulated that he had three or more prior felony convictions and admitted that all but one of the convictions certified by the state were his. ( Id., at 182-3.) The following exchange then took place:
COURT: All right. Mr. Powell, it shows here that on your motion to enter a guilty plea, and let me make sure now that we understand what we've got, are you asking the Court to enter a guilty plea to two burglary third cases, one of which has been reduced to a burglary third from a burglary second, two cases of possession of cocaine, and one case of possession illegally of a credit card?
DEFENDANT: Yes sir.
COURT: All right. It says here you are thirty-one years old and that you've finished the twelfth grade in school, that you can read and write and understand the English language; is that right?
DEFENDANT: Yes, sir.
COURT: You understand that all these indictments charge you with these crimes —
DEFENDANT: Yes, sir.
COURT: Except the burglary second, which has been reduced on motion to the DA to burglary third?
DEFENDANT: Yes, sir.
COURT: You understand that in this case you could get up to life imprisonment if you plead guilty to these five cases?
DEFENDANT: Yes, sir.
COURT: Your attorney with the DA's office has done some plea bargaining apparently and you've made some sort of a plea bargain that the DA is going to recommend a sentence to the Court; is that correct?
DEFENDANT: Yes, sir.
COURT: I want you to know that if the Court does not follow that recommendation you have a right to withdraw your pleas of guilty; do you understand that?
DEFENDANT: Yes, sir.
COURT: All right, sir. Do you understand, sir, and you've had some experience with the judicial system before, I understand.
DEFENDANT: Yes, sir.
COURT: That if you plead guilty, you give up an awful lot.
DEFENDANT: Yes, sir.
COURT: You give up the presumption that you're not guilty all through the trial. You give up the right to have the District Attorney' Office, the State, prove your guilt beyond a reasonable doubt. You give up the right to call any witnesses on your behalf. You give up a trial. You give up the right to cross-examine their witnesses. You give up the right to challenge the composition of the grand jury or petit jury from which who will try your case. You give up all these things if you plead guilty; do you understand that?
DEFENDANT: Yes, sir.
COURT: Knowing that, do you still want to plead guilty?
DEFENDANT: Yes, sir.
COURT: Are you pleading guilty because you are guilty, Mr. Powell?
DEFENDANT: I am pleading guilty because I am guilty.
COURT: Has anyone threatened you or offered you any reward or inducement or threatened anyone you're interested in in order to get you to plead guilty?
DEFENDANT: No, sir.
COURT: You understand that after this hearing you would have a right to appeal this hearing if you're not satisfied with the outcome or you felt like it wasn't fair, and if you did that, if you were indigent, we would appoint a lawyer for you and give you a free transcript of this hearing, which she's taking down now. Do you understand that?
DEFENDANT: Yes, sir.
Id., at 183-188. The Court went on to discuss sentencing:
COURT: . . . The laws of Alabama say that if you have three or more felony convictions that you sentenced is to be enhanced. And at this time, you're really only charged with a class C felony which normally would be a minimum sentence of . . . one to ten [years], that's right. But we find ourselves here because of those three felony convictions. The minimum sentence is fifteen years, and the maximum is life imprisonment; do you understand that?
DEFENDANT: Yes, sir.
COURT: All right. Are you asking the Court to allow you to enter these please of guilty to these five Class C felonies?
DEFENDANT: Yes, sir, I am.
COURT: All right. Have you gone over the Court's Exhibit One here which is your motion to enter a guilty plea with your attorney?
DEFENDANT: Yes, sir, I have.
COURT: Have you read this document?
DEFENDANT: Yes, sir, I have.
COURT: Are you familiar with it and know what it says?
DEFENDANT: Yes, sir.
COURT: Do you understand it?
DEFENDANT: Yes, sir.
COURT: Do you have any type complaint as to the way your attorney is handling this case?
DEFENDANT: No, sir.
COURT: Are you satisfied with her services?
DEFENDANT: Yes, sir.
COURT: Have you had enough time to talk with her so that you understand everything?
DEFENDANT: Yes, sir.
COURT: All right. Ms. Rander, you've assisted your client in the completion of Court's Exhibit One [Notice of intent to plead guilty]; haven't you? And are you satisfied that the plea he wishes to enter is in his best interest?
MS. RANDER: Yes, sir.
COURT: And therefore you recommend it to him and to the Court based on your professional judgment?
MS. RANDER Yes, sir.
COURT: Mr. Powell, I'm going to accept your plea of guilty to these five Class C felonies. I find that you have made your plea knowingly, and that you have done so voluntarily. The Court finds you guilty of each of these Class C felonies. . . . What's your recommendation, Ms. DA?
MS. MURPHREE: Thirty years in each case to run concurrently with each other and concurrently with the fifteen year sentence he's already serving in CC-87-1047.
COURT: All right. The Court is going to follow the recommendation of the District Attorney. Mr. Powell, you are sentenced to thirty years with the Department of Corrections in each of these cases, and that sentence will run concurrent with CC-87-1047. Good luck tyou.Id., at 188-192.
The guilty plea colloquy in this case clearly establishes that Powell was informed of the nature of the charges against him, the range of punishment, and the legal options and alternatives available to him. Based on the record and pleadings before the Court, the undersigned finds that petitioner knowingly, voluntarily, and intelligently pled guilty to two counts of third degree burglary, two counts of possession of cocaine, and one count of possession of a stolen credit card.
To establish a claim of ineffective assistance of counsel, petitioner is required to show (I) 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 standard for evaluating claims of ineffective assistance of counsel was held applicable to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
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 `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. 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. Id. See also, Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (footnote and ellipses added), cert., denied sub nom. Coulter v. Jones, 516 U.S. 1122, 116 S.Ct. 934, 133 L.Ed.2d 860 (1996). The Court addresses each of Powell's allegations of ineffective assistance in turn.
"When analyzing ineffective assistance of counsel 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).
1) Friendship/collusion between Wanda Rahman and Powell's appointed counsel.
Powell alleges in habeas ground one that Assistant District Attorney Wanda Rahman and his appointed counsel collaborated to induce him to plead guilty, in part because of a personal friendship, and conversations wherein appointed counsel breached attorney client privilege. (Doc. 2, at 3-4.) There is no evidence in the record to support plaintiff's allegation. Moreover, there is no evidence that Wanda Rahman participated in any way in petitioner's case. The Assistant District Attorney of record in Powell's case was Jo Beth Murphree, not Ms. Rahman. Petitioner has also failed to establish a logical nexus between his unsupported allegation and the possibility of an involuntary and unknowing guilty plea. Because Powell has failed to meet his burden under Strickland and Hill, the undersigned recommends that habeas ground one be DENIED.
2) Ex parte conversation
In ground two the petitioner alleges that he was denied effective assistance of counsel because the judge had a conversation with the prosecutor, on April 11, 1991, the day after petitioner's arrest, without the defendant or his counsel being present. Therefore, because his counsel did not object to the ex parte conversation, petitioner alleges that he was denied effective assistance of counsel. (See Doc. 2 at 15). Petitioner fails to inform the court how this conversation, if it in fact occurred, had any bearing on his decision to plead guilty. In other words the petitioner has failed to even allege how this conversation affected the knowing and voluntary nature of his guilty plea. Hence, ground two of Powell's petition is due to be DENIED.
3) Failure to investigate and independently test controlled substances.
In habeas ground three, Powell alleges that, but for his counsel's failure to investigate underlying facts and to have the cocaine independently tested, he would not have pled guilty. (Doc. 2 at 27.) First, the undersigned finds that Powell's issue statement is, at best, vague. Powell has not shown how an "investigation" into the facts by Powell's attorney would have changed the outcome of the guilty plea proceeding. Nor has he even alleged how an independent test of the substance would have changed the outcome of the guilty plea. In petitioner's 173 page memorandum in support of his petition, his complaint on this issue appears to be that "the state had no evidence connecting the petitioner with any controlled substance". ( Id., at 30). There is not a serious contention that the substance was not cocaine; rather the petitioner argues that the evidence was insufficient to connect him to the possession of the substance. Therefore, failure of his counsel to obtain an independent analysis of the substance, under this facts of this case, does not constitute ineffective assistance of counsel since there is no evidence that such annalysis would have affected the plea process. Furthermore, petitioner's argument that the evidence was insufficient was waived by his knowing and voluntary plea. In sum, Powell has failed to prove the first prong of the Strickland test, that his counsel's performance fell below an objective standard of reasonableness. The petitioner has not established, as he must, that his counsel's "failure to investigate facts" or to conduct independent drug tests were "errors so serious that counsel was not functioning as `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Accordingly, the undersigned recommends that habeas ground three be DENIED.
The petitioner indicated in his plea colloquy that he was "pleading guilty because I am guilty". (See Doc. 14, Exhibit B at 187).
4) Flawed indictment and failure to investigate facts of burglary conviction.
In ground four, the petitioner alleges that he was denied effective assistance of counsel because his counsel failed to note that the indictment was "flawed". Specifically, the petitioner asserts that the indictment was flawed because it alleged unlawful possession of a controlled substance "on or about January 29, 1990," and that petitioner was in prison on that date. (Doc. 2 at 36.)
As a matter of Alabama statutory law, time is not a material element to criminal offenses. Section 15-8-30 of the Alabama Code states,
It is not necessary to state the precise time at which an offense was committed in an indictment; but it may be alleged to have been committed on any day before the finding of the indictment, or generally before the finding of the indictment, unless time is a material ingredient of the offense.
ALA. CODE 15-8-30 (West 1999). See also Williams v. State, 548 So.2d 584 (Ala.Cr.App. 1988); Holmes v. State, 497 So.2d 1149 (Ala.Cr.App. 1986); Cade v. State, 521 So.2d 80 (Ala.Cr.App. 1986); McCrary v. State, 398 So.2d 752 (Ala.Cr.App. 1981); Camp v. State, Williams v. State, 348 So.2d 1101 (Ala.Cr.App. 1977); Moreover, the purpose of an indictment is to inform the defendant of the nature of the charges against him, not to prove the case beyond a reasonable doubt. Unlawful possession of a controlled substance is a crime under § 13A-12-212 of the Alabama Code:
(a) A person commits the crime of unlawful possession of controlled substance if: (1) Except as otherwise authorized, he possesses a controlled substance enumerated in Schedules I through V. (2) He obtains by fraud, deceit, misrepresentation or subterfuge or by the alteration of a prescription or written order or by the concealment of a material fact or by the use of a false name or giving a false address, a controlled substance enumerated in Schedules I through V. (b) Unlawful possession of a controlled substance is a Class C felony.
(West 1999). Cocaine is a controlled substance under Alabama law. ALA. CODE § 20-2-25. By the plain language of the statute, time is not a material element to the offense of possession of a controlled substance. Plaintiffs unconfirmed allegation that he was imprisoned on the date alleged in the indictment, does not allege an unconstitutional flaw with the indictment itself. Even assuming that the date in the indictment was incorrect, the petitioner has not shown how this affected the plas process. Therefore, the petitioner's allegation of ineffective assistance of counsel base upon the indictment is without merit. An incorrect date in the indictment is not evidence that his guilty plea was not knowingly and voluntarily entered. Accordingly, habeas ground four is due to be DENIED.
Similarly, in ground eleven petitioner alleges that "his court-appointed counsel's failure to investigate the facts and the applicable law in case number CC-91-2382 [third degree burglary] constituted ineffective assistance of counsel because the indictment was defective because it did not allege a material element of the specific offense, as time was a material element of this specific offense and was not alleged in the indictment as required by law [sic]." (Doc. 5, at 6, and Doc. 2, at 120.) Plaintiffs issue statement is incorrect as a matter of law.
Under Alabama law, "a person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein"; time is not a material element to the offense. ALA. CODE § 13A-7-7 (Michie 1999). See Holmes v. State, 497 So.2d 1149, 1152 (Ala.Cr.App. 1986). Where petitioner's underlying assumption in habeas ground eleven is fundamentally flawed, he cannot claim that his counsel was ineffective for failing to raise the issue. More importantly, petitioner cannot relate the claim to the a contention that his guilty plea was not knowingly and voluntarily entered. Accordingly, habeas ground eleven is due to be DENIED.
5) Failure to file direct appeal.
In ground five, Powell alleges ineffective assistance because no appeal was filed after Powell instructed his appointed counsel to do so. (Doc. 2 at 47.) However, failure to file an appeal after a guilty plea that was knowingly and voluntarily entered generally does not constitute ineffective assistance of counsel. Ferguson v. United States, 699 F.2d 1071 (11th Cir. 1983). In Ferguson, the Eleventh Circuit affirmed the district court's denial of a motion under 28 U.S.C. § 2255 to vacate his prison sentence where the defendant argued that his counsel's failure to appeal his conviction pursuant to a guilty plea constituted ineffective assistance of counsel. In affirming the district court's denial of the motion, the Eleventh Circuit quoted with approval the Fifth Circuit's decision in Barrientos v. United States, 668 F.2d 838 (5th Cir. 1982). The Fifth Circuit acknowledged every defendant's right to counsel through the appellate stage, stating,
In 1995 the Eleventh Circuit recognized that with the implementation of the federal sentencing guidelines, a defendant could be prejudiced if counsel failed to appeal the sentence received under the guidelines even though he pled guilty. However, the Court reiterated that the "Ferguson rule was still applicable insofar as guilt stage or guilty plea validity, issues are concerned." Montemoino v. US., 68 F.3d 416, 418 (11th Cir. 1995).
The failure of trial counsel to perfect an appeal denies a defendant an absolute right to appeal his jury conviction and, therefore, deprives him of his right to effective assistance of counsel. The considerations, however, underlying an acceptance of a guilty plea are quite different from the considerations underlying a defendant's decision to take a direct appeal from a judgment of conviction. [citation omitted.] A guilty plea, since it admits all the elements of a formal criminal charge, waives all non jurisdictional defects in the proceedings against a defendant. United States v. Jackson, 659 F.2d 73 (5th Cir. 1981); United States v. Saldana, 505 F.2d 628 (5th Cir. 1974). Absent a jurisdictional defect, a defendant usually has no right to appeal from a plea of guilty.Ferguson v. United States, 699 F.2d 1071, 1073 (11th Cir. 1983), quoting Barrientos, 668 F.2d at 842-43. Accord United States v. McFarlane, 881 F. Supp. 562, 570 (M.D.Fla. 1995) Offering a plea of guilty does not vest a defendant with a right to an automatic appeal . . . Counsel is afforded a strong presumption of effective performance. . . . Defendant's uncorroborated testimony, at this late date, alleging that he requested an appeal to be filed, without more, is insufficient [to overcome the presumption]."). In arguing that his counsel was ineffective because he failed to file an appeal, Powell has not alleged a jurisdictional flaw with his guilty plea nor has he alleged how an appeal would have changed the result. Instead, the petitioner argues that the failure of his counsel to file an appeal, thereby resulting in his loss of appeal "without more, is enough to entitle him to relief". (Doc. 2 at 55.) As stated above, in order to show ineffective assistance of counsel he must show that counsels errors were so serious that counsel was not functioning as counsel. Strickland v. Washington, at 687. The petitioner alleges that his counsel told him there was "nothing to appeal" and then summarily asserts that this was not correct. ( Id., at 50.) Petitioner has failed to show or even allege how this advice of counsel was in error. Accordingly, the undersigned recommends that Powell's habeas ground five be DENIED.
Petitioner does allege in ground twelve what facially is a jurisdictional flaw. The court addresses this in the subsection 9.
6) Alabama Habitual Felony Offender Act.
Powell asserts in ground six that his counsel failed to object at sentencing concerning the Alabama Habitual Felony Offender Act. (Doc. 2 at 62.) However, the transcript of the December 3, 1991, belies petitioner's assertions. An examination of the record shows that the Court stopped the proceedings to afford petitioner's counsel the opportunity to review the certified copies of several prior felony convictions which the state was using for sentencing enhancements. After review and apparently after consultation with Powell, petitioner's counsel took issue with a manslaughter conviction, which she argued was erroneously attributed to the petitioner. Even when the manslaughter conviction was ruled out, petitioner's counsel and petitioner agreed that petitioner had three prior felony convictions, and the following exchange took place:
THE COURT: All right. We're going to let our record show, and correct me if I'm wrong, that Mr. Powell and his attorney stipulates that Mr. Powell has three or more previous felony convictions —
MS. RANDER: Yes, sir.
THE COURT: — that are applicable in sentencing him today on his new charges here; is that correct?
DEFENDANT: Yes, sir.
THE COURT: All right. And we'll put in the record those charges that you have, Ms. DA, and please note that one of them — and which one is that?
MS. MURPHREE: Manslaughter.
THE COURT: The Defendant denies that that was his case; is that correct?
DEFENDANT: Yes, sir.
THE COURT: But the rest of them, you admit, were yours?
DEFENDANT: Yes, sir.
(Doc. 14, Exhibit B, at 182-183.) Given the defendant's own admissions concerning his prior felony convictions at sentencing, the undersigned finds no basis for Powell to allege ineffective assistance of counsel due to an alleged failure to object concerning application of the Alabama Habitual Felony Offender Act. Under the facts presented, the undersigned finds that counsel's performance concerning the Habitual Felony Offender Act certainly fell within the objective standard of reasonableness contemplated by Strickland. Petitioner has not met his burden on the first prong of Strickland, and the undersigned recommends that habeas ground six be DENIED.
7) Counsel misled petitioner as to sentencing range.
Powell alleges in ground seven that his counsel misled him as to the range of sentence which he was facing without a guilty plea, and that his plea was therefore not knowingly and voluntarily entered. (Doc. 2 at 78.) The record refutes Powell's assertion that he was misled as to sentencing range. At the guilty plea hearing, the Court correctly advised Powell with input from the District Attorney that a class C felony conviction normally required a sentence of one to ten years. (See ALA. CODE § 13A-5-6 (Michie 1999).) The Habitual Felony Offender Act, however, required an enhanced sentence, as the Court explained to Powell. "But we find ourselves here because of those three felony convictions. The minimum sentence is fifteen years, and the maximum is life imprisonment; do you understand that?" (Doc. 14, Exhibit B, at 188.) The Court accurately summarized the sentences which petitioner faced under the Habitual Felony Offender Act: 15 years to life imprisonment. (See ALA. CODE § 13A-5-9 (Michie 1999)). In light of the explicit recitation by the court of the sentencing range applicable to the petitioner, petitioner has failed to show that counsel's failure to give correct information, even if true, resulted in any prejudice to him. Petitioner was clearly made aware of the sentencing range that he was facing. Petitioner has not met his burden to show ineffective assistance of counsel. Accordingly, habeas ground seven is due to be DENIED.
8) Failure to raise Fourth Amendment claims.
Powell alleges in ground ten that his appointed counsel failed "to recognize [petitioner's] valid Fourth Amendment claims, among others, that should have been raised at the arraignment or within twenty days after the arraignment granted by the trial court for special motions." (Doc. 2 at 111, Doc. 5 at 5.) The Court addresses the issue, only to the extent that issue ten raises a claim of ineffective assistance of counsel.
Petitioner's brief in support of the habeas petition argues that "the merits of the underlying Fourth Amendment claims will have to be litigated to determine prejudice (Doc. 2, at 111.) Where there is no allegation that the state denied petitioner an opportunity for presentation, this Court will not address Fourth Amendment claims on habeas review. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 40 L.Ed.2d 1067 (1976); see Bradley v. Nagle, 212 F.3d 559, 564-65 (11th Cir. 2000).
Powell's argument in support of habeas ground ten is, at best, vague. Petitioner states that his arraignment was "fundamentally unfair"; that his counsel failed to challenge arrest warrants and the fact that there was no probable cause; that petitioner would have "prevailed" if his counsel had pursued Fourth Amendment claims; that counsel should have investigated the "circumstances of the cases and to explore all avenues leading to facts relevant to the merits of the case." (Doc. 2, at 111, 112.) Once again, the petitioner has failed to meet the first prong of the Strickland In general, petitioner's statements are conclusory and lack substance. For instance, Powell has failed to specify what Fourth Amendment claims his counsel failed to raise. But more importantly, the petitioner has not established that the alleged failure to raise Fourth Amendment claims rendered his plea unknowing and involuntary. The Court cannot reconcile Powell's argument in habeas issue ten with the record at the guilty plea hearing, which clearly establishes that Powell entered a guilty plea of his own free will and after being fully informed of his options and the sentences he was facing. The Court therefore recommends that habeas ground ten be DENIED.
Powell cites some examples of error, but they do not relate to claims of illegal search and seizure under the Fourth Amendment, which his attorney should allegedly have raised. Powell alleges that an investigation would have revealed that "a white male was accused of the [third degree burglary] crime in case 991-2382"; petitioner was incarcerated at the time of one of the possession charges; the arresting officer was allowed to sign the arrest warrant and "to be the sole complatant [sic]"; and in the possession counts, "there was no evidence that any substance had been obtained from the person of the petitioner, nor had there been any test of what the substance actually was." (Doc. 2, at 113.)
9) Jurisdiction of the trial court
Petitioner alleges in ground twelve that his counsel was ineffective because she failed to investigate the facts and discover that the trial Judge was a District Judge and not a Circuit Judge and therefore he lacked jurisdiction over this case. Contrary to petitioner's assertion, Rule 13 of the Alabama Rules of Judicial Administration provide for precisely such an assignment:
Temporary Assignment of Judges and Other Court Personnel
( A) The presiding circuit judge may temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit. ( B) Assignments of judges by the presiding circuit judge shall be in writing and shall be sent to the assigned judge as soon as practicable . . . .
ALA.R.JUD.ADMIN. 13 (West 1999). The record contains the September 5, 1991, December 4, 1991, March 4, 1992, and May 11, 1992, orders of Presiding Circuit Judge Braxton Kittrell, designating Judge Layden and others as Circuit Judges on a temporary basis, consistent with Rule 13. (Doc. 1, Exhibit 15.) Since it was not error for Judge Layden to sit as a Circuit Judge, petitioner's allegation of ineffective assistance of counsel for failure to discover this alleged error is without merit and is due to be DENIED.
10) Ineffective assistance on May 5. 1992.
In ground sixteen, petitioner asserts a "constructive denial of counsel altogether at his resentencing hearing of May 5, 1992" because his counsel's "admitted total lack of preparedness on May 5, 1992, was equivalent to not testing the prosecution's case at all and it tantamount to no counsel at all and calls for a presumption of unreliability." (Doc. 5, at 8.) There is no transcript of the May 5, 1992, hearing in the record. However, petitioner included as an exhibit to his petition a letter from D.E. Brutkiewicz, Jr., his counsel at the May 5, 1992, hearing, to the Alabama State Bar regarding a complaint lodged by petitioner. (Doc. 1, Exhibit 17.) Mr. Brutkiewicz stated,
As you can see from the complaint of the petitioner, I was directed by the District Court Judge to "stand in" to represent the petitioner without having any prior warning that I was representing the gentleman and without any adequate time to investigate the case being presented against Mr. Powell.Id.
As recounted earlier, the sentencing judge scheduled a hearing for May 5, 1992, on defendant's outstanding motions, including motions to reduce sentence nunc pro tunc. Arguably, petitioner may have met his burden under the first prong of the Strickland test, for an attorney who is pressed into representation at the last minute, with no notice and no opportunity to prepare, cannot function effectively as counsel. However, Powell's ineffective assistance of counsel claim regarding the May 5, 1992, hearing still fails because the petitioner can show no prejudice that resulted (as to the cases at issue in this petition) from an alleged deficient performance at that hearing. Indeed, the result of the hearing was an order in Powell's favor, issued by Judge Layden on June 2, 1992, which amended the sentencing orders on Powell's December 3, 1991, guilty plea to conform with the terms as set out in that hearing. The order clarified that Powell's guilty plea in case CC9I-2383 was to a charge of third degree burglary, amended from second degree burglary on the motion of the state. (Doc. 1, Exhibit 18, at 2.) Furthermore, the order clarified that the 30 years sentences on all five convictions were to run concurrently with Powell's sentence in case CC-87-1047. Id Where Judge Layden's order corrected earlier errors in plaintiffs sentences, he cannot show prejudice under the second prong of Strickland.
Petitioner's probation on criminal case CC 87-1047 was revoked at this same hearing. However, petitioner's custody pursuant to a conviction or revocation in criminal case CC 87-1047 is not before this court in the current habeas petition. 1991. Accordingly, petitioner's claim sixteen is due to be DENIED.
The Court has addressed the question of ineffective assistance of counsel as alleged in ground sixteen out of an abundance of caution, because his counsel at that hearing was clearly unprepared. However, the undersigned must also note that habeas ground sixteen, relating as it does to a hearing to correct clerical errors after the sentence was pronounced, in no way raises a claim that petitioner's guilty plea was not knowingly and voluntarily entered on December 3,
PETITIONER'S REMAINING CLAIMS
The Supreme Court explained the narrow scope of relief available to a habeas petitioner in Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). In Mabry, the Court stated,
It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. It is also well settled that plea agreements are consistent with the requirements of voluntariness and intelligence — because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we stated the applicable standard:
"`[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).'" Id., at 755, 90 S.Ct., at 1472 (quoting Shelton v. United States, 246 F.2d 571, 572, n. 2 (5th Cir. 1957) (en banc) (in turn quoting 242 F.2d 101, 115 (Tuttle, J., dissenting to panel opinion)), rev'd on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).Mabry, 467 U.S. at 508-509 (footnotes 7 and 8 retained). The Court now turns to petitioner's remaining claims, analyzed under the narrow scope of review set out above.
See Tollett v. Henderson, 411 U.S. 258, 266-267, 93 S.Ct. 1602, 1607-1608, 36 L.Ed.2d 235 (1973); North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); Parker v. North Carolina, 397 U.S. 790, 797-798, 90 S.Ct. 1458, 1462-1463, 25 L.Ed.2d 785 (1970); McMann v. Richardson, 397 U.S. 759, 772, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 747-748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). See also Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); Menna v. New York; 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam).
See Corbitt v. New Jersey, 439 U.S. 212, 219-220, 222-223, 99 S.Ct. 492, 497-498, 499, 58 L.Ed.2d 466 (1978); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978); Blackledge v. Ahison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136 (1977); Santobello v. New York, 404 U.S. 257, 260-261, 92 S.Ct. 495, 497-498, 30 L.Ed.2d 427 (1971). For example, in Brady v. United States, [the Supreme Court] wrote: "For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages — the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury." 397 U.S., at 752, 90 S.Ct., at 1471 (footnotes omitted).
1. Consecutive/Concurrent Sentence
In ground eight, petitioner alleges that his sentence violates the plea agreement because his sentence for the CC9I-2383 second degree burglary charge was incorrectly entered as consecutive and not concurrent. This issue is at best moot. Judge Layden held the May 5, 1992, hearing to correct this typographical error in petitioner's recorded sentence. Judge Layden's then issued a June 2, 1992, "Order reimposing sentence to accurately reflect plea bargain agreement" which correctly stated that petitioner's sentences in the five Class C felonies to which he pled guilty in December, 1991, were to be served concurrently. (See Doc. 1, Exhibit 18, at 2.) The sentencing order conforms to the plea agreement as reflected in the transcript from the December 3, 1991, hearing as recounted above. Therefore, there is no factual basis for petitioner's assertion that a consecutive sentence was imposed in violation of the plea agreement. Petitioner cannot therefore claim that a consecutive sentence has rendered his plea unknowingly and involuntarily.
Finally, the remaining issues raise non-jurisdictional issues which are not appropriate for federal habeas review of a guilty plea or which fail to state a claim.
2. Sentence termination
Petitioner argues in ground nine that, because his five 30-year sentences in cases 91-2382 through 2386 were ordered served concurrent with his sentence in 87-1047, that the five 1991 sentences should have terminated when the circuit court concluded that petitioner had served his time on the 97-1047 conviction. (See Doc. 2, at 105.) Petitioner's issue statement is without merit. The undersigned can find no basis in law to support the claim that petitioner's completion of his 1987 sentence terminated petitioner's remaining five concurrent thirty-year sentences for his 1991 convictions. Under Alabama law, "the question of whether a sentence for conviction of a crime is to be consecutive or concurrent is within the sound discretion of the trial judge." McLeMore v. State, 562 So.2d 639, 650 (Ala.Cr.App. 1989), citing Clift v. State, 352 So.2d 838 (Ala. 1977). Moreover, "the length of the sentence of a convicted criminal under state law is, without more, not a matter of federal constitutional concern and hence not a matter cognizable under federal habeas corpus." Willeford v. Estelle, 538 F.2d 1194, 1196 (th Cir. 1976). Petitioner's habeas ground eight has not raised a cognizable claim and is due to be DENIED.
In his June 3, 1991, order, Judge Layden, while correcting petitioner's sentences in the 2383 through 2386 cases, revoked petitioner's probation on his 87-1047 sentence. In an order dated April 15, 1996, Circuit Judge Robert Byrd reversed Judge Layden's order as it applied to the 87-1047 case. Judge Byrd concluding that "the sentence originally imposed in that case [87-1047], 15 years, split 3 years to serve with the balance suspended for 5 years, has now been completely satisfied by the Defendant." (Doc. 1, Exhibit 7, at 2.) Petitioner believes that this order somehow terminated, or should have terminated his five thirty-year sentences for cases CC91-2382 through 2386.
3. Burglary Charge
In ground thirteen, petitioner alleges that he "was allowed to plead guilty in case 91-2383 to a charge of third degree burglary, but the charge was never actually changed until some six years later." (Doc. 2, at 133.) As a result, petitioner alleges that he served "a sentence for a higher or greater offense than he was actually convicted of". Id. This statement is factually inaccurate. The state amended the second degree burglary charge to a third degree burglary charge at the guilty plea hearing with the consent of petitioner and his counsel. (Doc. 14, Exhibit B, at 188-192.) Subsequently, the docket sheet in case 91-2383 erroneously listed the guilty plea as a plea to third degree burglary. However, Judge Layden corrected the error in his June 1992 order:
[I]t is the opinion of this Court that the petitioner was and is sentenced to thirty (30) years in the penitentiary in each of the following cases . . . (b) CC91-2383, charging Burglary II, but amended by the State to charge Burglary III".
(Doc. 1, Exhibit 18.) Habeas ground thirteen does not allege that petitioner's guilty plea was unknowingly and involuntarily entered. And because the underlying facts do not support petitioner's assertion, he cannot establish a cognizable habeas claim. Habeas ground thirteen is due to be DENIED.
4. Length of Sentence
On February 27, 1992, the following order was entered and signed by Judge Layden on the docket sheet of cases CC91-2382 through 2386:
The order of December 3, 1991 is in need of amendment due to clerical error and is ordered amended as follows: "The sentence in this case is to run concurrent with any other time the defendant is presently serving". All other aspects of the order are to remain the same.
(Doc. 14, Exhibit A, at 3, 14, 25, 35, 45.) Petitioner alleges in habeas ground fourteen that this correction, in petitioner's favor, somehow "changed petitioner's total sentence to 45 years rather than the 30 years that was agreed to, because petitioner already had a fifteen year earlier consecutive sentence at that time in case number 87-1047." (Doc. 2, at 137.) The statement is nonsensical; the clear purpose of the February 1992 order was to ensure that all six of petitioner's sentences were served concurrently. But more importantly, petitioner's issue fourteen does not allege an injury under the federal Constitution. The sentencing issue presented is not cognizable on federal habeas review and is therefore due to be DENIED. Willeford v. Estelle, 538 F.2d 1194, 1196 (th Cir. 1976).
5. Oral Pronouncement of Sentence
In ground fifteen, petitioner alleges that "there was no oral pronouncement of the sentence on May 5, 1992, that the written order of June 2, 1992, purports to be evidence of [sic]. Consequently, petitioner does not have any valid sentence and conviction at this time." (Doc. 2, at 143.) First, the undersigned is unable to discern petitioner's statement of his issue. The June 2, 1992, order notes that petitioner "was and is sentenced" to 30 years on each of the five felony counts. (Doc. 1, Exhibit 18, at 2.) The order was not a resentencing but rather a correction of a typographical error. More importantly however, the Court rejects habeas ground fifteen because it does not state a cognizable claim. Petitioner's unconfirmed notion that the June 2, 1992, order did not relate to an "oral pronouncement" at the May 1992 hearing does not state a constitutional defect. Hence, ground fifteen is due to be DENIED.
6. Judge's Authority to issue June 2. 1992. Order.
The petitioner alleges in habeas ground seventeen that Judge Layden "had no jurisdiction to enter an order . . . resentencing the petitioner on June 2, 1992, . . . and said resentencing order is therefore illegal and void on its face." (Doc. 2 at 154.) The lawful jurisdiction of District Judge Layden, sitting by designation of the presiding Circuit Judge pursuant to Rule 13 of the Alabama Rules of Judicial Administration, has already been discussed. The Court is at a loss to understand petitioner's claim that a duly authorized judge may not correct a clerical error in a sentencing order. The petitioner has failed to state a cognizable claim, and habeas ground seventeen is due to be DENIED.
7. Illegal Sentence
In ground eighteen petitioner asserts "that the sentencing order of June 2, 1992, is rendered illegal by its being ambiguous, self-contradictory, and erroneous." (Doc. 2 at 158.) Petitioner's rationale underlying these assertions is at best confusing. The June 1992 order seems quite clear (see Doc. 1, Exhibit 18); the state court ordered the sentences to be run concurrent. This Court rejects petitioner claim because it relates only to questions of state law as to whether the sentence is concurrent or consecutive; there is no cognizable habeas claim on this sentencing question. Willeford v. Estelle, 538 F.2d 1194, 1196 (5th Cir. 1976). Even if petitioner had stated a cognizable claim (which he has not), it would be a non-jurisdictional claim beyond the scope of habeas review available to petitioner following his guilty plea. Accordingly, ground eighteen is due to be DENIED.
Petitioner characterizes the June 1992 order as stating that "the sentence in case 87-1047 is to run concurrently with the sentences in these instant underlying cases, leaving it unknown which sentence is consecutive, and/or rendering one or more of the sentences in these instance underlying cases as consecutive, which is in violation of the plea agreement. . . . [W]e cannot know for sure whether case number 87-1047 or one or more of the sentneces in these instant underlying cases is consecutive, since the order . . . makes all of them concurrent in one place and immediately in another places makes one or more of them consecutive." Doc. 2, at 158-159.
8. Re-Sentencing
In ground nineteen, petitioner asserts "that it is implicit in the order of June 2, 1992, . . . purporting to resentence petitioner in these instant underlying cases that there was a finding of a violation of the plea agreement," which somehow entitled petitioner to resentencing by a different judge. (Doc. 2, at 163, 64.) This ground is due to be DENIED for failure to state a cognizable federal habeas corpus claim.
9. Absence from Re-sentencing
In ground twenty, petitioner characterizes the June 2, 1992, order as a "resentencing," for which he should have been present, and he alleges that his absence from this so-called resentencing is "so outrageous that it is fundamentally unfair and inherently results in a complete miscarriage of justice that is shocking to the universal sense of justice." (Doc. 2, at 166.) As explained above, the petitioner was not resentenced rather the June 2, 1992, order corrected the erroneous Written order that had stated that petitioner's sentence was to be consecutive rather than concurrent. Ground twenty is due to be summarily DENIED for failure to state a habeas claim.
10. Re-sentencing
In ground twenty-one, petitioner asserts that "the order of June 2, 1992, unlawfully modifies and enlarges the judgment or judgment record to express things which the court did not pronounce at original sentencing on December 3, 1991, . . . and things that are definitely not a part of the plea agreement. Thus, the order . . . constitutes a totally new and different sentence than the original sentence imposed on petition in these instant underlying cases" which purportedly subjects him to double jeopardy. (Doc. 2 at 169). Again the undersigned is unable to discern how correcting a clerical error which resulted in the petitioner's sentences in these cases running concurrent, as was stated at his guilty plea hearing, resulted in a violation of due process to petitioner. As with ground twenty, petitioner's habeas ground twenty-one is due to be summarily DENIED for failure to state a cognizable federal habeas claim.
CONCLUSION
The undersigned has reviewed all of petitioner's habeas claims and recommends that the petition be DENIED.