United States Court of Appeals,
Eleventh Circuit.
No. 94-6181.
Charles Ray CLENCY, Petitioner-Appellee,
v.
John E. NAGLE, Attorney General of the State of Alabama,
Respondents-Appellants.
Charles Ray CLENCY, Petitioner-Appellee,
v.
John E. NAGLE and State of Alabama, Respondents-Appellants.
Aug. 4, 1995.
Appeal from the United States District Court for the Northern
District of Alabama. (Nos. CV 91-N-889-S, CV 91-N-2167-N), Edwin L.
Nelson, Judge.
Before KRAVITCH, ANDERSON and EDMONDSON, Circuit Judges.
PER CURIAM:
The State of Alabama appeals the district court's order
granting petitioner habeas corpus relief and ordering resentencing
on a 1981 conviction without the consideration of two prior
convictions.
In 1981, petitioner, Charles Ray Clency, was convicted in
Alabama state court of robbery. Under Alabama law, a defendant
with three prior felony convictions may be sentenced to life
imprisonment without parole. Because petitioner had four prior
felony convictions, the district court enhanced petitioner's
sentence to life without parole.
In 1991, petitioner filed two separate habeas corpus petitions
attacking two of the prior convictions used to support the
enhancement. The first petition, case number 91-P-0889-S, attacks
the validity of a 1965 conviction for grand larceny on the ground
that it was not his conviction, but that of his brother, Charlie
Ray Clency, Jr. In the second petition, case number 91-N-2167-S,
petitioner attacks a 1974 conviction for assault, claiming it was
based on an invalid, "uncounseled" guilty plea.
According to state records, Clency pled guilty to assault with
intent to rob in 1974. He never appealed the conviction. In his
petition for the writ of habeas corpus, Clency claims that he
1
entered the plea without the assistance of counsel. The State
produced an Ireland form, the document used in the State of Alabama
to enter a guilty plea, which was signed by Clency and his attorney
and date stamped February 12, 1974. Nevertheless, at an
evidentiary hearing conducted before a magistrate judge, petitioner
testified that he and his attorney, Mr. Calhoun, signed the plea
form in June 1973, but did not enter a plea at that time. Instead,
he testified that his plea was entered in February 1974, that the
plea was taken in the hall of the courthouse, and that only he,
Judge Gibson, and an unidentified bailiff were present. According
to Clency, no lawyer was present during the plea.
Mr. Calhoun testified that, although he recalls representing
Clency in a 1973 robbery case that was tried to a jury and which
resulted in Clency's conviction, he does not remember representing
petitioner after sentencing in that case on April 17, 1973.
Calhoun specifically testified that he does not recall representing
1
Petitioner brought this same claim in a 1990 state court
habeas corpus petition. The state court examined the plea
agreement and, finding no problems on its face, dismissed the
petition.
Clency on the 1974 assault charge and cannot check his files:
Calhoun's office has been destroyed by a tornado.
Petitioner waited over seventeen years from the date of his
guilty plea before filing his petition for habeas corpus relief.
The State argued that the delay in filing the petition prejudiced
its ability to respond to petitioner's claims. So, the State moved
for dismissal of the habeas petition under Rule 9(a). According to
the State, both the judge and the clerk who signed the plea
agreement had died by the time petitioner filed his claim; and, no
way, at this late date, exists to identify the bailiff allegedly
present during the uncounseled plea. So, the State argued that the
unavailability of witnesses to either the plea agreement or the
alleged meeting in the hall constitutes prejudice.
The magistrate judge consolidated the petition for relief
against the 1974 conviction with the petition for relief against
the 1965 petition and recommended granting both. On the 1965
conviction, the magistrate concluded that the conviction involved
Clency's brother. On the 1974 conviction, the magistrate credited
petitioner's testimony and determined that the plea was
uncounseled. The magistrate also concluded that the State had
shown no prejudice because no evidence suggested the State was
unable to identify the bailiff and because the State had not
explained the absence of a transcript of the plea proceedings. The
district court adopted the recommendation and ordered resentencing
on the 1981 robbery conviction without consideration of the 1965
and 1974 convictions.2
Under Rule 9(a), a district court may dismiss a petition for
the writ of habeas corpus upon a showing that (1) the state has
been prejudiced in its ability to respond to the petition, (2) the
prejudice resulted from the petitioner's delay in filing the
petition, and (3) the petitioner has not acted with reasonable
diligence as a matter of law. Hill v. Linahan, 697 F.2d 1032,
1035-36 (11th Cir.1983). We review the lower court's finding that
the State has failed to show prejudice under the clearly erroneous
standard. LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir.1988).
According to petitioner, only three people were present when
he entered his guilty plea: Judge Gibson, an unidentified bailiff,
and himself. Judge Gibson died in March 1986, over twelve years
after petitioner entered his guilty plea. Petitioner testified
that he cannot identify the bailiff, and the record indicates that
more than one bailiff worked with Judge Gibson. Mr. Calhoun can
provide no enlightenment as he cannot recall representing
petitioner in the plea, and his records have been destroyed.
In the light of these facts, the lower court's finding that
the State has shown no prejudice is clearly erroneous. First,
contrary to the lower court's finding, the State explained that
because petitioner did not appeal his conviction no transcript of
the plea proceedings was made. And, a showing of prejudice does
2
Following oral argument before us the State of Alabama
conceded that the 1965 grand larceny conviction involved Clency's
brother and agreed to expunge the conviction from Clency's
record. So, we will address only the lower court's order
requiring resentencing without considering the 1974 assault
conviction.
not require a showing of the State's complete inability to identify
the bailiff. That the bailiff might still be living and might have
some recollection about petitioner's plea does not mean the State
failed to show prejudice. That there is one possible witness that
has not been categorically accounted for as unavailable prevents
the State, in no way, from satisfying its burden of showing a
particularized prejudice.
The State has shown that it has been disadvantaged. In this
case, the State has shown an inability, or at least substantial
difficulty, in presenting the only people, except petitioner,
alleged to have been present for his plea. The absence of these
key witnesses renders almost impossible the State's effective
cross-examination of petitioner about the plea proceeding and rules
out the likelihood of a rebuttal witness to counter petitioner's
story. Under the facts of this case, the State has demonstrated
sufficient prejudice to invoke the dismissal permitted by Rule
9(a). Thomas v. Dugger, 846 F.2d 669 (11th Cir.1988) (state's
inability to conduct effective cross-examination of petitioner's
witnesses constitutes prejudice). See Baxter v. Estelle, 614 F.2d
1030 (5th Cir.1980) (petition dismissed under Rule 9(a) when 15
year delay, judge dead, no transcripts, and identity of police
involved unknown); Mayola v. Alabama, 623 F.2d 992 (5th Cir.1980)
(prejudice found in 11 year delay when witnesses dead, unavailable,
or have impaired recollection, and court reporter's notes lost).
Since the time of his plea in 1974, petitioner knew or should
have known of the facts underlying his claim and of his
constitutional right to the assistance of counsel. Nonetheless,
petitioner waited over seventeen years before filing his claim for
habeas relief. Petitioner argues that he could not have brought
his claim any earlier because he "needed some kind of evidence to
bring before the court." Petitioner seems to refer to Mr.
Calhoun's affidavit in which the attorney states that he cannot
recall representing petitioner in the plea entry. But, as
petitioner stated, in the years following his conviction he never
attempted to contact Mr. Calhoun until 1990 when Mr. Calhoun filed
the affidavit. Nothing suggests that it would have been impossible
for petitioner to locate Mr. Calhoun before 1990. In the light of
these facts, we have no difficulty finding that the seventeen year
delay in filing was unreasonable. See Baxter, 614 F.2d at 1034
(delay unreasonable when petitioner waited 15 years to file for
relief and when petitioner had knowledge of facts and rights during
the delay); Henson v. Estelle, 641 F.2d 250, 253 (5th Cir.1981)
(dismissal proper when petitioner knew all facts in connection with
guilty plea entered 18 years before filing 1978 petition for
federal relief).
In summary, the State has shown that petitioner delayed in
filing his claim for habeas relief, that the State was prejudiced
by the delay, and that petitioner did not act with reasonable
diligence. So, petitioner's claim for relief against the 1974
conviction is dismissed under Rule 9(a). To be entitled to
resentencing, petitioner must succeed on both of his petitions for
the writ of habeas corpus. Because we conclude that petition
number 91-N-2167-S must be dismissed, the order of the district
court requiring resentencing is VACATED.
VACATED and REMANDED for Dismissal of the Petition.