Allen v. State of Ala., 82-7290

• Decision Date: 02 April 1984
• Docket Number: No. 82-7290,82-7290
• Citation: 728 F.2d 1384
• Parties: James ALLEN, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1384

728 F.2d 1384

James ALLEN, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 82-7290.

United States Court of Appeals, Eleventh Circuit.

April 2, 1984.

Rehearing Granted in Part and Denied in Part May 21, 1984.

N.P. Callahan, Jr. (Court Appointed), Birmingham, Ala., for petitioner-appellant.

Thomas R. Allison, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, Chief Judge, RONEY and SMITH ^*, Circuit Judges.

GODBOLD, Chief Judge:

In this habeas case we must decide whether a remand is necessary for an evidentiary hearing on whether petitioner Allen waived his right to a direct merits appeal in state court. If on remand the district court finds Allen entitled to an out of time appeal, he desires to present only one issue to the state appellate court. After picking our way through a procedural maze we conclude that the case must be remanded for an evidentiary hearing.

I. Factual and Procedural History

Allen is an Alabama prisoner serving a life sentence for first degree murder. After conviction at a jury trial Allen filed an appeal that he subsequently withdrew. Neither party disputes that he withdrew the appeal on the advice of counsel. Allen then filed a coram nobis petition in the trial court. He alleged the grounds set out in the margin. ¹ He did not include the waiver of appeal issue. The coram nobis court held an evidentiary hearing presided over by the merits trial judge; Allen was the only witness. During cross-examination he was questioned about the voluntariness of the withdrawal of his appeal.

Q Were you advised of this Court, at any time, that you had forty-two days to file an appeal?

A I didn't get a form of--

Q Did the Judge advise you in person, and orally, that you had a right to appeal; that you had forty-two days in which to do it?

A He did.

Q And did you appeal it?

A I did.

Q You filed an appeal?

A Right; and withdrew it.

Q Oh, I see. And you withdrew it on your own.

A Right.

Q Okay.

A Because, let the record show this: that you and my attorney made a deal between ya'll two, without my knowledge, and he brought it to me. There's nothing in the transcript where I had no knowledge of knowing whether--what was said or what wasn't said.

Record at 36-37. At the conclusion of the hearing the court ruled:

Now, after hearing the evidence and based on my recollection of what happened in the trial of the case, I find that you received a fair trial; I find that you had competent counsel; I find that the procedures were in accordance with the laws of the State of Alabama; that you knowingly withdrew your appeal in this case after you had discussed this matter with Mr. Coplin who was your attorney; therefore, I deny your Petition for Writ of Error Coram Nobis in this case.

Record at 41. This ruling was appealed to the Alabama Court of Criminal Appeals where it was affirmed without opinion.

Allen subsequently filed a federal habeas petition in which he raised nine of the claims he had asserted before the coram nobis court. See supra note 1. He also substituted for a previous claim the claim that "he did not have a fair trial in that he was concoursed [sic] into not [filing] an appeal." See Record at 13. The petition was referred to a magistrate. In the record before him was a letter dating from the period during which Allen could have appealed. This letter, from prosecutor Watkins to defense counsel Coplin, set out an arrangement whereby a pending assault charge would be nolle prossed if Allen did not appeal his murder conviction. Record at 105; see also id. at 64. The magistrate directed the state to obtain affidavits from Watkins and Coplin concerning any favorable agreement that might have been reached involving Allen's withdrawal of his appeal.

Coplin's affidavit stated that

[t]he District Attorney ... made the recommendation that he would recommend to the trial judge that the charge of assault with intent to murder be dismissed if the defendant did not appeal his conviction of murder in the first degree. Mr. Allen agreed to this arrangement and the charge of assault with intent to murder was dismissed after his appeal time had run in the murder case. The Defendant received favorable treatment on the assault with intent to murder charge because he agreed not to appeal his murder conviction.

Record at 110. In his affidavit the prosecutor said that he had written a letter to Coplin stating "that if no appeal was filed in the Murder case that I would Nolle Pros the Assault with Intent to Murder case against James Allen." Record at 111.

In response to these affidavits Allen submitted a statement saying that he had gone along with his attorney's advice to waive his right to an appeal but had done so without full understanding of his rights, and that his waiver had not been knowingly and intelligently made. Allen stated that his attorney had advised him that he could file motions and petitions raising his claims at a later date even if he withdrew his appeal, that he trusted his attorney and relied on this representation, and that his attorney either had misled him or had been incompetent in giving him this advice. Record at 116-17.

On the basis of these affidavits and the rest of the record the magistrate recommended that the petition be denied. He stated that the claim of denial of right to appeal was

at best, specious. The record clearly reflects that Allen agreed to an arrangement which gained him favorable treatment on a companion charge of assault with intent to murder in return for his agreement not to appeal the murder conviction. Now that he has gained the advantage of the arrangement he seeks to renege on the obligation. The record clearly shows that he was not coerced but willingly agreed to forego an appeal.

Record at 136-37. With respect to all other claims he concluded that they had been exhausted and were frivolous and without merit.

Allen filed an objection to the magistrate's recommendations. The district court did not specifically adopt the magistrate's recommendations but rather "[i]n accord with the Report and Recommendation heretofore entered by the magistrate" and "the matter having been considered de novo," denied relief.

On appeal the petitioner urges the waiver of appeal issue. At oral argument petitioner's counsel conceded that, if given an out of time appeal, the only substantive issue he desired to challenge on that appeal would be a communication between the trial judge and jury that had occurred at petitioner's trial. While the jury was deliberating it sent a note to the judge, to which he responded in writing, all outside the presence of petitioner (or his counsel) and without his knowledge or opportunity to participate or object. If, on remand, the district court should find Allen entitled to an out of time appeal, all issues other than the jury communication would be considered waived. Thus petitioner's right to challenge the trial court's communication with the jury is contingent upon whether he prevails on his claim that he was coerced into waiving his appeal.

All of the other issues raised and decided in the district court stand affirmed. Petitioner attempts to raise one new issue on appeal, that the coram nobis court unconstitutionally denied him a transcript of his murder trial. It is not the practice of this court to consider issues on appeal that were not raised in the district court. Stephens v. Zant, 716 F.2d 276 (5th Cir.1983) (former Fifth Circuit case); see Cobb v. Wainwright, 666 F.2d 966, 968 n. 1 (5th Cir. Unit B), cert. denied, 457 U.S. 1107, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); Spivey v. Zant, 661 F.2d 464, 477 (5th Cir. Unit B 1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982). If the district court finds on remand, however, that Allen did not waive his right to an appeal, his remedy is an out of time appeal, for which Alabama law would provide him a transcript if he is indigent.

II. Exhaustion of State Remedies

Although Allen did not allege the waiver of appeal issue in his coram nobis petition, exhaustion is not a stumbling block in this case. Under 28 U.S.C. Sec. 2254(c) (1976),

[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

In this circuit futility of exhaustion is an exception to the exhaustion requirement of 28 U.S.C. Sec. 2254(b) (1976). See Westbrook v. Zant, 704 F.2d 1487, 1492-94 (11th Cir.1983); Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983); see also Thompson v. Wainwright, 714 F.2d 1495, 1501-03 (11th Cir.1983) (discussing futility of exhaustion as one category of cases in which the state may waive exhaustion). In its brief the state concedes that, in accordance with Waldon v. State, 284 Ala. 608, 609, 227 So.2d 122, 123 (Ala.1969), a detour back to state court for litigation of this claim would be futile for Allen. The coram nobis court specifically ruled that Allen "knowingly" waived his appeal; another petition for a writ of error coram nobis based on this claim could be dismissed on the state's motion. See Waldon, 284 Ala. at 609, 227 So.2d 122. Further resort to state remedies by Allen would be futile, and the exhaustion requirement is therefore satisfied on this claim. ²

III. Procedural Default

The state contends that Allen waived his direct appeal and that this is a procedural default barring this court from reaching the merits of his claim. The state's contention is misplaced, since the very issue before us is whether Allen is entitled to an evidentiary hearing to show that he did not waive his merits appeal. The presence or absence of a procedural default is...