Nelson v. Hargett

• Decision Date: 04 May 1993
• Docket Number: No. 92-7132,92-7132
• Citation: 989 F.2d 847
• Parties: Willie James NELSON, Petitioner-Appellant, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 847

989 F.2d 847

Willie James NELSON, Petitioner-Appellant, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, Respondent-Appellee.

No. 92-7132

Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 4, 1993.

Willie James Nelson, pro se.

W. Edward Hatten, Jr., Asst. Atty. Gen., JoAnne McLeod, State's Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for respondent-appellee.

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

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Petitioner Willie J. Nelson is currently in the custody of the Mississippi Department of Corrections. He received a thirty year prison sentence in November 1988 after pleading guilty to the charge of selling cocaine. After Nelson's application for post-conviction relief was denied by the Lowndes County Circuit Court and Mississippi Supreme Court, see Nelson v. State, 576 So.2d 1270 (Miss.1991), he filed this § 2254 petition in U.S. District Court for the Northern District of Mississippi on July 1, 1991, contending that: (1) the indictment returned by the grand jury was defective; (2) his sentence unconstitutionally exceeded his life expectancy; (3) he was denied his right to a speedy trial; and (4) he was denied his right to effective assistance of counsel. The state noted in its answer that Nelson had not sought collateral relief in the state courts, see Miss.Code Ann. § 99-39-1 et seq. (1992 Supp.), but expressly waived the exhaustion requirement and invited the district court to reach the merits of his claims. The magistrate recommended a denial of relief on grounds that: (1) the indictment was plainly sufficient under the applicable standards; (2) Nelson's sentence did not implicate Eighth Amendment concerns; (3) he had waived his speedy trial claim by pleading guilty; and (4) Nelson had demonstrated neither the deficiencies in his attorney's performance nor the resulting prejudice necessary to sustain an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court, after considering the objections filed by Nelson, adopted the magistrate's report and denied relief. Nelson then filed a notice of appeal and the district court issued a certificate of probable cause.

On appeal, Nelson challenges only the district court's determinations of his speedy trial and ineffective assistance of counsel claims. We agree that Nelson's guilty plea precludes review of his speedy trial claim on the merits. We find the existing record insufficient to resolve Nelson's ineffective assistance claim, however, and therefore remand the case for an evidentiary hearing.

I.

Willie Nelson was arrested on October 11, 1985 in Columbus, Mississippi after allegedly selling cocaine to an undercover police officer. According to Nelson, ¹ he remained in custody until October 26, 1985, when Mississippi officials transferred him to Florida to face pending drug charges in that state. On November 17, Nelson pled guilty to the Florida offense and received a four year sentence. Upon his entrance into the Florida prison system, Nelson allegedly filed a "Writ of Habeas Corpus in reference to the Delivery of Cocaine charge pending in the Lowndes County Circuit Court." The Lowndes County court denied this petition on December 4, 1985.

The Lowndes County grand jury indicted Nelson for the sale of cocaine on February 13, 1986. Nelson maintains that he filed motions for a speedy trial in February and July 1986, requesting transport back to Lowndes County to face the cocaine charge. State officials apparently took no steps, however, to bring him to trial. On March 1, 1988, the Lowndes County Circuit Court denied one of Nelson's speedy trial motions on grounds "that the defendant is presently incarcerated in Florida and ... the State of Mississippi has no way to obtain custody until the expiration of his sentence." Rec. at 59. This holding was factually incorrect, as Nelson had completed his Florida sentence and returned home to Mississippi on July 31, 1987, seven months prior to the date of the court's decision.

On August 13, 1988, Nelson was arrested in Lowndes County and served with a copy of the February 13, 1986 indictment. After his family posted bail, Nelson retained the services of Donald Steighner, a Columbus, Mississippi attorney, to assist in his defense. According to Nelson, he advised Steighner that he had filed two speedy trial motions in 1986 and that he had witnesses who would deny his involvement in the cocaine sale. Steighner allegedly responded that Nelson had no need for witnesses because the amount of time that had elapsed since his arrest in 1985 would preclude the state from prosecuting him on this charge.

Whatever repose Nelson might have enjoyed after this initial consultation was shattered on November 15, 1988, when he received an urgent message from Steighner directing him to report to the courthouse immediately. According to Nelson, Steighner now informed him that he had been unable to locate any evidence of the speedy trial motions in the court records and that, based on his conversations with the district attorney and the trial judge, Nelson would likely receive a mandatory sentence of ninety years if he chose to proceed to trial. Faced with this substantial exposure, Steighner recommended that Nelson accept the plea bargain offered by the state. Under the agreement he would plead guilty to the cocaine charge and receive thirty years imprisonment in exchange for the state's promise to drop the habitual offender portion of the indictment, retire two pending charges to the files, and withdraw two additional charges currently before the grand jury. Nelson entered his guilty plea later that same day. The trial court accepted the plea and placed him in the custody of the Mississippi Department of Corrections.

II.

After raising a multitude of issues in state court post-conviction proceedings and in the district court below, Nelson presents only two contentions to this court on appeal. He maintains that the district court erred in rejecting his speedy trial and ineffective assistance of counsel claims. The district court held that Nelson waived his right to a speedy trial by pleading guilty. This determination is clearly correct, for a defendant waives all non-jurisdictional defects upon entering a guilty plea, see, e.g., United States v. Jennings, 891 F.2d 93, 95 (5th Cir.1989); Barnes v. Lynaugh, 817 F.2d 336, 338 (5th Cir.1987), including alleged violations of his right to a speedy trial. United States v. Bell, 966 F.2d 914, 915 (5th Cir.1992).

Nelson's ineffective assistance of counsel claim has more purchase. In order to prevail on this claim, Nelson must prove that counsel's representation fell below an objective standard of reasonableness and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In the context of guilty pleas, Nelson may establish the requisite prejudice only by demonstrating a reasonable probability that, but for his attorney's errors, he would not have pleaded guilty and would have insisted upon going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); United States v. Bounds, 943 F.2d 541, 544 (5th Cir.1991). "[W]hen the alleged error of counsel is failure to advise of an affirmative defense, the outcome of the prejudice element of the test 'will depend largely on whether the affirmative defense likely would have succeeded at trial.' " United States v. Stumpf, 827 F.2d 1027, 1029 (5th Cir.1987) (quoting Hill, 474 U.S. at 59-60, 106 S.Ct. at 370-71). The district court held that Nelson had failed to establish the deficient performance and resulting prejudice required by Strickland. For the reasons explained below, we believe that the court's rejection of Nelson's ineffective assistance claim was possibly incorrect and certainly premature.

Nelson contends that Steighner, his lawyer, failed to investigate any of the possible legal or factual defenses that he might have raised. This asserted failure to investigate plainly implicates Strickland's protections, for "[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. At the same time, bare allegations do not suffice: "A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial." United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989). Nelson maintains that Steighner would have located, as his sister later did, a copy of the Lowndes County Circuit Court's March 1, 1988 denial of his speedy trial motion had he searched the courthouse records. As it was, Steighner allegedly advised Nelson to plead guilty, stating that, absent any evidence of these prior motions, he would not prevail on the speedy trial claim. It is difficult, on these facts, to view Steighner's failure to pursue the speedy trial claim as the product of a reasonable litigation strategy. The district court's holding to the contrary appears incorrect.

The district court also erred in concluding that Nelson could not demonstrate that his speedy trial claim would have prevailed in state court. Nelson contends that the thirty-seven month delay between his arrest and guilty plea violated his speedy trial rights under Mississippi law as well as the Sixth Amendment. Mississippi requires prosecutors to try all defendants within 270 days from the time of arraignment unless good cause can be shown. Miss.Code Ann. § 99-17-1 (1992 Supp.). Even were we to assume that this issue is properly before us, we would agree...