Clency v. Nagle, 94-6181

• Decision Date: 04 August 1995
• Docket Number: No. 94-6181,94-6181
• Citation: 60 F.3d 751
• Parties: 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.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 751

60 F.3d 751

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.

No. 94-6181.

United States Court of Appeals Eleventh Circuit.

Aug. 4, 1995.

Gilda B. Williams, Asst. Atty. Gen., Montgomery, AL, for appellants.

Gail Dickinson-Shrum, Birmingham, AL, for appellee.

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

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 state 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 entered the plea without the assistance of counsel. ¹ 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 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 not require a showing of the...