Esslinger v. Davis, 93-6572
| Decision Date | 20 January 1995 |
| Docket Number | No. 93-6572,93-6572 |
| Parties | Danny Eugene ESSLINGER, Petitioner-Appellant, v. Leoneal DAVIS, Warden; Attorney General of the State of Alabama, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John C. Robbins, Polson & Robbins, Birmingham, AL, for appellant.
Shirley Z. Osborne Brown and Yvonne A. Henderson, Asst. Attys. Gen., Montgomery, AL., for appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before TJOFLAT, Chief Judge, KRAVITCH, Circuit Judge, and CLARK, Senior Circuit Judge. *
Danny Eugene Esslinger, having been convicted on a plea of guilty to a charge of first degree rape, is serving a ninety-nine year sentence in the Alabama prison system. He seeks a writ of habeas corpus, under 28 U.S.C. Sec. 2254, vacating that conviction on the ground, among others, that his court-appointed attorney rendered ineffective assistance in violation of the Sixth and Fourteenth Amendments by failing adequately to investigate his case and advising him to plead guilty. 1 Following an evidentiary hearing before a magistrate judge, the district court, adopting the magistrate judge's findings and recommendation, denied the writ. 2 We conclude that Esslinger's defense attorney's performance constituted ineffective assistance of counsel as a matter of law, and, therefore, direct that the writ issue.
On September 8, 1988, Carolyn Marshall reported to the Gadsden, Alabama Police that Esslinger had raped her twelve-year-old daughter at some time during the first week of August 1988. At the time of the alleged rape, Esslinger was living temporarily in Marshall's residence. 3 A week after Marshall went to the police, the alleged victim was examined at the Gadsden Pediatric Clinic. The examining physician found that the victim's vaginal opening was enlarged and that her hymen was no longer intact. These findings indicated that the victim had engaged in sexual intercourse. There was no evidence other than the victim's statement, however, that connected Esslinger to the alleged offense.
Esslinger moved out of the Marshall residence in late August, when he found a job in Gadsden. 4 In September, he left Gadsden and went to Ohio. 5 Meanwhile, on September 8, the day Carolyn Marshall went to the police, a warrant was issued for Esslinger's arrest--on a charge of first degree rape. The warrant was not executed, however, until January 16, 1989, after Esslinger returned to Gadsden to find work.
On February 7, Esslinger appeared in court. Esslinger was indigent and requested the appointment of counsel. The court appointed Stephen E. Harrison to represent him. Esslinger's bond was set at $25,000. Esslinger, however, was financially unable to post bond and he remained in custody. 6
On March 14, 1989, Esslinger was indicted by an Etowah County, Alabama, grand jury for first degree rape, a class A felony. Esslinger was arraigned in the Circuit Court for Etowah County on March 31, and, with Harrison representing him, entered alternative pleas of not guilty and not guilty by reason of mental disease or defect. Trial was set for April 17, 1989.
The trial was postponed, however, so that Esslinger could undergo a court-ordered forensic evaluation at the Taylor Hardin Secure Medical Facility. On July 13, 1989, the evaluation having been completed, 7 the court found Esslinger competent to stand trial and set his trial for August 21, 1989. On that date, Esslinger appeared before Circuit Judge William W. Cardwell, Jr., and, pursuant to a plea agreement with the district attorney's office, pled guilty to first degree rape. In exchange for the plea, the district attorney agreed to recommend that Esslinger be sentenced to no more than the minimum prison term prescribed for a class A felony. The minimum prison term for a defendant with no previous felony convictions was ten years, see Ala.Code Sec. 13A-5-6 (1975); with one previous felony conviction the minimum was fifteen years; with two previous felony convictions the minimum was ninety-nine years. See Ala.Code Sec. 13A-5-9(a)(3), (b)(3) (1975) ("Habitual felony offenders"). Esslinger had two prior felony convictions: More than eighteen years earlier, on October 30, 1970, Esslinger pled guilty in the Etowah County Circuit Court to two separate forgery offenses; the same day, the court sentenced him to concurrent two-year prison terms, suspended the execution of the sentences, and then placed him on probation for one year.
During the colloquy that ensued between Judge Cardwell and Harrison after Esslinger tendered his plea of guilty, the prosecutor, Howard Keith Pitts, informed the court that Esslinger's plea agreement called for a sentence no greater than the statutory minimum. Because the length of the minimum term of imprisonment would depend on the extent of Esslinger's prior felony record, the court asked Harrison whether Esslinger had a prior record. Harrison, who knew that Esslinger had been convicted of forgery in 1970, replied: "I'm not aware of one at this time, your honor." Given this response, the court then informed Esslinger that the minimum prison term he could receive would be ten years; the maximum term would be life.
Having informed Esslinger as to the prison sentence he could receive, the court proceeded to determine whether Esslinger was tendering his guilty plea knowingly and voluntarily. The court asked Esslinger whether he had committed the offense charged in the indictment; he responded: "The truth, no, but the time wise I will plead guilty to it." Following this response, the court asked Pitts what the State could prove. Pitts said that the victim would testify that Esslinger forced her to have sexual intercourse, and that the examining physician would testify that the victim exhibited physical characteristics consistent with the victim's testimony. The court, apparently assuming that Harrison had investigated the case, asked Harrison whether Pitts' rendition of the State's case was accurate. Harrison said that it was. At this point, the court accepted Esslinger's plea and accepted the parties' plea agreement; if sentenced to prison, Esslinger would receive the minimum sentence the law would allow.
At Pitts' request, the court ordered a presentence investigation and said that sentencing would take place in thirty days, on September 20. When Harrison stated that he would be asking the court to place Esslinger on probation, the court replied that, because Esslinger was being held in custody, it would hold the sentencing hearing as soon as the probation officer completed the presentence report. 8
Sentencing took place, as scheduled. Because the uncontested presentence report revealed that Esslinger had been convicted of forgery twice in 1970, he faced a minimum prison sentence of ninety-nine years or life. (For this reason, apparently, Harrison did not seek probation.) Therefore, the court asked the district attorney, James Hedgspeth, who was standing in for Pitts, whether, for purposes of parole, ninety-nine year sentences and life sentences were treated differently; Hedgspeth said that they were not.
Harrison realized that Esslinger's guilty plea had gained him nothing; Esslinger was going to receive the same sentence he would receive had he been found guilty of first degree rape at trial. When the court asked counsel to comment on the sentence that should be imposed, Harrison said that, when Esslinger tendered his plea, he expected that Esslinger would receive some benefit for pleading guilty; he thought that Esslinger had only one prior felony conviction and therefore would be eligible for the minimum fifteen year prison term, if not probation. 9
The court did not respond to Harrison's remark, and proceeded to sentence Esslinger to the minimum prison term the law prescribed: ninety-nine years.
Esslinger did not appeal his conviction or sentence. 10 On September 26, 1989, however, six days after he was sentenced, Esslinger filed a pro se motion in the trial court to withdraw his guilty plea and for the appointment of a new attorney; 11 Esslinger stated that he pled guilty without understanding the full consequences of his plea, and that this was due in part to Harrison's incompetence. Judge Cardwell summarily denied the motion the same day. On November 29, 1989, again proceeding pro se, Esslinger moved the court for a new trial. In this motion, he elaborated on his claim that Harrison was incompetent, stating, among other things, that Harrison did not properly investigate the case, and that he plead guilty on the basis of the State's offer of a ten-year sentence. Judge Cardwell summarily denied this motion as well. Esslinger appealed neither of these two dispositions.
On January 10, 1990, Esslinger, appearing pro se, petitioned the trial court pursuant to Temporary Rule 20 of the Alabama Rules of Criminal Procedure to set aside his sentence and guilty plea and to grant him a trial. 12 Esslinger's motion claimed (1) that his guilty plea was involuntary because (a) it had been induced by the State's promise that his sentence would not exceed ten years in prison, and (b) he did not understand the consequences of his plea; (2) that his confession, i.e., his plea of guilty to the rape charge, had been coerced; (3) that he was denied the right to appeal his conviction; and (4) that Harrison's performance in representing him had been ineffective because (a) Harrison made a sentence bargain that he should have known the court would not accept, (b) Harrison failed to investigate the case, and (c) Harrison failed to challenge the sufficiency of the State's evidence. 13 The court denied Esslinger's Rule 20 petition on February 22, 1990, without holding an evidentiary hearing. In its dispositive order, the court stated that the record of the proceedings in Esslinger's case demonstrated that Esslinger entered his guilty plea voluntarily and with a...
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