Golston v. Attorney General of State of Ala., 90-7384

• Decision Date: 02 April 1991
• Docket Number: No. 90-7384,90-7384
• Citation: 947 F.2d 908
• Parties: Anthony Demetrius GOLSTON, Petitioner-Appellant, v. ATTORNEY GENERAL OF the STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 908

947 F.2d 908

Anthony Demetrius GOLSTON, Petitioner-Appellant, v. ATTORNEY GENERAL OF the STATE OF ALABAMA, Respondent-Appellee.

No. 90-7384.

United States Court of Appeals Eleventh Circuit.

April 2, 1991.

Rehearing and Rehearing En Banc

Denied July 10, 1991.

John Richard Galvin, Birmingham, Ala., for petitioner-appellant.

James B. Prude, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

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

Before FAY and JOHNSON, Circuit Judges, and PECK ^*, Senior Circuit Judge.

FAY, Circuit Judge:

Appellant was convicted in an Alabama state court of child abuse, sexual abuse, and sodomy. The Alabama Court of Criminal Appeals affirmed his conviction, and subsequently denied his petition for rehearing. Three years after the Alabama Supreme Court denied his Petition for Certiorari, the appellant filed a petition for federal habeas corpus relief in the United States District Court for the Northern District of Alabama. No petition for collateral relief was ever filed by the appellant in state court. In his federal habeas petition, appellant for the first time raised the issue of ineffective assistance of counsel at trial. The district court denied appellant's petition on the ground that his ineffective assistance of counsel claim had been procedurally defaulted in state court because he had failed to timely file for post-conviction relief under the Alabama Rules of Criminal Procedure. The district court rejected appellant's claim that ineffective assistance of counsel served to fulfill the "cause" requirement of Wainwright v. Sykes for excusing state procedural default, because appellant had no constitutional right to counsel for the purpose of mounting a collateral attack upon his conviction. For the reasons that follow, we AFFIRM.

Factual and Procedural History

Appellant Anthony Golston was convicted on February 26, 1986, in Alabama state court on charges of child abuse, sexual abuse, and sodomy. He received three consecutive sentences for a total sentence of 119 years. The Alabama Court of Criminal Appeals affirmed Golston's conviction on November 12, 1986. On December 9, 1986, that same court denied his petition for rehearing. The Alabama Supreme Court denied a Petition for Certiorari on June 30, 1986. Golston never filed a petition for collateral relief in the Alabama state courts.

On September 14, 1989, more than three years after his conviction became final in the Alabama courts, Golston filed a petition for federal habeas relief in the United States District Court for the Northern District of Alabama. In his federal habeas petition, Golston for the first time raised the issue of ineffective assistance of counsel at trial. Adopting the recommendation of the magistrate judge to whom the habeas petition had been assigned, the district court denied Golston's petition on the ground that his ineffective assistance of counsel claim had been procedurally defaulted in state court. Default was found in light of Golston's failure to file a petition for post-conviction relief, under Rule 20 of the Alabama Rules of Criminal Procedure, within the two year statute of limitations provided for by the Rule. The district court rejected Golston's argument that excuse for procedural default existed where his court-appointed trial attorney told him that post-conviction remedies would not help him. The district court held that ineffective assistance of counsel did not constitute "cause" to excuse procedural default, under the test of Wainwright v. Sykes, in light of the fact that Golston had no constitutional right to counsel for the purpose of mounting a collateral attack upon his conviction.

Discussion

Appellant Golston argues in his federal habeas petition that he received ineffective assistance of counsel at trial. His ineffective assistance claim was not raised on direct appeal, he maintains, because he was represented by trial counsel on appeal. Golston further asserts that he failed to petition for post-conviction relief within the applicable statute of limitations set forth in the Alabama Rules of Criminal Procedure, because trial counsel continued to represent him and had advised him in a letter that post-conviction relief would not help him. Golston reasons that the ineffective assistance of his trial counsel following his appeal constitutes cause to excuse his procedural default. Because his default was excusable, he concludes, the district court erred in denying his petition for habeas relief.

Preliminarily, we acknowledge that inasmuch as Golston was represented at trial and on appeal by the same counsel, it was not required that he raise the issue of inadequate counsel on direct appeal. This is the law of Alabama. It is well established that a defendant who is represented by different counsel at trial and on appeal must raise the issue of ineffective assistance of counsel on direct appeal. See Jones v. State, 484 So.2d 554, 556 (Ala.Crim.App.1985) (citing Carroll v. State, 462 So.2d 789, 790 (Ala.Crim.App.1984)). Where Golston was represented by the same counsel at trial and on appeal, however, that counsel could not be expected to raise his own ineffective assistance on appeal. Post-conviction relief was the only avenue, therefore, through which Golston could challenge the adequacy of his representation by trial and appellate counsel.

Rule 20 of the Alabama Rules of Criminal Procedure makes post-conviction relief available to any person who has been convicted of a criminal offense. Rule 20.1, Temp.A.R.Crim.P. (1987). One possible ground for post-conviction relief exists where "[t]he Constitution of the United States or of the state of Alabama requires a new trial, a new sentence proceeding, or other relief." Rule 20.1(a), Temp.A.R.Crim.P. Ineffective assistance of counsel claims have been recognized by the Supreme Court of Alabama as cognizable in Rule 20 petitions, under section 20.1(a). Ex Parte Lockett, 548 So.2d 1045, 1048 (Ala.1989). Thus, Golston's ineffective assistance of counsel claim was a proper subject for post-conviction relief under Rule 20.

Relief under Rule 20.1(a) is subject to a statute of limitations which prohibits the court from entertaining any petition for relief unless that petition is filed within two years after the issuance of the certificate of judgment by the court of criminal appeals. Rule 20.2(c), Temp.A.R.Crim.P. This two-year period does not begin to run before the effective date of the Temporary Rule 20, April 1, 1987. Id. Golston does not challenge the finding of the district court that he never filed a petition for Rule 20 relief within the applicable statute of limitations. ¹ Acknowledging his state procedural default, he argues that such default was excusable. We disagree.

The district court correctly found that Golston failed to show "cause" for his procedural default under the two-part test set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Wainwright held that a state prisoner who was barred by procedural default from raising a constitutional claim on direct appeal, could not litigate that claim in a federal habeas corpus proceeding without a showing of cause for and actual prejudice arising out of that default. Id.; Engle v. Isaac, 456 U.S. 107, 110, 129, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982) (reaffirming cause and prejudice requirement); Card v. Dugger, 911 F.2d 1494, 1517 (11th Cir.1990). "[I]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State, which may not 'conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.' " Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (quoting Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980)). Ineffective assistance of counsel, therefore, constitutes "cause" for procedural default under the Wainwright test. Murray, 477 U.S. at 488, 106 S.Ct. at 2645; Hollis v. Davis, 912 F.2d 1343, 1347 (11th Cir.1990); Card, 911 F.2d at 1517.

Where no constitutional right to counsel exists, however, ineffective assistance of counsel cannot constitute cause to excuse procedural default. See Whiddon v. Dugger, 894 F.2d 1266, 1267 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 102, 112 L.Ed.2d 73 (1990). The Supreme Court has never established a constitutional right to counsel for prisoners mounting collateral attacks upon their convictions. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987); Whiddon, 894 F.2d at 1267. Thus, "the right to appointed counsel extends to the first appeal of right, and no further." ² Finley, 481 U.S. at 555, 107 S.Ct. at 1993. Because Golston had no constitutional right to counsel for the purpose of mounting a collateral attack upon his conviction therefore, his failure to timely file for state post-conviction relief cannot be excused because of ineffective assistance of counsel. ³

Finally, we note that "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496, 106 S.Ct. at 2649. Appellant Golston has made no claim of actual innocence under Murray, and thus we need not reach that issue.

Conclusion

For the foregoing...