Gordon v. Nagle, 92-6100

• Decision Date: 22 September 1993
• Docket Number: No. 92-6100,92-6100
• Citation: 2 F.3d 385
• Parties: Sammie Lee GORDON, Plaintiff-Appellant, v. John E. NAGLE, Warden; Attorney General of the State of Alabama, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 385

2 F.3d 385

Sammie Lee GORDON, Plaintiff-Appellant, v. John E. NAGLE, Warden; Attorney General of the State of Alabama, Defendants-Appellees.

No. 92-6100.

United States Court of Appeals, Eleventh Circuit.

Sept. 22, 1993.

Douglas H. Scofield, Scofield, West & French, Birmingham, AL, for plaintiff-appellant.

Cecil G. Brendle, Jr., Asst. Atty. Gen., Montgomery, AL, for defendants-appellees.

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

Before COX and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge.

GODBOLD, Senior Circuit Judge:

This is a habeas corpus case brought by an Alabama prisoner. The case has a lengthy history. ¹ Gordon attacks the validity of sentences imposed on him in 1986 under Alabama's Habitual Offender Statute, Sec. 13A-5-9 et seq. (Code of Alabama 1975), and the validity of an underlying 1973 conviction utilized for enhancement in the 1986 cases. ² This is the correct procedural method. The district court denied relief on procedural bar/cause and prejudice grounds. ³ We are able to decide some of the issues but must certify one issue to the Supreme Court of Alabama.

In 1973 Gordon, then 18 years old, pleaded guilty to assault with intent to murder and was convicted and sentenced as an adult. As a minor he was entitled to be considered for youth offender status under Sec. 15-19-1 (Code of Alabama 1975). The central issue in this case springs from Gordon's right to be advised, prior to entering a plea of guilty, of his right to be considered for youth offender status.

The Youth Offender Statute works this way. If the accused qualifies for possible youth offender status and is charged with a crime involving moral turpitude or a possible sentence of one year or more, he must be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury. Code Sec. 15-19-1. If the accused consents to such examination and to trial without a jury, the court may then direct that he be arraigned as a youthful offender and that no further action be taken on the indictment or information, or that he shall not be arraigned as a youthful offender and the case will then proceed on the indictment or information. Id.

If youthful offender status is directed, trial shall be at a separate court session from those for adults charged with crime. Code Sec. 15-19-3. If defendant pleads not guilty, trial is before the judge without a jury. Code Sec. 15-19-4.

If the youthful offender is found guilty and the underlying charge is a felony, the court shall either: (1) suspend the imposition or execution of sentence with or without probation; (2) place defendant on probation not to exceed three years; (3) impose a fine; (4) order commitment for three years or less. Code Sec. 15-19-6(a). If the underlying charge is a misdemeanor the defendant may be given correctional treatment as provided by law for such misdemeanor. Code Sec. 15-19-6(d).

An adjudication made pursuant to the Youthful Offender Statute is very different from conviction of an adult. It is not deemed a conviction of crime at all. Code Sec. 15-19-7. It does not disqualify for public office or public employment or forfeit any rights or privileges. Id.

The Youthful Offender Act is intended to extricate persons below 21 years of age from the harshness of criminal prosecution and conviction. It is designed to provide them with the benefits of an informal, confidential rehabilitative system.

Raines v. State, 294 Ala. 360, 317 So.2d 559, 561 (1975).

The most central consequence of youth offender status in this case is that the adjudication made pursuant to such status may be considered in determining a sentence to be imposed within the statutory range for a later crime of which defendant is convicted, but it may not be considered a prior felony conviction as contemplated by the Habitual Offender Act, Code Sec. 13A-5-9 et seq. Ex parte Thomas, 435 So.2d 1324, 1326 (Ala.1982); Thomas v. State, 445 So.2d 992, 994 n. 1 (Ala.Crim.App.1984). In 1986 Gordon was convicted of three Alabama criminal charges and, pursuant to the mandatory provisions of the Habitual Offender Statute, was given two sentences of life imprisonment and a concurrent 25-year imprisonment. The 1973 conviction as an adult was utilized in determining the sentences required in 1986 under the Habitual Offender Statute.

In the 1973 proceedings the court did not advise Gordon of his right to be considered for youthful offender status. We accept as fact that the court did not so advise Gordon. He testified that he was not advised by either the court or his 1973 attorney. The attorney testified that he could recall no discussion of youthful offender status. On this appeal the state has not suggested that the testimony of either Gordon or his attorney is not correct. The status of the caselaw supports Gordon's testimony that no advice was given. The Youthful Offender Statute does not by its own terms require the trial judge to advise the defendant of his right to be considered for youthful offender status. The existence of such a duty was "indicated" by a dictum in Morgan v. State, 291 Ala. 764, 287 So.2d 914 (1973), decided December 13, 1973, but a square decision that the statute mandated advice to the defendant was not handed down until May 22, 1975, in Clemmons v. State, 56 Ala.App. 275, 321 So.2d 237 (Ala.Crim.App.1974), aff'd, 294 Ala. 746, 321 So.2d 238 (1975). Clemmons noted that the defendant must consent to an investigation and examination by the court to determine whether he should be tried as a youthful offender, and that the necessary first step that must be taken under that scheme is to advise the defendant that he might be eligible for youthful offender treatment. In 1987 the Eleventh Circuit decided Coleman v. State, 827 F.2d 1469 (11th Cir.1987), holding that advice to the accused of his right to request youth offender status is required by the due process clause of the Constitution. Id. at 1473-74. There is no indication or even suggestion in this case that in 1973 the trial judge gave Gordon advice that neither the statute by its explicit terms, nor Alabama caselaw drawing on the statute, nor any decision on constitutional grounds, said that he was required to give.

In 1990 the Alabama Court of Criminal Appeals added to the caselaw by holding that the age-eligible defendant must be apprised of his right to possible youth offender status before his guilty plea is accepted because his right to that possible status is equivalent to a sentencing option. Lochli v. State, 565 So.2d 294, 296-97 (Ala.Crim.App.1990). It is evident that there is no way for a judge with a possible youth offender before him to advise the accused of maximum and minimum sentences to which he is exposed without advising him of possible youth offender status, because that status if granted creates different maximums and minimums.

We turn next to whether Gordon's claims are procedurally barred. He did not raise in state court the claim that because he was not advised his 1973 guilty plea was involuntary and therefore his convictions invalid. When a petitioner has not presented a claim in state court and would now be barred from doing so, a procedural default occurs and federal courts are barred from reviewing the claim unless the petitioner can show cause and prejudice or that a fundamental miscarriage of justice will occur. Teague v. Lane, 489 U.S. 288, 297-99, 109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989); see also Coleman v. Thompson, --- U.S. ----, ---- n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991). The district court held that Gordon had committed a procedural default under Teague because he had not presented his claim in state court and was now barred from doing so by the statute of limitations in Ala.R.Crim.P. 32. ⁴

Alabama Rule of Criminal Procedure 32.2(c) imposes a two-year statute of limitations on claims for post-conviction relief based upon federal or state constitutional grounds (see Ala.R.Crim.P. 32.1(a)), and claims based on the fact that the petitioner's failure to take a timely direct appeal was without fault. Collateral relief is also available, however, on the ground that the state trial court "was without jurisdiction to render judgment or to impose sentence," Ala.R.Crim.P. 32.1(b), or that the sentence imposed "exceeds the maximum authorized by law or is otherwise not authorized by law," Ala.R.Crim.P. 32.1(c). Claims alleging jurisdictional defects under Rule 32.1(b) and excessive sentences under Rule 32.1(c) are not subject to the two-year time bar. See Ladd v. State, 577 So.2d 926, 926-27 (Ala.Crim.App.1990) (excessive sentence not authorized under Habitual Offender Statute), cert. denied, 577 So.2d 927 (Ala.1991). Therefore, we must address whether the state trial court's failure to explain the availability of youthful offender treatment rendered the 1973 conviction void for lack of jurisdiction. If jurisdiction was lacking then state court review of Gordon's claim regarding the 1973 conviction would not be time barred, thus there would be no procedural default to prevent federal review.

In straightforward failure-to-advise cases not involving youth offender status, the Alabama cases have held that failure to advise is a jurisdictional matter that can be raised for the first time on appeal. In Ex parte Rivers, 597 So.2d 1308 (Ala.1991), the court held that a guilty plea entered by a defendant who had not been advised of his possible minimum and maximum sentences is not knowingly, voluntarily, and intelligently given, so that the judgment of conviction must be reversed and the case remanded. Id. at 1310. The Alabama Supreme Court in Rivers did not use the term "jurisdiction." But subsequently the Alabama Court of Criminal Appeals has followed Rivers and interpreted it to mean that failure to advise the defendant as...