Harrison v. Jones

• Decision Date: 21 August 1989
• Docket Number: No. 88-7707,88-7707
• Citation: 880 F.2d 1279
• Parties: Jerry HARRISON, Petitioner-Appellant, v. Ron JONES and Attorney General of the State of Alabama, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1279

880 F.2d 1279

Jerry HARRISON, Petitioner-Appellant, v. Ron JONES and Attorney General of the State of Alabama Respondents-Appellees.

No. 88-7707.

United States Court of Appeals Eleventh Circuit.

Aug. 21, 1989.

John M. Bolton, III, Robison & Belser, P.A., Lewey C. Hammett, Jr., Montgomery, Ala., for petitioner-appellant.

Don Siegelman, Atty. Gen., Stacey S. Houston, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

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

Before KRAVITCH, JOHNSON and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

This appeal arises from the denial of a petition for habeas corpus relief brought under 28 U.S.C.A. Sec. 2254(d) by an Alabama state prison inmate sentenced to life imprisonment under Alabama's Habitual Felony Offender Act, Ala.Code Ann. Sec. 13A-5-9(c)(2). We affirm in part and reverse in part.

I. FACTS

On January 26, 1984, petitioner Jerry Harrison was tried and convicted in Alabama state court of theft of property. In sentencing Harrison, the trial court applied the Habitual Felony Offender Act, Ala.Code Ann. Sec. 13A-5-9(c)(2). The court considered four prior felony convictions to enhance petitioner's sentence: a March 31, 1965, conviction in California of second-degree burglary based on a plea of nolo contendere; an August 26, 1968, conviction in California of owning or possessing a concealable firearm after having been convicted of a felony; and two September 17, 1982, convictions in Alabama of third-degree burglary and receiving stolen property. Theft of property is defined as a Class B felony. Because petitioner had been convicted of at least three prior felonies, the trial judge sentenced him to life imprisonment. See Ala.Code Ann. Sec. 13A-5-9(c)(2).

On July 24, 1984, petitioner filed his petition for writ of error coram nobis in state court. That petition was denied, and on December 11, 1984, the Alabama Court of Criminal Appeals affirmed petitioner's conviction and sentence. Harrison v. State, 461 So.2d 53 (Ala.Ct.Crim.App.1984). On August 9, 1985, petitioner filed a second petition for writ of error coram nobis. The trial court dismissed the petition, and the Alabama Court of Criminal Appeals affirmed the dismissal without opinion. Petitioner then filed an unsuccessful petition for habeas corpus relief in state court. On September 19, 1986, petitioner filed this federal petition for writ of habeas corpus in the Middle District of Alabama. An evidentiary hearing was held before a United States Magistrate, and on August 5, 1988, the magistrate entered a recommendation that the petition be granted to the extent that the State of Alabama be ordered to resentence petitioner within ninety days or to release him from custody. The district court did not adopt the magistrate's recommendation. On November 4, 1988, the district court entered an order denying the petition for habeas corpus relief. On November 15, 1988, the district court granted petitioner's application for certificate of probable cause to appeal. See 28 U.S.C.A. Sec. 2253.

II. DISCUSSION

Petitioner raises two issues on appeal. First, petitioner argues counsel was ineffective at the guilt phase of the trial by failing to object to the introduction into evidence for impeachment purposes of the 1965 California conviction based on his plea of nolo contendere. Such a conviction is clearly inadmissible for any purpose under Alabama law. Wright v. State, 38 Ala.App. 64, 79 So.2d 66, 69 (1954), cert. denied, 262 Ala. 420, 79 So.2d 74 (1955). Second, petitioner argues that counsel was ineffective at sentencing by failing to object to the trial court's consideration for enhancement purposes under the Habitual Felony Offender Act of his two California convictions, the first of which was based on a plea of nolo contendere and the second of which used the first conviction as an essential element of the offense. We address each of these issues in turn.

A. Ineffectiveness at the Guilt Phase of the Trial

Petitioner testified in his own defense at trial. On cross-examination, the state introduced evidence of petitioner's prior convictions to impeach his credibility. One of those convictions was his 1965 California conviction of second-degree burglary entered after petitioner pleaded nolo contendere. Petitioner argues that evidence of this conviction was inadmissible at trial; that counsel was ineffective by not objecting to the introduction of the conviction; and that the admission of this evidence prejudiced his defense.

The issue of whether a criminal defendant's trial counsel was ineffective is a mixed question of law and fact subject to de novo review. Goodwin v. Balkcom, 684 F.2d 794, 803 (11th Cir.1982), cert. denied, 460 U.S. 1098, 103 S.Ct. 1798, 76 L.Ed.2d 364 (1983); see generally Oliver v. Wainwright, 782 F.2d 1521 (11th Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986). To be entitled to relief, petitioner has the burden of establishing both ineffectiveness and prejudice. To establish ineffectiveness, petitioner has the burden of showing that "the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984). To establish prejudice, petitioner has the burden of showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

Counsel's failure to object to the introduction of petitioner's 1965 conviction clearly falls outside the range of professionally competent assistance. Since at least 1954, convictions based on pleas of nolo contendere have not been admissible in criminal prosecutions in Alabama for any purpose, including challenging the credibility of a witness. Wright v. State, 79 So.2d at 69 ("In our opinion a conviction on a plea of nolo contendere is not admissible in this jurisdiction for the purpose of discrediting a witness."); see also Snipes v. State, 404 So.2d 106, 109 (Ala.Crim.App.) ("The rule in Alabama is that a conviction based upon a plea of nolo contendere is inadmissible in evidence in the proceedings.") (citations omitted), cert. quashed, 404 So.2d 110 (Ala.1981); Smith v. State, 46 Ala.App. 157, 239 So.2d 230, 236 (1970) ("A plea of nolo contendere is inadmissible in evidence in another proceeding."). At an evidentiary hearing on this petition conducted by the magistrate, trial counsel offered no explanation for his failure to object at trial to the introduction of the 1965 conviction. Counsel stated that he was unaware that the 1965 conviction was based on a plea of nolo contendere and further that he did not realize such convictions are inadmissible in criminal proceedings in Alabama. This lack of professional competence constitutes ineffectiveness within the meaning of Strickland. The question we must address is whether petitioner suffered prejudice from counsel's failure to object to the admission of this conviction.

The prosecution introduced overwhelming evidence of petitioner's guilt. Petitioner was convicted of stealing a motorcycle. An eyewitness testified petitioner stole his motorcycle; the motorcycle was found on petitioner's property; and police found a key to the motorcycle in petitioner's pocket at the time of his arrest. Although erroneous introduction of a prior conviction is damaging to a criminal defendant, see Loper v. Beto, 405 U.S. 473, 482-83, n. 11, 92 S.Ct. 1014, 1018-19, n. 11, 31 L.Ed.2d 374 (1972), petitioner has not shown a reasonable probability that the result would have been different had defense counsel objected to the admission into evidence of the 1965 conviction. The physical evidence presented by the prosecution at trial made petitioner's version of events highly unlikely even in the absence of evidence impugning his credibility. The fact that petitioner's 1965 conviction was the fourth prior felony conviction used to impeach his testimony lessened the prejudicial impact of the erroneous introduction of this conviction. We hold that petitioner has failed to demonstrate prejudice from counsel's failure to object at trial to the admission of his 1965 conviction. Consequently, we affirm the district court in denying petitioner relief on his claim of ineffective assistance of counsel at the guilt phase of the trial.

B. Ineffectiveness at Sentencing

Petitioner also argues counsel was ineffective at his sentencing proceeding. The trial judge sentenced petitioner under the Alabama Habitual Felony Offender Act, Ala.Code Ann. Sec. 13A-5-9(c)(2). ¹ That section provides enhanced punishment for defendants who have been convicted previously of three felonies. The trial court found that petitioner had been convicted previously of four felonies. Petitioner argues that counsel was ineffective for not challenging the convictions used to enhance petitioner's sentence; that the trial court erred in considering his two California convictions at sentencing; ² and that he suffered prejudice from counsel's ineffectiveness because absent these two convictions section 13A-5-9(c)(2) would not have applied to enhance his sentence. Petitioner has the burden of establishing both ineffectiveness and prejudice under Strickland on this claim.

A court in Alabama cannot consider a conviction based on a plea of nolo contendere in enhancing a sentence under the Habitual Felony Offender Act. Snipes v. Alabama, 404 So.2d 106 (Ala.Crim.App.), cert. quashed, 404 So.2d 110 (Ala.1981); see also Davis v. State, 507 So.2d 1023, 1026 (Ala.Crim.App.1986). The trial court, however, considered petitioner's 1965 California conviction which was based on a plea of nolo contendere. An objection to the court's consideration of this conviction was clearly available to counsel at...