Holsomback v. White

• Decision Date: 26 January 1998
• Docket Number: No. 96-6211,96-6211
• Citation: 133 F.3d 1382
• Parties: 11 Fla. L. Weekly Fed. C 1001 John Wayne HOLSOMBACK, Petitioner-Appellant, v. J.D. WHITE, Warden, Attorney General of the State of Alabama, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1382

133 F.3d 1382

11 Fla. L. Weekly Fed. C 1001

John Wayne HOLSOMBACK, Petitioner-Appellant, v. J.D. WHITE, Warden, Attorney General of the State of

Alabama, Respondents-Appellees.

No. 96-6211.

United States Court of Appeals, Eleventh Circuit.

Jan. 26, 1998.

Rehearing Denied March 31, 1998.

Thomas M. Goggans, Montgomery, AL, for Petitioner-Appellant.

James H. Evans, Atty. Gen., Beth Slate Poe and Jeff Sessions, Assts. Atty. Gens., Montgomery, AL, for Respondents-Appellees.

Before COX and BARKETT, Circuit Judges, and HUNT ^*, District Judge.

BARKETT, Circuit Judge:

John Wayne Holsomback, an Alabama prisoner, appeals from the district court's dismissal of his pro se habeas petition filed pursuant to 28 U.S.C. § 2254. Holsomback was convicted of first-degree sodomy by an Alabama state court and received a 25-year sentence. The prosecution's case consisted entirely of the testimony of Holsomback's ten-year-old son, Jeffrey. Jeffrey testified that from the time of his parents' divorce in 1982, when he was four years old, until November 1987, his father had regularly subjected him to anal intercourse during their biweekly weekend visitations. (See R.1-7, Ex. A at 58-61). ¹ Jeffrey also testified that his father had assaulted him on other occasions, once putting an unloaded gun to his neck and pulling the trigger, twice subjecting him to oral sex, and more than once subjecting him to anal intercourse with another man. (See R.1-7, Ex. A at 64-67). Although Jeffrey had been examined by a doctor for signs of sexual abuse approximately twelve days after telling his mother about the sodomy, (see R.1-7, Ex. F at 26-27), the prosecution's case included no medical evidence in support of Jeffrey's allegations. In fact, the prosecutor had advised Holsomback's attorney prior to trial that there was no medical evidence of sexual abuse. (See R.1-7, Ex. C at 8-9).

On cross examination, Jeffrey was asked about several inconsistencies between his trial testimony and his prior testimony in a civil proceeding instituted by Holsomback to enforce visitation. Jeffrey responded to all of these inconsistencies by stating that he did not remember what he had said previously. (See R.1-7, Ex. A at 89-100).

Holsomback's conviction was affirmed on direct appeal, and his petition for certiorari to the Alabama Supreme Court was denied. He subsequently filed three state petitions for post-conviction relief. The state court held evidentiary hearings on claims raised in the first two petitions but ultimately denied all three petitions. Proceeding pro se, Holsomback then filed a federal habeas petition in the United States District Court for the Northern District of Alabama. Upon the magistrate judge's recommendation, the district court dismissed Holsomback's petition.

On appeal, Holsomback asserts the following claims: (1) the state's failure to disclose certain medical records in its possession violated Holsomback's right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) the trial court erred in not requiring the prosecutor to elect the particular incident of sodomy for which conviction was sought; (3) his sentence was based on uncharged allegations of sodomy and therefore violated Holsomback's right to due process; (4) the trial court's failure to give a clarifying instruction permitted the jury to consider uncharged allegations of sodomy; (5) the trial court's instructions as to "reasonable doubt" were constitutionally deficient; (6) newly discovered evidence suggesting that the alleged victim had a psychological condition that would cause him to fabricate sexual abuse charges warrants a new trial or other relief; (7) the evidence presented at trial was insufficient to support Holsomback's conviction; (8) the evidence presented at trial was equally consistent with Holsomback's innocence as with his guilt; (9) the trial court erred in failing to instruct the jury sua sponte on the lesser included offenses of sexual abuse and assault We find no merit in these claims with the exception of the last one. Because we find that Holsomback was denied the effective assistance of trial counsel, we REVERSE and REMAND.

and (10) Holsomback was denied the effective assistance of both his trial and appellate counsel.

BACKGROUND

The only evidence presented at trial on the ultimate question of whether Holsomback had sexually abused his son was Holsomback's and Jeffrey's conflicting testimony on that issue. ² Although Holsomback had also urged his trial counsel to call his and Jeffrey's family physician, Dr. Thomas Nolan, counsel neither interviewed Dr. Nolan nor called him as a witness. (See R.1-7, Ex. C at 13, 27, 34). In addition, although counsel was aware that Jeffrey had been examined for signs of sexual abuse prior to trial and that there was no medical evidence that Jeffrey had been abused anally, counsel made no effort to interview Dr. Williams, the physician who had examined Jeffrey, or to obtain the medical records from Dr. Williams's examination. (See R.1-7, Ex. C at 8-11).

At trial, the prosecutor made reference to the lack of any medical evidence to substantiate Jeffrey's allegations both during jury selection and in his opening argument, ³ (see R.1-7, Ex. A at 25, Ex. C at 8-9); however, Holsomback's attorney presented no medical testimony or other evidence concerning the lack of corroborating physical evidence in the case. Indeed, it appears from the record that defense counsel's sole reference to the lack of medical evidence--apart from his objection to the prosecutor's opening argument--was counsel's attempt during closing argument to explain the absence of any testimony on that issue, stating "[a]nd you as sensible people know that the reason the doctor wasn't here was because there was no evidence [Jeffrey had] ever been touched or molested or abused. Am I right, that that's what you think?" (R.1-7, Ex. A at 229). The prosecutor responded to counsel's statement in his own closing argument, asking the jury, "[d]o you think that if that doctor could say for sure that that didn't happen, that the defense wouldn't have him up here saying, 'I examined this child, and I can conclusively tell you that nobody handled' ... [objection by defense counsel]." ⁴

DISCUSSION

Ineffective assistance of counsel is a mixed question of fact and law subject to de novo review. Greene v. United States, 880 F.2d 1299, 1305 (11th Cir.1989). To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In determining whether counsel's performance was deficient, we consider the reasonableness of the challenged conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690 104 S.Ct. at 2066. A deficiency is prejudicial where "there is 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.

In his federal habeas petition and initial appellate brief, both filed pro se, ⁵ Holsomback challenges the adequacy of his trial counsel's investigation into the conceded lack of medical evidence that any sexual abuse had occurred, asserting as deficiencies in counsel's performance his failure to interview and call as witnesses Doctors Nolen and Williams, (see R.1-1 at 60-61, 87; Appellant's Pro Se Br. at 38-40), and his failure to obtain and utilize at trial the medical report prepared by Dr. Williams, (see R.1-1 at 60, 89; Appellant's Pro Se Br. at 40). ⁶ As this court has repeatedly observed, "[i]t is well established that the standards governing the sufficiency of habeas corpus petitions are less stringent when the petition is drafted pro se and without the aid of counsel." Williams v. Griswald, 743 F.2d 1533, 1542 (11th Cir.1984). See also Gunn v. Newsome, 881 F.2d 949, 961 (11th Cir.1989) ("[W]e have never wavered from the rule that courts should construe a habeas petition filed pro se more liberally than one drawn up by an attorney."). The district court interpreted the relevant portions of Holsomback's ineffective assistance claim ⁷ to include only the specific allegations that trial counsel was ineffective because he "failed to call Dr. Nolen to testify that there was no medical evidence of physical abuse, ... [and] failed to investigate and obtain medical records." (R.2-20 at 29). We find, however, that, given the liberal construction to which pro se pleadings are entitled, Holsomback's pleadings can fairly be read to assert a broader claim. In addition to challenging his attorney's failure to contact the particular physicians and to obtain the particular medical records noted, Holsomback made the more general allegations that counsel "failed to conduct a reasonable investigation into the facts where he did not ... talk with any of the physicians in order to verify information given to him by the prosecutor regarding the medical evidence," (Appellant's Pro Se Br. at 39-40), and that "[d]uring the pretrial discovery and preparation defense counsel ... failed to investigate witnesses and facts if where [sic] presented would have change[d] the outcome of the entire trial," (R.1-1 at 87). These allegations can be fairly interpreted to encompass his trial counsel's failure to conduct any investigation into the conceded lack of medical evidence, including his failure to consult with any physicians concerning the significance of the lack of medical evidence in the case.

The district court rejected this claim, finding, as had the Alabama state courts, that counsel's failure to interview Dr. Nolen and other witnesses and to obtain medical records "were all...