Pelmer v. White
| Decision Date | 24 July 1989 |
| Docket Number | No. 86-7875,86-7875 |
| Citation | 877 F.2d 1518 |
| Parties | Jerome PELMER, a/k/a Jerry Jones, Petitioner-Appellant, v. J.D. WHITE, Warden, and Don Siegelman, the Attorney General of the State of Alabama, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Philip E. Holladay, Jr., King & Spalding, Atlanta, Ga., for petitioner-appellant.
Don Siegelman, Atty. Gen., Jean Williams Brown, Beth J. Hughes, James B. Prude, Asst. Attys. Gen., Montgomery, Ala., for respondents-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before HILL and EDMONDSON, Circuit Judges, and ATKINS *, Senior District Judge.
Jerome Pelmer a/k/a Jerry Jones shot and killed Billy Ray Norwood during a struggle. Although Pelmer was charged with intentional murder only, the trial judge--without objection--instructed the jury on reckless murder also. On direct appeal the Alabama Court of Criminal Appeals affirmed the conviction holding that the evidence was sufficient to convict, that the trial court did not err by failing to charge on a lesser included offense, and that Pelmer's sentence did not violate the Eighth Amendment. Jones v. State, 453 So.2d 1330 (Ala.Crim.App.1984).
Following the direct appeal, Pelmer filed in state court a petition for writ of error coram nobis alleging ineffective assistance of trial counsel, prosecutorial misconduct, insufficient evidence, improper sentencing, and improper jury instructions--including for the first time an attack on the reckless murder charge. The state court denied Pelmer's ineffectiveness claim and struck the other claims as beyond the scope of a petition for writ of error coram nobis. On appeal, the Court of Criminal Appeals of Alabama affirmed holding that all claims either were raised or could have been raised on direct appeal. Jones v. State, 484 So.2d 554, 556 (Ala.Crim.App.1985).
Pelmer filed his pro se petition for writ of habeas corpus in federal district court stating three grounds for relief: (1) the evidence was constitutionally insufficient to support his conviction; (2) the trial court failed to charge on a lesser included offense; and (3) Pelmer was denied the effective assistance of counsel. Pelmer amended his petition to allege further facts in support of his ineffectiveness claim. The district court rejected on the merits Pelmer's claims of insufficient evidence and ineffective assistance of trial counsel and applied a procedural bar to Pelmer's claim that a lesser included offense charge should have been given.
Pelmer then filed a pleading entitled "Petitioners[sic]-Objections to Court Judgment" in which he made three arguments: (1) the decision was mistakenly based on an earlier petition which Pelmer had voluntarily dismissed; (2) the trial court's jury instruction on reckless murder was plain constitutional error; and (3) Pelmer's counsel was constitutionally ineffective. Two days later Pelmer filed a notice of appeal from the district court's judgment. We dismissed the appeal for lack of jurisdiction, treating Pelmer's objections as a Rule 59 motion. See Fed.R.App.P. 4(a)(4).
Pelmer filed a motion for out-of-time appeal. The district court denied the motion as moot. Pelmer filed a notice of appeal from that judgment and a request for a certificate of probable cause. We granted Pelmer's application for a certificate of probable cause and motion to appeal in forma pauperis and remanded for the district court to rule on Pelmer's Rule 59 motion. Pelmer then filed a motion to amend his petition to add an equal protection argument. The district court denied both the Rule 59 motion and the motion to amend.
Appeals from two district court orders are now before us: (1) the district court's order denying Pelmer's motion for out-of-time appeal; and (2) the order denying both Pelmer's motion to amend and his Rule 59 motion. Because we treat Pelmer's appeal from the district court's order
denying his Rule 59 motion as an appeal from the district court's original judgment denying the writ, see Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Inglese v. Warden, U.S. Penitentiary, 687 F.2d 362, 363 n. 3 (11th Cir.1982), it is unnecessary to review the district court's denial of Pelmer's motion for out-of-time appeal. 1
Pelmer raised his ineffective trial counsel claim for the first time in his state petition for writ of error coram nobis. On Pelmer's appeal of the denial of the state writ, the Alabama Court of Criminal Appeals held that because this issue was not raised on direct appeal, it could not "be raised in a subsequent petition for writ of error coram nobis." 484 So.2d at 556. "A defendant who is procedurally barred from raising a federal constitutional claim in state court is also barred from raising the claim in a federal habeas petition unless he can show cause for and actual prejudice from making the default." Gates v. Zant, 863 F.2d 1492, 1500 (11th Cir.1989); accord Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Pelmer does not attempt to show cause for this default. Instead, he argues that the claim is not barred because the Alabama Court of Criminal Appeals went on to discuss the issue on the merits concluding that Pelmer received effective assistance of counsel.
"A state court is entitled to express its views on federal constitutional issues without waiving its procedural default rules." Hall v. Wainwright, 733 F.2d 766, 777 (11th Cir.1984). "[A] procedural default does not bar consideration of a federal claim on ... habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). Pelmer asserts that the Alabama Court of Criminal Appeals plainly addressed and decided the merits of his ineffective assistance of counsel claim. Before discussing the merits, however, the state appellate court explicitly held that "this issue cannot be raised in a subsequent [that is, following direct appeal] petition for writ of error coram nobis." 484 So.2d at 556. The state appellate court then prefaced its discussion of the merits with the words "even assuming the claim is valid." That the consideration of the merits rests on an assumption made for the sake of discussion shows that the court's earlier ruling on the procedural bar had substance. These statements demonstrate clearly that the state appellate court intended to invoke procedural default as an alternative ground (if not the sole ground) for denying Pelmer relief. We will respect that intent.
Pelmer contends that the trial court's reckless murder instruction when Pelmer had been charged only with intentional murder deprived him of due process and that Alabama's application of Ex parte Washington, 448 So.2d 404, 408 (Ala.1984) (), only to cases in which the defendant makes a contemporaneous objection, violates equal protection. Neither of these claims was presented in the original petition to the district court. Pelmer did, however, plainly raise the reckless murder/due process issue in a written response to the state's "Attempts to raise new claims are governed by the rules of amendment, without regard to the characterization given the claims by the petitioner." Robinson v. Wade, 686 F.2d 298, 304 n. 11 (5th Cir.1982). Under Fed.R.Civ.P. 15, a party may amend his pleading more than once or after a responsive pleading has been served "only by leave of the court or by written consent of the adverse party." The rule provides further that "leave shall be freely given when justice so requires." Whether to grant or to deny a Rule 59 motion or a Rule 15 motion is committed to the sound discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. See Foman, 371 U.S. at 182, 83 S.Ct. at 230; American Home Assur. Co. v. Glenn Estess & Associates, 763 F.2d 1237, 1238 (11th Cir.1985). Although Pelmer presses the merits of these due process and equal protection issues on appeal, he has never addressed whether the district court abused its discretion in refusing to consider these issues.
answer, and this response was filed before judgment. Pelmer also presented the due process claim in what we have treated as a Rule 59 motion. Pelmer attempted to raise the equal protection argument in his last-minute motion to amend.
In general, the refusal to consider an issue raised for the first time after the entry of judgment is no abuse of discretion. See Hashwani v. Barbar, 822 F.2d 1038, 1041 (11th Cir.1987). But in this case, the reckless murder/due process issue was raised in a pleading filed before judgment and--given the liberality afforded pro se pleadings--should have been considered. See Golden v. Newsome, 755 F.2d 1478, 1480 n. 4 (11th Cir.1985) ().
"Under Alabama law, a failure to raise an issue either at trial or on direct appeal ... constitutes a procedural bar to the assertion of the claim in a subsequent collateral proceeding." Ladd v. Jones, 864 F.2d 108, 109 (11th Cir.1989). Pelmer first raised this reckless murder/due process issue in his state petition for writ of error coram nobis. The Court of Criminal Appeals of Alabama held that the coram nobis court's granting of the motion to strike the reckless murder instruction issue was proper because it "should have been raised in the direct appeal." 2 Jones, 484 So.2d at 556.
Pelmer now claims that he can demonstrate cause for his default by showing trial counsel's ineffectiveness...
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