Pennington v. Spears, 85-7238
| Decision Date | 13 January 1986 |
| Docket Number | No. 85-7238,85-7238 |
| Citation | 779 F.2d 1505 |
| Parties | Coleman PENNINGTON, Petitioner-Appellant, v. Larry SPEARS, Warden, and the State of Alabama, Respondent-Appellees. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Charles A. Graddick, Atty. Gen. State of Ala., Rivard Melson, Montgomery, Ala., for respondent-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before GODBOLD, Chief Judge, HILL and ANDERSON, Circuit Judges.
Coleman Pennington appeals from the district court's denial of his pro se petition for a writ of habeas corpus. In April 1982, Pennington was convicted of theft of property in the first degree, and was sentenced to life imprisonment under Alabama's Habitual Offender Act. In December 1984, Pennington filed a petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982). The magistrate characterized his petition as raising the following claims: (1) insufficiency of the evidence; (2) a constitutionally defective indictment; (3) the commission of perjury by a prosecution witness; (4) the failure to furnish a complete trial transcript; (5) warrantless searches of Ottis Pennington's house and petitioner's automobile; (6) evidence obtained as the result of an unlawful arrest; (7) violation of his privilege against self-incrimination; (8) ineffective assistance of counsel; (9) improperly impaneled jury; and (10) a three week delay in the setting of bail. See Record on Appeal at 83-84. The magistrate recommended that Pennington's petition be denied on the merits. In his objections to the magistrate's report, Pennington accepted the magistrate's characterization of his claims, but added the claim that he was improperly charged with two counts of theft of property in the first degree, even though both counts resulted from a single transaction. After considering Pennington's objections de novo, the district court denied his petition.
On appeal, Pennington raises the same claims presented to the magistrate and the district court. We affirm.
We first note that the state has waived the defense of lack of exhaustion. In its answer to Pennington's petition, the state expressly declined to raise this defense, instead requesting the district court to deny the petition on the merits. See Record on Appeal at 44. The magistrate then found that "[Pennington had] exhausted state judicial remedies," id. at 86, and the district court adopted the magistrate's report. Although it is not clear from the record whether Pennington has in fact exhausted state remedies, it is clear that the state does not assert a defense of lack of exhaustion. In Thompson v. Wainwright, 714 F.2d 1495 (11th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2180, 80 L.Ed.2d 562 (1984), we held that the state attorney general has the power to waive exhaustion. Id. at 1500-08. We also held in Thompson that the district court may, in its discretion, accept or reject this waiver. Id. at 1508-09. Since the court below reached the merits of Pennington's petition, we can assume that it accepted the state's waiver. 1
Having found a waiver of the exhaustion defense, we turn to the merits. We conclude that the only claims warranting discussion are his contentions that he was denied effective assistance of counsel and that he was improperly charged with two counts of first degree theft. With respect to the former claim, Pennington alleges that his counsel was ineffective because his attorney was appointed too late in the proceedings to be adequately prepared for trial, and failed to call certain witnesses at trial. This contention, however, is without merit. Pennington's allegations concerning his counsel's inadequate preparation for trial and failure to call certain witnesses were fully...
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United States v. Campbell
...that the appellee (a state in a habeas case) abandoned an exhaustion defense by not raising it on appeal); Pennington v. Spears , 779 F.2d 1505, 1506 (11th Cir. 1986) (same).12 And to reiterate what we have said before, there are good reasons for requiring appellees (like appellants) to pre......
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Delap v. Dugger
...and thus has waived procedural default. See Response to Petition for Writ of Habeas Corpus 71-72 (October 1, 1987); Pennington v. Spears, 779 F.2d 1505, 1506 (11th Cir.1986). Furthermore, the Florida Supreme Court ruled on the merits of the Gardner claim, thus making procedural default inap......
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Johnson v. Singletary
...6 The State did not raise the defense of failure to exhaust state remedies 7 and thus waived that defense. See Pennington v. Spears, 779 F.2d 1505 (11th Cir.1986). The district court, after initially granting a stay of execution, denied the petition and thereafter denied Johnson's motion to......
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United States v. Stewart
... ... with testimony both material and favorable to the defense); ... Pennington v. Spears , 779 F.2d 1505, 1507 (11th Cir ... 1986) (noting that witnesses without relevant ... ...