Tower v. Phillips
| Decision Date | 17 November 1993 |
| Docket Number | No. 90-4038,90-4038 |
| Citation | 7 F.3d 206 |
| Parties | Terry Brian TOWER, Petitioner-Appellant, v. O.J. PHILLIPS, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Middle District of Florida.
ON REHEARING
Before ANDERSON, Circuit Judge, MORGAN and JOHNSON, Senior Circuit Judges.
This case arises on appeal following the district court's order denying and dismissing the petition for writ of habeas corpus of petitioner-appellant Terry Brian Towler. 1 The original panel opinion was issued on December 21, 1992, and published at 979 F.2d 807. An active judge of this court withheld the mandate prompting reconsideration by the panel of the procedural bar issue raised in the appellee's brief. On May 3, 1993, appellant filed a motion to issue the mandate. That motion was denied on June 11, 1993. We now withdraw the opinion previously issued and published at 979 F.2d 807, and substitute the following judgment and opinion.
In November 1981, Towler, then age 19, was in a Florida jail facing three informations containing various state felony charges against him. The informations charged Towler with at least three life felonies (including one count of attempted murder, one count of armed burglary, and one count of armed kidnapping), two armed robbery felonies which the State argues were also life felonies, but which Towler asserts constituted only first degree felonies, 2 and several second degree felonies (including two counts of escape, one count of introduction of contraband into prison, and one count of possession of contraband). The Florida trial court appointed an assistant public defender to represent Towler in connection with these charges.
On November 16, 1981, Towler entered into a written plea agreement with the State, pursuant to which Towler agreed to plead guilty to five of the offenses listed in the informations. Later the same day, Towler, accompanied by his attorney, appeared before the trial judge for a hearing to change Towler's plea on the five offenses from not guilty to guilty. During the hearing, the trial judge informed Towler of all of the charges against him and their maximum possible sentences, and engaged in a routine plea colloquy with Towler concerning those offenses to which Towler had agreed to plead guilty. With one exception, 3 Towler indicated that he understood both the charges and the effect of a guilty plea. At the conclusion of the hearing, the trial judge accepted and entered Towler's plea of guilty to one count of armed kidnapping, one count of armed robbery, one count of introduction of contraband into prison, and two counts of escape. In return, the state dropped the remaining charges against Towler.
The written plea agreement identified the offenses to which Towler agreed to plead guilty and referenced the location of each offense in the original informations. The plea agreement did not, however, indicate the degree of the offenses to which Towler would plead guilty. The trial judge entered Towler's guilty pleas to the charges in the same degree as listed in the informations--i.e., the judgment reflected convictions of two life felonies and three second degree felonies. 4 However, Towler alleges that he executed the plea agreement only upon the advice of his attorney that the charges against him would be reduced to lesser-degree offenses as a result of the plea agreement. Towler insists that had he known the true nature of the bargain, he would never have agreed to plead guilty to two life offenses which each carried mandatory sentences of thirty years to life in addition to three other second degree felonies.
Towler's attorney also represented Towler at his sentencing hearing, which was held on January 29, 1982. Shortly before the hearing commenced, Towler obtained a copy of his Presentence Investigation Report. On reading of the possible sentencing options discussed in the report, Towler alleges that he realized for the first time that the charges he pleaded guilty to had not been reduced to third degree offenses. Towler claims that he spoke with his attorney about the perceived error immediately before the hearing. Towler insists that he told his attorney at that time that the report was not consistent with his understanding of the nature of his pleas, and that he therefore wished to withdraw his guilty pleas and proceed with a jury trial.
The same judge who had accepted Towler's guilty pleas presided over the sentencing hearing. At the hearing, Towler's attorney informed the judge that Towler wished to change his pleas. When the judge asked what grounds Towler had for withdrawing the guilty pleas, Towler's attorney responded, "[M]y understanding is that we would simply prefer to have a Jury Trial on each of these offenses." Towler's attorney did not mention anything improper about the plea agreement. Towler himself did not object to his attorney's characterization of his request, nor did the trial judge question Towler directly about his request to withdraw his pleas. The judge denied Towler's motion for permission to change his pleas, and sentenced Towler to a total of 95 years in prison. The subsequent procedural history is set out below.
In February 1982, Towler's attorney filed a motion with the sentencing judge to reduce Towler's sentence, relying upon grounds wholly unrelated to Towler's federal claims. The sentencing judge denied the motion without opinion on March 26, 1982. Towler never appealed his convictions or sentence, allegedly because his attorney told him that he could not challenge his guilty pleas once his motion to reduce the sentence was denied. 5
In June and November of 1987, more than five years after the entry of Towler's convictions, Towler filed two collateral motions in Florida state court to vacate or set aside his sentence pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. Neither of Towler's motions have ever been ruled upon by a Florida court. Although Towler has not sought mandamus or an expedited ruling on these motions, he has apparently written the clerk of the state court repeatedly concerning his pending motions.
On June 21, 1989, Towler initiated federal proceedings by filing a petition for writ of habeas corpus relief in the Middle District of Florida. See 28 U.S.C. § 2254 (West 1977). In his petition, Towler alleged the same three grounds for relief contained in his pending state motions: (1) the ineffective assistance of his appointed counsel; (2) the involuntariness of his guilty pleas; 6 and (3) the sentence imposed was in excess of the maximum sentence allowed by law. 7 On November 1, 1989, the State moved for summary judgment on Towler's petition. The district court referred the matter to a magistrate judge, who prepared a report recommending that Towler's petition be denied. The magistrate judge concluded that an evidentiary hearing was unnecessary because Towler's claims lacked merit on their face. On October 30, 1990, the district court adopted the magistrate's report and recommendation, and denied Towler's petition. Towler now brings a timely appeal of the district court's decision to deny his petition without an evidentiary hearing.
On appeal, Towler challenges the district court's ruling that his habeas petition did not raise a question as to whether Towler was denied the effective assistance of counsel or whether Towler's guilty pleas may have been unknowing or involuntary. Before we can reach the merits of Towler's claims, however, we must address the State's argument that Towler's petition is procedurally barred because Towler has not shown cause for and prejudice from his failure to comply with Florida's time limitations on collateral motions made pursuant to Rule 3.850. 8 See Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-09, 53 L.Ed.2d 594 (1977). Whether a petitioner's actions or inaction have created a state law procedural bar of particular claims is a mixed question of law and fact. Therefore, we review the district court's determination that Towler was not procedurally barred from raising his claims in federal court de novo. Cf. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir.1990) (). The magistrate judge and district court below concluded that because the Florida courts never ruled on Towler's motions, a showing of cause and prejudice was unnecessary. 9 The State argues that this was error.
Federal courts are precluded from addressing claims that have been held to be procedurally defaulted under state law. Coleman v. Thompson, --- U.S. ----, ----, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). In addition, federal courts may not address claims that have not been presented in state court if the state court would have found the claims to be procedurally defaulted, unless the petitioner is able to show both cause for the default and prejudice resulting therefrom. 10 Teague v. Lane, 489 U.S. 288, 297-99, 109 S.Ct. 1060, 1068-69, 103 L.Ed.2d 334 (1989); Engle v. Isaac, 456 U.S. 107, 128-29, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982). It is clear that if the state court in this case had held Towler's motion to be procedurally defaulted, we would enforce that bar in this court, as we have routinely done. Atkins v. Singletary, 965 F.2d 952 (11th Cir.1992); Johnson v. Singletary, 938 F.2d 1166, 1173-74 (11th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992); Whiddon v. Dugger, 894 F.2d 1266 (11th Cir.), cert. denied, 498 U.S. 834, 111 S.Ct. 102, 112 L.Ed.2d 73 (1990). It is...
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