CHARLES R. BUTLER, JR., Chief District Judge
This matter is before the Court on the Report and Recommendation of the Magistrate Judge recommending that the habeas petition in this action be denied. Petitioner has filed an objection in which he sets out factual allegations not raised before the Magistrate Judge. After a de novo review of that portion of the Report and Recommendation to which objection is made, especially in light of the facts asserted for the first time in petitioner's objection, the Court remands this matter to the Magistrate Judge for an evidentiary hearing.
A district court has discretion to consider evidence contained in an objection that has not been submitted to the magistrate judge. Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998).
I. Background
Petitioner Jimmy Lee Montgomery is serving a sentence of life without parole resulting from his conviction of first degree robbery in the Circuit Court of Mobile Alabama on March 18, 1992. On January 18, 1991, attorney Domingo Soto was appointed to represent the petitioner on the robbery charge. As a habitual offender, petitioner faced a mandatory sentence of life without parole if convicted. Petitioner's case was scheduled for trial on February 6, 1991. In the interim, Soto attempted to negotiate a plea bargain with the District Attorney's Office. Petitioner did not appear for trial and his whereabouts remained unknown until more than a year later.
On March 18, 1992, a member of Judge McRae's staff in Mobile County Circuit Court called Soto and told him to come to court immediately. Not until he arrived in court was Soto told why he had been summoned — petitioner Jimmy Lee Montgomery had been arrested and was scheduled for trial that day. Soto had not been notified that petitioner had was in custody or that his case was scheduled for trial. Therefore, counsel was totally unprepared for trial, having come to court without his file or even pen and paper. Soto moved for a continuance based on his lack of preparation, including his inability to interview witnesses. When that motion was denied, Soto moved to withdraw as counsel. That motion was also denied. Soto attempted to negotiate a plea bargain. The assistant district attorney agreed to recommend a sentence of life, as opposed to life without parole, but petitioner did not wish to plead. Consequently, Soto was forced to go to trial without notice and with very little preparation.
Before trial commenced, he was permitted to review the prosecutor's file and to interview the prosecution's sole witness.
The state's case consisted of one witness, Zelda Harris, the victim of the robbery. Mrs. Harris testified that on a Sunday morning in September of 1990 she was robbed while working as an attendant at the Shell Station on Broad Street. A man walked into the store with a gun and ordered her to give him the money out of the cash register. Mrs. Harris did as she was told, and the robber left the store. Although the robber covered his nose and mouth with a cloth, Mrs. Harris recognized him as Jimmy Lee Montgomery. Mrs. Harris testified that she knew the petitioner because she was raised in the same neighborhood and she and Jimmy Lee Montgomery had been back door neighbors for about twelve years.
When the police arrived immediately after the robbery, Mrs. Harris initially told them that Johnny Montgomery, petitioner's brother, was the person who had robbed her. She then corrected herself and told them that it was Jimmy who had robbed her. Mrs. Harris admitted on cross examination that Jimmy and Johnny Montgomery look alike. Mrs. Harris also testified that Jimmy later called her from jail about two weeks after his arrest, admitted robbing her and asked her to give him a second chance and not to testify against him. According to Mrs. Harris, not only did she recognize petitioner's voice when he called, the caller identified himself to her as "Jimmy".
The jury deliberated for less than thirty minutes before finding the petitioner guilty. The following day Judge McRae sentenced petitioner to life imprisonment without the possibility of parole.
Petitioner appealed and was appointed new counsel. His conviction was affirmed on appeal. Petitioner subsequently filed a Rule 32 petition in state court, which was denied. The denial of postconviction relief was also affirmed on appeal. Petitioner filed the instant petition on January 28, 1997.
II. Legal Discussion A. Issues Presented
Petitioner raised four claims in his habeas petition: (1) ineffective assistance of trial counsel; (2) lack of identification of the petitioner as the perpetrator; (3) sufficiency of the evidence and (4) improper denial of written jury instructions at trial. The Magistrate Judge found that the second and third grounds were procedurally defaulted and that the remaining grounds were without merit. Petitioner objects to the Magistrate Judge's recommended resolution of each issue raised. After a de novo review of all issues, the Court finds petitioner's objections regarding the three latter claims to be without merit. However, in light of his new allegation regarding the existence of an alibi witness, petitioner's objection regarding his ineffective assistance claim, the first claim requires further examination.
B. Ineffective Assistance of Counsel
Petitioner frames his ineffective assistance of counsel claim as follows: "Whether the petitioner was rendered ineffective assistance of counsel where his appointed attorney was compelled by the court to proceed to trial without notice, without preparation and without an opportunity to seek out and interview prospective witnesses?" (Pet. at 9). The Magistrate Judge analyzed petitioner's ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief under Strickland "a convicted defendant complaining of ineffective assistance of counsel must show: 1) `that counsel's representation fell below an objective standard of reasonableness,' and 2) `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Stano v. Dugger, 921 F.2d 1125, 1149 (11th Cir. 1991) (quoting Strickland, 466 U.S. at 688, 694). Because petitioner failed to allege specifically how he prejudiced, the Magistrate Judge found that the petition did not meet the second prong of Strickland, he did not address the adequacy of counsel's representation.
The Court views petitioner's ineffective assistance claim slightly differently. While petitioner claims his attorney performed deficiently, he attributes counsel's deficiency to the inadequate preparation time afforded him by the trial judge. "`[T]he right to a preparation period sufficient to assure at least a minimal quality of counsel'" is one component of a criminal defendant's right to counsel under the Sixth Amendment. Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir. 1984) (quoting Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978)). "Although frequently the result of a slothful lawyer, inadequate preparation can also be caused by unreasonable time constraints imposed by a trial court." United States v. King, 664 F.2d 1171, 1173 (10th Cir. 1981). In this case, counsel, having been given no advanced notice, was summoned to court without any hint that he was being called to try a case. He had not seen his client in more than a year and did not know petitioner had been arrested, much less that he was scheduled for trial. Consequently, counsel's only preparation was the time he was given the morning of trial to review the state's file and talk to its witness. Counsel had no opportunity to interview or subpoena witnesses.
Pro se habeas petitions are to be interpreted liberally, Holsomback v. White, 133 F.3d 1382, 1386 (11th Cir. 1998). Notwithstanding petitioner's invocation of Strickland, it takes only a slightly broad reading of petitioner's ineffective assistance claim to glean that it is based upon the lack of preparation time afforded by the trial court.
Strickland evaluates counsels performance on the basis of its reasonableness under the circumstances. Strickland, 466 U.S. at 691. In this case, Soto's performance was certainly reasonable, in light of extremely short notice he was given. But his preparation for trial was far from adequate. In other words, inadequate representation was reasonable under the circumstances.
In these circumstances petitioner must prove that he was prejudiced by counsel's lack of preparation. See United States v.Cronic, 466 U.S. 648 (1984) (delineating limited circumstances in which prejudice will be presumed in context of Sixth Amendment violation); accord United States v. Cordell, 924 F.2d 614, 616 (11th Cir. 1991) (incumbent upon defendant to show prejudice resulting from lack of adequate preparation time). "A deficiency in counsel's performance is prejudicial where `there is a reasonable probability that, but for [the] error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Holsomback v. White, 133 F.3d 1382, 1386 (11th Cir. 1998). "Thus, in the context of a criminal trial the standard is whether a jury, absent the errors, would have had a reasonable doubt concerning the guilt of the accused." Chatom v. White, 858 F.2d 1479, 1486 (11th Cir. 1988).
In his objection, petitioner has asserted prejudice. Petitioner contends that he would have called as a witness Joyce Shaver who would have testified that petitioner was with her at her house at the time of the robbery. Given the nature of the government's case, there is a reasonable probability that the outcome would have been different if petitioner's counsel had been given the opportunity to call this alibi witness. The government's case depended solely on the credibility of the victim who had identified petitioner as the robber even though the robber had been wearing a mask. Furthermore, she had initially misidentified the robber as Johnny Montgomery, petitioner's brother. With an alibi witness, defense counsel could have made a persuasive argument that the witness's identification was suspect and that there was sufficient reasonable doubt to acquit the petitioner. C. Evidentiary Hearing Required
Of course, the victim's testimony regarding the subsequent telephone call from someone who identified himself as "Jimmy" makes a misidentification argument somewhat more difficult. It is a plausible one nonetheless since the victim had to rely on the caller's voice and his own identification of himself.
A writ may not be granted simply upon petitioner's allegations of prejudice; rather, petitioner must "`affirmatively prove prejudice.'" Lawrence v. Armentroug, 900 F.2d 127, 130 (8th Cir. 1990) (quoting Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).
To affirmatively prove prejudice, a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial Moreover, if potential trial witnesses are not called to testify at a postconviction review hearing the petitioner ordinarily should explain their absence and demonstrate, with some precision, the content of the testimony they would have given at trial.
Id. (citations and quotations omitted).
Therefore, this matter is hereby REMANDED to the Magistrate Judge pursuant to Rule 8(b) of the Rules Governing for Section 2254 Cases for an evidentiary hearing to determine whether plaintiff can prove prejudice to support his Sixth Amendment claim. The Magistrate Judge shall appoint counsel to represent petitioner at the hearing.