[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 96-6211
________________________
D. C. Docket No. CV-94-PT-3137-S
JOHN WAYNE HOLSOMBACK,
Petitioner-Appellant,
versus
J.D. WHITE, Warden,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 26, 1998)
Before COX and BARKETT, Circuit Judges, and HUNT*, District Judge.
*Honorable Willis B. Hunt, Jr., U.S. District Judge for the Northern District of Georgia, sitting by
designation.
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.
1
Unless otherwise specified, page numbers within citations to R.1-7, Ex. A, the record in
Holsomback’s direct appeal, refer to the transcript of Holsomback’s trial.
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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 (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; and (10) Holsomback was denied the effective
assistance of both his trial and appellate counsel.
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.
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
2
Holsomback’s trial counsel called a total of six witnesses in addition to Holsomback:
Holsomback’s mother, his sister, his brother, his niece, and two pastors of churches Holsomback
attended. Holsomback’s mother testified regarding the hostile relationship that had existed since
the divorce between Holsomback and his family, and Holsomback’s wife and her mother.
(See R.1-7, Ex. A at 142-44). She also testified that Jeffrey visited her regularly and that she had
-3-
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
seen neither physical evidence of abuse while bathing Jeffrey nor any changes in his attitude
toward his father over the years. (See R.1-7, Ex. A at 146-47, 153-54, 160, 172). Holsomback’s
sister and brother testified that they had in the past, and would in the future, let their sons stay
overnight with Holsomback. (See R.1-7, Ex. A at 181-83, 192). Holsomback’s niece related a
telephone conversation between Jeffrey and his mother and maternal grandmother in which
Jeffrey had responded negatively to inquiries as to whether anyone in his father’s family had
tried to “do anything” to him during a scheduled visitation one Christmas. (See R.1-7, Ex. A at
185-89). Finally, the two pastors testified that Holsomback’s reputation in the community for
truth and veracity was good. (See R.1-7, Ex. A at 196, 202).
3
During his opening argument, the prosecutor made the following statement, over defense
counsel’s objection: “I expect that Jeffrey will say that this went on year after year, which I
expect partly explains the lack of medical evidence.” (R.1-7, Ex. A at 25).
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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 (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. 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.
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
4
We note that the transcript of Holsomback’s trial includes only those portions of the
attorneys’ questioning during voir dire and opening and closing arguments to which an objection
was made.
5
Although Holsomback filed both his federal habeas petition and his initial brief on
appeal pro se, counsel was eventually appointed for Holsomback sometime after the state filed
its initial brief in this case. Counsel subsequently filed an additional brief on Holsomback’s
behalf, supplementing Holsomback’s arguments as to his ineffective assistance and Brady
claims.
-5-
evidence that any sexual abuse had occurred, asserting as deficiencies in counsel’s performance his
failure to interview and call as witnesses Doctors Nolan 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 claim7 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.
6
Holsomback did not specifically mention counsel’s failure to speak with Dr. Williams in
the section of his pro se habeas petition captioned “Petitioner Contends His Fifth Meritorious
Issue Ineffective assistance of Trial Counsel and Appellate Counsel.” Because Holsomback
clearly addressed this deficiency in recounting the procedural history of the case, (see R.1-1 at
60-61), however, we interpret his petition to include this allegation. See Golden v. Newsome,
755 F.2d 1478, 1480 n.4 (11th Cir. 1985) (construing appellant’s pro se habeas petition to include
an allegation not expressly raised therein, but raised in appellant’s accompanying brief); Dickson
v. Wainwright,
683 F.2d 348, 351-52 & n.5 (11th Cir. 1982) (construing appellant’s pro se habeas
petition in light of state post-conviction record).
7
Holsomback asserts numerous other deficiencies in his trial counsel’s performance.
Because we conclude that Holsomback’s additional ineffective assistance claims lack merit,
however, we address only those arguments that relate to counsel’s failure to pursue testimony
from physicians or other medical evidence suggesting that Jeffrey’s allegations of sexual abuse
were not credible.
-6-
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. Nolan and other witnesses and to obtain medical records “were all tactical
decisions . . . based on [counsel’s] professional judgment of how best to present petitioner’s
defense.” (R.2-20 at 29-30). Whether a particular decision by counsel was a tactical one is a
question of fact, and the state court’s resolution of that issue enjoys a strong presumption of
correctness. See Jackson v. Herring,
42 F.3d 1350, 1367 (11th Cir. 1995); Horton v. Zant,
941 F.2d
1449, 1462 (11th Cir. 1991). Whether a particular tactical decision was a reasonable one, however,
is a question of law, reviewable de novo. See Jackson,
42 F.3d at 1367; Horton,
941 F.2d at 1462.
Moreover, as the Supreme Court observed in Strickland:
strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic choices made after less
than complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation. In other words,
counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness
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case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.
Strickland,
466 U.S. at 690-91 (emphasis added).
We cannot say that, under the circumstances of this case, the decision by Holsomback’s trial
counsel not to conduct any investigation into the conceded lack of medical evidence of sexual abuse
was reasonable. Although Holsomback had been accused of sodomizing his son repeatedly over a
period of several years beginning when Jeffrey was only four years old and continuing until he was
nine, a rectal examination performed shortly after the last alleged incident of sodomy found no
medical evidence of sexual abuse. Despite this apparent inconsistency, however, counsel consulted
no physician in order to ascertain the significance of the lack of medical evidence. Moreover, at the
evidentiary hearing held on Holsomback’s first state post-conviction petition, Holsomback’s trial
counsel recalled that his theory of the case was, simply, that “the child was not telling the truth.
. . . It was a question of a one-on-one case.” (R.1-7, Ex. C at 8). Yet despite the fact that counsel
himself viewed the case essentially as a swearing match, turning entirely on whether the “jury
believe[d] the child,” (R.1-7, Ex. C at 31), he made no effort to support Holsomback’s claim of
innocence with disinterested medical testimony or other medical evidence suggesting that Jeffrey’s
allegations were not credible. In particular, counsel declined to contact either the physician who had
examined Jeffrey shortly after the last alleged incident of sodomy or Jeffrey’s family physician
during the period of the alleged sexual abuse, both of whom were readily identifiable to him as
potential sources of such disinterested testimony. Likewise, counsel made no effort to obtain the
records from Jeffrey’s medical examination.
-8-
At the evidentiary hearing, Holsomback’s trial attorney justified his decisions not to contact
the physicians and not to subpoena the medical records based on his view that there was nothing to
be gained from this line of investigation in light of the prosecutor’s concession that there was no
medical evidence to substantiate the allegations of sexual abuse. (See R.1-7, Ex. C at 8-9, Ex. F at
23). In particular, as to his decision not to interview Dr. Williams, counsel explained that although
he had anticipated that, if called as a witness, Dr. Williams would have affirmed the lack of physical
evidence, (see R.1-7, Ex. C at 10-11), he elected not to contact him because
[i]f I put him on the stand, I’m bound by what he says. On cross examination, if
. . . whoever was cross-examining him got him to weasel even a small bit on that
element, I would have had to live with it. Since we already had as a matter of fact
that there was no medical evidence the child was abused, I did not -- it was a
judgment call -- I didn’t feel it would be advisable to run that risk for what potential
benefit might come from it.
(R.1-7, Ex. C at 9-10). Counsel further explained that he did not subpoena Dr. Williams’s medical
report because “under a mutual discovery, if there was some medical evidence there and there was
something in there that might have been harmful to [Holsomback] and we got it, then they could
have used it, if we’d put him on.” (R.1-7, Ex. C at 11). Finally, while counsel never directly
addressed his rationale for not contacting Dr. Nolan, it appears from the record that counsel
preferred simply to rely on the prosecutor’s references to the lack of physical evidence as the sole
source of information on the subject. In response to questioning concerning how Nolan’s testimony
might have helped Holsomback’s case, however, counsel conceded that “in view of the jury verdict,
in retrospect it might have been advisable to [call the doctor].”8 (R.1-7, Ex. C at 13).
8
As discussed more fully infra, Dr. Nolan testified at the evidentiary hearing held on
Holsomback’s second state post-conviction petition that, in his opinion, Jeffrey’s account of the
sexual abuse was not medically possible.
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We find counsel’s justifications unpersuasive under the circumstances of this case. Had
counsel interviewed the doctors, a subsequent tactical decision not to call them might have fallen
well within “the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689.
Having conducted no investigation into the significance of the lack of medical evidence that Jeffrey
had been sexually abused, however, Holsomback’s counsel could not have made an informed
tactical decision that the risk that the doctors might equivocate on the stand outweighed “what
potential benefit might come from [their testimony].” (R.1-7, Ex. C at 10). Because counsel never
actually spoke with the physicians, he remained entirely unaware -- apart from his speculation that,
at best, Dr. Williams would merely corroborate the lack of medical evidence -- of whether and to
what extent their testimony might have helped Holsomback’s case. In these circumstances, we
cannot say that counsel’s decision not even to contact the physicians as part of his pre-trial
investigation was professionally reasonable. Nor can we say that counsel’s tactical decision not to
pursue the medical report from Dr. Williams’s examination was reasonable. Counsel justified his
failure to subpoena the report based on his fear that the report might contain material harmful to
Holsomback’s defense which the state would be able to use against him were counsel to obtain the
report. Because the report was already in the state’s possession, (see R.1-7, Ex. F at 22-23),
however, an effort by counsel to obtain the report could have had no effect on the state’s ability to
use it against Holsomback. Counsel’s asserted fear was thus plainly unreasonable.
Moreover, based on Dr. Nolan’s testimony at the evidentiary hearings held on Holsomback’s
first two state post-conviction petitions, we are also persuaded that counsel’s failure to conduct an
adequate pre-trial investigation satisfies the prejudice prong of Strickland. Holsomback’s own
attorney characterized the proceeding as a “one-on-one case” in which the verdict would turn on
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whose account the jury believed. Noting our agreement with counsel’s characterization, we cannot
say that medical testimony or other medical evidence calling into question Jeffrey’s account of the
abuse would not have made a difference in the outcome at trial.
As of the time of the second evidentiary hearing, Dr. Nolan had been a practitioner of family
medicine, treating both children and adults, for eighteen years. (See R.1-7, Ex. F at 11-12). At the
second hearing, Dr. Nolan was qualified as an expert in family medicine and all the areas it
encompasses. (See R.1-7, Ex. F at 17). Dr. Nolan’s testimony at the hearings established that both
Holsomback and Jeffrey had been patients of his, Holsomback since the inception of Dr. Nolan’s
practice and Jeffrey since the age of one or two, (see R.1-7, Ex. C at 48, Ex. F at 15, 18); that he had
occasion to examine Jeffrey approximately two to three times a year, (see R.1-7, Ex. C at 51-52);
and that, in his examinations, he never saw any signs of sexual abuse, nor did Jeffrey exhibit the
behavior patterns of a child who had been sodomized, (see R.1-7, Ex. C at 48, Ex. F at 40). He also
stated that Holsomback did not exhibit the characteristics of a pedophile. (See R.1-7, Ex. C at 56).
While Dr. Nolan had not himself been asked to examine Jeffrey “on the question of sodomy,” (R.1-
7, Ex. C at 49), based on his review of both the medical report prepared by Dr. Williams and a
transcript of Jeffrey’s trial testimony, he expressed the opinion that Jeffrey’s account of the sexual
abuse was medically impossible. (See R.1-7, Ex. F at 19-20, 24, 28-29). Specifically, Dr. Nolan
testified that certain physical evidence of trauma to the anal area would be apparent to a doctor
performing a rectal examination on a child who had been sodomized once within the previous ten
days to two weeks or four times within the previous year. (See R.1-7, Ex. F at 24-26). Although
Dr. Williams had examined Jeffrey approximately twelve days after the last alleged incident of
sodomy, the medical report from that examination revealed no evidence of trauma or penetration of
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the anus. (See R.1-7, Ex. F at 26-28). Therefore, Dr. Nolan concluded that Jeffrey had not been
subjected to anal intercourse twelve days prior to the rectal examination.9 (See R.1-7, Ex. F at 28).
The dissent suggests that Dr. Nolan’s testimony would not likely have been significant given
that Nolan himself never examined Jeffrey for signs of sexual abuse and appeared to have had little
prior experience handling child abuse cases. However, in addition to testifying in his capacity as
Jeffrey’s treating physician since the age of one or two and on the basis of those occasions on which
he personally had examined Jeffrey, Dr. Nolan also testified based upon his review of the medical
report from Dr. Williams’s rectal examination of Jeffrey and of Jeffrey’s trial testimony. The dissent
also suggests that the medical report prepared by Dr. Williams would not likely have been helpful
to Holsomback’s defense in light of the fact that the report included a final diagnosis of “sexual
abuse.” We recognize that, had Holsomback’s counsel consulted with medical personnel or
otherwise investigated the medical aspect of the case, Dr. Nolan might not himself have been called
as a witness, and the medical report might not have been introduced. In light of Dr. Nolan’s
testimony, however, we are persuaded that, under the specific circumstances of this case,
Holsomback’s defense was sufficiently prejudiced by his attorney’s failure to conduct an adequate
pre-trial investigation that our confidence in the trial outcome is undermined.
For all of the foregoing reasons we REVERSE and REMAND with instructions to grant the
writ of habeas corpus.
9
On cross examination, Dr. Nolan conceded that, if lubrication were used, a penis could
be inserted into the anus without creating signs of penetration “on maybe one occasion,” but not
on multiple occasions, even over a period of a few months. (See R.1-7, Ex. F at 33-34).
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