356 F.2d 75 (5th Cir. 1966), 22166, Busby v. Holman

Docket Nº:22166.
Citation:356 F.2d 75
Party Name:David BUSBY, Appellant, v. William C. HOLMAN, Warden, Kilby Prison, Appellee.
Case Date:January 31, 1966
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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356 F.2d 75 (5th Cir. 1966)

David BUSBY, Appellant,


William C. HOLMAN, Warden, Kilby Prison, Appellee.

No. 22166.

United States Court of Appeals, Fifth Circuit.

January 31, 1966

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Thomas S. Lawson, Jr., David Busby, Montgomery, Ala., for appellant.

Richmond Flowers, Atty. Gen., John C. Tyson, III, Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before MARIS, [a1] RIVES and BELL, Circuit Judges.

MARIS, Circuit Judge:

The appellant, David Busby, is presently serving a sentence of life imprisonment imposed upon him in 1956 in the Circuit Court of Walker County, Alabama, following his plea of guilty to a charge of rape. In 1964 he filed a petition for a writ of habeas corpus in the District Court for the Middle District of Alabama claiming that he was incarcerated in violation of his constitutional rights in that his guilty plea was coerced by State officers and that he was denied the effective assistance of counsel. The district court held an evidentiary hearing. On the evidence adduced at the hearing, the district court found the facts to be as follows:

Early in 1956 the appellant was returned from Michigan to the State of Alabama to stand trial for charges of rape and robbery. While thus returning in the custody of two deputy sheriffs from Walker County, Alabama, the appellant in casual conversation denied his guilt of criminal attack upon the woman involved, claiming that she had consented. He was lodged in the Walker County jail at Jasper where he was interrogated by the circuit solicitor and two deputy sheriffs for approximately one hour. After the interrogation was terminated, the circuit solicitor left. Shortly thereafter, the appellant told a jailer that he desired to tell the circuit solicitor exactly what had happened in connection with the offenses with which he was charged. The circuit solicitor returned, the appellant related the facts, which were taken down by the circuit solicitor, in which appellant confessed fully his guilt of the rape and robbery charges.

Following the request of members of appellant's family, the circuit solicitor asked that appellant be committed to the State Mental Hospital at Tuscaloosa for an examination as to his sanity. V.H. Carmichael, a member of the bar, who was deceased at the time of the hearing in the district court, was appointed by the State court to represent appellant in connection with the mental examination and later he was appointed to continue representing appellant. The appellant received a mental examination, was found to be mentally competent, and was discharged from the hospital. He was arraigned and entered a plea of not guilty. Subsequent to his arraignment, his court-appointed counsel worked out an agreement with the circuit solicitor whereby the appellant would withdraw his plea of not guilty and enter a plea of guilty to the offense of rape, and the circuit solicitor would not ask for the death penalty, but instead would recommend to the court and jury that appellant receive a life sentence, and the indictment for the offense of robbery, then pending against the appellant, would be dismissed. Pursuant to this arrangement, the appellant on August 7, 1956 executed a waiver of a special venire and agreed to enter a plea of guilty to the

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charge of rape. This was done before a circuit judge of Walker County. On August 20, 1956, in open court, the appellant withdrew his plea of not guilty and entered a plea of guilty. In accordance with the procedure required under Alabama law, testimony was taken before a jury to establish a prima facie case, the recommendation of the circuit solicitor was made known to the judge and the jury, following that recommendation, fixed appellant's punishment as imprisonment for life. Pursuant to the agreement, the robbery charge was dismissed by the court.

The district court found that the agreement preceding appellant's guilty plea was made with his full knowledge, understanding and consent, and that the circuit judge of Walker County, before whom the plea was entered, had interrogated the appellant as to his willingness to follow such a procedure and was convinced, after this interrogation, that appellant was acting voluntarily, intelligently and with full knowledge of the consequences. The district court further found that appellant's confession was not coerced by threats or mistreatment but on the contrary that the circuit solicitor had specifically advised appellant that he was not required to make any statement concerning the matter and that at no time prior to or during his interrogation did the appellant request an attorney. Concluding that there had been no violation of the appellant's constitutional rights and that he had been accorded competent and effective assistance of counsel, the district court entered an order dismissing the petition for a writ of habeas corpus. Busby v. Holman, D.C.Ala.1964, 237 F.Supp. 271. This appeal followed.

In this court the appellant first argues that his confession was illegally obtained because it was coerced and because he was not accorded the assistance of counsel at the time it was given. He asserts that by reason of these alleged violations of his constitutional rights his subsequent conviction on his plea of guilty was invalid. There is no merit in this contention, even if we assume that the appellant's confession was not voluntary 1 and even if we assume further that he was required to be furnished with counsel when he was being interrogated even though he did not ask for such assistance. 2 For the confession was not offered in evidence in view of the fact that the appellant pleaded guilty and the question of its legality is relevant in the present proceedings only to the extent that it may have affected the voluntary character of the appellant's plea. It is settled by a host of authorities that a judgment on a plea of guilty which has been entered voluntarily on advice of counsel is not rendered invalid because the defendant had previously made a confession under circumstances which might have rendered it inadmissible in evidence if the defendant had...

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