Rowe v. Peyton
| Decision Date | 28 August 1967 |
| Docket Number | No. 11072,11217.,11072 |
| Citation | 383 F.2d 709 |
| Parties | Robert Elmer ROWE, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee. Clyde Mason THACKER, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John J. Kirby, Jr., Charlottesville, Va. (Court-assigned counsel), for appellants.
Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen., of Virginia, on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER and CRAVEN, Circuit Judges, sitting en banc.
We are asked to decide whether or not any remedy is available to state prisoners seeking to attack, on constitutional grounds, state sentences to be served in the future which have no present effect upon consideration of the prisoners for parole. We think that the traditional writ of habeas corpus is available to serve the clearly present need of a procedural device to test the legality of these convictions under the Constitution of the United States.
In 1963 Rowe was convicted of rape in Staunton, Virginia and a sentence of 30 years was imposed upon him. Three days later, in Waynesboro, Virginia, he was arraigned for the felonious abduction with intent to defile the same female of whose rape he had been convicted in Staunton. A plea of former jeopardy was overruled, whereupon, on advice of counsel, Rowe tendered a plea of guilty. Rowe alleged that he had been told by his lawyer that any sentence imposed upon him in Waynesboro would be required to run concurrently with the thirty year sentence imposed upon him in Staunton for the rape. However, the Court imposed upon him a sentence of 20 years to run consecutively to the sentence on the rape charge, and he was committed to the penitentiary to serve the two consecutive sentences totalling fifty years.
Rowe will not begin to serve the sentence imposed upon him in Waynesboro for abduction until the year 1993. Because, under Virginia law, a prisoner, regardless of the length of his sentence, may be considered for parole after serving twelve years, Rowe is presently scheduled to become eligible for parole in 1975. If the second sentence is invalidated, Rowe's eligibility for parole will be advanced to late 1970 or early 1971.
Rowe has not attacked the first conviction for rape. He has sought to attack in the state and federal courts his second conviction, the one for abduction, on grounds of former jeopardy and of involuntariness of his guilty plea which, he alleged, was induced by the misadvice given him and the indifference of his trial counsel. Virginia concedes that, on the merits, the petition states a prima facie claim of invalidity of the abduction conviction which, if substantiated at a hearing, would require that the conviction be vacated.
In 1964 Clyde Thacker was committed to the Virginia State Penitentiary to serve a number of sentences totalling sixty years, four months and sixteen days. He seeks to attack three sentences which are presently scheduled to commence in service in 1994 and to end in the year 2004. They were imposed upon him in 1953, but were suspended. The suspension was revoked in 1956.
Because of the rule of eligibility for consideration for parole after service of twelve years, Thacker will become technically eligible for such consideration in 1976. That date will not be advanced even if the three sentences under attack are vacated.
Thacker seeks to attack these three sentences upon the ground of inadequate representation by his trial counsel at the time of his convictions in 1953. The factual allegations facially show such gross neglect by the lawyer of his client's interests that, were the alleged facts established in a hearing, Thacker would be entitled to have those sentences vacated. As in Rowe's case, the Commonwealth concedes that Thacker's petition sufficiently states a constitutional claim and cannot be dismissed without a hearing if there is any appropriate remedy.
It is thus apparent that in 1971 when Rowe's conviction for abduction begins to affect his eligibility for consideration of parole, he will be permitted to attack that conviction.1 On the basis of the allegations of his present petition he will be entitled to a hearing.
When Thacker becomes eligible for parole in 1976 he, too, will be allowed to attack his 1953 convictions for, while these convictions do not affect the parole eligibility date, their presence on his record is strongly calculated to weigh heavily against the grant of parole.2 The question is whether, meanwhile, Rowe and Thacker must patiently wait until the challenged convictions begin to hurt them in terms of an immediate potential parole. The answer involves a more fundamental question, whether the courts are powerless to provide an effective remedy to vacate constitutionally defective convictions at a time when witnesses are available and their memories relatively fresh, when it is certain that, if the prisoner survives so long, there will be an available remedy some years hence.
At the outset it is objected that Thacker has not pursued available state remedies. It is true that he has not, but Rowe has. His petition was rejected by the Supreme Court of Appeals of Virginia without an opinion, but in light of the factual allegations of the petition, that rejection must have been upon the procedural ground that Rowe was not presently serving the sentence he seeks to attack.3 Thacker should not be required to travel the same road through the state courts to present a question which the Virginia Supreme Court of Appeals has so recently decided, when there is no indication that it is now prepared to depart from the former course of its decisions.4
It is further objected by the Commonwealth that the question of availability of remedies has not been presented to the Supreme Court of Appeals of Virginia in the lucid fashion in which it has been developed in this Court. This Court was concerned about the question and undertook to have it fully developed here by granting certificates of probable cause to appeal and appointing an exceptionally able lawyer who has filed a very enlightening brief. While academicians may speculate about a decision of a court in light of the quality of the advocacy as indicated by the briefs filed in the case, that is a role we should not undertake in resolving questions of exhaustion of state remedies. If the question was clearly tendered, as it was in Rowe's and other cases, and decided by the State Court, we must accept the decision as an authoritative declaration of state law even if, upon an examination of the briefs filed in the state court, we are of the opinion that they were less comprehensive and less helpful than the briefs which have been filed in this Court. Appellate courts can be greatly assisted by inspired counsel, but counsel's performance contains neither the measure nor the limit of the court's perception or analysis; Judges may know and understand many relevant things that are not intelligently discussed by lawyers in a particular case. Even when lawyers perform superbly, as they have in this case, all of the tools of decision may not be found in the briefs.
We thus reach the merits of the procedural question of present availability of a federal remedy for the adjudication of constitutional validity of these state sentences to be served in the future.
The "Great Writ" has deep antecedents in the English common law as a procedural device for protecting and extending the jurisdiction of courts. As an effective weapon, for the protection of individual liberties from monarchial interference, it evolved in the Seventeenth Century, in the course of a great constitutional crisis.5 As such it was imported into this country as a shield against authoritarian commitments under orders of the Crown. Available, too, for the procurement of bail for bailable offenses,6 and for the questioning of private restraints upon individual liberties, it was not envisioned as an instrument for questioning judicial authority except in the narrowest of jurisdictional senses. The writ was unavailable to one held for trial or convicted of a felony in a court having jurisdiction of the offense and of the person of the petitioner.7 When no sentence of a court having jurisdiction was subject to attack on habeas corpus, there was no justiciable problem of sentences to be served in the future.
When, by the Act of February 5, 1867,8 the federal writ was extended to persons held under state commitments in violation of the Constitution, laws or treaties of the United States, our present problem still did not arise. While the statute might have been construed more broadly, the current understanding of the limitations of the writ was so definitive that the jurisdictional concept remained in full flower. A state court's commitment was not questionable in a federal habeas corpus proceeding if the offense was triable in the state court and the prisoner subject to its power.9 There was no substantial crack in that conceptual limitation until 1915 when, in Frank v. Mangum,10 the Court assumed that a state court having jurisdiction might be ousted of it by the overriding influence of a mob.11
Even under this relaxing concept of "jurisdiction," which viewed some judgments as void, rather than voidable, the writ offered little encouragement to a prisoner oppressed with a sense of injustice in the imposition of a sentence to be served in the future. Nevertheless, such a case did reach the Supreme Court in 1934.12 McNally complained of a sentence imposed upon him on the third count of a three count indictment. His contention was that the third count was so defective as to oust the court of jurisdiction to impose any sentence. He lost in the lower courts on the ground that the defect...
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...case. We find language in an en banc decision of the Court of Appeals for the Fourth Circuit apt in the present situation. In Rowe v. Peyton, 383 F.2d 709, 714, affirmed in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, that court said, speaking by Haynsworth, C.J.: 'This court......
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