Callahan v. Russell

• Decision Date: 17 March 1970
• Docket Number: No. 19323.,19323.
• Parties: Donald CALLAHAN, Petitioner-Appellee, v. Lake F. RUSSELL, Warden, Tennessee State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

423 F.2d 450 (1970)

Donald CALLAHAN, Petitioner-Appellee, v. Lake F. RUSSELL, Warden, Tennessee State Penitentiary, Respondent-Appellant.

No. 19323.

United States Court of Appeals, Sixth Circuit.

March 17, 1970.

Elmer D. Davies, Jr., Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., for appellant; George F. McCanless, Atty. Gen. and Reporter, State of Tennessee, of counsel.

William G. Womack (Court Appointed), Nashville, Tenn., for appellee.

Before WEICK and CELEBREZZE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WEICK, Circuit Judge.

This is an appeal from an order of the District Court granting the appellee's petition for a writ of habeas corpus.

Three indictments were returned against appellee on January 7, 1963, in the Circuit Court of Franklin County, Tennessee, charging him with the offenses of armed robbery, larceny, and kidnapping. The three indictments grew out of the armed robbery and kidnapping of a Winchester, Tennessee policeman on November 23, 1962, and the larceny of his revolver, $115.00 of his money, and of the police automobile.

At his preliminary hearing appellee was advised of his right to an attorney. He did not confer with an attorney and entered a plea of guilty. The plea was not accepted and was not used against him. In Tennessee a preliminary hearing is not regarded as a critical proceeding.

The three cases were assigned for trial on January 9, 1963. Since Callahan had no attorney and was indigent, the Court appointed two attorneys to represent him. After consultation with his attorneys for about fifteen minutes, he pleaded guilty to all three indictments and was given consecutive sentences totaling fifteen years.

Callahan filed a habeas corpus petition in the Circuit Court of Franklin County, Tennessee, on July 19, 1966, challenging the validity of his conviction on a number of grounds, his principal claims being that his pleas of guilty to the indictments were involuntary and that he did not have the effective assistance of counsel.

Counsel was appointed for Callahan in the state habeas corpus action and he was granted a full evidentiary hearing. At this hearing he declined to testify. The Court determined the issues against him and dismissed the petition.

On appeal to the Supreme Court of Tennessee, the judgment of the Circuit Court was affirmed in an opinion written by the Chief Justice, appearing in State ex rel. Callahan v. Henderson, 417 S.W. 2d 789 (Tenn.1967). The opinion of the Supreme Court sets forth the then uncontroverted facts, as follows:

"At the trial before the court in which he was convicted, and of which he now complains, he was represented by two lawyers who were appointed by the trial court. Both of these lawyers are able and capable attorneys. These lawyers were appointed on the morning of the trial and they conferred with the petitioner for some fifteen or twenty minutes prior to the trial.

These lawyers testified in the cause now before us that after talking with the petitioner they conferred with the District Attorney General concerning the case, and that the District Attorney General with some reluctance agreed to allow the petitioner to submit on each of the three offenses for which he was indicted and then to be tried and receive the minimum sentences on each. The attorneys then communicated this fact to the petitioner and he consented thereto. Petitioner was advised of the possible sentence for each offense, which included a possibility of death by electrocution for the armed robbery offense. The petitioner stated to them that he had no witnesses, and that because petitioner had no defense these attorneys advised him that it would be to his best interest to take the minimum sentences for each offense. Counsel testified herein that the petitioner expressed a willingness to plead guilty and that it was the petitioner\'s decision to enter the plea of guilty. One of the lawyers testified in this hearing that the petitioner was not coerced or threatened or anything of the kind to enter the plea, and that he was well satisfied with the settlement they had made with the District Attorney General.

"The testimony herein shows likewise that the court advised the petitioner of all his constitutional rights. Counsel testified that he did not recall advising petitioner that he had a right of appeal but that petitioner at no time requested an appeal. It is shown without contradiction that these attorneys advised the petitioner fully as to the sentence which was placed upon him." Id. at 790, 791.

Relative to his claims of ineffective assistance of counsel and involuntary pleas of guilty, the Court said:

"We cannot say that fifteen minutes was too short a time to properly represent one under a factual situation as herein presented. Of course, if the crime is committed so as to be contestable or there was a question about it or witnesses to be found to be offered before the court to test the validity of the crime or the truth or falsity of it, then this would require time for an investigation. But if the person charged with the crime concedes to his counsel that he did these things and that he was well pleased to get out with the minimum sentence for having committed the crime, then unquestionably it could not be said that fifteen minutes was not adequate time for consultation and investigation. Under such a situation counsel, who did work out an agreement with the District Attorney General for the petitioner to only receive the minimum sentence for the offenses of which the man conceded he was guilty, should be complimented on getting the minimum sentence.

"Factually in the present case we must view the case from the standpoint that this state of facts is true, that is, that the petitioner here did commit these crimes for which he was charged, and having conceded that he committed them, for him to get the minimum sentence was the best that could possibly be done. Since the petitioner had the right to testify in this habeas corpus proceeding, which was a civil proceeding, and state the facts as he saw them and did not do so and yet he is making this complaint, we must conclude, in view of this fact that the man stated to his appointed lawyers that he had committed these crimes, and that he had no witnesses, he should be thanking his lawyers for being able to work it out for him to receive the minimum sentence rather than go to trial without any defense. Even if it had been continued since he had no witnesses to be found it would not have profited him anything. Thus it is that we certainly cannot say under such circumstances that fifteen minutes was not long enough in view of the result of what was done.

"It is charged and alleged in these assignments that the petitioner was not advised of the consequences of his plea nor was it determined whether the plea was freely and voluntarily entered. The lawyer, who was appointed for the petitioner, testified that the sentences were fully explained to the petitioner and further that the plea was freely and voluntarily entered. There being no evidence to the contrary, certainly this answers this proposition." Id. at 792, 793.

Callahan then filed a petition for writ of habeas corpus in the District Court. Counsel was again appointed for him. The District Judge granted him an evidentiary hearing¹. He testified at the hearing. The transcript of the record in the state habeas corpus proceeding was received in evidence. No other evidence was offered.

The District Court found that Callahan had failed to prove that his pleas of guilty were involuntary. On the issue of denial of effective assistance of counsel, the Court felt he was constrained to rule in favor of petitioner because of our decision in Townsend v. Bomar, 351 F.2d 499 (6th Cir. 1965), and he granted the writ. The State has appealed.

At the hearing the District Court said:

"The Court: (Interposing) The question that I have before me really I think is this. Even though I may be convinced that there was nothing that a lawyer could have done for him if he had had a month, even though I may be convinced as I am that Mr. Stewart told the truth when he said that the defendant told him he didn\'t have any witnesses and asked him to make a settlement. I think that is what happened all right. I think he probably got a good settlement.

"I am confronted by some language in some recent cases in this circuit that have practically held that there can\'t be effective assistance of counsel in such a limited time, patently improper.

"Mr. McMackin: Of course, the Townsend-Terry case they went to trial in that case. I mean actually the attorneys in that case were appointed and talked with them for short period of time and then went to trial before a jury. I think that situation certainly is different from the situation we have in this case. In that particular case —

"The Court: (Interposing) Well, I\'ve got to do a little more looking and I\'ve got to read the Stewart testimony again. What I\'m going to do is take this case under advisement. I think that this man has now had a complete evidentiary hearing. He had everything he was entitled to have in the State Court. That is, all the witnesses appeared, all that he wanted and the State had its opporunity to put on its proof.

"The only thing lacking in the state hearing was that this Petitioner for some foolish reason didn\'t testify and this is the reason I said I would let him have evidentiary hearing here if he would agree to testify in his own behalf and he has now done that.

"I think he probably got a good deal and there was probably no violation of his constitutional rights as I view them, but I\'ve got to determine whether the Sixth Circuit views them from a different light in the short period of time counsel had in which to enter the plea of guilty even though he may have desired to do so." (App. at 23, 24, 25)

The District Judge made no finding of fact that the late appointment of counsel operated...