446 F.Supp. 608 (W.D.N.C. 1978), C-C-77-003, Radford v. Webb

Docket Nº:C-C-77-003.
Citation:446 F.Supp. 608
Party Name:V. M. RADFORD, Petitioner, v. Hon. A. A. WEBB, Judge of the General Court of Justice of Union County, North Carolina, District Court Division, Respondent.
Case Date:February 20, 1978
Court:United States District Courts, 4th Circuit, Western District of North Carolina

Page 608

446 F.Supp. 608 (W.D.N.C. 1978)

V. M. RADFORD, Petitioner,

v.

Hon. A. A. WEBB, Judge of the General Court of Justice of Union County, North Carolina, District Court Division, Respondent.

No. C-C-77-003.

United States District Court, W.D. North Carolina

Feb. 20, 1978

Page 609

George S. Daly, Jr., Casey & Daly, P. A., Charlotte, N. C., for petitioner.

Jacob L. Safron, Sp. Deputy Atty. Gen., Dept. of Justice, Raleigh, N. C., for respondent.

ORDER

McMILLAN, District Judge.

Petitioner was convicted of a misdemeanor violation of N.C.G.S. s 14-196 in Union County District Court on December 30, 1976, upon a charge that he had used "profane, indecent and threatening language" over a telephone. Petitioner entered an agreed plea of guilty and received a sentence of four months' imprisonment, suspended for an unspecified term upon condition that he "at no time . . . call Sheriff's Dept., Union County or any law enforcement officer at anytime & use prof. language." Petitioner was also required to pay the costs of the district court action and he did so. In his application for writ of habeas corpus petitioner makes only one claim that N.C.G.S. s 14-196 is overbroad on its face and violates the First and Fourteenth Amendments.

By order filed May 25, 1977, the court held that petitioner had exhausted his state remedies and that the case was ready for decision. Although petitioner has not served any active time, there is still uncertainty as to whether the period for which his sentence was suspended has expired. For this reason the petition is not moot.

Before reaching the merits of petitioner's claim, however, the court must address one further argument raised by respondent after the order of May 25, 1977. Respondent contends that since petitioner

Page 610

initially accepted the plea arrangement in the district court and only later decided that he wished to contest the matter in the Superior Court he should be barred from seeking this writ because of "unclean hands." The court sees no merit in this argument. As respondent contended earlier, petitioner's plea of guilty did not foreclose his right to contest whether the facts charged "constitute an offense punishable under the laws and Constitution." State v. Perry, 265 N.C. 517, 144 S.E.2d 591 (1965). Furthermore, it should be noted that petitioner's attempt to appeal to the Superior Court placed him in...

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