Durham v. Blankenship, Civ. A. No. 77-0111-A.

• Decision Date: 03 November 1978
• Docket Number: Civ. A. No. 77-0111-A.
• Citation: 461 F. Supp. 492
• Parties: Luther DURHAM, Jr., Petitioner, v. W. D. BLANKENSHIP, Supt., Respondent.
• Court: U.S. District Court — Western District of Virginia

461 F. Supp. 492

Luther DURHAM, Jr., Petitioner, v. W. D. BLANKENSHIP, Supt., Respondent.

Civ. A. No. 77-0111-A.

United States District Court, W. D. Virginia, Abingdon Division.

November 3, 1978.

COPYRIGHT MATERIAL OMITTED

Mark M. Lawson, White, Elliott & Bundy, Bristol, Va., for petitioner.

Linwood T. Wells, Asst. Atty. Gen., Commonwealth of Virginia, Richmond, Va., for respondent.

MEMORANDUM OPINION

WILLIAMS, District Judge.

Petitioner Luther Durham, Jr., an inmate at Bland Correctional Center, challenges the constitutionality of his incarceration by bringing this 28 U.S.C. § 2254 petition for a writ of habeas corpus against respondent W. D. Blankenship, Superintendent at Bland. Petitioner, on the grounds that his constitutional right to the effective assistance of counsel was denied, challenges the validity of his conviction for first degree murder in the Circuit Court of Frederick County, Virginia. This court has appointed an attorney to assist petitioner, and the case is currently before the court on petitioner's motion for summary judgment pursuant to Fed.R.Civ.P. 56. Both petitioner and respondent have submitted briefs on this motion.

The matter is properly before the court on a motion for summary judgment. A plenary hearing on the merits is unnecessary when the state court records are adequate for determining the validity of petitioner's claims. Altizer v. Paderick, 399 F.Supp. 918 (E.D.Va.1975), aff'd per curiam 542 F.2d 1250 (4th Cir. 1976). Petitioner Durham has had a full and fair hearing on the record in a state court habeas corpus proceeding on the grounds of ineffective assistance of counsel, and this court is able to dispose of the case by examining the state records and transcripts. See 28 U.S.C. § 2254(d); Rule 8, Rules Governing Section 2254 Cases in the United States District Court.

Petitioner has exhausted his state remedies as required by 28 U.S.C. § 2254(b).

I. Statement of Facts

Mrs. Waltine Hoover and her mother, Mrs. Annie Snow, were stabbed to death on February 23, 1963, in their home near Double Toll Gate in Frederick County, Virginia. On June 23, 1964, while in the Virginia State Penitentiary for the commission of other offenses, petitioner Luther Durham, Jr. confessed his involvement in the Double Toll Gate slayings to Virginia State Police Investigators E. M. Lloyd and L. F. Craft. Petitioner gave and signed a statement, transcribed by Investigator Craft, which admitted that he and one Otha Howard had broken into the Hoover home, and that while petitioner had gone back out of the house for a sack, Howard had murdered the two women.

Petitioner demonstrated his familiarity with the homicides and corroborated his confession by reenacting the crime on July 14, 1964. Without any assistance or directions from the state investigators who accompanied him, petitioner led them to the Hoover home, which was located in rural Frederick County. Petitioner further demonstrated his complicity by using a knife to throw the latch on the door, just as he claimed to have done when the women were slain. Petitioner was able to observe to the state investigators at the reenactment that a new lock had been installed on the door since the crime had been committed. Petitioner continued to insist that Howard murdered the women while petitioner had stepped out of the house for a sack to carry the stolen goods. After this reenactment, petitioner was brought to the Frederick County Commonwealth's Attorney's office, where petitioner signed another written statement similar to his earlier confession.

On July 20, 1964, a Frederick County grand jury indicted both Howard and petitioner Durham for the Double Toll Gate killings. The court on July 27, 1964, appointed two attorneys to represent petitioner, who was committed to Southwestern State Hospital for examination and was later certified mentally competent to stand trial. On November 16, 1964, petitioner entered a plea of not guilty to the indictment. On March 15, 1965, while in jail awaiting trial, petitioner signed a third written statement confessing his involvement in the murders, but this time petitioner named one George Easter instead of Otha Howard as being the actual killer. On March 18, 1965, the court allowed petitioner to change his plea to guilty. Petitioner escaped from jail on June 1, 1965, and was recaptured that same day. Petitioner was later allowed to change his guilty plea to not guilty on July 2, 1965.

After having earlier allowed petitioner's two court-appointed attorneys to withdraw, the court on September 1, 1965, appointed David G. Simpson to represent petitioner. The Commonwealth's Attorney expressed his concern that there might be a conflict of interest, since Simpson had been one of the attorneys who had earlier represented Otha Howard, the party petitioner had implicated in the killings. However, the charges against Howard had been previously nolle prossed, apparently because the Commonwealth's Attorney had been convinced that petitioner was trying to frame Howard. Simpson stated that there was no conflict as far as he was concerned, and when the court asked petitioner if he objected to Simpson's representing him, petitioner answered in the negative. The court allowed the appointment to stand, and Simpson represented petitioner at his trial.

On November 18, 1965, following a three-day trial, a Frederick County jury found petitioner Durham guilty of first degree murder in the death of Annie Snow and imposed a life sentence. The Virginia Supreme Court denied petitioner's writ of error, Durham v. Virginia, 207 Va. lxxxiii (1966), and the United States Supreme Court denied his petition for a writ of certiorari. Durham v. Virginia, 387 U.S. 910, 87 S.Ct. 1694, 18 L.Ed.2d 629 (1967). Simpson represented petitioner through both of these appeals.

Several years later, represented by two other attorneys, petitioner sought federal habeas corpus relief. On July 16, 1971, this court granted petitioner relief on the grounds that the Frederick County Circuit Court unconstitutionally allowed a biased juror to sit at petitioner's trial. Durham v. Cox, 328 F.Supp. 1157 (W.D.Va.1971). Represented this time by Simpson and another court-appointed attorney, Billie Joe Tisinger, petitioner was retried in Frederick County Circuit Court and was again found guilty and again sentenced to life imprisonment. It is the validity of this conviction that petitioner challenges here before this court on the grounds of ineffective assistance of counsel.

After his second conviction in state court, petitioner Durham, represented by Simpson and Tisinger, applied for and was granted a writ of error to the Virginia Supreme Court, which subsequently affirmed the 1972 trial court. Durham v. Commonwealth, 214 Va. 166, 198 S.E.2d 603 (1973). Petitioner, then represented by still another attorney, sought state habeas corpus relief from the Frederick County Circuit Court on the grounds that Simpson's and Tisinger's representation was so lacking as to be ineffective assistance of counsel. At the conclusion of an evidentiary hearing held on June 1, 1976, the court denied the petition, and petitioner appealed his habeas corpus claim to the Virginia Supreme Court, which failed to grant a writ of error.

On March 7, 1977, petitioner Durham filed his petition for a writ of habeas corpus in this court on the grounds of ineffective assistance of counsel at his 1972 trial. Respondent Blankenship filed a motion to dismiss, and petitioner filed a reply. This court appointed counsel to assist petitioner and ordered that this court's records be expanded to include the record of petitioner's 1965 trial, the transcript and record of petitioner's 1972 trial, and the transcript and record of petitioner's 1976 state habeas corpus proceeding. The matter is currently before the court on petitioner's motion for summary judgment.

II. Questions of Law

In applying for federal habeas corpus relief, petitioner Durham's grounds are that he was denied his constitutional right to effective assistance of counsel at his 1972 retrial. (Hereinafter, unless the other state court proceedings are specifically referred to, this court confines its scrutiny to the 1972 trial, when the allegedly unconstitutional acts complained of occurred.) An analysis of petitioner's claim reveals that it can be divided into two issues for consideration: (i) whether a conflict of interest existed, which compromised defense counsel's representation of petitioner and (ii) whether defense counsel's representation was so lacking as to be ineffective assistance of counsel.

In resolving this controversy, it is important to keep two basic principles in view. First, federal habeas corpus is not mere appellate review, and relief is granted only for violation of federal constitutional rights. Second, habeas corpus is a civil action in which petitioner carries the burden of proof in withstanding the strong presumption of the constitutionality of state judicial proceedings. Dillon v. Downes, 401 F.Supp. 1240 (W.D.Va.1975). To obtain relief, petitioner must prove by a preponderance of the evidence that his constitutional rights were denied. Post v. Boles, 332 F.2d 738 (4th Cir. 1964), cert. den., 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274 (1965).

A. Conflict of Interest

Petitioner Durham alleges that David G. Simpson, one of the attorneys who conducted his 1972 trial, labored under a loyalty to another person, which caused Simpson to compromise his representation of petitioner. Attorney Simpson had originally been appointed in 1964 to defend Otha Howard, who on the basis of petitioner's confession had been indicted along with petitioner for the Double Toll Gate slayings. The charges against Howard were nolle prossed, apparently because the Commonwealth's Attorney became convinced that petitioner had lied in his confession when he named Howard as the killer. Simpson was subsequently appointed in 1965 to represent petit...