Mason v. Balcom

• Decision Date: 13 May 1976
• Docket Number: No. 74--3602,74--3602
• Citation: 531 F.2d 717
• Parties: Marion MASON, Petitioner-Appellee, v. Charles BALCOM, Superintendent, Montgomery Correctional Institution,Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 717

531 F.2d 717

Marion MASON, Petitioner-Appellee, v. Charles BALCOM, Superintendent, Montgomery Correctional Institution,Respondent-Appellant.

No. 74--3602.

United States Court of Appeals Fifth Circuit.

May 13, 1976.

Rehearing and Rehearing En Banc

Denied June 25, 1976.

Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Richard L. Chambers, B. Dean Grindle, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellant.

Glenn Zell, Atlanta, Ga., for petitioner-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before BROWN, Chief Judge, WISDOM and COLEMAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The State of Georgia on behalf of respondent Balcom, Superintendent of the Montgomery Correctional Institution, appeals from the District Court's grant of habeas relief to petitioner-appellee Mason, a state prisoner, who pleaded guilty in state court to charges of robbery and burglary. The State's chief contentions on appeal are that the District Court abused its discretion in not according the findings of the state habeas court a presumption of correctness pursuant to 28 U.S.C.A. § 2254(d), and that the District Court erred in its findings that the State failed to establish a record that Mason's plea was intelligently and voluntarily entered and that Mason was denied the effective assistance of counsel. ¹ We hold that the District Court did not abuse its discretion in conducting its own evidentiary hearing, and we agree that the District Court could find that Mason did not receive the effective assistance from his court-appointed counsel, James Watts, ² which was necessary to render his plea intelligent and voluntary. ³ We therefore affirm the order granting the habeas writ.

The Road To The Fifth Circuit

Mason, along with a co-defendant, was arrested for robbery and burglary which occurred on October 17, 1970 and was held in the Baldwin County jail. On Friday, October 23, 1970--Friday was the day that all pleas of guilty were heard--he was taken from his cell to the Superior Court of Baldwin County. Just before the hearing, James Watts, an attorney with an office in the courthouse who served as judge of the small claims court, was appointed to represent Mason. Mason pleaded guilty to the charges and was sentenced to consecutive terms of ten years for robbery and five years for burglary. ⁴

After serving two years of his sentence, Mason petitioned for habeas relief in the Superior Court of Montgomery County, pursuant to Georgia's post-conviction relief statute, Ga.Code Ann. § 50--127 (1975 supp.), asserting that he was illegally arrested, that he was under the influence of drugs when arrested and throughout the proceedings, invalidating any waiver of his rights and rendering any plea he made unknowing and involuntary, that he was beaten and forced to sign a confession by his jailers, and that his plea of guilty was not intelligently made because he did not receive effective assistance of counsel. The state habeas court denied the petition on January 15, 1973, ⁵ and its judgment was affirmed by the Georgia Supreme Court. Mason v. Balcom, 1973, 230 Ga. 838, 199 S.E.2d 313.

Mason then petitioned the District Court for relief. The State countered by filing a motion to dismiss or in the alternative for summary judgment, asserting that Mason had received a full and fair hearing in the state habeas court and had failed to rebut the presumption of correctness which § 2254(d) attaches to such state proceedings. The District Court, however, held its own evidentiary hearing, at which Mason testified and the transcript of the state habeas hearing plus the findings and order of the state habeas judge were admitted into evidence. By order of August 23, 1974, the District Court found that the factual determinations of the state habeas court were inadequate and not fairly supported by the record of the state habeas proceeding, § 2254(d)(3) & (d)(8), and therefore not entitled to a presumption of correctness. ⁶ Considering Mason's testimony plus the evidence adduced at the state habeas hearing, the District Court further found that the state failed to establish a sufficient record of petitioner's plea as required by Boykin v. Alabama, supra, ⁷ and that petitioner's plea was not intelligently and voluntarily made because he did not receive effective assistance of counsel.

Effective Assistance And The Presumption Of Correctness

In order to determine the propriety of the District Court's decision to hold its own evidentiary hearing and make findings of fact, we must first establish the extent to which § 2254(d)'s presumption of correctness is applicable to the effective assistance of counsel issue. The resolution of the issue of effective assistance of counsel presents a mixed question of fact and law. Davis v. Heyd, 5, Cir., 1973, 479 F.2d 446, 450; Walker v. Caldwell, 5 Cir., 1973, 476 F.2d 213, 216. The 'factual' determinations made by state habeas courts which federal courts must presume to be correct pursuant to § 2254(d) do not include mixed questions of fact and law. Townsend v. Sain, 1963, 372 U.S. 293, 309 n. 6, 318, 83 S.Ct. 745, 755 n. 6, 759, 9 L.Ed.2d 770, 783 n. 6, 789; Lee v. Hopper, 5 Cir., 1974, 499 F.2d 456, 462; Davis v. Heyd, 5 Cir., 1973, supra, at 449--50; West v. State of Louisiana, 5 Cir., 1973, 478 F.2d 1026, 1031--32, panel opinion aff'd and adhered to in relevant part, 5 Cir., 1975, 510 F.2d 363 (en banc).

As we said in Part II of West, which we affirmed and adhered to en banc:

Regardless of the thoroughness of state factfinding procedures, considerations of comity do not obligate federal courts in habeas corpus cases to defer to state determinations on matters of federal law. The obligation of the federal judge is the opposite: to apply the proper federal constitutional standards based on the underlying facts, although the conclusions drawn from the facts may differ from the state court's conclusions. (Citations omitted.)

Where state factfinding procedures are adequate, comity and judicial economy dictate that the federal courts should not hold separate evidentiary hearings. To hold a federal hearing is to call state factfinding procedures into question. But comity does not govern the application by federal courts of their independent judgment as to federal law. That is their obligation in all cases, an obligation the district court in this case properly discharged.

Id. at 1031--32. And as we stated in another 'Watts' case, Lee v. Hopper, 5 Cir., 1974, supra, at 462:

'Since the issues of effective assistance and voluntariness paresent mixed questions of law and fact (citation omitted), and since such questions do not fall within section 2254(d)'s presumption of correctness (citation omitted), the district court was under no constraint to defer to the state conclusions.' ⁸

Therefore, the District Court was not obligated to give a § 2254(d) presumption of correctness to the state habeas court's conclusion that Mason received effective assistance of counsel.

However, specific historical facts found by a state habeas court (such as what an attorney actually did for his client), to which a standard of law is applied in deciding a mixed question of fact and law, do merit § 2254(d)'s presumption of correctness in a federal habeas proceeding, West v. State of Louisiana, 5 Cir., 1973, supra, at 1031--32 (Part II), provided of course that those facts were adequate and fairly supported by the record. § 2254(d)(3) & (d)(8).

The District Court found that the factual determinations of the state habeas court were inadequate and not fairly supported by the record. See note 6, supra. In fact, the state habeas court in this case really did not make any purely factual findings which the District Court could presume to be correct. It merely found--or more properly, 'concluded'--that counsel had not been ineffective. ⁹ Since the state habeas court did not make any separate, purely factual findings of fact concerning the representation which attorney Watts afforded his client, no such findings were available for the District Court to rely on and the District Court properly conducted its own evidentiary hearing. ¹⁰

Effective Assistance: The Evidence

The evidence before the District Court consisted of the transcript of the state habeas hearing, on which the state chose to rely, and the testimony of petitioner Mason. Sheriff Hall testified at the state hearing that he brought Mason to the courthouse--all according to normal procedure--in the morning, Mason met and conferred with Watts in his office, and Mason then pleaded guilty, though the Sheriff could not recall whether he was present at Mason's plea hearing or not. R. at 88. Attorney Watts testified that his general recollection was that he talked to Mason in the courtroom on the day of his plea, learned Mason wished to plead guilty, and asked Mason about general background information before Mason entered his plea. R. at 93. However, Watts repeatedly stated that he could not remember any of the specifics about Mason's case, ¹¹ R. at 93, 94, 98--except that he did recall that no plea bargaining was done in Mason's case though he sometimes did plea bargain. R. at 98. Watts was then allowed to testify as to his general custom in representing the three or four defendants whom he was appointed to represent each week: he would ask them about general background information, e.g., their age, education and marital status, and about the facts of the alleged offense, advise them that they did not have to plead guilty but could have a trial, a jury trial, at which he would represent them, with witnesses to testify in their behalf. ¹² R. at 93--96.

Mason testified at the state habeas hearing that he requested an attorney while in jail, was told he would see one in court, but remember ever seeing one if one was appointed. In the District Court, Mason testified that he did remember Watts, but that Watts talked to...