Abbott v. Peyton

• Decision Date: 22 July 1971
• Docket Number: Civ. A. No. 71-C-62-R.
• Citation: Abbott v. Peyton, 329 F.Supp. 1310 (W.D. Va. 1971)
• Parties: Elmer Dorris ABBOTT, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

329 F. Supp. 1310

Elmer Dorris ABBOTT, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent.

Civ. A. No. 71-C-62-R.

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

July 22, 1971.

Overton P. Pollard, Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, District Judge.

This case comes before the court upon a petition for a writ of habeas corpus, filed in forma pauperis by Elmer Dorris Abbott, a state prisoner, pursuant to the provisions of 28 U.S.C. § 2241.

Petitioner is currently serving a ten year sentence pursuant to a judgment of the Hustings Court of the City of Roanoke imposed on July 13, 1964 for malicious wounding with intent to maim, disfigure or kill.

Petitioner was represented by court-appointed counsel at his trial, where he entered a plea of not guilty and was tried and convicted by a jury. From this conviction the petitioner did not appeal. Petitioner has sought state habeas corpus relief and was given a plenary hearing in the Hustings Court of the City of Roanoke on May 2, 1968, at which time the petitioner's writ of habeas corpus was denied and dismissed. The judgment of the Hustings Court was affirmed on appeal by the Virginia Supreme Court of Appeals on January 18, 1971. See Abbott v. Peyton, 211 Va. 484, 178 S.E.2d 521 (1971).

In the present federal habeas corpus proceeding, the petitioner alleges three instances of error committed by the state courts in which his constitutional rights have been violated.

Petitioner's first and primary allegation of error is that he was denied effective assistance of counsel guaranteed him by the United States Constitution and the Virginia Bill of Rights at the time of his trial and conviction for malicious wounding. In regard to this allegation, petitioner specifically alleges: (1) that his court-appointed counsel failed to investigate the case on behalf of his client and to prepare adequately for trial, (2) that counsel failed to protect his client from prejudice by omitting to have the court examine the jury panel on voir dire, and (3) that his court-appointed counsel failed to appeal on behalf of his client.

Petitioner's second allegation of error is that he was never served with a warrant for his arrest for the crime with which he was charged and convicted.

Petitioner's final allegation of error is that he was denied a preliminary hearing.

The petitioner alleges that he was denied his constitutional right to effective counsel with respect to the pre-trial investigation made by his court-appointed counsel. Specifically, the petitioner contends that his attorney failed to summons and question four individuals, the names of who were allegedly given by the petitioner to his attorney at their initial meeting. Two of these individuals, the petitioner's brother and sister-in-law, would have, according to the petitioner, testified that the petitioner had called them from his hotel about midnight on the night of the shooting. The other two individuals whose names were allegedly related to the attorney would have testified as character witnesses for the petitioner. In the state habeas corpus hearing the attorney testified that he was never informed of the names of these witnesses, but that he did recall that the petitioner had mentioned something about having made a phone call from his hotel to his brother about midnight. Furthermore, the attorney admitted that he had not made an effort to find out the brother's name and had not questioned him concerning the call because he felt that such evidence would have been irrelevant since the time of the shooting incident had been at 12:55 a. m. that night. As to the two alleged character witnesses, the attorney testified that the petitioner had not mentioned to him the names of these individuals.

The petitioner also alleges with regard to his inadequate representation that the attorney failed to question prosecution witnesses before the trial and also failed to consult with another attorney who had originally been retained for the petitioner by his stepfather but who had withdrawn from the case. Petitioner alleges that his attorney should have so consulted the previously retained attorney to determine whether or not he had any information on the petitioner's case. The court-appointed counsel admitted in the plenary hearing that he had not questioned the prosecution's witnesses, but stated that he had discussed the case with the Commonwealth Attorney and had questioned the police on several occasions, and that he knew what the testimony of the prosecution witnesses would be. The attorney admitted that he had not consulted the petitioner's previous attorney.

In the case of Coles v. Peyton, 389 F. 2d 224 (4th Cir.) cert. denied 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968), the Court of Appeals of this circuit set forth the standards to be used in measuring the adequacy of representation. In that case the court stated;

Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby. Coles v. Peyton, supra, at 226.

It is the opinion of this court that in the case at bar none of the above standards were violated and therefore that the burden of proof remains on the petitioner to show that his rights have been prejudiced.

The record reveals that the petitioner's attorney was appointed on June 8, 1964, the same day on which the petitioner's retained counsel withdrew from the case, and the attorney testified that he conferred with his client shortly thereafter. Therefore there were thirty-five days between the date of the appointment and the date of the trial on July 13, 1964. In light of these facts, it cannot be said that the petitioner has made a prima facie case of inadequate representation as to the time elements involved. See Twiford v. Peyton, 372 F.2d 670 (4th Cir. 1967); Braxton v. Peyton, 365 F.2d 563 (4th Cir.) cert. denied 385 U.S. 939, 87 S.Ct. 306, 17 L. Ed.2d 218 (1966); Ware v. Cox, 324 F. Supp. 568 (E.D.Va.1971).

As to the investigation conducted by the court-appointed counsel, this court fails to find any omission by the attorney which renders his representation constitutionally inadequate. Specifically, the record reveals that the only witness of which the attorney had any knowledge was the petitioner's brother; however, the petitioner's own testimony shows that he called his brother around midnight which left almost an hour of...