Akridge v. Hopper, 76-2433
| Citation | 545 F.2d 457 |
| Decision Date | 13 January 1977 |
| Docket Number | No. 76-2433,76-2433 |
| Parties | George AKRIDGE, Petitioner-Appellant, v. Joe S. HOPPER, Warden, Georgia State Prison, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Clyde Hurt Feil, Atlanta, Ga. (Court-appointed), for petitioner-appellant.
Arthur K. Bolton, Atty. Gen., James L. Mackay, B. Dean Grindle, Jr., Asst. Attys. Gen., Richard L. Chambers, Deputy Atty. Gen., John C. Walden, Senior Asst. Atty. Gen., Robert S. Stubbs, II, Chief Deputy Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before COLEMAN, AINSWORTH and INGRAHAM, Circuit Judges.
This is a federal habeas corpus effort by a Georgia state prisoner to avoid the consequences of a state court plea of guilty to a charge of incest.
The state court record shows that before Akridge's plea was accepted he was first sworn and thereafter stated that (1) he was not then under the influence of any alcohol, drugs, narcotics, or pills; (2) he understood the charges against him; (3) he knew that he could be imprisoned for as much as twenty years; (4) no promise or threat from any source had influenced him to plead guilty; (5) he had had time to confer with his attorney; (6) he was satisfied with his attorney's services; (7) and he was, in fact, guilty.
These, and similar, statements were reduced to writing. Akridge signed the resulting affidavit in a clear, legible hand.
Counsel was appointed for Akridge. After conferring with this attorney for an hour or so, Akridge entered his guilty plea and was sentenced to the maximum, imprisonment for twenty years.
Since this is a "guilty plea" case, the standard for our review is prescribed by Tollett, Warden v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If Akridge's guilty plea was intelligently and voluntarily entered, with the advice of counsel, and if that advice was within the standards of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), there is no room for federal habeas corpus intervention. Tollett, supra, has been in the books for more than three years but it seems that the word gets around slowly. We are continuing to confront cases in which lawyers and litigants vigorously seek the invalidation of state court guilty pleas on grounds which Tollett and McMann have foreclosed.
Akridge filed his state habeas corpus petition on September 20, 1974. It did not allege, in plainly stated terms, that the plea of guilty had been unintelligently or involuntarily entered. Instead, it was charged only that the prisoner had ineffective assistance of counsel. It fully appears, however, that the state court read the petition with the liberality usually accorded pro se petitions.
The petition charged that Conger's appointed counsel "coerced" the prisoner to plead guilty to carnal knowledge, a lesser degree of the charge of rape, leading the "petitioner to believe that he would be found guilty of the charge of rape and be sentenced to the electric chair or life imprisonment", that the petitioner "could receive only from one to twenty years if he plead guilty to the lesser degree charged, but that he didn't believe petitioner would receive the maximum time, probably three years and probation".
Then the petition further averred that "petitioner agreed to enter a plea of guilty (emphasis ours) to the lesser degree charge because of his fear of possibly receiving the electric chair or life imprisonment", but that he had asked counsel to seek an adjournment so that he "might obtain his own paid counsel". Counsel informed him that such an adjournment could not be obtained. He further charged that during his state court appearance counsel did not say anything in his behalf. That his counsel had not thoroughly investigated every possible defense that would reflect any beneficial relief for the client. There was no allegation as to what favorable witnesses might have been brought in or as to what defenses might have been raised but which were nevertheless ignored or overlooked.
The state court hearing was held January 8, 1975. Akridge was represented by counsel. Our district court found from the state court record that there had been a full and fair hearing in the state habeas court. With that we agree.
Petitioner testified in his direct examination that he did not...
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