Alford v. State of North Carolina, No. 11598.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtHAYNSWORTH, , and BRYAN and WINTER, Circuit
Citation405 F.2d 340
PartiesHenry C. ALFORD, Appellant, v. STATE OF NORTH CAROLINA, Appellee.
Docket NumberNo. 11598.
Decision Date26 November 1968

405 F.2d 340 (1968)

Henry C. ALFORD, Appellant,
v.
STATE OF NORTH CAROLINA, Appellee.

No. 11598.

United States Court of Appeals Fourth Circuit.

Argued June 18, 1968.

Decided November 26, 1968.

Probable Jurisdiction Noted April 7, 1969.


405 F.2d 341

Doris R. Bray, Greensboro, N. C., Court-assigned counsel (Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., on brief), for appellant.

Jacob L. Safron, Staff Atty., Raleigh, N. C. (T. W. Bruton, Atty. Gen. of North Carolina, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.

Probable Jurisdiction Noted April 7, 1969. See 89 S.Ct. 1306.

WINTER, Circuit Judge:

Petitioner seeks review of the summary denial of his petition for a writ of habeas corpus. Because we conclude that, under the guiding principles of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968),1 enunciated subsequent to the judgment of the district court, petitioner's plea of guilty to the crime of second degree murder was demonstrably coerced, the judgment appealed from will be reversed and the district court directed to issue the writ, staying its effect for a reasonable period to enable North Carolina to retry petitioner if it be so advised.

Petitioner was indicted by a grand jury of the State of North Carolina for murder in the first degree. With the approval of the state, he pleaded guilty to murder in the second degree and was sentenced on December 10, 1963, to a term of thirty years.

In due course, he sought and was granted a post-conviction hearing, pursuant to N.C.Gen.Stat. §§ 15-217 — 15-222 (1965). The state judge who conducted the hearing rejected petitioner's various constitutional contentions, including the claim that his guilty plea had been involuntarily induced. After the unsuccessful pursuit of various state remedies, petitioner sought a writ of habeas corpus from the district court. On September 3, 1965, the district judge denied the relief sought, expressly adopting

405 F.2d 342
the facts concerning the voluntariness of petitioner's plea as previously found by the state judge in the post-conviction proceedings. After the time for appeal to this Court had expired, petitioner filed with the district court a purported notice of appeal, which was treated by the district court as a motion for a certificate of probable cause and a motion for a new hearing. Both motions were denied, and we dismissed petitioner's appeal on the ground that it had not been perfected within the prescribed thirty-day time limit. Alford v. North Carolina, No. 10,391 (4 Cir. August 25, 1966) (Mem.)

Concurrently, a petition for a writ of habeas corpus was filed in this Court and was denied by Chief Judge Haynsworth, who also rejected petitioner's various constitutional contentions.2 Again, in 1967, petitioner sought a writ of habeas corpus from the district court and, again, relief was denied.

In acting upon the 1967 petition, the district judge apparently considered that inquiry into the voluntariness of petitioner's guilty plea was foreclosed by the prior consideration of this question by the district court and by Chief Judge Haynsworth. The district judge, therefore, dealt primarily with, and rejected, petitioner's contention that he had been deprived of the effective assistance of counsel.3

I

The State of North Carolina argues that petitioner has not presented either to this Court or to the district court any new factual allegations which should disturb the prior and unanimous findings of fact concerning the voluntariness of the plea of guilt. The rule of the federal courts, expressed in 28 U.S.C. § 2244 (1967 Supp.),4 is not to entertain successive and repetitive habeas corpus petitions if the grounds asserted to support the petition have been previously decided on the merits, and the ends of justice would not be advanced by plenary consideration of the subsequent application. See, Sanders v. United States, 373 U.S. 1, 11, 15-19, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). We do not depart from this doctrine. However, the instant appeal deals primarily not with new factual allegations but, rather, with what is admittedly a new question of law, namely, the applicability and effect of the Supreme Court's recent decision in the Jackson case. To the extent that the appeal raises this question of law, what was said in Sanders is significant:

"Even if the same ground was rejected on the merits on a prior application, it
405 F.2d 343
is open to the applicant to show that the ends of justice would be served by permitting the redetermination of the ground * * * If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. * * * the foregoing enumeration is not intended to be exhaustive; the test is `the ends of justice\' and it cannot be too finely particularized." 373 U.S., at 16-17, 83 S.Ct., at 1078. (emphasis added.)5

To the extent that proper disposition of the instant appeal depends upon factual considerations, this is the first time that the transcript of petitioner's original trial and of his state post-conviction proceedings have both been before the full court. Res judicata has no place in habeas corpus proceedings. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Sanders v. United States, supra. Especially is this so when there is reason to reappraise the facts because of the introduction of a new pertinent rule of law. Thus, we conclude that we are not precluded from a reconsideration of petitioner's constitutional argument based upon the Jackson case, or his factual argument based upon a consideration of the entire record of the proceedings, alone, or in the light of Jackson.

II

There can be little question but that petitioner tendered his plea of guilty at a time that he was the subject of impermissible burdens condemned in the Jackson case. Jackson held invalid the death penalty provision of the Federal Kidnaping Act,6 on the basis that it had a chilling effect upon the Sixth Amendment right to a jury trial, and the Fifth Amendment right "not to plead guilty," i. e., the privilege against self-incrimination. Of course, Jackson was a case which arose under the Fifth and Sixth Amendments as such, while the instant case, a state prosecution, concerns the Fourteenth Amendment; but the test of what violates the Fourteenth Amendment in this area is the same.7

The federal statute in Jackson essentially created the special offense of "kidnaping where the victim has not been liberated unharmed" punishable by imprisonment for a term of years or for life or by death, upon the discretionary, yet binding, recommendation of the jury. Where a victim has not been liberated unharmed, only an accused who exercised his right to a jury determination of guilt or innocence faced the prospect of the possible imposition of the death penalty.

405 F.2d 344
This prospect was sufficient, in the view of the Court, to render the death penalty provision unconstitutional on the two separate grounds: (1) the fact that the jury alone could impose the death penalty tended to deter the exercise of the right to a jury trial guaranteed by the Sixth Amendment, and (2) the statutory scheme tended to encourage pleas of guilty or, stated otherwise, to discourage assertion of the Fifth Amendment right not to plead guilty

North Carolina law presently prescribes the death penalty for murder in the first degree,8 as well as certain other crimes.9 In each instance the penalty prescribed is death; in each instance also the jury may, in its discretion, obligatorily recommend that punishment be imprisonment for life. North Carolina does not permit an accused who pleads not guilty to waive a jury trial.10 The accused may avoid a jury trial only if he pleads guilty and, by statute, a plea of guilty may not result in a punishment more severe than life imprisonment.11 Thus, a person accused of a capital crime in North Carolina is faced with the awesome dilemma of risking the death penalty in order to assert his rights to a jury trial and not to plead guilty, or, alternatively, of pleading guilty to avoid the possibility of capital punishment. It was precisely this sort of inhibitory or chilling effect upon the exercise of constitutional rights which the Supreme Court condemned in Jackson, because a statutory scheme such as that employed by North Carolina "needlessly encourages" guilty pleas and jury waivers.12

North Carolina seeks to distinguish the instant case from Jackson on the ground that under the Federal Kidnaping Act the jury possessed the authority to increase the punishment to be imposed upon the defendant beyond that which

405 F.2d 345
the court could impose; while under North Carolina law the statutorily-prescribed penalty for murder in the first degree and certain other crimes is death and the jury is merely given the power to mitigate the harshness of the maximum penalty. We are not persuaded that the difference amounts to a distinction. Under both statutes it is the jury which determines guilt, and that jury alone which, in its discretion, decides if the death penalty is to be exacted. As to imposition or non-imposition of the death penalty the jury's determination is exclusive, conclusive and final. Of greater significance, in Jackson the argument was advanced that the Federal Kidnaping Act's penalty provisions operated to "mitigate the severity of punishment" and that it was, therefore, immaterial that the Act "may have the incidental effect of inducing defendants not to contest in full measure" their culpability. The Court explicitly rejected this contention, stating that the consequent chilling effect upon the exercise of constitutional rights was "unnecessary and therefore excessive." 390 U.S. 570, at 582, 88 S.Ct. 1209. Jackson thus renders...

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43 practice notes
  • Quillien v. Leeke, Civ. A. No. 69-475.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 5, 1969
    ...whether Harper is a proper construction of the scope of Jackson, was stated with precision in Alford v. North Carolina (C.C. A.N.C.1968) 405 F.2d 340, a case in which the plea was entered in 1963, almost five years before Jackson. There, the Court held that Jackson, while not automatically ......
  • State v. Atkinson, No. 22
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 14, 1969
    ...States, supra; State v. Harper, 162 S.E.2d 712 (S.C.1968); State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968); Alford v. North Carolina, 405 F.2d 340 (4 Cir.1968); In re Anderson, 69 A.C. 638, 73 Cal.Rptr. 21, 447 P.2d 117 The majority opinion herein seeks to uphold the validity of the dea......
  • Brady v. United States, No. 270
    • United States
    • United States Supreme Court
    • May 4, 1970
    ...U.S. 921, 79 S.Ct. 294, 3 L.Ed.2d 240 (1958). But see Shaw v. United States, 299 F.Supp. 824 (D.C.S.D.Ga.1969); Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), restored to calendar for reargument, 397 U.S. 1......
  • Parker v. North Carolina Brady v. United States, Nos. 268
    • United States
    • United States Supreme Court
    • May 4, 1970
    ...that a constitutionally defective capital penalty scheme may impermissibly induce guilty pleas. See, e.g., Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), set for reargument, 397 U.S. 1060, 90 S.Ct. 1494, 25......
  • Request a trial to view additional results
43 cases
  • Quillien v. Leeke, Civ. A. No. 69-475.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 5, 1969
    ...whether Harper is a proper construction of the scope of Jackson, was stated with precision in Alford v. North Carolina (C.C. A.N.C.1968) 405 F.2d 340, a case in which the plea was entered in 1963, almost five years before Jackson. There, the Court held that Jackson, while not automatically ......
  • State v. Atkinson, No. 22
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 14, 1969
    ...States, supra; State v. Harper, 162 S.E.2d 712 (S.C.1968); State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968); Alford v. North Carolina, 405 F.2d 340 (4 Cir.1968); In re Anderson, 69 A.C. 638, 73 Cal.Rptr. 21, 447 P.2d 117 The majority opinion herein seeks to uphold the validity of the dea......
  • Brady v. United States, No. 270
    • United States
    • United States Supreme Court
    • May 4, 1970
    ...U.S. 921, 79 S.Ct. 294, 3 L.Ed.2d 240 (1958). But see Shaw v. United States, 299 F.Supp. 824 (D.C.S.D.Ga.1969); Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), restored to calendar for reargument, 397 U.S. 1......
  • Parker v. North Carolina Brady v. United States, Nos. 268
    • United States
    • United States Supreme Court
    • May 4, 1970
    ...that a constitutionally defective capital penalty scheme may impermissibly induce guilty pleas. See, e.g., Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), set for reargument, 397 U.S. 1060, 90 S.Ct. 1494, 25......
  • Request a trial to view additional results

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