Allen v. MacDougall, Civ. A. No. 67-98.

• Decision Date: 11 May 1967
• Docket Number: Civ. A. No. 67-98.
• Citation: 267 F. Supp. 837
• Parties: Alvin T. ALLEN, Petitioner, v. Ellis C. MacDOUGALL, as Director of the State Board of Corrections of the State of South Carolina, Respondent.
• Court: U.S. District Court — District of South Carolina

267 F. Supp. 837

Alvin T. ALLEN, Petitioner, v. Ellis C. MacDOUGALL, as Director of the State Board of Corrections of the State of South Carolina, Respondent.

Civ. A. No. 67-98.

United States District Court D. South Carolina, Columbia Division.

May 11, 1967.

Alvin T. Allen, pro se.

Daniel R. McLeod, Atty. Gen., and Edward B. Latimer, Asst. Atty. Gen., Columbia, S.C., for defendant.

SIMONS, District Judge.

Petitioner is before the court in forma pauperis seeking a Writ of Habeas Corpus. He is currently serving a sentence in gross of twelve years in the South Carolina Penitentiary after he was tried and found guilty of housebreaking, larceny, and safecracking (with recommendation to mercy) in the Court of General Sessions for Chester County, South Carolina.¹ He did not appeal from this conviction. Petitioner now alleges that his confinement by the State of South Carolina is violative of his rights under the Constitution in the following respects:

1) He was not guilty;

2) He was denied the right to a preliminary hearing;

3) He was not informed of nor did he know the charges against him;

4) He was arrested, indicted, and tried within a period of five days. This short period of preparation for trial denied him a trial that was fair and impartial, or was per se a due process violation;

5) His appointed attorney was not afforded sufficient time for the preparation of his defense;

6) The indictment was faulty in that his name was not on it when it was considered by the grand jury, but was added by arresting officers after the grand jury had been dismissed;

7) The sentence was erroneous because it was in gross instead of being separate as to each of the charges; and,

8) He was convicted without any evidence of his guilt other than a codefendant's testimony, an admitted accomplice.

This court has jurisdiction under Title 28 U.S.C.A. §§ 2241-to-2254. Petitioner has exhausted all available state post-conviction remedies available to him as required by Section 2254, supra, ending with an appeal to the South Carolina Supreme Court, Allen v. MacDougall, 151 S.E.2d 863 (S.C.1966). The Supreme Court affirmed the lower court which afforded a full evidentiary hearing and discharged the writ. Petitioner is now properly before this court. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

By order of this court respondent was required to show cause why the Writ should not be granted, and he had made his Return thereto incorporating therein as exhibits photographic copies of all records considered by the State Habeas Court and the South Carolina Supreme Court, including the entire Transcript of Record and Briefs on appeal to the Supreme Court.² In addition, this court required respondent to produce a copy of the preliminary and sentencing portions of petitioner's trial transcript in the State General Sessions Court which were thought to have some relevancy to the issues raised in petitioner's petition.

I have concluded that there is no necessity for a further evidentiary hearing in this court, as I find the record before me to be entirely adequate in order to deal with all the issues raised properly by petitioner's petition. Mullen v. Boslow, Memorandum Opinion of Fourth Circuit, No. 10,850 filed August 24, 1966.

A thorough study of the records of all proceedings in the State Courts compel the following findings and conclusions:

The South Carolina Supreme Court summarized the evidence in the state habeas hearing as follows in regard to petitioner's contention that the indictment was faulty in that his name had been inserted by the arresting officers after the grand jury had returned the indictment against his co-defendant Flenniken alone: Petitioner was arrested on June 19, 1964. He was indicted on June 22nd, and tried on June 25th and 26th, 1964. The indictment was originally drawn against one Kenneth Flenniken alone; before it was handed to the grand jury the name of the petitioner, Alvin T. Allen, was added by the solicitor in his handwriting after the name of Flenniken throughout, and in each count of the indictment. In the state hearing, respondent offered the original indictment, and testimony of the Clerk of Court, the Sheriff, and counsel who had represented petitioner at the trial. The state courts found that the reason why Flenniken's name alone appeared on the indictment as originally drawn was that petitioner could not be located at that time, and that when he was finally located and arrested his name was inserted by the solicitor after that of Flenniken on the indictment; found that both names were on the indictment when it was handed to the grand jury; found that the indictment was not challenged at the trial and affirmed the lower court's dismissal of petitioner's contention as being without merit. Petitioner presented no evidence in support of his contention at the state hearing.

The record before me reveals that the South Carolina Supreme Court's foregoing summary is completely accurate. I therefore defer to the state courts' findings and likewise conclude as a matter of law that there was no defect in the indictment charging petitioner with the offenses of which he was convicted.

All of petitioner's assertions in regard to the short period between his arrest and trial, summarized hereinabove as his contentions, numbered 2 through 5, were also considered by the state courts and developed in the state habeas hearings. The South Carolina Supreme Court disposed of these contentions as follows:

"Prior to and during his trial in the Court of General Sessions for Chester County appellant was represented by counsel retained in his behalf, who had been engaged in the practice of law in Chester since 1935 except for absence in service during World War II, and whose competence at a trial lawyer appellant does not question. This attorney testified at the hearing on the writ, substantially as follows: That no request for a preliminary hearing was made; that had the case been continued to the next term, which was to be in October, appellant would have had to remain in jail during the intervening three months as he could not furnish bail; that as appellant's counsel he had, with the permission of the prosecution, talked with the State's witnesses including appellant's co-defendant Flenniken; that he had also talked with several persons whom appellant had suggested as possible witnesses in his behalf, but who were in fact witnesses for the State; that in the light of the information thus obtained he had conferred with appellant and informed him of the evidence, including that of Flenniken, implicating him; that in fact appellant had no defense except his own denial that he had participated in the crime; that in these circumstances witness was of the opinion that he had had sufficient time to prepare for trial, and that he had so advised appellant; and that he recalled that after discussing the matter fully appellant had agreed that no motion for continuance should be made, and that they should proceed to trial.

"Appellant's testimony to the effect that the only occasion on which he discussed his case with his counsel was a period of thirty minutes or an hour on the day before his trial is squarely contradicted by the testimony of his counsel to which we have referred. It is also contradicted by that of Mr. B. R. Peake, a South Carolina Law Enforcement Division (SLED) agent of twenty years' experience, who testified that on June 22, three days before the trial, he had conferred with appellant and his counsel, at the latter's request, explaining the extent of the evidence against appellant.

"The evidence before Judge Grimball fully supported his conclusion that appellant had been properly and competently represented by counsel at his trial. That no preliminary hearing was held did not constitute denial of due process. State v. White, 243 S.C. 238, 133 S.E.2d 320."

The foregoing factual determinations and conclusions drawn therefrom are fully supported by the record before this court.³

Another of the errors that petitioner asserted in the South Carolina Supreme Court was that he was denied a transcript of the original trial. The Court found that when petitioner made a request for the transcript, the state habeas judge in denying the request stated that he would stop the hearing and let petitioner take an appeal from such denial. Petitioner stated personally to the court that he wished to proceed with the hearing. The Supreme Court found that petitioner had waived his right to a copy of the transcript, if there was such a right, by his election to have the hearing proceed. The Court further concluded that such transcript was neither necessary or pertinent to the hearing. Although petitioner did not allege such a denial of the trial transcript as a ground in this habeas hearing, he has written the court requesting that he be furnished his trial...