Allison v. Holman

• Decision Date: 23 March 1964
• Docket Number: No. 20535.,20535.
• Citation: 326 F.2d 294
• Parties: Dewey ALLISON, Appellant, v. William C. HOLMAN, Warden, Kilby Prison, Montgomery, Alabama, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

326 F.2d 294 (1963)

Dewey ALLISON, Appellant, v. William C. HOLMAN, Warden, Kilby Prison, Montgomery, Alabama, Appellee.

No. 20535.

United States Court of Appeals Fifth Circuit.

December 18, 1963.

Certiorari Denied March 23, 1964.

Ralph Smith, Montgomery, Ala., for appellant.

Richmond M. Flowers, Atty. Gen., State of Ala., John C. Tyson, III, Asst. Atty. Gen., State of Ala., Montgomery, Ala., for appellee.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

Certiorari Denied March 23, 1964. See 84 S.Ct. 979.

GEWIN, Circuit Judge.

Dewey Allison, a state prisoner, appeals from an order of the U. S. District Court for the Middle District of Alabama denying his petition for a writ of habeas corpus, Allison v. Holman, D.C., 216 F. Supp. 69 (1963). In this proceeding as well as in state court post conviction proceedings, the grounds upon which petitioner Allison seeks relief may be summarized as follows: (1) the knowing use of perjured testimony by the State of Alabama; (2) the use by the State of a coerced confession; (3) the denial of an opportunity to call witnesses for his defense; and (4) the inadequacy of counsel.

The well-written opinion of the trial judge fully develops the chronology of events which form the background of this case. It is unnecessary to restate such chronology; suffice it to say that the defendant has been accorded the attention of both trial and appellate courts almost continuously since the day of his arrest on December 21, 1959, under a warrant charging him with first degree murder. To summarize: soon after indictment, two competent defense attorneys were appointed to represent the defendant. Such attorneys were given ample time to prepare the case and there was a trial lasting four days which resulted in a verdict of guilty and the defendant was sentenced to life imprisonment. There was no direct appeal. Allison was accorded a full and complete hearing in state habeas corpus proceedings and the decision denying his petition in the state court was reviewed by the Alabama Supreme Court, Allison v. Wiman, 274 Ala. 150, 145 So.2d 846 (1962), and Certiorari was denied by the Supreme Court, Allison v. Wiman, 1963, 371 U.S. 936, 83 S.Ct. 310, 9 L.Ed.2d 272. Prior to the state habeas corpus proceeding, a petition for writ of error coram nobis was filed in the trial court in Walker County, Alabama, where the prosecution first commenced. Competent counsel were appointed to represent the defendant on the coram nobis hearing, and a full, complete and extended hearing was conducted by the state trial judge, which resulted in a denial of relief. The coram nobis proceedings were reviewed by the Alabama Supreme Court and the decision of the trial court was affirmed, Allison v. State of Alabama, 273 Ala. 223, 137 So.2d 761 (1962). Certiorari was denied by the United States Supreme Court, Allison v. State of Alabama, 1962, 369 U.S. 856, 82 S.Ct. 946, 8 L.Ed.2d 15. After all of the foregoing, the petition for writ of habeas corpus now under review was filed in the U. S. District Court making the same contentions and asserting the same grounds as were considered in the state habeas corpus and coram nobis proceedings.

Without question the record shows that the defendant was afforded competent counsel when first tried and convicted; at the state post conviction coram nobis hearing; and upon the hearing of his petition in the U. S. District Court. We cannot refrain from stating a fact found to be true by the trial court that the defendant was represented by competent counsel at the various proceedings involved in excellent fashion, fully sustaining the high ideals and standards of the legal profession. Such record of high standard representation by counsel for the petitioner has continued through the proceedings in this Court.

Counsel for Allison succinctly states the issues to be reviewed and decided on this appeal as follows: "* * * The sole question presented for the court on appeal in this case is whether the District Court erred in declining to issue a writ of habeas corpus on the petition of the Appellant without a hearing." Otherwise stated, "But the question is how is the District Court going to know, as it is obligated to do, that a full, fair and impartial hearing into the merits of the Appellant's allegations in the State courts was conducted by such courts?"¹ Essentially, the appellant complains that the District Court should have conducted a plenary hearing, because his review was not "* * * based upon a sufficiently complete record of the trial proceedings"; and that there must be provided a "record of sufficient completeness * * *" before the District Court to justify a denial of such plenary hearing. See Draper v. Washington, 1962, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed. 2d 899.

In passing upon the sufficiency of the record of the state trial court's post conviction proceedings, we must follow the standard set forth by Mr. Justice Goldberg in the Draper case:

"Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant\'s contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge\'s minutes taken during trial or on the court reporter\'s untranscribed notes, or a bystander\'s bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances."

Guided by its conception of the principles laid down in Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Thomas v. Arizona, 1958, 356 U.S. 390, 78 S.Ct. 885, 2 L.Ed.2d 863; and Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, the trial court reached the following conclusions:

"From an examination of the pleadings, documents and briefs now submitted in this matter, this Court specifically finds and concludes that all of the

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