Ardister v. Hopper, 73-3559

• Decision Date: 13 September 1974
• Docket Number: No. 73-3559,73-3559
• Citation: 500 F.2d 229
• Parties: Alex ARDISTER, Petitioner-Appellant, v. Joseph S. HOPPER, Warden, Georgia State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 229

500 F.2d 229

Alex ARDISTER, Petitioner-Appellant, v. Joseph S. HOPPER, Warden, Georgia State Prison, Respondent-Appellee.

No. 73-3559.

United States Court of Appeals, Fifth Circuit.

Sept. 13, 1974.

F. Robert Raley, Macon, ga. (Court-appointed), for petitioner-appellant.

Arthur K. Bolton, Atty. Gen., William F. Bartee, Jr., B. Dean Grindle, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

Before BELL, GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Today's decision marks the fifth post conviction judicial proceeding of record in Ardister's anfractuous quest for habeas corpus relief from a twenty year sentence as a recidivist car thief. The interests of the petitioner and heavily burdened court systems, as well as the interests of comity and justice would be served best by an extra careful effort to bring this overlong and overlong and overcomplicated quest to an expeditious conclusion. Unfortunately, an erratic history and an incomplete record of recent state court proceedings prevent our writing a complete end here.

To assist the courts which must adjudicate the issues which remain we have combed the record and prepared this narrative history. On September 19, 1968 Ardister was tried in the Superior Court of Elbert County, Georgia on an indictment charging him with the theft of a 1967 Chevrolet automobile. The prosecution introduced three prior convictions for larceny of an automobile against Ardister and the trial court instructed the jury that they could fix Ardister's sentence at any number of years not less than ten nor more than twenty if they found he was guilty of a third or subsequent such felony. The jury did find Ardister guilty and fixed his punishment at twenty years. No direct appeal from this conviction was taken or attempted. On March 27th, 1969, the Superior Court of Tattnall County, Georgia accorded Ardister a hearing on his pro se petition for habeas corpus relief. Ardister contended that his conviction was void because (1) he had been denied a preliminary hearing, (2) his assigned counsel had rendered ineffective assistance, and (3) his twenty year sentence amounted to cruel and unusual punishment. On May 5, 1969 the Superior Court of Tattnall County entered an order denying habeas corpus relief together with detailed findings of fact based upon the hearing record on Ardister's ineffective counsel claim. No appeal was taken from this proceeding.

Ardister next filed an application for a writ of habeas corpus in the United States District Court for the Middle District of Georgia. As grounds for relief he asserted that (1) he was denied a preliminary hearing, (2) his appointed counsel was ineffective, (3) the evidence introduced against him was insufficient to establish the crime of automobile larceny, (4) the indictment upon which he was tried did not allege prior convictions wherefore the introduction of such priors at his trial was improper, (5) his appointed counsel did not advise him of his right to a direct appeal, he had no knowledge of such right and had been unable to procure advice from fellowprisoners in time to perfect an appeal, and (6) the failure to appoint counsel at his state habeas proceeding and his lack of knowledge of proper hearing procedures and deposition tactics rendered such post conviction proceedings ineffective. On December 19, 1969 the federal habeas court entered an order denying relief. The court determined that the state habeas rulings that Ardister had been afforded effective assistance of counsel and had received a fair trial were correct, that the introduction of prior felony convictions in a 'one stage' jury trial did not violate Ardister's constitutional rights, that the claim of denial of a right of direct appeal had never been raised in the state court, and that the failure to appoint counsel at the habeas corpus proceeding did not violate any constitutional right. On March 16, 1970 the court allowed an amendment to Ardister's previous petition, and based on its clarification made the additional finding that his complaint as to the introduction of his prior convictions also asserted such proof was contrary to the indictment on which he was tried and violated Studdard v. State, 225 Ga. 410, 169 S.E.2d 327 (1969). This clarified contention was also denied for failure to exhaust state remedies. No express ruling was made on Ardister's contention regarding the sufficiency of the evidence adduced against him or the failure to accord him a preliminary hearing.

An appeal to this court followed and on November 11, 1970 we affirmed the denial of habeas corpus relief, Ardister v. Smith, 433 F.2d 931 (1970), holding that the asserted failure to afford a preliminary hearing did not raise a constitutional issue, that the court had correctly discerned that petitioner had failed to exhaust available state remedies relative to his claims that his counsel did not advise him of the right to appeal and that his prior offenses had been improperly introduced into evidence. We expressly withheld ruling on the general claim of ineffective assistance of counsel pending the exhaustion of the claim related to the lack of advice that he had a right to appeal. Our opinion did not deal with Ardister's claim that his conviction had been based upon insufficient evidence.

The records in this cause are devoid of any documentation as to proceedings between the date of issuance of our November, 1970 mandate and August 18, 1972 when the instant petition for habeas corpus relief was filed in theUnited States District Court below. ¹ In this latest pro se petition Ardister claimed entitlement to habeas relief because (1) his arrest had been illegal, (2) he had been denied bail, (3) he had been interrogated without counsel present, (4) insufficient evidence had been adduced against him, and (5) his counsel had not advised him of his right of direct appeal. Counsel thereafter appointed to represent Ardister supplemented these first five contentions by asserting that (6) he had been denied a preliminary hearing, (7) the indictment did not permit the introduction of the prior automobile larceny convictions, (8) his appointed trial counsel had been ineffective, and (9) the failure to appoint counsel for his state habeas proceedings rendered them ineffective. The court ruled that Ardister's first three contentions resulted in no prejudice to his trial and that the trial transcript reflected ample evidence on which a conviction could have been based. After first noting that the contention regarding the attorney's failure to advise him of his right to appeal should be dismissed as successive (Ardister having offered no reason why he could not have raised it in the state proceedings), the court went on to rule that the claim was insufficient to support relief because Ardister nowhere alleged that he did not know of his right to appeal or that his attorney in...