Argo v. Wiman

• Decision Date: 31 July 1962
• Docket Number: Civ. A. No. 1808-N.
• Citation: 209 F. Supp. 299
• Parties: Jimmy ARGO, Petitioner, v. M. J. WIMAN, Warden, Respondent.
• Court: U.S. District Court — Middle District of Alabama

209 F. Supp. 299

Jimmy ARGO, Petitioner, v. M. J. WIMAN, Warden, Respondent.

Civ. A. No. 1808-N.

United States District Court M. D. Alabama, N. D.

July 27, 1962.

On Motion for Rehearing July 31, 1962.

No appearance for petitioner.

MacDonald Gallion, Atty. Gen., State of Alabama, and John C. Tyson, III, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for respondent Wiman.

JOHNSON, District Judge.

ORDER

This cause is now submitted upon the motion of Jimmy Argo filed herein on June 19, 1962, wherein the said Jimmy Argo seeks to have this Court restrain and enjoin the officials for the State of Alabama from rearresting and retrying him for either or both of the offenses for which he was adjudged guilty in the Circuit Court of Jefferson County, Alabama, on March 18, 1960. The issues raised by this motion are not properly before this Court in this habeas corpus proceeding. See the opinion of the United States Court of Appeals for the Fifth Circuit affirming this Court's refusal to issue such an order in the case of Wiman v. Powell (July 13, 1961), 5 Cir., 293 F.2d 605.

It is, therefore, the ORDER, JUDGMENT and DECREE of this Court that the motion for a restraining order, filed herein on June 19, 1962, by Jimmy Argo, wherein he seeks to have this Court restrain and enjoin the authorities for the State of Alabama from rearresting and reprosecuting him on the same charges for which he was arrested and prosecuted on March 17 and 18, 1960, be and the same is hereby denied.

ON PETITION FOR HABEAS CORPUS

ORDER

On April 30, 1962, Jimmy Argo, with leave of this Court, filed his petition for writ of habeas corpus in forma pauperis. Argo, who was tried and convicted in the Circuit Court of Jefferson County, Alabama, on March 17, 1960, is presently, and was at the time of the filing of his petition, in the custody of M. J. Wiman, the warden for Kilby Prison, State of Alabama, Montgomery, Alabama, and is serving a six-year sentence imposed upon him as a result of his conviction. Upon the filing of the petition, this Court ordered the warden to show cause why the writ should not be issued. On May 18, 1962, the Attorney General for the State of Alabama, representing the warden in this action, filed his response and answer to this Court's show cause order. Upon consideration of the petition and the response, this Court set the case for a hearing upon its merits. The matter was tried before the Court on June 15, 1962, and the case is now submitted upon the pleadings, depositions, oral testimony, exhibits and briefs of the parties. The petitioner, Jimmy Argo, at his own request, represents himself.

Upon this submission, this Court finds that the petitioner Argo was arrested in February of 1960 for grand larceny of an interstate shipment and the truck in which the interstate goods were being carried. He was duly indicted in Jefferson County, Alabama, and his case was called for trial by the Circuit Court in that county on March 16, 1960. Sometime during the latter part of that day the case was continued until the following day at 9 a. m. Argo had retained an attorney by the name of Arthur Parker, Birmingham, Alabama, to represent him in this case, and Attorney Parker had been present in open court on the afternoon of March 16, 1960, when the trial judge, the Honorable Wallace Gibson, continued the case until 9 a. m. for the following morning. On the morning of March 17, 1960, the case was called for trial, and Argo's retained counsel, Arthur Parker, was not present in court. The trial judge recessed the case for fifty minutes, and during this interval a diligent effort was made to locate Attorney Parker. Following the short recess, the trial judge appointed the Honorable C. E. (Bud) Huey, a competent trial attorney of Birmingham, Alabama, to represent this defendant. Attorney Huey was appointed over the objection of Argo made to the trial judge in open court. The basis for Argo's objection was that he did not desire to go to trial in the absence of his retained attorney. He requested the trial judge to delay his trial until his retained attorney could be located and be present. This objection was overruled and the request refused. Upon the appointment of Attorney Huey, the trial judge directed the prosecuting officer to make his notes and the grand jury evidence relating to Argo's case available to Hr. Huey. The prosecutor's file was made available to Mr. Huey, and Huey and Argo conferred approximately fifteen minutes prior to the commencement of the trial. During the course of this conference between Argo and his court-appointed attorney, Argo requested the court-appointed attorney to ask the trial judge for a continuance until his retained counsel could be located and be present. The court-appointed attorney refused to make this request, but promised the petitioner Argo that he would engage in certain delaying tactics during the selection of the jury and during the trial so that the retained counsel, Mr. Parker, could be located and be present for as much of the trial as possible; whereupon, the trial commenced, and prior to the noon recess approximately six witnesses, constituting practically all of the State's case, testified. The case was then recessed until 2:30 on that date. During the noon recess, the retained counsel was located, and the retained counsel, the court-appointed counsel, Argo, and some of the witnesses conferred before the trial resumed in the afternoon. Upon the resumption of the trial, other witnesses were called, and some of the State's witnesses who had testified that morning were recalled and cross-examined further by the defendant's counsel. During the afternoon session, the court-appointed counsel and the retained counsel were both present and both participated in defending Argo.

The evidence in this case further reflects that on the day previous to Argo's trial the retained counsel had also represented one of Argo's codefendants; that he was thoroughly familiar with the case and with the testimony that the witnesses (being essentially the same witnesses who testified in the codefendant's case) were to give on the trial of Argo's case. The case was submitted to the jury, and a verdict of guilty was returned. The following day, March 18, 1960, the defendant appeared before the trial judge, was adjudged guilty upon the jury verdict and sentenced to a term of six years' imprisonment in the Alabama penitentiary. Subsequent to this, counsel Arthur Parker filed a motion for a new trial, no mention being made of the fact that he was not present during the morning session of Argo's trial. The motion for a new trial was denied.

There is no question in this case but that Argo has exhausted the remedies available to him in the courts of the State of Alabama.¹

Argo's contention is that his conviction on the two noncapital, grand larceny offenses violated the protection afforded him by the Fourteenth Amendment to the Constitution of the United States. On the evidence in this case, this Court concludes that the denial of Argo's motion for a short continuance or delay so that his retained counsel, Arthur Parker, could be located and be present, and the appointment of counsel who was not familiar with Argo's case, and the putting of Argo to trial with appointed counsel in the absence of his retained counsel, was arbitrary action on the part of the trial judge to an extent that Argo on March 17, 1960, in the Circuit Court of Jefferson County, Alabama, was denied his due process rights in a constitutional sense. The statement of the Supreme Court of the United States in Reynolds v. Cochran, (1961) 365 U.S. 525, 81 S.Ct. 723, 5 L.Ed.2d 754, is peculiarly applicable in this case:

"* * * Under those facts, the statement of this Court in Powell v. Alabama 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, which provided the basis of our holding in Chandler 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4, is wholly applicable: `If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.'

"* * * Even assuming, which we do not, that the deprivation to an accused of the assistance of counsel when that counsel has been privately employed could ever be termed `harmless error,'12 it is clear that such deprivation was not harmless under the facts as presented in this case. * * *"

"12. It is significant that in Chandler we did not require any showing that the defendant there would have derived any particular benefit from the assistance of counsel."

See also Chandler v. Fretag, (1954) 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 where the Supreme Court stated:

"* * * Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified."

See also House v. Mayo, (1945) 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739, where the Court stated:

"* * * This was a denial of petitioner's constitutional right to a fair trial, with the aid and assistance of counsel whom he had retained. Powell v. Alabama, 287 U.S. 45 53 S.Ct. 55, 77 L.Ed. 158, 84 A. L.R. 527; Ex parte Hawk, 321 U. S. 114, 115-116 64 S.Ct. 448, 88 L.Ed. 572. We need not consider whether the state would have been required to appoint counsel for petitioner on the facts alleged in the petition. Compare Betts v. Brady, 316 U.S. 455 62 S.Ct. 1252 86 L.Ed. 1595, with Williams v. Kaiser, supra, 323 U.S. 471, 65 S.Ct. 363 and Tomkins v. Missouri, 323 U.S. 485 65 S.Ct. 370. It is enough that petitioner had his own attorney and was not afforded a reasonable opportunity to consult with him. The fact that petitioner pleaded guilty after the denial of his request for time to consult with his counsel, does not deprive him of his constitutional right to counsel. Williams v. Kaiser, supra; Tomkins

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