Ashby v. Cox

• Decision Date: 02 June 1972
• Docket Number: Civ. A. No. 71-C-55-A.
• Citation: 344 F. Supp. 759
• Parties: Jerry Lee ASHBY, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary (now A. E. Slayton), Respondent.
• Court: U.S. District Court — Western District of Virginia

344 F. Supp. 759

Jerry Lee ASHBY, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary (now A. E. Slayton), Respondent.

Civ. A. No. 71-C-55-A.

United States District Court, W. D. Virginia, Abingdon Division.

June 2, 1972.

COPYRIGHT MATERIAL OMITTED

Jerry Lee Ashby, pro se.

James E. Kulp, Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION

WIDENER, Chief Judge.

On December 3, 1969, in the Circuit Court of Washington County, petitioner pleaded guilty to a two-count indictment charging him with statutory burglary and grand larceny. Petitioner was sentenced to two years' imprisonment on each count.

He now petitions this court for relief from his sentence by way of habeas corpus pursuant to the provisions of 28 U. S.C. § 2241. He asserts twenty grounds for relief, which are set forth in his petition as follows:

"The Court erred:

1. Upon the arrest of the defendant, Jerry Lee Ashby, the officers searched his person illegally and in violation of his constitutional right under the United States constitution and the law of this state; that at the time of defendant's arrest the officers had neither an arrest warrant nor a search warrant; and that the articles, allegedly obtained by means of illegal search, were used as evidence against the defendant in the trial of the case, all in violation of the Fourth, Fifth and fourteenth amendments of the constitution of the United States.

2. That the defendant was not given the benefit of Miranda Warnings until after his arrest and the search of his person.

3. That the defendant, Jerry Lee Ashby, upon the trial of this case, and prior to sentencing, was guestioned sic by the court, in violation of his rights to the Miranda Warnings, and especially without warning that he had the right to remain silent.

4. The second count of the indictment, charging grand larceny, is fatally defective, and is a blanket indictment, and violates the defendant's constitutional rights to a fair trial in that the second count of the indictment states a conclusion and does not specify the articles which the defendant, allegedly stole nor the value of the items.

5. The Court erred in finding the defendant, Jerry Lee Ashby guilty of grand larceny.

6. The court erred in overruling the defendant's two MOTIONS filed herein on the 2nd day of December, 1969, over the defendant's objection and exceptions, as will be shown by the stenographic record which, even though demanded, has not been provided by the Court.

7. The Courter sic erred in not sustaining defendant's DEMURRER AND MOTION TO QUASH FIRT sic COUNT OF THE INDICMENT sic filed herein on the 28th day of November, 1969.

8. It was error to overrule the defendant's MOTION FOR PSYCHITRIC sic EXAMINATION filed herein on the 28th day of November, 1969.

9. The Court erred in overruling defendant's DEMURRER AND MOTION TO QUASH SECOND COUNT OF THE INDICTMENT CHARGING GRAND LARCENY and the five motions therein contained, filed herein on the 28th day of November, 1969, over defendant's objection and exceptions.

10. The Court erred in overruling defendant's DEMURRER AND MOTION TO QUASH FIRST AND SECOND COUNTS OF THE INDICTMENT, filed herein on the 28th day of November, 1969, over defendant's objection and exceptions.

11. Defendant was denied a transcript of that part of the record referred to in the order of this court entered on December 1, 1969, to wit;

The defendant, by counsel, made certain oral motions upon which the court ruled and will appear fully in the stenographic record made herein.

12. The Court erred in depriving the defendant, Jerry Lee Ashby, of his right to effective counsel as will appear from his motion and exception filed herein on December 2, 1969.

13. The defendant says that he did not voluntarily and understandingly enter a plea of guilty herein, and says that he by his plea, did not waive any of his motions, objections and exceptions to the erroneous rulings of the Court theretofore made in that, on being guestioned sic by the Court, he was never asked if he had any objections to the actions of the Court theretofore taken, and for other reasons appearing in the record.

14. That after being sentenced by the court on the first count in the indictment for statutory burglary, the Court's attempted sentencing of the defendant under the second count of the indictment for grand larceny was in violation of the fifth Amendment ban on double jeopardy as made binding on the states by the fourteenth Amendment, respectively, of the constitution of the United States; the attempted sentencing of the defendant for grand larceny was prohited sic, and thusly, a nullity, becaude sic of constitutional bar against double jeopardy.

15. The Court, prior to sentencing the defendant, called upon him to testify, but did not avise sic him of his rights to remain silent.

16. The action of the Court in refusing appinted sic counsel time to prepare for the trail sic of this case was a denial to this defendant of effective assistance of counsel as required under the Sixth Amendment of the constitution of the United States.

17. The action of the Court in denying appointed counsel the right to investigte sic the defendant's mental condition, thusly to estabish sic as complete a defense as possible, denied the defendant the right to effective assistance of counsel as required under the Sixth Amendment of the Constitution of the United States.

18. The defendant, without waiving any of his other Assignments of Error heretofore made, says that the court in sentencing him on on sic the second count of the indictment was required to examine the witnesses and determine the degree of the offense charged, if any, according to law and the evidence intorduced sic by the Commonwealth; that the evidence adduced by the Commonwealth was insufficient to sustain a conviction of grand larceny, and the court was without original jurisdiction to find as to petty larceny, and the Court should have sustained the defendant's motion to strike the same at the conclusion of the in troduction sic thereof as will be shown from reasons assigned in his motion and from the transcripto sic of the evidence.

19. That the Court erred in refusing to strike the evidence adduced by the Commonwealth in repect sic to the first count of the indictment.

20. That the first and second counts of the indictment are fatally defective in that each count fails to state any offense cognizable in law and attempts to incorporate by reference the sic found in the code of Virginia, without specifying what the offense was, all violation of defendant's right to be advised by indictment of the crimes of which he stood charged."¹

Petitioner filed a petition for a writ of error and supersedeas in the Supreme Court of Virginia, which was denied on January 19, 1971. Although he there filed as assignments of error a copy of the above grounds for relief, he withdrew from consideration by the Supreme Court assignments of error 1, 2, 3, 7, 11, 15, 19, and 20.

Grounds for relief here, numbers, 1, 2, 3, 7, 11, 15, 19, and 20, except for typographical errors, are identical to the assignments of error withdrawn from consideration and numbered the same. Thus, as to those eight grounds, he has not exhausted his state remedies as required by 28 U.S.C. § 2254.

Denial of a preliminary hearing, failure to obtain a warrant of arrest, and insufficiency of the indictment

Grounds for relief 4, 9, and a part of 6 deal with the alleged error of the trial court in not quashing the indictment. The motions referred to in 9 and one of the motions referred to in 6 allege that petitioner did not receive a preliminary hearing on the second count of the indictment charging him with grand larceny, that no warrant of arrest was ever issued against him for grand larceny, that the second count of the indictment insufficiently described and only expressed a conclusion as to the value of the property alleged to have been stolen. In White v. Pepersack, 352 F.2d 470, 472 (4th Cir. 1965), the court stated:

"It is a familiar principle that a voluntary plea of guilty does foreclose subsequent collateral attack upon the judgment and the sentence when the attack is based upon an alleged deprivation at some earlier stage of the proceedings."

After a voluntary guilty plea, the only errors in the proceedings prior to the entry of the plea that can be raised in a collateral proceeding such as this are jurisdictional errors. Cradle v. Cox, 327 F.Supp. 1169, 1175 (E.D.Va.1971). Although Ashby has alleged that his plea was not voluntary, as will be discussed below, this claim is not well taken.

Consideration of petitioner's claim that he was denied a preliminary hearing on count two of the indictment is foreclosed by his voluntary guilty plea. Emmett v. Balkcom, 358 F.2d 302 (5th Cir. 1966); United States v. Karger, 439 F.2d 1108, 1109-1110 (1st Cir. 1971), cert. den. 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696 (1971). The preliminary hearing granted by § 19.1-163.1 of the Code of Virginia (1960 Repl. Vol.) is not jurisdictional. Mapson v. Cox, 313 F.Supp. 465, 467 (W.D.Va. 1970); Bird v. Peyton, 287 F.Supp. 860, 862-863 (W.D.Va.1968); Webb v. Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 27-28 (1963). And, in any event, there is no constitutional right to a preliminary hearing. United States v. Karger, supra; Bird, supra; McCormick v. Peyton, 274 F.Supp. 797, 799 (W.D.Va. 1967); Webb, supra.

Similarly, Ashby's voluntary guilty plea precludes consideration of his claim that no warrant of arrest was ever issued against him for grand larceny, Williams v. Smith, 434 F.2d 592, 595 (5th Cir. 1970); Connors v. United States, 325 F.Supp. 596, 597 (W.D.Va. 1971); Quillien v. Leeke, 303 F.Supp. 698, 705 (D.S.C.1969), although there is no requirement that a warrant of arrest be issued where the grand jury first returns an indictment against the accused. Waller v. Commonwealth, 84 Va. 492, 494-495, 5 S.E. 364, 365-366 (1888).

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