Bell v. State of Alabama, 23104.

• Decision Date: 01 November 1966
• Docket Number: No. 23104.,23104.
• Citation: 367 F.2d 243
• Parties: Cecal BELL, Appellant, v. STATE OF ALABAMA, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

367 F.2d 243 (1966)

Cecal BELL, Appellant, v. STATE OF ALABAMA, Appellee.

No. 23104.

United States Court of Appeals Fifth Circuit.

September 29, 1966.

Petition for Rehearing and Application for Stay Denied November 1, 1966.

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Before TUTTLE, Chief Judge, BELL, Circuit Judge, and KILKENNY,^* District Judge.

TUTTLE, Chief Judge.

The appellant Cecal Bell, acting as his own counsel, filed a petition for writ of habeas corpus in the United States District Court for Southern Alabama, seeking release from an Alabama state prison where he is confined under a sentence for grand larceny. The district court denied the petition without calling for a return and without a hearing. No reasons for the denial were assigned. Subsequently, the district court also denied a motion for leave to appeal in forma pauperis. This Court then granted issuance of a certificate of probable cause allowing prosecution of the appeal in forma pauperis, to review the propriety of the district court's summary dismissal of appellant's petition. We conclude that, although the dismissal was not improper when made, we must now reverse and remand this cause for further proceedings.

An exhaustive statement of the allegations appearing in the petition is not necessary to the disposition of this appeal. An understanding of the nature of the federal questions presented can be gleaned from the following summary of the facts alleged. Appellant was arrested on suspicion of a series of cattle thefts on October 22nd, 1961. Two days later, the investigating officers approached Bell and demanded that he admit guilt to the charges. Being unaware of his legal rights, he became frightened, admitted guilt, and was immediately taken to the office of the Clerk of the Court, where he was ordered to sign a confession.

Three weeks later, on November 13th, 1961, appellant was contacted by an attorney who told Bell that he had been employed to represent him; that he could not defend him because of his previous plea of guilty; but that negotiations had been arranged with the solicitor and the trial judge to sentence him to 25 years imprisonment with an early parole date. On November 16th, 1961, three days later, appellant was convicted and sentenced to five consecutive terms of five years each, a total of twenty-five years imprisonment, for grand larceny of cattle.¹ His account of the proceeding is that he was "brought to the Marengo County courtroom, seated with his attorney * * * each member of the jury was introduced and petitioner was immediately sentenced to twenty-five years imprisonment."² He avers that "his counsel was so lacking in diligence and competence that he was actually without representation," and that the transcript of his trial would verify his allegations.

These allegations of the appellant concerning his legal representation and the voluntariness of his confession may be baseless. However, in determining whether his petition may properly be dismissed without calling for a return and without a hearing, we are obliged to treat them as true. House v. Mayo, 324 U.S. 42, 45, 65 S.Ct. 517, 89 L.Ed. 739 (1945). On that assumption, we must determine whether the facts alleged amount to a taking of liberty without due process of law. In doing so, we must be mindful of the fact that appellant was without benefit of counsel in preparing his petition. The Supreme Court has said of such cases:

Prisoners are often unlearned in the law and unfamiliar with the complicated rules of pleading. Since they act so often as their own counsel in habeas corpus proceedings, we cannot impose on them the same high standards of the legal art which we might place on the members of the legal profession. Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948).

We turn first to the voluntariness of appellant's confession. As we have noted, it is not entirely clear whether appellant's conviction was based on a plea or a verdict of guilty. More likely, it was a plea, and we will so assume for the purpose of this discussion. Even so, the voluntariness of the confession is the critical issue, for the averments of the petition clearly indicate a causal relationship between the allegedly coerced confession and the subsequent plea of guilty. Of such cases, the Supreme Court has said, "Our prior decisions have established that: (1) a conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause * * *." Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 224, 100 L.Ed. 126 (1956). (Emphasis added.) Citing Herman, the Court of Appeals for the Fourth Circuit has said:

The claim that a coerced confession induced a guilty plea may properly be raised on habeas corpus, and if it is proved at the hearing that an illegally obtained confession induced the plea of guilty, the conviction should be set aside unless there has been a voluntary waiver. Jones v. Cunningham, 297 F. 2d 851, 855 (4th Cir. 1962).

Thus the question is whether appellant has alleged any violation of federal constitutional safeguards in the obtaining of his confession. Reliance on the principles established in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is precluded by the Supreme Court's holding in Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L.Ed.2d 882 (1966), that these decisions will not be retroactively applied to cases such as this one in which the trial began before the respective dates of those decisions. But this in on way affects the duty of the district court to consider a claim that a confession was obtained under circumstances which render it involuntary. In Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), decided one week after Miranda, the Court said:

The review of voluntariness in cases in which the trial was held prior to our decisions in Escobedo and Miranda is not limited in any manner by these decisions. On the contrary, the fact that a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation, as is now required by Miranda is a significant factor in considering the voluntariness of statements later made. Id. at 740, 86 S.Ct. at 1764.

And since the decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed. 2d 653 (1964), the test to be applied in both state and federal prosecutions is "Whether the confession was `free and voluntary; that is, it must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * *'" Id. at 7, 84 S.Ct. at 1493. The petition states that the investigating officers demanded a confession, that appellant became frightened and admitted guilt, and that he was then ordered to sign a confession. Surely there are circumstances under which demands and orders that a confession be given may amount to "the exertion of any improper influence."

Considering next the allegations that appellant did not receive the effective assistance of counsel, the applicable test is stated in Williams v. Beto, 354 F.2d 698 (5th Cir. 1965):

It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. Id. at 704. (Emphasis added.)

It is clear that this test applies to cases in which counsel is retained by or for an accused as well as to cases in which counsel is appointed to represent an indigent defendant. Scott v. United States, 334 F.2d 72 (6th Cir. 1964). Contentions strikingly similar to those made here were presented in Jones v. Cunningham, 297 F.2d 851 (4th Cir. 1962). A state prisoner alleged in his habeas corpus petition that his assigned counsel had entered the case only after he had entered a plea of guilty; that the plea had followed a coerced confession; and that counsel had advised prisoner there was nothing he could do for him since he had already made a confession. In reversing the district court's dismissal of the petition, the court said:

"Especially striking is the petitioner\'s assertion that the court-appointed lawyer, after the most superficial contact with the case and without making inquiry into the circumstances, counselled surrender because the defendant had given a confession — a confession allegedly made under stress and coercion. No legal representation is worthy of the name if the lawyer makes no investigation of the background of the client\'s plea * * * or of the extra-judicial confession which induced the plea." Id. at 855. (Footnote omitted.)

We agree with this statement, and in our view the principle it embodies entitled Bell to have his claim concerning his representation considered. In the case at bar, the allegations made in the petition are highly conclusory in nature and leave much to be desired in the way of factual allegations to support the contentions made. However, bearing in mind the Supreme Court's admonition that such petitions prepared without the aid of counsel must be liberally construed, we conclude that appellant's petition is not so devoid of factual allegations in support of the substantial constitutional issues which it seeks to raise as to warrant the district court's summary dismissal of it.

There remains for consideration the question whether appellant has exhausted his state remedies within the meaning of 28 U.S.C. § 2254. At the outset, two principles should be reiterated. First,...