Bland v. State of Alabama

• Decision Date: 21 March 1966
• Docket Number: No. 22872.,22872.
• Citation: 356 F.2d 8
• Parties: Ernest G. BLAND, Appellant, v. STATE OF ALABAMA, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

356 F.2d 8 (1965)

Ernest G. BLAND, Appellant, v. STATE OF ALABAMA, Appellee.

No. 22872.

United States Court of Appeals Fifth Circuit.

December 27, 1965.

Rehearing Denied January 18, 1966.

Certiorari Denied March 21, 1966.

John R. Matthews, Jr., Montgomery, Ala., for appellant.

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

Before MARIS,^* RIVES and BELL, Circuit Judges.

Certiorari Denied March 21, 1966. See 86 S.Ct. 1203.

RIVES, Circuit Judge.

This appeal is from a judgment, entered after an evidentiary hearing, which denied habeas corpus to a state prisoner. The appellant Bland was convicted of armed robbery in the Circuit Court of Jefferson County, Alabama. Upon his trial and on appeal he was represented by able court-appointed counsel at all stages, except upon motion for new trial when he represented himself without counsel. The district court found that he was not prejudiced in any way by not having counsel on his motion for new trial, and that he had made an intelligent and understanding waiver of counsel on that motion. Decision here turns on the correctness vel non of those factual holdings. For a thorough review, we find it necessary, at the risk of an overly-lengthy opinion, to make a full statement of the facts.

The manager of a Hill's Supermarket in Woodlawn, Birmingham, Alabama, was robbed at pistol point about 6:00 o'clock in the evening of November 22, 1960, two days before Thanksgiving. The robber took about $2,550.00.

On November 30, some eight days after the robbery, Bland was arrested in Houston, Texas. He was originally convicted on January 17, 1961 and was then sentenced to twenty-two years imprisonment. His appeal from that judgment of conviction was dismissed as having been filed too late. Bland v. State, 1961, 272 Ala. 215, 130 So.2d 385. The Supreme Court of Alabama dismissed his petition for leave to file a petition for writ of error coram nobis,¹ holding such leave not necessary where the State Supreme Court did not take jurisdiction of the original appeal from the judgment of conviction. Ex parte Bland, 1962, 273 Ala. 449, 142 So.2d 872. Upon a petition filed directly in the trial court, the writ of error coram nobis was granted and the judgment of conviction vacated.²

William B. McCollough, Jr., Esq., had been appointed by the trial court to represent Bland on his petition for writ of error coram nobis. Having successfully prosecuted that petition, Mr. McCollough was appointed by the court to represent Bland upon his second trial. At that trial Bland was again convicted and was then sentenced to twenty years imprisonment. Nonetheless, in his pro se pleadings in the district court, Bland refers to Mr. McCollough as a "very able counsel."

The date of Bland's second judgment of conviction and twenty-year sentence was January 8, 1963. Mr. McCollough then gave notice of appeal, but withdrew such notice pending the filing of a motion for new trial. On January 18, 1963, Bland received a letter from Mr. McCollough stating that he had withdrawn from the case. On the same day on which he received Mr. McCollough's letter of withdrawal, Bland wrote to the trial judge as follows:

"January 18, 1965 County Jail "The Honorable Wallace Gibson 10th Circuit Court 2nd Division Jefferson County Courthouse

"Dear Sir:

"I would appreciate it if you would have me brought before the court, so that I might straighten out the matters concerning Motions for new trial and notice of appeal.

"I have just been notified by Mr. Bill McCollough, Jr. that he is not my attorney as of this date, therefore no motions have been filed.

"I would like to inform the court at this time, that as a pauper I am in need of the trial transcript in order to perfect my appeal to the Alabama Supreme Court.

"Thanking you in advance, I remain,

"Respectfully "cc.Retained: E.G.B "Ernest Geo. Bland "County Jail."

Another letter and attached petition was received by the trial court on January 22, 1963, which read as follows:

"Received By Court on January 22, 1963

"2nd Division Jefferson County Courthouse. "Re: Ernest Geo. Bland vs State of Alabama

"Dear Judge Gibson:

"I am writing you in regards to the present situation in regards to my case.

"As you know on January 8th 1963 my attorney Mr. Bill McCollough, Jr. gave notice of appeal at the time you were sentencing me, he then withdrew such notice, and I quote Mr. McCollough\'s words as follows: `I withdraw notice of appeal pending the fileing (sic) of Motions for new trial\' (end quote). That same day Mr. McCollough was taken to the hospital where he spent several days, then on January 18th 1963 I received a letter from Mr. McCollough stating he had withdrawn from the case.

"Therefore Judge Gibson I am asking that I be accorded the same rights as one who was financialy (sic) able to pay all the legal fees. As you can see the papers attached hereto lack a notary seal, due to the fact none is available to me, therefore I am asking that I be brought before you so that such a seal can be affixed thereto.

"Thanking you in advance, I remain.

"Respectfully "cc. Retained /E.G.B "Ernest Geo. Bland" "Ernest George Bland In the 10th Judicial v Circuit Court, 2nd Div. Jefferson County, Alabama. "State of Alabama No. .........

"FILED IN OFFICE JAN 22 1963 JULIAN SWIFT Clerk.

"Petition For Trial Transcript

"Comes now Ernest George Bland and petitions this Honorable Court for a copy of the trial transcript under Article 62, Special Sessions and cites Griffin v. Illinois, U.S. 76, S.Ct. 585, 351 U.S. 12, as authority for such and would most respectfully show the court the following:

"That on January 8th 1963 Petitioner was adjudged guilty by a jury and punishment assessed at twenty years (20) in the State Penitentiary for the offense of robbery as charged in the indictment in the cause of Ernest George Bland vs State of Alabama Cause No. ......... Petioner further states that he wishes to appeal said conviction as guarnteed (sic) by the statutes and Constitution of the State of Alabama as well as the Constitution of the United States and in order to perfect said appeal properly Petitioner is in need of said transcript.

"Petitioner further states he is innocent of the alleged (sic) charge of robbery.

"Respectfully submitted, — "Ernest G. Bland " On the same day, Bland, pro se, filed a motion for new trial, one of the grounds of which read: "(C) The trial court erred in allowing the Solicitor to refer to defendant as a person who had previously been in trouble with the police."

On February 15 the trial court heard the defendant Bland, pro se, on his motion for new trial, taking up each ground of the motion seriatim. As to Ground (C), the following occurred:

"THE COURT: `C\': The trial court erred in allowing the Solicitor to refer to defendant as a person who had previously been in trouble with the police.

"What does that have reference to?

"THE DEFENDANT: I believe Mr. Hawkins stated to the jury that the large cities kept a file on professional robbers and thieves, or some such like that, and in that statement he was inferring that I was picked out from that file.

"THE COURT: I recall the argument. I recall an objection. I did not, frankly, construe it to be what you construe it as, when taken into consideration with the entire argument that was made by Mr. Hawkins."

At the conclusion of the hearing the court overruled Bland's motion for new trial, accepted his oral notice of appeal and granted his request for a transcript of the testimony without cost. On March 27, Bland moved the court "for the appointment of counsel to perfect and aid in his appeal of the case," and filed a like motion on April 17. The Court of Appeals of Alabama requested the trial court to appoint a lawyer to handle the case on appeal, and on April 23 the trial court appointed Mr. McCollough for that purpose. The judgment of conviction was affirmed on May 12, 1964 and rehearing denied on June 9, 1964, Bland v. State, 1964, 42 Ala.App. 392, 166 So.2d 728. On June 3, 1964, Mr. McCollough wrote to Bland as follows:

"As you know, I was appointed by the Court of Appeals to represent you in that court only. My decision is that I cannot use this office in the writing of another brief and the arguing of your case again in the Supreme Court if certiorari is granted without fee. I not only owe it to my partner but owe it to my clients and myself to make this decision."

Bland filed, pro se, a petition for certiorari to the Supreme Court of Alabama, which petition was dismissed. Bland v. State, 1964, 277 Ala. 4, 166 So.2d 735. Bland then petitioned the Court of Appeals of Alabama for leave to file a petition for writ of error coram nobis. On January 26, 1965, that petition was stricken by the Alabama Court of Appeals.

On February 24, 1965, the district court granted Bland leave to file his petition for habeas corpus in forma pauperis, and ordered the respondent to show cause why the writ should not issue. Later the district court appointed John R. Matthews, Jr., Esq., as counsel to represent Bland, and set the cause for hearing.³ Upon hearing in the district court, the case was submitted upon the pleadings, the transcript filed in the Court of Appeals of Alabama, and upon a stipulation entered into by the Attorney General of Alabama with Mr. Matthews as attorney for Bland, as follows:

"1. Ernest G. Bland, herein called Bland, was an indigent defendant who had no funds at the time he was tried and convicted in the Circuit Court of Jefferson County, Alabama, in January, 1963.

"2. Title 13, Section 261, Code of Alabama, 1940, does not require the transcription of oral arguments. In the Circuit Court of Jefferson County, Alabama, oral arguments are not transcribed unless arrangements are made with the court reporter or requested of the trial judge in advance of such arguments.

"3. Bland was represented in said trial by Bill...