Brown v. Turner

• Decision Date: 04 August 1966
• Docket Number: Civ. A. No. 1877.
• Citation: 257 F. Supp. 734
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Joel C. BROWN, Petitioner, v. R. L. TURNER, Warden, and the State of North Carolina, Respondents.

257 F. Supp. 734

Joel C. BROWN, Petitioner, v. R. L. TURNER, Warden, and the State of North Carolina, Respondents.

Civ. A. No. 1877.

United States District Court E. D. North Carolina, Raleigh Division.

August 4, 1966.

Joel C. Brown, pro se.

T. Wade Bruton, Atty. Gen., of N. C. by Theodore C. Brown, Jr., Staff Atty., Raleigh, N. C., for respondent.

OPINION and JUDGMENT

DALTON, District Judge, sitting by designation.

This cause comes before the court upon a petition for writ of habeas corpus, filed in forma pauperis, by a State prisoner pursuant to the provisions of Title 28 U.S.C. § 2254. Issues have been joined by the respondent who has filed Answer to Petition and a Motion to Dismiss.

The petitioner is at present incarcerated in Central Prison, Raleigh, North Carolina. He was tried in the Superior Court of Wake County in September of 1963 on charges of incest and carnal knowledge of a female child under the age of sixteen years, to which charges he pleaded guilty, and he was sentenced to a term of imprisonment of fifteen years on the first conviction and a term of five years on the second conviction, the sentences to run consecutively. The petitioner did not appeal this conviction, but in September of 1964 he petitioned for a Post-Conviction Hearing in the Superior Court of Wake County. In March of 1965 this hearing was held with the petitioner appearing in person and represented by court-appointed counsel. As a result of this hearing the court held that the petition should be denied. A petition to the Supreme Court of North Carolina for writ of certiorari was denied in May of 1966.

This petition was filed on June 23, 1966. The petitioner's allegations as to violations of his constitutional rights are brief and not entirely clear, but they seem to be that he was arrested without a warrant; that there was an unreasonable delay in taking him before a magistrate for a preliminary hearing; that he was questioned without the benefit of counsel and was not advised of his right to remain silent; and that his plea of guilty was the result of threats by a deputy sheriff to see that he received a long sentence if he did not plead guilty to the charges.

Since the petitioner alleges certain facts surrounding his arrest and trial which are denied by the State, it must first be determined whether this court must hold a hearing to investigate the petitioner's allegations. It is well settled that this court need not hold another hearing on the same questions which were before the State court if the petitioner has received in the State court a full and fair hearing as to the questions of fact. At the same time, if the petitioner has not received such a full and fair hearing this court would be obliged to grant him another hearing on his allegations. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). It appears from the record that in the Post-Conviction Hearing held in March of 1965 the petitioner, who was represented by counsel, testified at length as to his claims. There was also testimony by the officer who arrested him and by the attorney who represented him at his trial, both of these witnesses being examined by the petitioner's counsel. There is nothing to indicate that the petitioner received anything but a full and fair hearing at this time and, this being the case, this court is at liberty to accept, and does accept, the findings of fact made by the court at this hearing.

As a result of this hearing and upon a consideration of the record as a whole the Superior Court of Wake County found the following facts:

1. That petitioner was arrested on August 25, 1963 * * * upon the charge of incest; that the said arrest was without a warrant, and although the arresting officer had reasonable grounds to believe the petitioner had committed the felony, there is no evidence before the Court showing that he had reasonable grounds to believe that petitioner would evade arrest if not immediately taken into custody; that there is no evidence tending to show that the outcome of petitioner's criminal trial would have been different if the officer had had a warrant at the time when he arrested petitioner.

2. That the aforesaid arrest of petitioner was made on a Sunday night 25th and petitioner lodged in jail; that on the 27th of August, 1963, two warrants were issued by * * * a Justice of the Peace * * *; that both of said warrants were served on petitioner on the same day that they were issued.

3. That a preliminary hearing was had before said Justice of the Peace upon both warrants on September 1, 1963, probable cause was found, and petitioner was bound over to the Superior Court. * * *

4. That George M. Anderson, Esq., was appointed as counsel for petitioner to represent him upon said charges * * * the said order of appointment being dated September 3, 1963, but said counsel had already conferred with petitioner in jail before the date of this order and before the date of the aforesaid preliminary hearing, and petitioner was represented by said counsel at the preliminary hearing.

5. That at the time the said Deputy Sheriff * * * arrested petitioner * * * he * * * informed petitioner of the accusation which his daughter had made against him, and on the next day petitioner was brought out of jail and into the presence of his child * * * and after said child had related the accusation against petitioner, he stated, `I'm guilty.' That prior to this time, petitioner had not said anything to the officer about wanting a lawyer to represent him; that said officer did not threaten, intimidate, or coerce petitioner into saying that he was guilty of the charges, nor did said officer threaten to convict petitioner and cause him to get a more severe sentence if he did not plead guilty; that said officer did not tell the petitioner that he had a right to counsel.

6. That petitioner's counsel * * * is and was at the time of his representation of the petitioner a competent, capable, and experienced lawyer; that when he first conferred with petitioner, the latter advised him that he wanted to plead guilty to the charges against him; that said attorney explained the charges to petitioner, advised him as to the punishment therefor, and told him that if he were not guilty he should plead not guilty, but that he could either plead guilty or not guilty; that said counsel investigated the charges against petitioner and gave him adequate representation in the cases against him; that said counsel appeared for and on behalf of petitioner both in the preliminary hearing and at his trial in the Superior Court and followed petitioner's desires in entering for petitioner and in his presence in open Court a plea of guilty to the aforesaid charges; that after entering the said plea, counsel spoke before the Court in petitioner's behalf, bringing out such facts and circumstances as he thought might be for petitioner's best interest.

* * * * * *

8. That petitioner gave his said counsel consent to enter a plea of guilty to the aforesaid charges voluntarily, intelligently, and understandingly.

Upon these facts, which this court believes to be supported by the evidence and to have been fully and fairly brought out, this court is of the opinion that the petitioner's constitutional rights have not been violated and that his request for relief must be denied.

The allegation that there was an unreasonable delay in taking the petitioner to a magistrate is plainly without merit. Petitioner is obviously relying on the McNabb-Mallory rule which prohibits the use of evidence obtained as a result of illegal detention. However this rule is not one that has its basis in the Constitution, but is instead a rule which applies only to the Federal courts, not to the State courts. United States ex rel. Glinton v. Denno, 309 F.2d 543 (2d Cir. 1962), cert. denied 372 U.S. 938, 83 S.Ct. 886, 9 L.Ed.2d 769 (1963). Moreover, any harm which resulted to the petitioner from the detention would have been his confession or the effect his...