Bryant v. Cox, Civ. A. No. 70-C-1-R.

• Decision Date: 26 March 1970
• Docket Number: Civ. A. No. 70-C-1-R.
• Parties: Roy E. BRYANT, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

312 F. Supp. 218

Roy E. BRYANT, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary, Respondent.

Civ. A. No. 70-C-1-R.

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

March 26, 1970.

Gerald L. Baliles, Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION AND JUDGMENT

DALTON, Chief Judge.

This proceeding comes before the court on a petition for a writ of habeas corpus filed in forma pauperis by Roy E. Bryant, a prisoner of the State of Virginia, pursuant to the provisions of 28 U.S.C.A. § 2241. On the 29th of September, 1950, petitioner Bryant was convicted of first-degree murder and sentenced to a term of life imprisonment by the Hustings Court of the City of Roanoke. Seventeen years later, through the assistance of court appointed counsel, the petitioner sought relief by filing a petition for a writ of habeas corpus in the Hustings Court of the City of Roanoke on the 27th of April, 1967. The Hustings Court granted the petitioner a plenary hearing on the issues raised in his petition¹ (See Transcript—Page 2) on the 4th of January, 1968. Judge Richard T. Edwards, in an opinion from the bench, concluded that the points raised in allegations 2, 3, 4, 5, and 9 were "all eliminated prior to the taking of testimony on the grounds of either being irrelevant or immaterial insofar as a Habeas Corpus is concerned." Only question 3 of this group corresponds to one of the allegations raised by Bryant in his petition before this court. The Hustings Court did consider in depth allegations 6 and 7 which correspond with two similar points raised in the petition before this court.

The court (Hustings Court for the City of Roanoke) denied petitioner's petition for a writ of habeas corpus on the 29th of January, 1968. An appeal was noted and petitioner filed his petition for a writ of error with the Virginia Supreme Court of Appeals. In Bryant's petition for a writ of error, he raised all the claims that were presented to the Hustings Court at the habeas corpus hearing. The Supreme Court of Appeals denied any relief to the petitioner on the 5th of September, 1969. In affirming the lower court's decision, the Supreme Court of Appeals dealt almost exclusively with the question centering on Bryant's plea of guilty and its effect upon his ability to appeal his conviction. The Supreme Court of Appeals did affirm the Hustings Court's refusal to award the writ of habeas corpus on all the points raised in the petitioner's writ of error. See Bryant v. Peyton, 210 Va. 199, 169 S.E.2d 460 (1969).

In light of the foregoing, the court concludes that petitioner Bryant has exhausted his state remedies in compliance with the provisions of 28 U.S.C. A. § 2254 as interpreted by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

After studying the records of the trial held in the Hustings Court for the City of Roanoke, and after thoroughly considering the transcript of the habeas corpus hearing held in the same court on the 4th of January, 1968, the court has found there to be full and sufficient evidence on which to render its decision. Accordingly, it will not be necessary that a plenary hearing be held in the case at bar.

Petitioner Bryant raises three points that have been dealt with by Virginia Supreme Court of Appeals. These points are as follows:

1. That he was the victim of an illegal arrest,

2. That he was denied the effective assistance of counsel,

3. and lastly, that he was denied the right to call certain witnesses in his behalf.

As to the first point raised by Bryant, it is clear from the record that it is frivolous. The habeas corpus transcript substantiates such a conclusion. The transcript shows the following discussion by counsel for the petitioner and the court. Habeas Corpus Hearing— Page 6

Mr. Osterhoudt: Your Honor, I would like to take these somewhat out of order. Initially, we would agree that the respondent's motion as it would relate particularly to the fact that Mr. Bryant was arrested without a warrant—as I have talked with Mr. Bryant—

The Court: Allegation Three?

Mr. Osterhoudt: Allegation number Three, yes, sir.—as I have talked with Mr. Bryant—and gone over the facts and background of this case, I do not feel that that allegation has any merit and, for that reason alone, I would concur with the respondent's motion.

The second allegation raised concerns whether the petitioner was effectively represented by counsel. This court, in reviewing the habeas corpus transcript, can only conclude that petitioner Bryant was afforded adequate and effective representation by counsel, namely from the now deceased, Mr. Pat H. Dillard. The record shows that Mr. Dillard was appointed by the Hustings Court to represent the petitioner some considerable time before a plea of guilty was entered by Bryant in September of 1950. The transcript (p. 85-86) shows that Mr. Dillard, in conjunction with the then Commonwealth's Attorney for the City of Roanoke, C. E. Cuddy, performed his duties in a most diligent manner. Mr. Cuddy points out the following:

Q. (Mr. Gerald Baliles, Assistant Attorney General) Well, do you recall his role or his participation, or his efforts, on behalf of the defendant in this case?

A. Yes, sir, I recall very much because of the—several conferences that Mr. Dillard and myself had prior to the disposal of the case here in Court, and the reason I recall it is there was quite a discussion between Dillard and myself on not one occasion, but two or three, with reference to a plea of guilty. And it was my contention that we would go along if he would plead guilty to first degree murder. And, of course, his contention was that he didn't have to plead guilty to first degree murder, that he could just plead guilty to the indictment. And we had several conferences about it and, finally, that is what he did in open Court—pled guilty to the indictment.

Q. Now, Mr. Cuddy, I believe the record will show, but perhaps your memory does recall the fact, that the petitioner did enter a plea of guilty?

A. As I recall, Mr. Dillard, he just never quit and during the trial, even though it was on a plea of guilty, he questioned all the witnesses that were submitted to the Court. Now, I don't recall how many but there were—as I recall it, the taking of the evidence consumed the greater part of two days.

Q. I see. There were witnesses that testified on behalf of the petitioner, were there not, or do you recall?

A. I don't recall that he had witnesses. Some of them, they put on just for the defendant—no, I do not recall. I

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