Bryant v. Peyton

• Decision Date: 29 June 1967
• Docket Number: No. 66-C-19-C.,66-C-19-C.
• Citation: 270 F. Supp. 353
• Parties: William Horace BRYANT, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

270 F. Supp. 353

William Horace BRYANT, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent.

No. 66-C-19-C.

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

June 29, 1967.

Edward R. Slaughter, Jr., Gary C. McGee, McGuire, Woods & Battle, Charlottesville, Va., for petitioner.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia, Richmond, Va., for respondent.

OPINION AND JUDGMENT

MICHIE, District Judge.

Petitioner is now detained in the Virginia State Penitentiary pursuant to a judgment of the Circuit Court of Nelson County entered on July 3, 1963. At that time he was sentenced on two charges— one for the statutory rape of a thirteen year old girl and one for the attempted statutory rape of an eleven year old girl, the older girl's sister. He received sentences of twenty and ten years respectively on the two charges, the sentences to run consecutively. Though he had pled guilty, was tried and convicted on May 27, 1963 with respect to the rape of the older girl, sentencing was deferred on that charge until July 3, 1963, at which time he was tried and convicted of the attempted rape charge following a plea of not guilty as to it. No appeal was taken from either of the two convictions or sentences.

His present petition for habeas corpus relief states five grounds which, according to him, make his detention unlawful: (1) ineffective assistance of counsel, (2) denial of the right to appeal, (3) conviction upon illegal, unlawful testimony, and untrue testimony, (4) denial of the right to a fair and impartial trial and (5) use of a coerced confession at his trial.

As required by 28 U.S.C. § 2254, petitioner has exhausted his state remedies. He was given a plenary hearing at the state level on May 18, 1965 in the Circuit Court of Nelson County. Relief was denied by the Circuit Court and by the Supreme Court of Appeals of Virginia. A federal plenary hearing was granted and held in this court on May 10, 1967 when petitioner was represented by two able court-appointed attorneys.

After consideration of all the evidence presented at the state plenary hearing and the hearing held before this court, I find that, of the five allegations made by petitioner, only those with respect to effective assistance of counsel and denial of the right to appeal have any merit. Examination of the factual context out of which these latter two contentions arise, however, reveals that petitioner is entitled to relief of a substantial nature.

William Horace Bryant was apprehended on May 5, 1963 by Deputy Sheriff Sullivan. He made a successful dash for his freedom shortly after he was taken into custody but decided to and did turn himself in the next day, May 6th. With the last of his funds, according to Bryant, he had his wife's mother hire an attorney. This attorney did not see Bryant until the morning of the preliminary hearing at which time he advised Bryant to plead not guilty to both charges and to keep his mouth shut. A few days later, for personal reasons, the attorney withdrew from the case. Bryant said he then asked the jail officials for an attorney. Deputy Sheriff Sullivan would not deny unequivocally that such a request had been made but intimated that it was unlikely, there having been one attorney located very close to the court house and jail who could have been contacted in such cases.

On May 22, 1963, without the benefit of counsel, Bryant signed a written "confession" subsequently introduced in the federal hearing as petitioner's exhibit #1. The statement, rambling and somewhat incoherent, gives a disjointed account of what happened on the day of the alleged rape and attempted rape. Though it could be argued that there is in this statement an implied admission that Bryant had intercourse with the older girl on the day the crime was supposed to have been committed, this implication is not at all crystal clear. Bryant said he does not remember being advised of his right to counsel when he made the statement but he does remember being told the statement could be used against him. He also claims that he was promised leniency before signing the statement but Sheriff Sullivan testified that this is untrue.

Five days after the confession was signed, on May 27, 1963, an attorney was appointed by the Nelson County Circuit Judge to represent Bryant. After conferring briefly with his client in the back of the courtroom, he advised him to plead guilty to the charge of raping the older girl and not guilty to the charge of attempted rape. According to the attorney, his advice was based on the short discussion with Bryant, Bryant's signed statement, and copies of statements made by the girls involved and by their mother. Arraignment was held the same day and Bryant pled as advised. The court accepted his plea of guilty and convicted Bryant on this charge but deferred sentencing until a probation report could be prepared. (Exhibit III of the state habeas corpus record—a court order dated May 27, 1963). Trial on the plea of not guilty was deferred until July 3, 1963.

Though some investigation of the circumstances surrounding the signing of Bryant's confession was made by court-appointed counsel through conversation with one police officer and Bryant, the attorney did not know how long after arrest the statement was given. He did learn that the statement was given before indictment. During his initial conversation with Bryant the attorney claims he learned "a lot more than was in the statement." Bryant told him that the older girl had been having intercourse with other men, that at one time when Bryant's common law wife (the girl's mother) was in the hospital, the girl came nude and got in bed with Bryant. Bryant apparently asked the attorney what he would have done had he been in a similar situation.

When asked whether he investigated the case, the attorney said he certainly did. He spent a couple of hours preparing for Bryant's defense. (State habeas corpus transcript p. 11). Presumably, a good deal, if not most, of this two hours was spent after May 27th after the accused had been tried and convicted of the rape charge. The attorney talked to Bryant during the week following his first conviction at least once and perhaps twice. He talked to the deputy sheriff and he talked to the prosecuting attorney. He did not talk to any witnesses and did not get in touch with three different people whom Bryant had indicated might have been of some help in the case, two Tyree brothers and a boy named Diehl. His reason for not interviewing these prospective defense witnesses was that he thought that they would be of little help. Bryant had said the Tyree brothers would give evidence about prior sexual promiscuity of the girls involved. The attorney thought this unlikely because the girls were under age. He presumed the Tyree brothers would be afraid of incriminating themselves. As for Diehl, the attorney thought talking to him would have been of little value since Bryant admitted he was probably asleep when the crimes were supposed to have occurred.

The reason given for the attorney's not having gone into the Gladstone community to investigate the case at its point of origin is that he had been furnished copies, by the police or the Commonwealth's Attorney's office, of statements made by the girls and their mother. And, of course, he had Bryant's statement.

On July 3, 1963 when Bryant was sentenced to a total of thirty years imprisonment, he turned in open court to his attorney and requested that an appeal be taken. He was told that an appeal could not be taken unless he had substantial funds to pay for it. He was told in effect that even to think of appeal while in his poor financial position was foolish. Incidentally, he was also told that he had no grounds for taking an appeal. Under these circumstances, Bryant was not merely left passively uninformed about his right to appeal as an indigent, he was misled into thinking the opposite. Decisions of both the Fourth Circuit and the Virginia Supreme Court of Appeals have declared that such a situation warrants the granting of substantial relief. An indigent must be advised that he will be supplied all the necessary incidents of appeal free of charge. Failure to so advise him when he has inquired about appeal is treated as if it were a denial of his appeal. Magee v. Peyton, 343 F.2d 433 (4th Cir. 1965); Puckett v. State of North Carolina, 343 F.2d 452 (4th Cir. 1965); Clark v. Peyton, 207 Va. 444, 150 S.E.2d 533 (1966); Russell v. Peyton, 207 Va. 469, 150 S.E. 2d 530 (1966); Stokes v. Peyton, 207 Va. 1, 147 S.E.2d 773 (1966); Thacker v. Peyton, 206 Va. 771, 146 S.E.2d 176 (1966); Cabaniss v. Cunningham, 206 Va. 330, 143 S.E.2d 911 (1965).

Though respondent concedes that the foregoing cases probably dictate at least the granting of a belated appeal with respect to Bryant's conviction for attempted statutory rape, he contends that these cases are inapplicable to the conviction for statutory rape since Bryant entered a guilty plea as to it. Evidently this argument proceeds under the assumption that in effect Bryant had no right to appeal a conviction which followed a plea of guilty. I have found no Virginia case so distinguishing between convictions based on pleas of guilty and those entered after pleas of not guilty. The absence of such a case may be proof in itself that courts have always assumed the opposite, that a convicted person can always appeal whether he has pled guilty or not. The statute authorizing appeal from a criminal conviction certainly does not distinguish cases in which guilty pleas have been entered from those where the accused has pled not guilty.

Section 19.1-282 of the Code of Virginia reads as follows:

A writ of error shall lie in a criminal case to the judgment of a circuit court of the judge thereof, * * * It shall lie in any case for the accused * * *. Emphasis supplied

It seems reasonable to think that ...