Buchanon v. Mintzes

• Decision Date: 09 May 1984
• Docket Number: Nos. 83-1252,83-1253,s. 83-1252
• Citation: 734 F.2d 274
• Parties: Nealy J. BUCHANON, Petitioner-Appellant, Cross-Appellee, v. Barry MINTZES, Warden Southern Michigan State Prison, Respondent-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 274

734 F.2d 274

Nealy J. BUCHANON, Petitioner-Appellant, Cross-Appellee, v. Barry MINTZES, Warden Southern Michigan State Prison Respondent-Appellee, Cross-Appellant.

Nos. 83-1252, 83-1253.

United States Court of Appeals Sixth Circuit.

Argued Jan. 26, 1984.

Decided May 9, 1984.

Frank D. Eaman, Detroit, Mich. (court-appointed), for petitioner-appellant, cross-appellee.

Frank J. Kelley, Atty. Gen. of Michigan, Eric J. Eggan, Asst. Atty. Gen. (argued), Lansing, Mich., for respondent-appellee, cross-appellant.

Before CONTIE and WELLFORD, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

WELLFORD, Circuit Judge.

Petitioner, Buchanon, who is serving a life sentence in the Jackson, Michigan State Prison for committing the murders of a husband and wife in rural Michigan in 1955, filed a habeas corpus petition for his discharge from prison under 28 U.S.C. Sec. 2254 in the Eastern District of Michigan in 1979. His contentions that constitutional errors occurred in respect to his confession to the brutal killings and to his guilty plea, and to hearings in respect of his sentence to life imprisonment by the Michigan State Judge have been presented to a number of courts after his incarceration in 1956. His case is a kind of microcosm of the pro se actions taken by prisoners incarcerated for serious crimes in state prisons who present frequent challenges to the basis of their convictions and sentences, and the responses made by trial and appellate courts, state and federal, to these post-conviction efforts.

The battered bodies of an elderly farm couple in Ingham County, Michigan, were found by police concealed under hay bundles in their barn in September, 1955. The police had been alerted by the couple's son and daughter, who were concerned about their unexplained absence. They had been beaten about the face and head by a blunt object or objects. Warrants were issued for petitioner, a convicted felon, who had recently escaped from a nearby state prison. Buchanon was located and arrested in Baltimore in October, 1956. According to petitioner's affidavit submitted in this cause, he was questioned by law enforcement people at the Baltimore jail about the murders, and beaten on his body by a blackjack before being forced to sign extradition papers and make a statement admitting his guilt. His affidavit further sets out that shortly thereafter, the local Michigan Sheriff took him into custody and flew him to the Stockbridge, Michigan jail. He claims that he was also mistreated there by white law enforcement officials because of his race, felt threatened by a crowd of people about the jail, and was coerced into making a full confession at the Ingham County Jail before a court reporter and other officials. Buchanon also claims that the judge before whom he pled guilty during en camera proceedings referred to him as a "nigger" and warned him that he "had better go along with the program." At the hearing before the district court, the state judge, now retired, indignantly denied Buchanon's claims in these respects, although he had no clear recollection after some twenty-five years of the details of the hearing and proceedings before him.

The habeas corpus petition was filed approximately twenty-three years (October 1979) after Buchanon admitted his guilt and was sentenced for the dual murders. Among its other assertions were:

1) "petitioner is presently unconstitutionally detained" 2) "petitioner has exhausted all available State remedies"

3) "no previous application to this court" (Eastern District of Michigan) "has been made"

The petition also recited that petitioner had filed an application for delayed appeal in 1968 in the Michigan Court of Appeals, and one in the Michigan Supreme Court that same year, both of which were denied; that he had filed a similar application unsuccessfully in the State Court of Appeals in 1973; and had filed a delayed application for remand to the state trial court, which had been denied in 1977 by the State Court of Appeals; and again in 1978 by the Michigan Supreme Court. In its brief, the Michigan Attorney General asserts that petitioner also unsuccessfully sought a writ of certiorari to the United States Supreme Court in 1969 (see 395 U.S. 929), and a rehearing before that Court, which denied the application in 396 U.S. 871 (1969). The brief also points out that petitioner moved to withdraw his guilty plea in the Ingham County Circuit Court in 1971, and that this motion was denied; he filed a like delayed motion in 1973 which was again denied at the state trial and appellate level. Thus it appears that Buchanon filed, or was assisted in pursuing at least ten post-conviction efforts from 1968 through 1978 from the state trial court level to the United States Supreme Court prior to his filing the instant petition. Presumably, all of these courts considered, at least to some extent, and then denied the complaints which have now come before this court on appeal. The essence of the complaints are that he was forced into making his confession, ¹ and that he did not knowingly, voluntarily, and intelligently waive the right to assistance of counsel prior to submitting a guilty plea, in respect to a degree hearing, or at sentencing pursuant to the acceptance of the guilty plea, and that he was not present at the degree hearing.

The State asserts as defense to the claims of the petition for habeas corpus Rule 9(a) of 28 U.S.C. Sec. 2254. ² It also asserts that Buchanon made a knowing, intelligent and voluntary waiver of the assistance of counsel at all material stages of his court appearances, and that he was present at the degree hearing.

I. Is Petitioner Barred by his Long Delay?

The Advisory Committee Note to Rule 9(a) was prescient in 1976 when it stated:

The assertion of stale claims is a problem which is not likely to decrease in frequency.... The grounds most often troublesome to the courts are ... plea of guilty unlawfully induced, use of a coerced confession ... When they are asserted after the passage of many years, both the attorney for the defendant and the state have difficulty in ascertaining what the facts are.

28 U.S.C. foll. Sec. 2254, Rule 9, Advisory Committee Note p. 1137.

The Advisory Committee Note cites a Supreme Court reference to the problems faced in cases where defendants challenged their guilty pleas, based upon alleged forced confessions.

What is at stake in this phase of the case is not the integrity of the state convictions obtained on guilty pleas, but whether, years later, defendants must be permitted to withdraw their pleas, which were perfectly valid when made, and be given another choice between admitting their guilt and putting the State to its proof. (emphasis added).

McMann v. Richardson, 397 U.S. 759, 773, 90 S.Ct. 1441, 1450, 25 L.Ed.2d 763 (1970).

In McMann, the Supreme Court refused to give cognizance to three claims of this nature, the oldest of which was fourteen years old, and reversed the court of appeals which had granted the writs. It should be acknowledged, however, that McMann involved defendants who had counsel when they submitted guilty pleas, even though they claimed later a coerced confession was the basis thereof. In Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), on the other hand, the court set aside an uncounselled state guilty plea even though the defendant had waited eight years to make a post-conviction challenge. The Court made reference to a case where a state prisoner successfully challenged validity of his conviction eighteen years after conviction. ³

This court has read Rule 9(a) as invoking the equitable doctrine of laches, as has the Advisory Committee to Rule 9(a). Thus, in Davis v. Adult Parole Authority, 610 F.2d 410, 414 (6th Cir.1979), a two prong test was developed:

First, the state must appear to have been prejudiced in its ability to respond to petitioner's claims. Second, the petitioner must be given the opportunity to meet or rebut the apparent prejudice to the state, or to show that whatever prejudice the state has suffered would not have been avoided had the petition been filed earlier.

This court has considered three habeas corpus petitions challenging state convictions after many years of delay. Most recently, in Ford v. Supt., Kentucky State Penitentiary, 687 F.2d 870 (6th Cir.1982), it affirmed denial of habeas corpus relief to a prisoner who filed his first state court action fourteen years after submitting a guilty plea. It was not until twenty-three years after the state court sentence had been imposed that he filed his petition for release and relief in federal court on the grounds that he was denied the "presence of counsel at the time of plea and sentence." Ford at 871. As in the instant matter, the prisoner's petition was referred to a magistrate for a hearing, who recommended denial of the writ. The records of the state trial court reflected that an attorney had been appointed to represent Ford and was present in court on the day that he pled guilty. Ford at 871. Testimony at the hearing tended to cast doubt as to whether that attorney actually was present at the taking of the plea and the imposition of sentence. The magistrate based his recommendation to deny the writ on the merits, but the district court ruled adversely to Ford apparently based on Rule 9(a) delay grounds as well as on the merits. Ford at 872. Judge Lively, for the majority, ruled, at 874:

Ford was accorded a meaningful hearing on his claim. He was unable to carry his burden of proving a constitutional violation. This was a proper case for dismissal pursuant to Rule 9(a) after the petitioner had been given an opportunity to establish his claim and to show lack of prejudice and had failed in both respects. (emphasis added)

This court, then, ruled that the writ was properly denied on both the merits, and the Rule 9(a) basis that Ford failed to show a lack of prejudice to the state. ⁴

In an...