Carver v. Wharton

• Decision Date: 26 January 1982
• Docket Number: Civ. A. No. CV 581-29.
• Parties: Leroy CARVER, Petitioner, v. James D. WHARTON, Warden, Respondent.
• Court: U.S. District Court — Southern District of Georgia

532 F. Supp. 512

Leroy CARVER, Petitioner, v. James D. WHARTON, Warden, Respondent.

Civ. A. No. CV 581-29.

United States District Court, S. D. Georgia, Waycross Division.

January 26, 1982.

Leroy Carver, pro se.

Nicholas G. Dumich, Atlanta, Ga., for respondent.

ORDER

ALAIMO, Chief Judge.

Petitioner is an inmate at the Middle Georgia Correctional Institution in Hardwick, Georgia. He filed a petition in this Court for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 20, 1981.

Petitioner received a twelve-month sentence for the offense of driving under the influence of alcohol on September 13, 1976, after he pled guilty to the charge before Judge Benjamin Smith of the State Court of Ware County. Since D.U.I. is a misdemeanor offense, these state court proceedings were not transcribed. See Ga.Code Ann. § 27-2401 (transcript only required in felony cases). Subsequently, petitioner was convicted of aggravated assault, on January 20, 1977, in the Ware County Superior Court and received a ten-year concurrent sentence.

Prior to filing this action under 28 U.S.C. § 2254, petitioner sought state habeas corpus relief in the Superior Court of Baldwin County, alleging the same grounds for relief that he now raises before this Court. A hearing was held before Judge Hugh P. Thompson on September 4, 1980, and on December 9, 1980, Judge Thompson denied the petition. The Supreme Court of Georgia denied petitioner's application for a certificate of probable cause to appeal on February 18, 1981.

Petitioner raises the following grounds for relief before this Court: (1) Petitioner was denied the right to counsel in that he was allowed to plead guilty to the charge of D.U.I. in the State Court of Ware County and was sentenced to a twelve (12)-month sentence without being advised that he had the right to be represented by counsel. (2) Petitioner was deprived of four (4) months jail-time credit toward his aggravated assault sentence in that he was not given credit for the period of time between September 13, 1976 (the date he pled guilty to the offense of D.U.I.) and January 20, 1977 (the date of his conviction for aggravated assault). (3) Petitioner was denied a reduction in his security status at Middle Georgia Correctional Institution because of his conviction for driving under the influence of alcohol. (4) Petitioner was denied due process of law in that the State Board of Pardons and Paroles considered petitioner's previous conviction for D.U.I. when setting the date for his parole eligibility and in ultimately denying him parole.

"Under 28 U.S.C. § 2254(d), the findings of fact by a state court after a full and fair hearing on the merits are generally presumed to be correct upon federal review unless the proceeding in the state court falls within one of the statutory exceptions which rebut the presumption of reliability."¹ Mendenhall v. Hopper, 453 F.Supp. 977, 979 (S.D.Ga.1978); see Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Moreover, "where a habeas petitioner has already received full and fair hearing at the state level and the petition alleges no new facts, the district court is not required to hold a hearing." Brown v. Jernigan, 622 F.2d 914, 916 (5th Cir. 1980); see Blasingame v. Estelle, 604 F.2d 893, 895 (5th Cir. 1979).

After carefully reviewing the record in this case, the Court finds that the Superior Court of Baldwin County conducted a full and fair hearing on the merits of all of the grounds for relief which petitioner now raises before the Court and that none of the statutory exceptions enumerated in 28 U.S.C. § 2254 is satisfied. The Court, therefore, accepts the findings of fact contained in the state court's order. In addition, since petitioner alleges no new facts, the Court will proceed to apply the proper federal legal standards to the state findings of fact without the benefit of a further evidentiary hearing. Banda v. Estelle, 519 F.2d 1057, 1058 n.1, cert. denied, 423 U.S. 1024, 96 S.Ct. 467, 46 L.Ed.2d 398 (1975).

I. The Validity of Petitioner's D.U.I. Conviction

It is well settled "that waivers of federal constitutional rights are to be judged by federal standards. They are, therefore, not simply factual findings within the meaning of section 2254(d)." Kennedy v. Pinkney, 473 F.Supp. 1279, 1283 (C.D. Ill.1979); see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966). Since petitioner received a twelve-month sentence for D.U.I. in the State Court of Ware County, it is clear that he had the right to be represented by counsel at those proceedings. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972). The respondent in this case concedes that petitioner was not represented when he entered his plea of guilty to the D.U.I. charge. (Respondent's memorandum at p. 6). By entering a plea of guilty, petitioner waived his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). Thus, this Court must decide whether petitioner intelligently and understandingly waived not only his right to counsel, but these other rights which are forfeited as a consequence of entering a guilty plea. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

A. Right to Counsel

If petitioner "did not know about his right to appointed counsel and was not clearly advised of that right, then there could not possibly be an intentional relinquishment or waiver of that right." Molignaro v. Dutton, 373 F.2d 729, 730 (5th Cir. 1967). The Fifth Circuit Court of Appeals has recognized that "the mere statement that a defendant was advised of his constitutional right to appointment of counsel prior to waiver of same" is not sufficient to establish an understanding and intelligent waiver of counsel since such a statement "`provides little insight into either the nature of, or the circumstances surrounding, the advice ....'" Craig v. Beto, 458 F.2d 1131, 1135-36 (5th Cir. 1972) (quoting Molignaro v. Dutton, 373 F.2d 729 (5th Cir. 1967); see Moran v. Estelle, 607 F.2d 1140, 1144 (5th Cir. 1979); Dulin v. Henderson, 448 F.2d 1238, 1240 (5th Cir. 1971). This view of what constitutes sufficient evidence of a valid waiver of constitutional rights is mandated by the Supreme Court's holding that "presuming waiver from a silent record is impermissible." Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).² While recognizing that the waiver of constitutional rights is not to be presumed or lightly inferred, the Fifth Circuit has emphasized that "witnesses in a hearing on a petition for habeas corpus need not testify from their personal recollection of the particular trial under attack. Rather, evidence as to standard practice or customary procedure can be used to demonstrate compliance with constitutional standards." Banda v. Estelle, 519 F.2d 1057, 1058 (5th Cir.), cert. denied, 423 U.S. 1024, 96 S.Ct. 467, 46 L.Ed.2d 398 (1975), see Webster v. Estelle, 505 F.2d 926, 930 (5th Cir. 1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1581, 43 L.Ed.2d 785 (1975).

In this case, the primary evidence of waiver is an affidavit by Judge Benjamin Smith of the State Court of Ware County concerning his common practice in accepting guilty pleas. This common practice affidavit was utilized since Judge Smith could not recollect the actual sentencing of the petitioner after the lapse of four years between petitioner's plea of guilty to the charge of D.U.I. and the state habeas corpus proceeding.³ Judge Smith's affidavit is far more than a mere statement that petitioner waived his right to counsel. His affidavit reveals much about the nature of, and the circumstances surrounding, petitioner's waiver of that right. Judge Smith stated that it was his common practice to inform defendants of their right to counsel and to notify defendants that if they could not afford an attorney, one would be appointed for them. Judge Smith attested that he would then ask the defendants which came before him whether they understood their right to counsel, and that after listening to a defendant's response he would provide further clarification if necessary.

The state court chose to credit Judge Smith's affidavit and to disbelieve petitioner's contradicting allegations. Common practice affidavits are, again, permissible evidence of compliance with constitutional standards, Banda v. Estelle, 519 F.2d 1057, 1058 (5th Cir.), cert. denied 423 U.S. 1024, 96 S.Ct. 467, 46 L.Ed.2d 398 (1975) and, indeed "states are to be encouraged in exploring all administrative improvisations for the development of the facts." Molignaro v. Dutton, 373 F.2d 729, 730 (5th Cir. 1967); Goodwin v. Smith, 439 F.2d 1180, 1183 (5th Cir. 1971). The Court finds that the petitioner voluntarily and knowingly waived his right to counsel.

B. The Guilty Plea

"Before accepting a guilty plea, the trial judge must be convinced that the defendant's decision is voluntary in the sense that it is made knowingly, intelligently and not as the result of coercion by the state or anyone else." Brown v. Jernigan, 622 F.2d 914, 915 (5th Cir. 1980). Despite the fact that a guilty plea acts as a waiver of a defendant's privilege against self-incrimination, right to trial by jury and right to confront his accusers, "there is no requirement that there be express articulation and waiver of these three constitutional rights ... by the defendant at the time of acceptance of his guilty plea, if it appears from the record that the accused's plea was intelligently and voluntarily made, with knowledge of its consequences." McChesney v. Henderson, 482 F.2d 1101, 1102, 1110 (5th Cir. 1973); see Brown v. Jernigan, 622 F.2d...