Cochran v. Norvell, 20937.

• Decision Date: 13 August 1971
• Docket Number: No. 20937.,20937.
• Citation: 446 F.2d 61
• Parties: Harvey Ray COCHRAN, Petitioner-Appellant, v. Willard NORVELL, Warden, etc., Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

446 F.2d 61 (1971)

Harvey Ray COCHRAN, Petitioner-Appellant, v. Willard NORVELL, Warden, etc., Respondent-Appellee.

No. 20937.

United States Court of Appeals, Sixth Circuit.

August 13, 1971.

G. Thomas Shields, Nashville, Tenn. (Court Appointed), for appellant.

R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., David M. Pack, Atty. Gen., of counsel, for appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and CELEBREZZE, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from the United States District Court for the Middle District of Tennessee, Nashville Division, of an order dismissing a petition for habeas corpus. This is the second time after Appellant was convicted and incarcerated in Tennessee in 1946 pursuant to a guilty plea on a charge of murder in the first degree that he has petitioned the federal courts with a writ of habeas corpus challenging the lawfulness of his state custody.

In May, 1964, the Appellant filed a petition of habeas corpus in the Western District of Tennessee in which he alleged that his custody in the hands of Tennessee authorities was in violation of several of his constitutional rights. Among those constitutional deprivations alleged were: (1) that he neither waived nor was given a preliminary hearing subsequent to his arrest; (2) that no indictment was presented to him or read to him; (3) that he was denied effective assistance of counsel because he did not see his counsel until the day of his trial; (4) that he did not enter the plea of guilty which is shown on the state court records; (5) that Appellant's counsel did not enter a plea of guilty for Appellant in Appellant's presence; (6) that Appellant was not present when he was sentenced by the state trial court, and (7) that Appellant was not permitted by his own counsel or the Court to speak on his own behalf although most anxious to do so.

In January, 1965, Appellant, who was represented by counsel, was granted a full and fair hearing on the issues he raised in his petition. Apart from statements by counsel and the Court, three witnesses — the Appellant, his brother and Mr. James R. Brown, who was one of two co-counsel for Appellant at his original trial — testified. The testimony of Mr. Brown is particularly damaging to most of the claimed constitutional infringements made by the Appellant. Also, the original warrant of Appellant's arrest, the Grand Jury indictment of Appellant and the final judgment against Appellant on the state jury's verdict, signed by the presiding trial judge, were duly received into evidence. Based upon the evidence presented, the District Court specifically found, among other things, that the Appellant was afforded competent counsel who effectively represented the Appellant at every stage of his state proceedings, that at all material times Appellant was present in the courtroom with his lawyers, that he was never denied the right and privilege of testifying or making a statement on his own behalf and that the plea of guilty entered on behalf of the Appellant was voluntarily made.

In October, 1969, four years later, Appellant filed a second petition for habeas corpus alleging that he was ineffectively represented by counsel, that his plea of guilty was involuntary, that the state trial record was so inadequate that he was being deprived of an opportunity to fair post-conviction review of his incarceration and that his guilty plea in 1946 was tainted by a false coerced confession which Tennessee authorities unlawfully extracted from him prior to his trial. The District Court accorded Appellant a second hearing at which much of the same evidence introduced at the first hearing was reintroduced. Based upon the evidence in the record, the District Court found "that petitioner has failed to establish the denial of his constitutional rights in the 1946 proceedings." We agree.

First, with regard to the alleged inadequacies of Appellant's original counsel, Appellant has not presented any new evidence which would support his factual contentions. At the hearing on Appellant's first petition for habeas corpus, Mr. Brown testified that he and Mr. Eggelston, as co-counsel, on several occasions met with and fully discussed the various alternatives open to the Appellant with regard to the making of a guilty plea. He testified that included in their discussions was some consideration of what factors the Appellant should consider in choosing whether or not to repudiate his allegedly coerced confession and plead not guilty. We may fairly infer from the District Court's dismissal of the Appellant's first petition that the District Court at that hearing impliedly credited Mr. Brown's testimony in reaching its findings of fact. Pursuant to applicable statutory authority, 28 U.S.C. § 2244, and the record of this case, we can find no reason to upset the prior final determination of the District Court in Appellant's first petition that he was ably and effectively represented at his original trial.

Second, Appellant contends that he did not intelligently and voluntarily plead guilty, see Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), Kercheval v. United States, 274 U.S. 220, 223-224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) and, that in any event, the State failed to make an "affirmative" showing in the trial court record of the voluntariness of Appellant's guilty plea, Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969). We find there is sufficient evidence in the record of the hearing on the first petition for habeas corpus, to justify the District Court's finding that the Appellant with an intelligent appreciation of his alternatives voluntarily entered a plea of guilty in the presence of and after being fully advised by counsel.

While the United States Supreme Court has not yet determined whether the "affirmative disclosure" requirement of Boykin v. Alabama is retroactive, Brady v. United States, supra, 397 U.S. at 747 n4, 90 S.Ct. 1463, we believe that the record as developed in the hearing on Appellant's first petition for habeas corpus satisfactorily demonstrates that, at the time of his plea, the Appellant had been fully informed "as to his rights on a plea of not guilty and as to the consequences of a plea of guilty." North Carolina v. Alford, 400 U.S. 25, 29 n3, 91 S.Ct. 160, 27 L.Ed.2d 162, 163 (1970). In that the record actually developed in post-conviction proceedings was fully adequate to deal with the substantive issues raised by the Appellant in his petitions for habeas corpus, we do not believe that the absence of a full state trial court record prejudiced Appellant's constitutional rights in any manner. Absent a specific holding by the United States Supreme Court that Boykin v. Alabama requires that all the circumstances surrounding a guilty plea must be in the original trial court record for cases decided prior to Boykin, we believe that a reviewing court may look to any relevant evidence in the record of the proceedings — including post-conviction proceedings — to determine the voluntariness of a guilty plea.

Finally, Appellant contends that his conviction should be set aside because his guilty plea was based upon a coerced and involuntary confession.

A review of the entire record in this case and of the available records from prior proceedings reveals the following fact: On August 3, 1946, Appellant's wife was found dead, shot through the forehead while she lay in her bed, under circumstances which suggested she might have been a victim of suicide. On August 9, 1946, Appellant was arrested pursuant to a warrant after the police had been supplied certain leads by the decedent's brother. On the evening of August 9, Appellant was subjected to six hours of intense questioning which resulted in the Appellant breaking down under the alleged pressure of the questioning and confessing that he had in fact murdered his wife on the evening of August 3rd. On August 12, 1946, the Appellant was brought before a Grand Jury, which returned an indictment against him charging him with murder in the first degree.

According to one of Appellant's original co-counsel, Mr. James R. Brown, at or about the time of the indictment, Appellant and his two counsel discussed the circumstances surrounding the extraction of his confession. His counsel observed that the Appellant was very frightened...