Cooper v. King

• Citation: 303 F. Supp. 876
• Decision Date: 16 July 1969
• Docket Number: Civ. A. No. C-68-85-E.
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Velton COOPER, Petitioner, v. Frank B. KING, Warden of the West Virginia Medium Security Prison, Respondent.

303 F. Supp. 876

Velton COOPER, Petitioner, v. Frank B. KING, Warden of the West Virginia Medium Security Prison, Respondent.

Civ. A. No. C-68-85-E.

United States District Court N. D. West Virginia.

July 16, 1969.

Raymond L. Fair, Elkins, W. Va., Court appointed, for petitioner.

C. Donald Robertson, Atty. Gen. of West Virginia, Morton I. Taber, Asst. Atty. Gen., Charleston, W. Va., for respondent.

MEMORANDUM

MAXWELL, Chief Judge.

Petitioner, Velton Cooper, is presently on parole from the West Virginia Medium Security Prison from further execution of an indeterminate sentence of not less than one nor more than fifteen years. The sentence was imposed on January 18, 1966, by the Circuit Court of Fayette County, West Virginia, following his conviction after jury trial on the charge of burglary.

Petitioner has filed a petition for federal habeas corpus with this Court, alleging jurisdiction under 28 U.S.C.A. §§ 2241 et seq., seeking relief from this state court conviction and sentence. This Court appointed counsel for Petitioner and after a full evidentiary hearing, the case was submitted for decision.

Subsequent to the plenary hearing held in Petitioner's case, Petitioner advised the Court that he had been placed on parole from the sentence attacked and is no longer in the custody of the Respondent. This Court nevertheless affords full consideration to the merits of Petitioner's contentions, following the teaching of Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), which holds that a petitioner's release from custody does not render his case moot. See also Rinehart v. Boles, 286 F.Supp. 562 (N.D.W. Va.1968).

Upon consideration of the matters presented in Petitioner's habeas corpus application, Respondent's answer to the order to show cause, Petitioner's rebuttal to Respondent's answer, and the testimony heard at Petitioner's plenary hearing in this Court, the issues raised or suggested for consideration and determination are: (1) denial of Petitioner's right to a speedy trial; (2) denial of Petitioner's right to seek an appeal due to the ineffectiveness of counsel; and (3) denial of Petitioner's right to counsel at his preliminary hearing.

In support of his contention that he was denied a speedy trial, as guaranteed by the Sixth Amendment to the United States Constitution,¹ Petitioner states that more than three regular terms of court passed after his indictment, without trial, in violation of West Virginia Code § 62-3-21 (Michie 1966),² thereby entitling him to his release from the pending burglary indictment.³

Upon a thorough consideration of all the testimony presented, and of all the exhibits filed in the case, it appears to the Court that the proceedings in Petitioner's case occurred in the following sequence. On December 8, 1964, near the end of the September 1964 term of court in the Circuit Court of Fayette County, West Virginia, an indictment for burglary was returned against Petitioner and two others. On January 18, 1965, in the January 1965 term of court, Petitioner and his co-defendants failed to appear at their scheduled trials, and, their attorney being unable to explain their absence, a capias was issued for their arrest. Subsequently, the cause of the absence was revealed to be that Petitioner and the others were delayed by a severe snowstorm. Attendance at the next regular term of court was assured by their attorney, and the case was continued generally to the following term.

At the May 1965 term of court, Petitioner's attorney sought separate trials for each of the defendants. This was achieved and one of Petitioner's co-defendants was tried and convicted at this term. The trials of Petitioner and his remaining co-defendant were then necessarily continued over to the next term, because all concerned believed that a separate venire was necessary to insure total fairness of each trial.

At the next regular term of court, the September 1965 term, the state did present a motion, strongly resisted by Petitioner, for a continuance in Petitioner's case, due to the absence, because of illness, of the prosecution witness. The motion was granted and Petitioner's case was subsequently continued over to the following term of court. It was at the January 1966 term of court that Petitioner's case proceeded on to trial, and culminated in a verdict of guilty.

Petitioner claims that more than three terms of court passed before disposition of his case. However, in State ex rel. Smith v. DeBerry, 146 W.Va. 534, 120 S.E.2d 504 (1961), the West Virginia Supreme Court of Appeals, in the syllabus by the Court, Syllabus Point # 1, stated:

The three regular terms of a court essential to the right of a defendant to be discharged from further prosecution, pursuant to provisions of Code, 62-3-21, as amended, are regular terms occurring subsequent to the ending of the term at which the indictment against him is found. The term at which the indictment is returned is not to be counted in favor of the discharge of a defendant. (Emphasis added).

Therefore, in Petitioner's case, the September 1964 term in which he was indicted is not to be considered in totalling the terms passed without trial under West Virginia Code § 62-3-21 (Michie 1966).

In the January 1965 term of court it was Petitioner who did not appear in court at the scheduled time for his appearance, thereby precipitating events terminating in a continuance. Due to Petitioner's inadvertence, though excusable, the delay was necessitated. As such this term may not be included in calculating the number of terms passing under the statute.⁴

In the May 1965 term Petitioner by counsel sought severance of his case from those of his co-defendants so that a separate trial could be had for each defendant. The use of this tactic is tantamount to a motion by the two remaining defendants not tried, for a continuance. Petitioner cannot be heard to complain of prejudice of denial of a speedy trial here, where the delay resulting at this term was to prevent submission of his case to a venire that could possibly be prejudiced after hearing a companion case. Accordingly, the May 1965 term should not be considered in computing the number of terms passing under the three-term rule.

Similarly, in the September 1965 term, although the continuance was granted on motion of the prosecuting attorney, and resisted by Petitioner, when the reason asserted as grounds for the motion is considered, it is evident that this term also may not be included in the computation of the number of terms passing under West Virginia Code § 62-3-21 (Michie 1966). A statutory exception to the operation of this provision, included in the provision itself, is that failure to prosecute within three regular terms of court entitles a defendant to discharge, "unless the failure to try him was caused by *** the witnesses for the State being *** prevented from attending by sickness ***." This continuance was granted due to the absence of the complaining witness on account of illness. The conclusion to be reached here is that Petitioner is unable to rely upon this term as being within the statutory language of a regular term passing, without trial.⁵

Petitioner made no objection to any of the continuances except the final one. The issue of denial of a speedy trial was not raised at any stage of Petitioner's trial court proceedings, the allegation first being raised at post-conviction proceedings.⁶ The ultimate analysis of Petitioner's claim leads to the conclusion that his case was tried and disposed of within the requirements of the three terms rule statute after indictment. It is the holding of this Court that Petitioner was not denied his constitutional or statutory right to a speedy trial. In fact, under the circumstances presented here, Petitioner's case was handled in the only manner feasible and suitable in maintaining justice and equitable treatment to all parties involved.

Petitioner asserts that by reason of his hired counsel's negligence, he was denied his constitutional right to seek an appeal. Petitioner had the benefit of two employed counsel at his trial. He claims that upon the return of the guilty verdict by the jury, an agreement was reached with his counsel that one of them, who practiced in the State of West Virginia, would carry the case up on appeal, while the second, being a resident of the State of Ohio, would immediately terminate his representation.

Petitioner stated that it was his understanding that he had paid the West Virginia attorney in full and that the West Virginia attorney was taking the appropriate steps to appeal the entire case. Petitioner revealed that $400.00 was paid the West Virginia attorney when employed for Petitioner's trial, in January of 1966. No further sum was tendered as attorney's fees. Petitioner asserts, however, that the agreement was to carry the case to finality. Petitioner did acknowledge that he knew of the presentation and argument by his attorney, before the West Virginia Supreme Court of Appeals, of a petition attacking the trial court's denial of bond in Petitioner's case.

Petitioner testified that in July of 1966 he conferred with his attorney at the prison, when he was assured that his case was before the West Virginia Supreme Court of Appeals. He claims that after this he sought to communicate with his attorney several times, but received no response. He testified that he received correspondence from his Ohio attorney with whom no agreement to appeal had been made, that the Ohio attorney's attempts to correspond with his West Virginia attorney relative to the status of Petitioner's case had been, as far as he knew, fruitless. Petitioner concluded his testimony by stating that ten months to a year after his conviction he received definite information for the first time that no appeal was prosecuted in his case.

Petitioner's West Virginia attorney, allegedly hired for appeal as well as for trial, testified...