Cordle v. Woody, Civ. A. No. 380-71-R.

Decision Date09 November 1972
Docket NumberCiv. A. No. 380-71-R.
PartiesJames Larry CORDLE v. G. J. WOODY, etc., et al.
CourtU.S. District Court — Eastern District of Virginia

Gordon P. Williams, Richmond, Va., for plaintiff.

Burnett Miller, III, Asst. Atty. Gen. of Va., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Cordle, a Virginia prisoner, seeks a writ of habeas corpus herein to redress a misdemeanor conviction before the Hustings Court of the City of Richmond on February 26, 1971. Jurisdiction is attained pursuant to 28 U.S.C. § 2254. The respective parties have moved for summary judgment. The parties have submitted memoranda and documents in support of their respective motions and have appeared for a plenary hearing before this Court. Accordingly, the matters herein are ripe for disposition.

The facts are not in dispute. Cordle was convicted on January 26, 1971 of grand larceny for which he received a suspended sentence of three years imprisonment in the Virginia State Penitentiary. On February 26, 1971, Cordle was tried for a misdemeanor, the conviction complained of here. Prior to his misdemeanor trial, he stated to the trial court that he was an indigent and requested that counsel be appointed to represent him. At that time there was no provision under Virginia law for the appointment of counsel at misdemeanor trials and Cordle's request was accordingly denied. He was convicted upon a plea of not guilty and sentenced to serve twelve months in jail and to pay a fine of $100.00. On March 4, 1971, Cordle's suspension on the earlier grand larceny conviction was revoked and the petitioner was incarcerated to serve both sentences.

On March 10, 1971, this Court decided Marston v. Oliver, 324 F.Supp. 691 (E. D.Va.1971), wherein the Court ruled that the denial of appointed counsel to an accused misdemeanant who requested same rendered the conviction therein constitutionally defective. Subsequently, in June 1972, the Supreme Court reached the same result in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). On November 7, 1972, the Court of Appeals for the Fourth Circuit affirmed Marston, No. 71-1329, mem. decis., on the basis that Argersinger applies retroactively and thus supports this Court's original determination.

The issues which are determinative of the action herein are as follows:

1. Is this action moot?

2. Has the petitioner exhausted his available State remedies in compliance with 28 U.S.C. § 2241?

3. Do either Marston or Argersinger provide a basis for the relief sought herein?

Mootness

The petitioner has served his "time" on the misdemeanor conviction. This, ipso facto, raises the threshold question of mootness. The law is clear that a habeas corpus petition is not moot, although the sentence for the conviction complained of has run, if "the results of the conviction may persist." United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Cordle is now eligible for parole for the grand larceny conviction. The Court finds, therefore, that the misdemeanor conviction may have a collateral effect in that prejudice against the granting of parole may flow therefrom. The Court concludes, therefore, that the matter is not moot. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Marston v. Oliver, supra.

Exhaustion of Available State Remedies

The respondent urges that the precise issue of the retroactivity of Argersinger is now before the Virginia Supreme Court in a case styled Potts v. Slayton. Accordingly, he argues that, should the Virginia Supreme Court in the light of Argersinger rule Argersinger to be retroactive, the petitioner would have an available state remedy under the Potts case. The Court is thus urged to dismiss this matter pending said exhaustion of state remedy.1

The Court is not inclined to do so. Section 2254(b), United States Code, which mandates exhaustion of state remedies, reads as follows:

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. (Emphasis supplied.)

Although the Court is aware that principles of judicial comity and § 2254 mandate that state courts determine all claims on habeas corpus relief which neither have been previously raised nor would prove fruitless, see Stonebreaker v. Smyth, 163 F.2d 498 (4th Cir. 1947), the Court is duty bound as well to consider the full provisions of § 2254. The italicized portion of the above quoted language states a third exception to the exhaustion doctrine, to-wit: that no recourse to state process is required when it would prove ineffective to protect the rights of the prisoner. The Court finds that exception appropriate herein.

Time is of the essence to Cordle. The conviction complained of may presently be a major obstacle to his freedom. Causing the petitioner at...

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9 cases
  • United States v. Koonce
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 3, 1973
  • Mays v. Harris
    • United States
    • U.S. District Court — Western District of Virginia
    • December 1, 1973
    ...Unit, 355 F.Supp. 338 (E.D.Va. 1973); Herndon v. Superintendent Va. State Farm, 351 F.Supp. 1356 (E.D.Va. 1972); Cordle v. Woody, 350 F.Supp. 479 (E.D.Va.1972). Accordingly, this action is ready for determination on the The Fourth Circuit Court of Appeals has recently ruled that the decisio......
  • United States v. Sawaya
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 26, 1973
    ...453 F. 2d 652 (9th Cir. 1971). Several courts have held that Argersinger will also be applied retroactively. See, e. g., Cordle v. Woody, 350 F.Supp. 479 (E.D.Va.1972); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); People v. Morrissey, 52 Ill.2d 418, 288 N.E.2d 397 (1972). Others, fea......
  • North Royalton v. Baker
    • United States
    • Ohio Court of Appeals
    • December 18, 1989
    ...businesses, could not serve as an official of a labor union, could not vote in elections, could not serve as a juror); Cordle v. Woody (D.C.Va.1972), 350 F.Supp. 479 (prisoner was eligible for parole on another sentence and misdemeanor conviction might have adverse effect on granting of suc......
  • Request a trial to view additional results

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