Cox v. Burke
| Decision Date | 25 May 1966 |
| Docket Number | No. 15422.,15422. |
| Citation | 361 F.2d 183 |
| Parties | Grady Asbon COX, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William C. Dill, Milwaukee, Wis., for appellant.
William A. Platz, State's Atty., Madison, Wis., for appellee.
Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.
This is an appeal from the denial by the district court of the petition of Grady Asbon Cox for a writ of habeas corpus.
Cox is presently in custody in Wisconsin pursuant to a judgment of conviction entered by a Wisconsin state court on his plea of guilty to the charge of rape. After an examination and a finding that Cox was in need of specialized treatment, he was committed on September 11, 1958 to the sex deviate facility of the State Department of Public Welfare at the Wisconsin State Prison, Waupun, Wisconsin, under section 959.15(6), Wis.Stats.
In 1964, Cox made application to the Supreme Court of Wisconsin for a writ of habeas corpus. A hearing by a referee was held at which Cox was present and represented by counsel. Findings adverse to Cox's contentions were made by the referee. The Wisconsin Supreme Court confirmed the findings, denied and dismissed Cox's petition without opinion.
Cox then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. The court, without a hearing, but after considering the record in the case, together with Cox's petition and the state's return thereto, rendered an opinion and entered an order denying Cox's petition.
After receiving certification that probable cause for appeal existed, this appeal followed.
Cox was arrested in Kenosha, Wisconsin, July 8, 1958, on the complaint of a seventy-seven year old woman, his landlady, that he had raped her. At arraignment in the Wisconsin state court, the information was read to Cox. The court inquired whether Cox understood the charge and whether he understood that it was serious. Cox indicated that he did understand. The court advised him that he had a right to be represented by counsel. Cox waived counsel and entered a plea of guilty.
At the state post-conviction evidentiary hearing on Cox's petition for a writ of habeas corpus, the following relevant findings of fact were made.
Cox was 37 years old at the time of the hearing. His intelligence quotient was low, between 70 and 80, and he had been educated only to the fourth grade.
In 1952, Cox was convicted of burglary after having waived counsel and having pleaded guilty to the charge. He was sentenced to a term of one year to 15 months.
In 1954, Cox was charged with the crime of murder in the second degree, to which he pleaded not guilty. During the course of the trial, at which Cox was represented by counsel, the charge was reduced to manslaughter. Cox entered a plea of guilty to this charge, and was sentenced to a term of one to two years.
In 1956, Cox was charged with driving a vehicle after revocation of his license. He was represented by counsel, entered a plea of guilty, and was fined.
At the criminal proceedings in 1954 and 1956, at which Cox was represented by counsel, the court did not inform Cox of his constitutional rights.
Before Cox appeared in county court on the charge of rape, he was interviewed by the county district attorney in the presence of a police detective captain. During this interview, the district attorney informed Cox of his right to counsel at public expense, of his right to a preliminary examination, and of the fact that he was charged with a felony, which was a serious charge.
When he appeared in county court, the court advised Cox of his right to counsel and informed him that the charge was a serious one. At that time, Cox waived counsel and pleaded guilty. He understood his right to counsel, and he knew that he had made a sexual assault on his landlady, knew that he had made penetration, and knew the nature of the charge of rape.
The trial judge did not inquire into Cox's education nor into his comprehension of the nature of the crime and the proceedings, nor did it inform him of the range of possible punishments. The trial judge also failed to alert Cox that a lawyer might discover defenses or mitigating circumstances not apparent to Cox.
Finally, it was found that Cox was acquainted with, but did not understand the meaning, or the implications, of Wisconsin's sexual deviate law.
At the state evidentiary hearing, there was uncontroverted testimony by a clinical psychologist acquainted with Cox, that, in his opinion, Cox had sufficient intelligence to understand what was said to him at the time of his prosecution. The district attorney testified that he believed that Cox had understood the nature of the charge and that Cox had admitted the commission of the material elements of the crime of rape.
In this appeal, Cox contends that he was not able competently and intelligently to waive his right to counsel and enter a plea of guilty because he was not informed of the maximum sentence which could be imposed upon him. He also contends that the district court erred in not requiring the respondent warden to include in his return to Cox's petition a true copy of the indictment upon which Cox was charged.1
Waiver of counsel standards which federal courts must apply have been clearly expressed by the Supreme Court:
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