Crow v. Coiner, Civ. A. No. C-69-78-E.

• Decision Date: 22 February 1971
• Docket Number: Civ. A. No. C-69-78-E.
• Citation: 323 F. Supp. 555
• Parties: Roy James CROW, Petitioner, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

323 F. Supp. 555

Roy James CROW, Petitioner, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. C-69-78-E.

United States District Court, N. D. West Virginia.

February 22, 1971.

Richard W. Cardot, Elkins, W. Va., (Court appointed) for petitioner.

Chauncey H. Browning, Jr., Atty. Gen. of West Virginia, Willard A. Sullivan, Asst. Atty. Gen., Charleston, W. Va., for respondent.

MEMORANDUM ORDER

MAXWELL, Chief Judge.

Petitioner, Roy James Crow, presently is serving an indeterminate sentence of not less than one year nor more than ten years in the West Virginia State Penitentiary at Moundsville, West Virginia. He was sentenced by the Circuit Court of Tucker County, West Virginia, on October 11, 1966, upon his plea of guilty to a charge of grand larceny.

In accordance with the provisions of 28 U.S.C.A. § 2241 et seq., Petitioner seeks habeas corpus relief in this Court. This petition follows the denial of post-conviction relief by the Tucker County Circuit Court, which conducted an evidentiary hearing, and by the West Virginia Supreme Court of Appeals. After examining the present petition this Court ordered Respondent to answer, appointed counsel and conducted a plenary hearing.

Petitioner and his court appointed attorney have alleged several infirmities in the conviction, some of which appeared in the petition, while others initially were asserted either in the pretrial memorandum or at the plenary hearing. The individual issues, which are not considered in the same order as presented by Petitioner, are: (1) improper extradition, (2) improper waiver of a juvenile to an adult court, (3) failure to warn Petitioner of his constitutional right to remain silent, (4) absence of counsel at the preliminary hearing, (5) invalid indictment, (6) involuntary plea, (7) Petitioner's one to ten year sentence constituted cruel and unusual punishment, and (8) ineffective assistance of counsel.

Upon inspection of the petition, Respondent's answer, the exhibits and the evidence presented at Petitioner's hearing, this Court is of the opinion that Petitioner's claims are without merit.

FACTS

Despite Petitioner's age he has experienced several encounters with welfare and law officials in West Virginia and other states. These early problems culminated in Petitioner's detention at the State Forestry Camp for Boys at Davis, West Virginia. While serving this sentence at the camp, Petitioner and another inmate escaped, stole a truck and abandoned it seventy miles away. Petitioner later was apprehended in New Orleans, Louisiana, and returned to Tucker County, West Virginia. On July 23, 1966, the Juvenile Court of Tucker County, upon determining that Petitioner lacked funds to employ counsel and that Petitioner was over sixteen years old, appointed counsel for Petitioner, refused to accept jurisdiction and transferred the case to the Circuit Court of Tucker County for further proceedings. An indictment charging Petitioner with grand larceny was returned on October 4, 1966. On the following day the circuit court referred the case back to the juvenile court, which by a separate order again refused to accept jurisdiction and returned the case to the circuit court.

ISSUES

Petitioner's initial contention is that state officials failed to follow available and proper extradition procedures in returning Petitioner to West Virginia from Louisiana. Even assuming the truth of this allegation Petitioner has failed to state a ground for relief that is cognizable in federal habeas corpus. It is settled that a court's jurisdiction to try a defendant is not destroyed by improper extradition. Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Justice v. Coiner, No. 13,792 (4th Cir. Oct. 13, 1966).

Secondly, Petitioner alleges that the Juvenile Court of Tucker County waived jurisdiction to an adult court in a manner contrary to the laws of West Virginia and to federal constitutional standards.

W.Va.Code ch. 49, art. 5, § 3 (Michie 1966), gives the juvenile court exclusive jurisdiction over juveniles except in cases involving capital offenses. This section, however, relates only to juvenile delinquency charges and not to criminal offenses. State ex rel. Slatton v. Boles, 147 W.Va. 674, 130 S.E.2d 192 (1963); Wade v. Skeen, 140 W.Va. 565, 85 S.E.2d 845 (1955). Possible dispositions by a juvenile court are set out in W.Va.Code ch. 49, art. 5, § 14 (Michie 1966), which provides:

With a view to the welfare and interest of the child and of the State, the court or judge may, after the proceedings, make any of the following dispositions:

* * * * * *

(3) If the child be over sixteen years of age at the time of the commission of the offense the court may, if the proceedings originated as a criminal proceeding in a court other than a juvenile court, enter an order transferring the case back to the court of origin, or to any court in the county having criminal jurisdiction; or if the case originated on petition in juvenile court, the court may enter an order showing its refusal to take jurisdiction and permit the child to be proceeded against in accordance with the laws of the State governing the commission of crimes or violation of municipal ordinances;

Thus, it is apparent that the Tucker County Juvenile Court's handling of Petitioner's case complied with West Virginia law and Petitioner's conviction must be upheld if federal constitutional guidelines were not violated.

The recent expansion of due process guarantees in juvenile proceedings began with the decision of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in which the United States Supreme Court held that a waiver of juvenile jurisdiction is a "critically important" proceeding which determines vitally important statutory rights of the juvenile. Kent v. United States, 383 U.S. at 560, 86 S.Ct. 1045. One year later, in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), it was decided "that various of the federal constitutional guarantees accompanying ordinary criminal proceedings were applicable to state juvenile court proceedings where possible commitment to a state institution was involved." See In re Whittington, 391 U.S. 341, 344, 88 S.Ct. 1507, 1508, 20 L.Ed.2d 625 (1968). More specifically, Gault required that an alleged delinquent be afforded the right to counsel, that there be timely notice of any delinquency charges and that the rights of cross-examination and of cautioning against self-incrimination be extended to the juvenile.

Following these decisions, however, some conflict existed as to whether or not Kent and Gault were directly applicable to juvenile waiver proceedings, and if so, whether or not they were to be applied retroactively. Language in Kent has given rise to the restricted view that the decision applies only to an interpretation of the Juvenile Court Act of the District of Columbia. Likewise, Gault has been strictly construed by some courts to apply only to delinquency proceedings. See cases cited in Kemplen v. Maryland, 295 F.Supp. 8, 9-10 (D.Md.1969). Since Kent was decided on March 21, 1966, and Petitioner's waiver occurred on July 23, 1966, there is no question as to the application of that decision to Petitioner. With regard to the retroactivity of the Gault decision, the Fourth Circuit Court of Appeals recently has held that Gault will be given retrospective application. Kemplen v. Maryland, 428 F.2d 169, 173 (4th Cir. 1970). This decision also clarified any misunderstanding of the Kent and Gault decisions when the Court held that a juvenile was entitled to legal representation, either privately employed or court appointed, at juvenile waiver hearings, and in order to complement and support this right to counsel, that the child, his parents and counsel "be given adequate notice of the nature of the proceeding, its date, and the charges to be considered." Kemplen v. Maryland, 428 F.2d at 175. It is against these constitutional yardsticks that Petitioner's proceedings must be measured.

The order entered by the Juvenile Court of Tucker County on July 23, 1966, by which counsel was appointed and jurisdiction over Petitioner waived, would indicate that the newly appointed attorney could not have had sufficient time to prepare for the juvenile court proceedings where jurisdiction was refused. Despite the recitation in the order that counsel had conferred with his client prior to the proceedings, such short notice ordinarily would be inadequate under the teaching of Kemplen. It should be noted, however, that counsel had a second occasion to present evidence in opposition to the juvenile court's waiver of jurisdiction. On October 5, 1966, the day after the return of an indictment by the grand jury, the circuit court returned the case to the juvenile court. The fact that counsel had discussed the case with his client during the interval from July 23, 1966, to October 5, 1966, and was familiar with the case, convinces this Court that Petitioner's attorney had ample opportunity to present any evidence in opposition to the juvenile court's second refusal to accept jurisdiction. State habeas transcript at p. 26.

From the evidence it appears that Petitioner's mother was not notified of her son's difficulties, and it is urged that this lack of notice is fatally defective. A case summary prepared by the Marshall County Department of Welfare for use by its Tucker County counterpart, and introduced into evidence as Petitioner's exhibit number three, reveals that the State of West Virginia had custody of Petitioner and that all previous juvenile rehabilitative measures had failed.¹ Under the circumstances, therefore, this Court feels that notice to Petitioner's mother was unnecessary.

Next, Petitioner claims officials in Louisiana did not inform him of his right to remain silent. With the exception of Petitioner's own testimony, this assertion is unsupported by any evidence. Petiti...