Dixon v. Caldwell, 72-2644 Summary Calendar.

• Decision Date: 27 December 1972
• Docket Number: No. 72-2644 Summary Calendar.,72-2644 Summary Calendar.
• Parties: Tommie (Tom) DIXON, Petitioner-Appellant, v. E. B. CALDWELL, Jr. Warden, Georgia State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

471 F.2d 767 (1972)

Tommie (Tom) DIXON, Petitioner-Appellant, v. E. B. CALDWELL, Jr. Warden, Georgia State Prison, Respondent-Appellee.

No. 72-2644 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

December 27, 1972.

Michael Russ, Atlanta, Ga. (Court Appointed), for petitioner-appellant.

Arthur K. Bolton, Atty. Gen., Daniel I. MacIntyre, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

GOLDBERG, Circuit Judge:

This is an appeal from the denial of a petition for a writ of habeas corpus. The United States District Court for the Middle District of Georgia denied the petition without conducting an evidentiary hearing because it concluded that the merits of petitioner's allegations were resolved in previous state court proceedings. 28 U.S.C.A. § 2254. We have independently studied the record, and finding that some of petitioner's claims have not been adequately considered in any previous proceeding, we reverse and remand.

In January of 1970, petitioner, Tommie Dixon, was tried before a Georgia jury and convicted of the offense of armed robbery. He was then sentenced to serve twenty years imprisonment by the Superior Court of Dougherty County, Georgia. Petitioner did not take a direct appeal from that conviction, but on March 22, 1971 he filed a pro se application for a writ of habeas corpus in the Superior Court of Tattnall County, Georgia. Petitioner alleged, among other claims, that his imprisonment was contrary to the Constitution and laws of the United States because (1) he had been denied the assistance of counsel in his efforts to appeal his conviction, and (2) he had been denied the use of a free transcript of his trial, which was needed to prosecute his appeal.

At the state habeas proceedings petitioner testified that his court-appointed attorney in the trial court had not advised him of his right to appeal, had never contacted him concerning an appeal, and had refused to acknowledge petitioner's requests to prepare an appeal on his behalf. Petitioner further testified that he had been denied a free transcript of his trial proceedings despite his efforts to secure one. Petitioner attempted to subpoena a number of witnesses to appear at the state habeas proceedings, among them his court-appointed attorney at the state trial, but his subpoenas were not served because he did not tender the required fees.¹ On cross-examination the respondent did not challenge the petitioner's testimony that he had been denied his constitutional right to counsel and to a free transcript on appeal. Although petitioner did not present any corroborative testimony, the state did not produce any evidence that in any way refuted petitioner's allegations.

In ruling on petitioner's claim that he was denied the effective assistance of counsel on appeal, the state habeas court held that "the petitioner . . . offered no evidence in support thereof of this contention. It was therefore without merit." The court's order did not mention petitioner's claim that he had been denied a free transcript.

The Supreme Court of Georgia, affirmed the state court's denial of habeas relief. Dixon v. Caldwell, 1972, 228 Ga. 658, 187 S.E.2d 292. In answering petitioner's first claim, the Court held:

"4 4. Enumerated error 4 asserts that the court erred in denying relief to the appellant on the ground of `misrepresentation\' of counsel. The habeas corpus petition alleged `misrepresentation\' of appointed counsel in the following particulars: Counsel did not challenge the petit jurors, although the appellant told counsel that there was one member of the jury who was prejudiced against him; counsel did not advise him of an appeal; when he contacted counsel concerning an appeal, counsel refused to acknowledge the request; counsel did not advise him that he could appeal as a pauper; counsel did not advise him how to file a notice of appeal; since his incarceration he has repeatedly contacted counsel about an appeal to no avail.

"The only evidence on the habeas corpus hearing to support these allegations was the reading by the appellant of his petition to the court, after he had been sworn as a witness in his own behalf. No evidence was offered by the State on this ground.

"Counsel representing a client in a criminal case must exercise his discretion in the selection of a jury. The allegation by the appellant, which was read into evidence, did not show such incompetence in the selection of a jury as to require a ruling that the appellant\'s counsel misrepresented him. There was no evidence that counsel representing the appellant in his criminal trial was appointed to represent him on appeal, or to advise him concerning an appeal.

"The allegations of the petition, read as testimony in the habeas corpus hearing, were insufficient to show misrepresentation of the appellant by appointed counsel."

187 S.E.2d at 293.

In disposing of petitioner's second contention, the Court said that "the appellant made no showing that he was denied a transcript for the purpose of appeal." 187 S.E.2d at 293.

The federal petition for a writ of habeas that is the subject of this appeal was filed on April 11, 1972. Petitioner alleged once again that he had been denied the assistance of counsel in his attempt to appeal his state conviction and that he had been denied a free transcript for use in his appeal. Respondent filed a motion to dismiss or in the alternative for summary judgment on the grounds that the constitutional issues had already been determined adversely to petitioner in the state habeas proceedings. A transcript of the state habeas proceedings, together with the pleadings and other documents constituting the record in that action, was attached to respondent's motion. Five days later, without having conducted an evidentiary hearing, the United States District Court denied petitioner's application for a writ. The Court held:

"His contention that he was not represented by effective counsel at the time of his state court trial is a matter concerning which the state court judge conducted a full hearing and which the Supreme Court of Georgia dealt with. Both of these state courts considered this contention and concluded that the record showed nothing to establish the Petitioner\'s contention in this regard, the only evidence in the record being the statement of the Petitioner himself that he was not adequately represented. The state court judge had ample basis for discrediting the Petitioner\'s self-serving testimony. The state court judge fully advised the Petitioner of his right to adduce evidence from other witnesses if he chose to do so by means of propounding written interrogatories and Petitioner declined to do so.

"This Court has reviewed the record made in the state court hearing and has determined that the state court judge gave the Petitioner a full and fair hearing on each of the issues appropriate for consideration and, having heard all of the Petitioner\'s allegations and all of the evidence which he could offer, the state court judge determined that the Petitioner\'s rights had not been violated. Clearly, the state court judge conformed to the requirements of 28 U.S.C. § 2254 and in doing so resolved all of the material issues of fact against the contentions of the Petitioner, and in the view of this Court properly so.

"This Court determines that there is no basis for further consideration of this application and it is, therefore, ordered that the same be and the same is hereby dismissed."

The District Court did not mention petitioner's contention that he was denied a free transcript for the purpose of appeal.

A careful reading of the opinions and orders entered in the instant proceeding reveals that neither petitio...