Dodd v. Williams

• Decision Date: 11 March 1983
• Docket Number: Civ. A. No. C82-181R.
• Citation: 560 F. Supp. 372
• Parties: Charles R. DODD, Jr., Petitioner, v. Douglas WILLIAMS, Superintendent, Walker County Correctional Institute, Respondent.
• Court: U.S. District Court — Northern District of Georgia

560 F. Supp. 372

Charles R. DODD, Jr., Petitioner, v. Douglas WILLIAMS, Superintendent, Walker County Correctional Institute, Respondent.

Civ. A. No. C82-181R.

United States District Court, N.D. Georgia, Rome Division.

March 11, 1983.

COPYRIGHT MATERIAL OMITTED

Richard D. Allen, Jr., Atlanta, Ga., for petitioner.

Virginia H. Jeffries, Asst. Atty. Gen., Atlanta, Ga., for respondent.

ORDER

HAROLD L. MURPHY, District Judge.

Petitioner is a state prisoner currently serving a ten-year sentence imposed pursuant to a plea agreement by the Superior Court of Whitfield County, Georgia. The Superior Court, later sitting as a habeas corpus court, granted petitioner partial relief on a state habeas petition, but concluded, after a hearing, that petitioner's guilty plea was knowing and voluntary, and that petitioner received effective assistance of counsel. Following exhaustion of available state remedies, petitioner, through counsel, instituted this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The case was referred to a United States Magistrate, who, based on the record of petitioner's state court habeas proceeding, refused petitioner a further evidentiary hearing and found that petitioner's plea was knowing and voluntary and aided by the effective assistance of counsel. Petitioner objects to the recommendation of the Magistrate, whose report now is before the Court for consideration.

I

The facts generally are not in dispute. On January 15, 1975, a Whitfield County grand jury indicted petitioner for motor vehicle theft, Whitfield County Superior Court No. 9537. Pending at the same time was an indictment for forgery, Whitfield County Superior Court No. 9522. On January 29, 1975, Dodd, represented by attorney Bill Glisson, pleaded guilty to the offense of theft by receiving stolen property. Apparently, all involved believed the charge pleaded to was a lesser included offense of theft by taking.¹ Petitioner was sentenced to the custody of the Youthful Offender Division of the State Board of Corrections for a term not to exceed six years. The documentary record is silent on the disposition of the forgery charge, although at the state habeas hearing it was stated that the sentence on the forgery charge was entered in No. 9537 charging Dodd with motor vehicle theft. (Hearing transcript at 10) (hereinafter referred to as T. 10).

Subsequently, in the January, 1980, term of the Whitfield County grand jury, Dodd was charged in two more indictments. Number 13335 charged Dodd with child molestation (Count I) and with being a habitual felon (Count II), on account of the guilty pleas to Nos. 9522 and 9537 in 1975. The child molestation accusation exposed Dodd to up to 20 years in the penitentiary. Number 13602 charged Dodd with driving under the influence (Count I) and driving without a license (Count II).

On December 2, 1980, John Neal was appointed to represent Dodd on the pending charges. On December 5, 1980, petitioner entered a plea of guilty to the child molestation charge (Count I, No. 13335) and the DUI charge (Count I, No. 13602). The state entered a nolle prosequi to the habitual felon charge and dismissed the license offense. The Superior Court sentenced petitioner to 10 years for child molestation, with a 12 month concurrent sentence for the DUI charge.

Thereafter, Neal realized that he erred when he advised petitioner of the effect of the habitual felon count and that a conviction under that statute would result in the maximum 20-year sentence without eligibility for parole, subject to good time credit of one day for every three days served. Although he drafted a state habeas petition, the Superior Court relieved him from his representation and appointed new counsel for petitioner.

Attorney Gene Gouge then filed for a writ of habeas corpus on behalf of petitioner in Whitfield Superior Court, claiming that the misinformation rendered petitioner's guilty plea uninformed and involuntary and that he did not receive effective assistance of counsel (Count I); and that the plea of guilty to theft by receiving stolen property was void because it is not a lesser included offense of theft by taking (Count II).

A hearing was held March 5, 1981, at which petitioner was represented by Gouge. Glisson testified that there was no new indictment prior to the plea of guilty to theft by receiving; the charge was "reduced" by notation on the indictment. See n. 1, supra.

Neal stated that he was appointed to represent Dodd in Nos. 13335 and 13602 on December 2, 1980. He stopped by the District Attorney's office on that date to receive a copy of the charges and to review the state's evidence. (T. 6) He then met with Dodd and talked with him about the charges, specifically the molestation charge, which Neal considered the most serious charge (T. 7). They also conversed about Dodd's prior record and a little about the DUI and license offenses. (id.). Neal claimed there were no discussions at that point about possible sentences, but that Dodd said, "See what you can do," or "Let's see what can be had." (T. 8).

On December 3, Neal spoke with the D.A. about possible sentences.

In addition, Neal testified that Dodd was unsure of his prior record, since the motor vehicle theft charge, but not the forgery charge, was on his prison "rap" sheet. Accordingly, Neal went to the Clerk's office, searched the docket (he did not have prior benefit of case numbers), and pulled Dodd's files. (T. 10).

Neal also testified that as result of his conversation with petitioner on December 2, he did not interview witnesses or attempt to locate any, either for the defense or prosecution. (T. 8). Over objection from petitioner's counsel, Neal testified that although Dodd never used the words "I'm guilty" specifically,

I interviewed him and based on the facts he related to me, I told him that, if those facts were proven at trial, he could receive a legal conviction of guilty.

(T. 18).

On December 4, 1980, Neal again met with Dodd. The bulk of the conversation concerned the possibility of a plea. Neal did not advise Dodd as to the course he should take, but did discuss with him the consequences of a guilty plea. (T. 9). He advised him of the various possible sentences depending upon whether there was a trial, conviction or guilty plea. Moreover, he informed Dodd that if found to be a habitual felon, he would be sentenced to the maximum of 20 years with no parole eligibility, subject to one day good time credit for every three days served, i.e., that he would serve 15 years. (T. 12).²

On December 4, or 5, the D.A. agreed to recommend 10 years to serve in exchange for a nolle prosequi of the habitual felon count. (T. 14). Neal further testified that the D.A.'s evidence and Dodd's version of the incident forming the basis of the molestation charge were similar, and that Neal did not interview any witnesses nor attempt to locate the victim, after Dodd said he would take the D.A.'s proposed recommendation. (T. 20).

On December 5, 1980, Dodd pleaded guilty and was sentenced. The Court informed him that he could be sentenced to serve 20 years (Plea transcript at 6).

On March 23, 1981, the Superior Court issued its ruling on the petition and found that Neal was appointed to represent Dodd on the child molestation charge on December 2, 1980. He interviewed petitioner on more than one occasion, researched the applicable law, negotiated with the prosecutor, and discovered from him the state's expected evidence. He told the defendant that what he admitted doing would constitute the offense of child molestation. He negotiated a plea bargain. The Superior Court concluded that petitioner had the benefit of effective assistance of counsel, and that any erroneous advice with respect to the eligibility for parole was not so significant as to amount to a denial of due process or effective representation of counsel. The Superior Court held that the guilty plea was voluntarily and knowingly entered. However, on April 9, 1981, the Superior Court set aside the conviction and sentence for theft by receiving stolen property, No. 9537.

The Supreme Court of Georgia denied petitioner's application for certificate of probable cause on June 30, 1981.

Petitioner then filed this 28 U.S.C. § 2254(d) petition. The Magistrate recommends that petitioner's request for another hearing be denied, since the state court record is adequate for a determination of the issues in this Court, and that petitioner's testimony is not necessary to adjudicate the factual issues here. He also recommends that it be concluded that petitioner's guilty plea was voluntary and knowing, that he received effective assistance of counsel, and that the application for the writ be dismissed.

II

A.

As a preliminary matter, the Court must determine whether petitioner is entitled to an evidentiary hearing in this Court. He claims he is, because the failure of the state court to take his testimony requires this Court to conclude that the Superior Court's findings are due no presumption of correctness. He alleges that the material facts were not adequately developed and that the factfinding procedure employed was not adequate for a full and fair hearing. In his objections to the Magistrate's report, he also claims that the state court findings were not fairly supported by the record.

Title 28 U.S.C. § 2254(d) governs the Court's review of a state court habeas corpus record, and to some extent, controls the request of a complaining petitioner for a further evidentiary proceeding in federal court. This code section provides that a determination after a hearing on the merits of a factual issue made by the state habeas court, "shall be presumed to be correct," unless one or more of eight exceptional circumstances are met:

(1) the merits of the factual dispute were not resolved in the state court hearing;

(2) the factfinding procedure employed by the state court was not adequate to afford a full

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