Doss v. State of North Carolina, C-230-G-65.

• Decision Date: 04 April 1966
• Docket Number: No. C-230-G-65.,C-230-G-65.
• Citation: 252 F. Supp. 298
• Court: U.S. District Court — Middle District of North Carolina
• Parties: William H. DOSS, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

252 F. Supp. 298

William H. DOSS, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

No. C-230-G-65.

United States District Court M. D. North Carolina, Greensboro Division.

April 4, 1966.

COPYRIGHT MATERIAL OMITTED

No atty. for petitioner.

Theodore C. Brown, Jr., Staff Atty., N. C. Dept. of Justice, Raleigh, N. C., for respondent.

EUGENE A. GORDON, District Judge.

The petitioner, William H. Doss, a prisoner of the State of North Carolina, hereinafter referred to as petitioner, has filed with this Court a petition for a writ of habeas corpus, and accompanied the petition with an affidavit of poverty. The petition was filed pro se, and an order has heretofore been entered permitting the petition to be filed without the prepayment of costs or fees, or security therefor. Petitioner contends that he was denied due process of law in that his court-appointed counsel entered a plea of nolo contendere without the petitioner's authorization; that his court-appointed counsel was incompetent and ineffective; that he was never advised of his right to counsel and his right to remain silent by law enforcement officers; that he was arrested without a warrant, and there was delay in taking him before a magistrate; that evidence obtained by illegal search and seizure was used against him; that the warrants for his arrest were not valid and did not charge a crime; that the Municipal Court accepted his waiver of a preliminary hearing; that the Municipal Court failed to appoint counsel for him during the trial of the misdemeanor charges; and that the indictment upon which he was tried was insufficient and based on hearsay and incompetent evidence. The Court denies the relief requested by the petitioner for reasons hereinafter set forth.

Petitioner was taken into custody by law enforcement officers in Winston-Salem, North Carolina, on October 1, 1963, and warrants for his arrest were issued on October 2, 1963. One warrant charged petitioner with an attempt to commit a felony, to wit: storebreaking,¹ a misdemeanor; another warrant charged him with larceny,² a misdemeanor; and another warrant charged him with storebreaking and larceny,³ a felony. Petitioner was tried on the misdeameanor warrants on October 4, 1963, in the Municipal Court of Winston-Salem, North Carolina. Petitioner, without aid of counsel, entered a plea of guilty to the misdemeanor charges, and he was sentenced to twelve months for larceny and six months for attempt to commit a felony. The latter sentence was to commence at the expiration of the first. Thereafter, petitioner filed notice of appeal from these convictions. Also on October 4, 1963, petitioner waived a preliminary hearing on the felony charge in the Municipal Court.

Thereafter, at the October 7, 1963, Term of Superior Court of Forsyth County, petitioner was indicted for storebreaking, larceny and receiving, all felonies. On October 8, 1963, Clyde C. Randolph was appointed counsel by the Superior Court of Forsyth County to represent petitioner. On October 9, 1963, petitioner entered a plea of nolo contendere to the two misdemeanor charges which had been appealed from the Municipal Court and to the indictment. The Superior Court sentenced petitioner on the felony charges to imprisonment for not less than five nor more than eight years. The misdemeanor charges were consolidated with the felony charges for judgment.

Subsequently, petitioner requested a post-conviction hearing, and on the August 2, 1965, Term of Superior Court of Forsyth County, after petitioner had been appointed counsel, a hearing was held before Judge W. H. S. Burgwyn. Thereafter, on August 6, 1965, Judge Burgwyn entered judgment on the postconviction hearing containing findings of fact and conclusions of law denying the petitioner relief. Subsequently, petitioner applied to the Supreme Court of North Carolina for a writ of certiorari. but the application was denied on October 19, 1965.

Petitioner alleges that he has been denied due process of law as guaranteed by the Constitution in that, first, his plea of nolo contendere in the Superior Court of Forsyth County was entered by his court-appointed counsel, Clyde C. Randolph, without petitioner's authorization; second, that his court-appointed counsel was incompetent and ineffective; third, that after petitioner was taken into custody by law enforcement officers, he was not advised of his rights to counsel and to remain silent; fourth that after petitioner was taken into custody, warrants for his arrest were not issued until the next day, and there was delay in taking him before a magistrate; fifth, evidence which was obtained by illegal search and seizure was used against him in his trial; sixth, that the arrest warrants, especially the one charging an attempt to commit a felony, were not valid and did not charge a crime; seventh, that the Municipal Court should not have accepted his waiver of a preliminary hearing on the felony charges; eighth, that the Municipal Court failed to appoint counsel for petitioner in the trial of the two misdemeanor charges; and ninth, the indictment charging petitioner with felonies was invalid and void as it was based on hearsay and incompetent evidence.

If a petitioner has been given a full and fair hearing in the state court and its findings of fact meet the required standards, this Court may deny petitioner a hearing and accept the findings of fact of the state court. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963); Duckett v. Steiner, 4 Cir., 332 F.2d 178 (1964); United States ex rel. Abair v. Wilkins, 2 Cir., 333 F.2d 742 (1964), cert. den. 379 U.S. 977, 85 S.Ct. 679, 13 L.Ed.2d 568; United States ex rel. Hall v. People of State of Illinois, 7 Cir., 329 F.2d 354 (1964), cert. den. 379 U.S. 891, 85 S.Ct. 164, 13 L.Ed.2d 94; Petway v. Stallings, 248 F.Supp. 991 (E. D.N.C.1965).

The Supreme Court of the United States in Townsend v. Sain, 373 U.S. 293, 312, 313, 83 S.Ct. 745, 757, sets forth the rules and standards for federal courts to follow in accepting the findings of fact of the state court by saying:

"* * * In other words a federal evidentiary hearing is required unless the state-court trier of facts has after a full hearing reliably found the relevant facts. * * *"

"We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the factfinding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing."

With these standards in mind and after giving careful consideration to the record as a whole, including the transcripts of the trial and post-conviction hearing, the Court finds that the merits of the petitioner's contentions have been properly and judiciously resolved after a full and fair hearing, and the findings of fact and conclusions of law made by Judge Burgwyn are fully supported by the record as a whole. At the post-conviction hearing, the petitioner was represented by court-appointed counsel, and the following persons testified: Clyde C. Randolph, court-appointed counsel for petitioner at his trial and who petitioner alleges entered a plea of nolo contendere without his authorization and who was incompetent and ineffective; J. Erle McMichael, who represented petitioner's codefendant at the trial; John Seivers, a deputy sheriff who took petitioner into custody for questioning; G. R. Dillon, a deputy sheriff who accompanied John Seivers when petitioner was taken into custody; D. O. Southern, a deputy sheriff who investigated the charges against the petitioner and who signed two of the warrants for arrest; H. T. Hartley, a State Bureau of Investigation agent who accompanied officers in the investigation of the charges against petitioner; William H. Boyer, an attorney in Winston-Salem, North Carolina, who testified as to the reputation of Clyde C. Randolph; and the petitioner. The material facts were developed at the hearing, and no allegation of newly discovered evidence was made at the time of the hearing or now. The Court can find no reason that would indicate that the petitioner was not given a full and fair hearing, and concludes that the post-conviction hearing and the findings of fact from that hearing meet all the required tests. Therefore, the Court adopts the findings of fact of the state court insofar as they relate to the pertinent and material allegations of the petitioner. In adopting the findings of fact of the state court, the Court is cognizant of the fact that it can only adopt the facts found by the state court, and the Court must apply the applicable law. Townsend v. Sain, supra.

In regard to first contention of the petitioner, Judge Burgwyn found that petitioner authorized his court-appointed counsel to enter the plea of nolo contendere. Judge Burgwyn stated:

"The petitioner alleges that his plea of nolo contendere was entered by his court-appointed attorney without his consent, however, at the Post-Conviction hearing the testimony of the attorney and of the co-defendant's attorney clearly reflects that the petitioner in this cause, William H. Doss, had knowledge that the petitioner's counsel was of the opinion that he should enter a plea of guilty and had consented to such plea and that defendant's attorney, Mr. Clyde Randolph of the Forsyth County Bar, testified at great length in this hearing that he had advised the petitioner to enter a plea of guilty and that in his representation to him, he felt a plea of guilty was justified and that the petitioner,

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