Evans v. Cunningham

• Decision Date: 06 August 1964
• Docket Number: No. 9152.,9152.
• Citation: 335 F.2d 491
• Parties: William EVANS, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Charles P. Chew, James W. Phillips, and Pleasant Shields, members of the Virginia Parole Board, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

335 F.2d 491 (1964)

William EVANS, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Charles P. Chew, James W. Phillips, and Pleasant Shields, members of the Virginia Parole Board, Appellees.

No. 9152.

United States Court of Appeals Fourth Circuit.

Argued January 17, 1964.

Decided August 6, 1964.

Ronald P. Sokol, Charlottesville, Va. (Court-assigned counsel) for appellant.

Reno S. Harp, III, Asst. Atty. Gen., of Virginia (Robert Y. Button, Atty. Gen., of Virginia, on the brief), for appellee.

Before HAYNSWORTH and BELL, Circuit Judges, and BARKSDALE, District Judge.

HAYNSWORTH, Circuit Judge.

The constitutionality of Virginia's recidivist statute, as applied, is attacked upon the ground that it does not reach inmates of Virginia's penitentiary who had been previously convicted of felonies in courts other than those of Virginia. The District Court dismissed the petition upon the ground that state remedies had not been exhausted. We affirm, but we do so upon the merits and not upon the procedural ground.

William Evans is an inmate of the Virginia State Penitentiary, serving an additional sentence imposed upon him under Virginia's recidivist statute. His only complaint is that other prisoners in the same institution, who have been previously convicted of felonies in other states, have not been given additional punishment under Virginia's recidivist statute. This, he says, is a denial to him of equal protection of the law.

I

Evans has not undertaken to present his legal contention to the state courts. The reason he advances for not having done so is a recent decision of the Virginia Supreme Court of Appeals, Sims v. Cunningham, 203 Va. 347, 124 S.E.2d 221, in which that Court upheld the constitutionality of Virginia's recidivist statute as applied.

William R. Sims, as Evans, a Virginia recidivist, tendered in the federal courts the same substantive claim which Evans now advances. We approved dismissal of his petition on the ground that the state remedies had not been exhausted.¹ Sims then applied to the state court, with the result that the Virginia Supreme Court of Appeals fully considered his petition on the merits and decided that there was no denial of equal protection of the law, even though the statute was not used to impose additional sentences upon prisoners confined in the Virginia State Penitentiary who had been previously convicted of felonies in other states. We have not since heard from Sims, but his fellow prisoner, Evans, presents, apparently, the same question that Sims might have brought back to us.

Over a period of many years there developed a judicially fashioned doctrine that a federal court could not entertain a writ of habeas corpus filed by a state prisoner unless the state prisoner had previously exhausted available state remedies.² The judicially fashioned rule was codified in 1948 as 28 U.S.C.A. § 2254. That Section provides:

"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

The prohibition of § 2254 is mandatory, but the section, itself, contains two exceptions to the rule. The prohibitive rule does not apply if the state provides no remedy or if there are circumstances which make resort to the state remedy ineffective and futile. The latter exception seems applicable here.

It is true that this petitioner, Evans, is not the same petitioner whose identical contention the Supreme Court of Appeals of Virginia considered and decided in Sims v. Cunningham. The Sims case stands, however, as the authoritative and considered judgment of the Supreme Court of Appeals of Virginia. It was decided only two years ago as of this writing and was even younger than that when Evans filed his petition in the District Court. Since 1962 there has been no substantial change in the composition of Virginia's Supreme Court of Appeals, and there is no suggestion of any possible reason to suppose that that Court might reconsider its considered judgment in the recent Sims case. Under these circumstances, any competent lawyer would advise Evans that he was wasting his time if he undertook to persuade the Virginia Supreme Court of Appeals to reverse itself, unless he was armed with some fresh argument which Sims had not presented. Evans has none. His outstandingly able, court-appointed counsel can only reiterate the same contentions on the substantive issue which Sims presented to the Virginia Court, though his reiteration is thorough and complete.

We have held, of course, that, when the substantive contention of a state prisoner has been presented to and adjudicated finally in the state courts, the exhaustion of remedies doctrine does not require him to apply again to the state courts for another adjudication of his contention, even though the state's post conviction remedies be procedurally still available to him.³ It has also been held by a District Court that when one of two codefendant-accomplices in the commission of an alleged crime has fully presented their substantive contentions to the state courts, the other need not travel that road before applying to a federal court for a writ of habeas corpus.⁴

Here, Evans and Sims are not the same individual. They were not codefendants, nor were they charged with complicity in the same crime. With respect to their substantive contention here, however, they stand as if identical. The substantive question, which is uncomplicated by any factual controversy, is the same whether presented to us by Sims or by Evans.⁵ It appears unnecessary under the exhaustion of remedies doctrine that we decline to reach the merits of the issue as tendered by Evans, when we would be compelled to reach the merits if the same issue were tendered by Sims. This is in keeping with the teaching of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.

Since any application by Evans to the state courts could amount to no more than a petition to the Supreme Court of Appeals of Virginia to rehear the Sims case, and since there is nothing new to present to that court and no reason to suppose that the Virginia Court would be disposed to reconsider its very recent decision in that case, resort to the procedurally available state remedy appears to be futile and ineffective within the meaning of the second exception embodied in § 2254.

II

Ordinarily we would not undertake to dispose of a case on the merits if the District Court had failed to reach them upon procedural grounds. If we found the procedural ground insufficient to support dismissal, we would usually remand the case to the District Court to consider and determine the case on the merits. There are obvious advantages in that practice, particularly to the appellate court which thus gains the benefit of a decision on the merits to enlighten its appellate reconsideration. Here, however, there are no factual questions to resolve, and an opinion by a District Judge on the legal issue could hardly be more enlightening to the appellate process than the full opinions of the Supreme Court of Appeals of Virginia on the merits of the issue. Under the special circumstances of this case, therefore, we think a remand to the District Court to consider the case on the merits would only delay decision without service of any useful purpose

III

Virginia's recidivist statute⁶ provides that if the Director of the Department of Welfare and Institutions obtains "knowledge" that a person confined in the Virginia penitentiary under a judgment of conviction "has been sentenced to a like punishment in the United States prior to the sentence he is then serving," the Director shall inform the Circuit Court of the City of Richmond of it, following which prescribed procedures are to be followed.

The statute has a long history. Originally, it contemplated the imposition of additional punishment only if the prisoner had previously been convicted of offenses in Virginia.⁷ In 1848, it was amended, however, to refer to previous convictions in the United States, as it now does, and the statute now literally requires the Director to report "knowledge" of prior convictions wherever...