Farmer v. Cox, Civ. A. No. 68-C-51-L(C).
| Decision Date | 02 January 1970 |
| Docket Number | Civ. A. No. 68-C-51-L(C). |
| Citation | 308 F. Supp. 914 |
| Parties | Raymond Wesley FARMER, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary (Formerly C. C. Peyton), Respondent. |
| Court | U.S. District Court — Western District of Virginia |
Robert M. Musselman, Charlottesville, Va., for petitioner.
W. Luke Witt, Asst. Atty. Gen., Richmond, Va., for respondent.
This is the fourth petition of Raymond Wesley Farmer for habeas corpus to relieve him of a May 12, 1958, conviction in the Circuit Court of Campbell County for first degree murder which petitioner now styles as without premeditation but which seems to the court to be a brutal murder of a harmless, sick woman.
Farmer's parents employed counsel for him in the criminal trial, and he was sentenced to life imprisonment on a guilty plea.
He filed a petition for habeas corpus which was fully heard in the Circuit Court of Campbell County, May 17, 1966, and denied with a written opinion dated May 19, 1966. A petition for writ of error was denied November 30, 1966. The grounds alleged were (as appearing in the assignments of error):
(1) Ineffective representation of counsel.
(2) Failure to take accused before a judicial officer without unnecessary delay during which time he confessed to the crime.
(3) The confession obtained was not voluntary.
(4) Accused did not have counsel before he confessed.
Petitioner's second petition for habeas corpus was filed in this court (No. 67-C-1-L) and was decided by written opinion and judgment dated May 4, 1967, reported as 267 F.Supp. 517 (1967). No appeal was taken from this petition. The grounds were the same as those considered by the Circuit Court of Campbell County in 1966.
The third petition was filed and heard in the Circuit Court of Campbell County in which the same grounds were again asserted, but to which were added improper conduct of the Commonwealth's Attorney who took the written confession after Farmer had confessed verbally to the officers. The Circuit Court gave Farmer opportunity to testify or to offer more evidence, but he elected to stand on the testimony given in the first hearing, the transcript of which is included with the papers considered here. This third petition was denied by written opinion dated December 21, 1967, and a petition for a writ of error was denied October 16, 1968.
Farmer has exhausted his state remedies. 28 U.S.C. § 2254, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
Farmer filed the petition here considered alleging the same grounds he had before:
(1) Ineffective representation of counsel.
(2) Failure to take him before a judicial officer without unnecessary delay during which time he confessed.
(3) The confession obtained was not voluntary.
(4) He had no attorney prior to confessing.
(5) The conduct of the Commonwealth's Attorney was unfair and prejudicial because he did not inquire into the circumstances of the verbal confession given to the officers before taking a written confession himself.
The first four grounds, however stated, and in whatever context, have been passed upon by the Circuit Court of Campbell County and this court previously, and a writ of error has been denied by the Supreme Court of Appeals of Virginia. Although the ends of justice would not be served by reaching the merits of the subsequent application, Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the court at an ore tenus hearing allowed petitioner to testify as to his various complaints. He brought forth no new testimony which materially changed the record which already existed.
The record on petitioner's first four grounds has been considered, and the court is of opinion that the previous opinions are correct. Nothing would be gained by an extended discussion of the merits as to them.
To be considered here, then, is the allegation numbered (A) (4) in his amended petition in the following language: "The conduct of the Commonwealth's Attorney was unfair and prejudicial because he did not inquire into the circumstances of Petitioner's original confession when he knew he would prosecute Petitioner later."
In support of this proposition petitioner relies upon Ganger v. Peyton, 379 F.2d 709 (4th Cir.1967); Macon v. Commonwealth, 187 Va. 363, 46 S.E.2d 396 (1948); and State v. Thavanot, 225 Mo. 545, 125 S.W. 473 (1910).
In Ganger v. Peyton, the prosecuting attorney represented the wife of the accused in a divorce proceeding growing out of the same assault for which Ganger was sentenced. He had, in fact, made an offer to drop the assault charge if Ganger would make a favorable property settlement in the divorce case. Under these circumstances, relying on the common law duty of a prosecuting attorney to exercise a discretion which is not to be controlled by the courts or an interested individual, the court concluded that the requirement of...
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