Farrington v. State of North Carolina

• Decision Date: 25 March 1975
• Docket Number: No. C-74-143-G.,C-74-143-G.
• Citation: 391 F. Supp. 714
• Court: U.S. District Court — Middle District of North Carolina
• Parties: James FARRINGTON, Petitioner, v. STATE OF NORTH CAROLINA, and D. C. Lewis, Supt., Caledonia Corr. Inst., Respondents.

391 F. Supp. 714

James FARRINGTON, Petitioner, v. STATE OF NORTH CAROLINA, and D. C. Lewis, Supt., Caledonia Corr. Inst., Respondents.

No. C-74-143-G.

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

March 25, 1975.

James Farrington, pro se.

Jacob L. Safron, Asst. Atty. Gen., for the State of N. C., Raleigh, N. C., for respondents.

MEMORANDUM OPINION AND ORDER

GORDON, Chief Judge.

The petitioner is a prisoner of the State of North Carolina. He has filed here an application for a writ of habeas corpus and has been allowed to proceed without the prepayment of fees. 28 U. S.C. § 1915(a). The respondents have answered the petition and moved to dismiss and the petitioner has filed a response to that pleading.

In his original petition, the petitioner alleged the following constitutional infringements:

(1) He was not told of his right to appeal.

(2) He was not tried within eight months as required by N.C.Gen. Stat. § 15-10.2.

(3) His plea of guilty was entered involuntarily because of the ineffective assistance of counsel.

When the petitioner responded to the respondents' motion to dismiss, he added the allegation that he is being denied access to the courts because the State of North Carolina does not furnish law libraries for its prisoners.

For the reasons which follow, this Court finds the allegations of constitutional infringement to be without merit. The action will be dismissed.

On November 8, 1968, in Orange County, North Carolina, the petitioner was sentenced for forgery. On October 21, 1970, he was paroled. Subsequently, on March 8, 1971, he was charged with armed robbery. Two days later, he was charged with arson. Five days later, March 15, 1971, his parole was revoked and he was returned to prison. At its April 26, 1971 session, the Orange County Grand Jury indicted the petitioner for armed robbery. Thereafter, on September 14, 1971, the Clerk of the Orange County Superior Court forwarded a detainer to the Department of Correction which was filed September 24, 1971.

On September 24, 1971, the Department of Correction wrote the petitioner, in accordance with the pertinent statute, and informed him of how he might obtain a trial on the charge of armed robbery. Contrary to the instructions he had received from the prison department, the petitioner wrote to the Clerk of Court on September 29, 1971, and asked for an immediate trial on the robbery offense.

Pursuant to the provisions of N.C. Gen.Stat. § 15-10.2, on June 12, 1972, the Department of Correction returned the detainer to the Clerk of the Orange County Superior Court so that the petitioner's status as a prisoner would no longer be affected by the detainer.

One month before he was scheduled for release for the forgery conviction, the petitioner appeared in the Orange County Superior Court and entered a plea of guilty to the lesser included offense of armed robbery, common law robbery, and upon the entry of that plea the solicitor elected to nol pros the arson charge for which he had been indicted on July 31, 1972.

The foregoing furnishes the basis of the petitioner's allegations of constitutional infringement numbered (2) and (3).

The purpose of N.C.Gen.Stat. § 15-10 is for the protection of persons held without bail. State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965). Under certain circumstances such a prisoner may be discharged from custody. State v. Patton, 260 N.C. 359, 132 S.E.2d 891 (1963). It does not bar further prosecution. The presence of a detainer in a prisoner's file jeopardizes his chances for parole, proper good behavior credits and work release. N.C.Gen.Stat. § 15-10.2 provides such a prisoner with directions for securing a trial on the pending charges. State v. White, 270 N.C. 78, 153 S.E.2d 774 (1967). The State is required to inform him how to proceed. N.C.Gen.Stat. § 15-10.2(b). An inmate must follow the section's requirements. He must send by registered mail a demand to the solicitor. Sending it to the Clerk of the Superior Court unregistered is insufficient, when the solicitor does not know of the demand. State v. White, supra.

The record before this Court is void of evidence to show that the petitioner properly demanded a speedy trial, that the State failed to make a diligent effort to get a trial for him and that he exhausted state court remedies seeking dismissal of the charges because of the delay. Kane v. State of Virginia, 419 F.2d 1369 (4th Cir. 1970). The petitioner does not show prejudice, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), he simply urges this Court to rule that since he was not tried within the eight months specified by the statute, he should be released.

The petitioner alleges ineffective assistance of counsel for failure to raise this point. He asserts that counsel advised him to enter a plea of guilty to common law robbery because counsel expressed the view that he could "do absolutely nothing for him". Under oath and in open court on August 2, 1972, the petitioner's transcript of his plea to common law robbery shows that he understood the nature of the charges pending against him. He acknowledged his awareness of his right to plead not guilty and be tried by a jury. He swore he was in fact guilty. The petitioner swore that he knew he could receive as much as ten years imprisonment for the offense upon the entry of his plea of guilty; that he had had time to subpoena witnesses, confer with counsel and was satisfied with his services; that no one had offered him any promises or threatened him to induce the plea of guilty and that he freely, understandingly and voluntarily authorized and instructed his attorney to enter the plea. After being further questioned by the Court, the plea was adjudged to be freely, understandingly and voluntarily made without undue influence, compulsion or duress and without promise of leniency. A plea of guilty voluntarily entered must stand. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); cf. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).

After the entry of a plea of guilty, it is not evidence of ineffective assistance of counsel to fail to advise a defendant of his right to appeal. Younger v. Cox, 323 F.Supp. 412, 416-417 (W.D.Va.1971); Collier v. Estelle, 488 F.2d 929, 931 (5th Cir. 1974). A court must know that a criminal defendant is indigent and wishes to appeal. Woods v. Beto, 348 F.Supp. 573 (N.D. Tex.1972).

The petitioner's allegation that he is being denied access to the courts for the reason that the respondent does not provide a law library for prisoners requires elaboration.

In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), the Court ruled that the State of Tennessee could not validly enforce a regulation which absolutely banned inmates from helping other inmates prepare petitions for submission to courts. The crux of the ruling was the premise that prisoners are fundamentally entitled to access to the courts, which right cannot be denied or obstructed. The Court did not invalidate the regulation per se. It ruled that Tennessee could not enforce the regulation without furnishing a reasonable alternative. 393 U.S. 490, 89 S.Ct. 747. The Court took note of some alternatives provided by other states: the use of public defenders, senior law students and local bar associations. 393 U.S. 489, 89 S.Ct. 747.

In Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970), the Court was asked to pass on the validity of a prison regulation which established an exclusive list of "basic codes and references" for use by inmates. Also tested was the prison regulation requiring that all legal papers remain within the possession of the inmate to whom they pertained and a state library procedure establishing a restricted list of law books available for prison circulation. The Court found that there was an expertise needed for preparing petitions to be submitted to the Court and that the proposed standard list was inadequate for such use. It required the respondent to expand the list or adopt some new method of satisfying the legal needs of its charges. The other challenged regulation and procedure was not enjoined. This action was affirmed sub nomine, Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971), citing Johnson v. Avery.

In 1972, in Hooks v. Wainwright, 352 F.Supp. 163 (M.D.Fla.1972), the Court considered the question:

"Does the state have an affirmative federal constitutional duty to furnish prison inmates with expensive law libraries or to provide inmates with professional or quasi-professional legal assistance?"

Based on the equal protection clause, the Court ruled that the State did have such an obligation and ordered plans presented to implement the ruling.

With deference to the Hooks v. Wainwright Court, this Court feels that Johnson v. Avery, supra., has been extended beyond its intention. Johnson had to do with a regulation depriving inmates of the assistance of other inmates in preparing writs. It held that such a regulation, without reasonable alternatives, deprived prospective petitioners access to the courts. It did not, and does not now, require the establishment of law libraries for prisoners.

To propose that states furnish prisoners law libraries is unsound. If established, the library would be used by only a few prisoners; its existence would detract from rehabilitative measures; law libraries are not needed to insure access to courts; and the establishment of law libraries in prisons is not constitutionally required.

Those of us who work with prisoner petitions know that they are written by only a very small number of inmates for a very small number of the prison...