Ferguson v. Boyd, Civ. A. No. 75-0011.

• Decision Date: 03 June 1975
• Docket Number: Civ. A. No. 75-0011.
• Citation: 397 F. Supp. 129
• Parties: Herbert Levi FERGUSON, Petitioner, v. F. C. BOYD, Superintendent, Respondent.
• Court: U.S. District Court — Western District of Virginia

397 F. Supp. 129

Herbert Levi FERGUSON, Petitioner, v. F. C. BOYD, Superintendent, Respondent.

Civ. A. No. 75-0011.

United States District Court, W. D. Virginia, Lynchburg Division.

June 3, 1975.

Herbert Levi Ferguson, pro se.

Wilburn C. Dibling, Jr., Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, District Judge.

Herbert Levi Ferguson, petitioner, has filed a petition for a writ of habeas corpus challenging the validity of his conviction for breaking and entering with intent to commit larceny by the Circuit Court of Buena Vista on November 3, 1971. Although petitioner has served his jail sentence of four years, he is currently detained pursuant to a recidivist conviction by the Circuit Court of Richmond on July 19, 1972, and since his conviction for breaking and entering was necessarily a basis for the recidivist conviction, petitioner is currently detained within the meaning of 28 U.S.C. § 2254. In attacking his conviction for breaking and entering petitioner makes the following allegations:

1) He asked for a lawyer at arrest, but his request was denied and questioning was pursued;

2) He was held seven days without a lawyer and without appearing before a judge to set bond;

3) He was under extreme mental stress when his confession was taken;

4) He was not given any warnings (Miranda) when his confession was taken, even though his lawyer was on the way to be appointed to defend him;

5) He was denied an adequate transcript; and

6) The Supreme Court of Virginia refused to consider the petitioner's allegations which were not presented at trial or upon appeal.

Petitioner did not appeal his conviction, but filed a petition for writ of habeas corpus with the Circuit Court of Buena Vista; a hearing was held on the petition in the Circuit Court of Buena Vista on April 6, 1973, and the petition was denied. Petitioner then appealed to the Supreme Court of Virginia who by written opinion affirmed the Circuit Court's denial of the petition, Ferguson v. Superintendent of Va. St. Pen., 215 Va. 269, 208 S.E.2d 749 (1974).

Respondent has filed a motion to dismiss asserting that allegation (1), allegation (2), allegation (3), and allegation (4) are not properly before the court because petitioner has not exhausted his state remedies. Respondent takes the position that petitioner may raise the confession issue by way of an assertion of ineffective assistance of counsel. The court does not agree, and the Virginia Supreme Court held that:

All the issues raised by the petitioner, Ferguson, in his petition for a writ of habeas corpus, or set forth in his assignments of error, could have been raised and adjudicated in the trial court and upon direct appeal to this the Virginia Supreme Court court. He failed to do this, and therefore lacks standing to raise the issues on habeas corpus. Ferguson v. Supt., 208 S.E.2d at 752).

Based upon the Virginia Supreme Court's opinion above, this court holds that petitioner has exhausted his state remedies and the petition is properly before the court for consideration of the merits of petitioner's allegations. Since respondent has caused the transcripts of petitioner's original trial and of his habeas corpus hearing to be forwarded to this court and because the Circuit Court for Buena Vista conducted an in-depth evidentiary hearing, there is no need for this court to hold an evidentiary hearing of its own.

II

The facts surrounding petitioner's arrest and conviction are adequately set out in the Supreme Court of Virginia's opinion Ferguson v. Superintendent of Va. St. Pen., 215 Va. 269, 208 S.E.2d 749 (1974). Briefly, petitioner was arrested on Thursday, July 29, 1971, by Buena Vista police officers who noticed a man walking away from the Western Auto Store in Buena Vista, Virginia, with an armful of guns sometime shortly after midnight. They had previously noticed a 1965 Ford parked in the city's parking lot occupied by two persons, with an additional person (Ferguson) standing beside the car. The officers ran toward the car and Ferguson entered the rear seat of the car. The officers found "a pile of guns right where Mr. Ferguson was standing at the rear of the car." In checking the Western Auto Store, they found the door to the store had been pried open and the lock broken. All four persons were arrested and given their Miranda warnings. (Trial Transcript 23). Petitioner refused to make any statements or answer any questions without an attorney. Arrested along with petitioner was his girlfriend, Juanita Wolfolk, who had been sitting in the rear seat of the 1965 Ford.

On August 4, 1971, D. R. Huffman, the Chief of Police of Buena Vista, transported petitioner and his codefendants by automobile from jail to the Municipal Court in Buena Vista for the purpose of appointment of counsel. Huffman testified at trial (Tr. 39-41) and at the habeas corpus proceeding (Habeas Corpus Transcript 116-188) that during the course of this drive, Ferguson initiated a conversation and volunteered that he would like to "get this thing straight and tell the truth about it and get Juanita off." Huffman advised Ferguson that he could talk to the Commonwealth Attorney. Subsequently, petitioner, in the presence of Huffman and the Commonwealth Attorney, Mr. Robey, confessed to breaking and entering the Western Auto Store. Petitioner insisted that Juanita Wolfolk, with whom he had been living for over a year, had no part in the breaking and entering. Robey testified at the habeas corpus proceeding that he was fully aware that Ferguson's purpose in making the statement was to get the girl released, but that he was "99 percent sure" that he made no promise to petitioner in regard to her release (Habeas Corpus Tr. 62). At the time of the confession no Miranda warning was given, but Mr. Robey (Habeas Corpus Transcript 65-66) and Huffman testified (Habeas Corpus Transcript 116) that neither asked petitioner any questions, and that his confession was spontaneous albeit motivated by a desire to free his girlfriend. The court notes that Juanita Wolfolk was released the same day as petitioner's confession and that petitioner's confession was very instrumental in his conviction.

III

A. Petitioner's first allegation relates to the initial request for an attorney upon arrest. The trial transcript indicates that although an attorney was not forthwith...