Fowler v. Leeke

• Decision Date: 14 September 1979
• Docket Number: Civ. A. No. 79-293.
• Citation: 509 F. Supp. 544
• Parties: Stanley Wayne FOWLER, Petitioner, v. William D. LEEKE, and The Attorney General of The State of South Carolina, Daniel R. McLeod, Respondents.
• Court: U.S. District Court — District of South Carolina

509 F. Supp. 544

Stanley Wayne FOWLER, Petitioner, v. William D. LEEKE, and The Attorney General of The State of South Carolina, Daniel R. McLeod, Respondents.

Civ. A. No. 79-293.

United States District Court, D. South Carolina, Columbia Division.

September 14, 1979.

HEMPHILL, Senior District Judge.

This § 2254 case is before the court on a motion for summary judgment by the respondents, to which the petitioner has responded after receiving an explanation of summary judgment procedure.

The petitioner was convicted of armed robbery in the Greenville County Court, and Judge James H. Price, Jr., sentenced him to prison for twenty years. A timely notice of intention to appeal the judgment of conviction was filed. The petitioner retained a new attorney to substitute for counsel he retained to defend him on the robbery charge.¹ During the pendency of the appeal, a motion for a new trial was made, based on after-discovered evidence in the form of a confession by one Wayne Hughes that he committed the robbery for which the petitioner was convicted and sentenced. Judge Price heard the motion on September 12-13, 1974, and on October 3, 1974, he entered an Order denying the motion. The petitioner appealed to the Supreme Court of South Carolina, which affirmed the conviction and upheld the denial of a new trial in State v. Fowler, 264 S.C. 149, 213 S.E.2d 447 (1975).

On May 20, 1976, the petitioner initiated a post-conviction application to the Court of Common Pleas for Greenville County. His alleged grounds for relief were: (1) that his identification in court by the robbery victim was tainted because of an illegal showup before trial; (2) that his motion for a new trial should have been granted; (3) that certain evidence he proffered during his motion hearing was erroneously excluded by Judge Price; (4) that a key prosecution witness should have been present to testify at his robbery trial; and (5) that officers failed to read him his rights following his arrest. The post-conviction case was set for a hearing on November 10, 1976 before Judge Julius H. Baggett at Greenville after counsel was appointed for the petitioner. Before the date set for the hearing, the petitioner escaped from the custody of the South Carolina Department of Corrections, thereby making it impossible for the Court of Common Pleas to hear his testimony in support of his various claims for relief under the Post-Conviction Procedure Act of South Carolina. Even though the petitioner was not personally present for the hearing because of his intervening crime of escape from lawful custody,² Judge Baggett reviewed the records of his trial and the hearing on the motion for a new trial, and the appeal record, and he entered an Order dismissing the application for post-conviction relief on November 27, 1976. Judge Baggett based the dismissal on two reasons. He found the petitioner's various grounds for relief "to be totally devoid of merit." Alternatively, he found and concluded that Fowler, by willfully escaping from custody and removing himself illegally from the court's jurisdiction, after invoking its jurisdiction to seek post-conviction relief, had "frustrated the administration of justice," and had "waived and abandoned his contentions and request for relief."³

After his capture and return to prison, Fowler submitted a second application for post-conviction relief to the Court of Common Pleas on or about October 11, 1978, and amended it on December 11, 1978. In this application, Fowler alleged: (1) that he was the subject of an illegal lineup; (2) that he lacked the ineffective assistance of counsel at his trial; and (3) that four other persons had been charged with the robbery for which he had been convicted. Judge Price (now a circuit judge) denied and dismissed the application in an Order entered on January 8, 1979. He held that claims (1) and (3) had been fully considered and rejected by Judge Baggett in the earlier Order, and that the claim of ineffective assistance of counsel was barred by the successive petition rule contained in the Post-Conviction Procedure Act of South Carolina.⁴ Judge Price relied substantially upon Hunter v. State, ___ S.C. ___, 244 S.E.2d 530 (1978), in his summary dismissal of the later post-conviction case.

Fowler now seeks federal relief under 28 U.S.C. § 2254, based on a combination of all grounds he has previously raised in his appeal and the two applications for post-conviction relief. The respondents base their motion for summary judgment on the records of the petitioner's trial, his motion for a new trial, and his appeal, and on the Orders by Judge Baggett and Judge Price denying the petitioner's applications for post-conviction relief.⁵ The petitioner's response to the motion, in opposition thereto, is contained in his "petition" and "motion to correct ... sentence," both filed on May 16, 1979. The petition erroneously characterizes this action as a "removed" criminal prosecution, and requests bail.⁶ The motion is a restatement of the petitioner's grounds, supported by several pages of argument.

The respondents concede that the petitioner has exhausted all remedies available to him in the courts of South Carolina, but they allege that none of his grounds are meritorious under § 2254. The respondents isolate from their detailed rebuttal of the petitioner's ten grounds his claim of ineffective assistance of counsel, and as to that claim, which was barred by Judge Price under the successive petition — waiver rule of South Carolina, respondents urge that petitioner by-passed a state remedy by not seasonably raising this ground in his initial pro se application for post-conviction relief, which Judge Baggett denied. Respondents cite Murch v. Mottram, supra, in support of their contention that a by-pass has occurred,⁷ but they also urge that, in any event, the petitioner's claim that he was deprived of the effective assistance of counsel is unsupported by the record of his trial.

Apart from a consideration of the merits of the various grounds for relief alleged by the petitioner, this case presents two troublesome issues that must be addressed. The first question is whether the petitioner's escape when a hearing in his initial post-conviction case was imminent represents a by-pass that justifies a rejection of all federal claims that were raised by him in that case. The second question is whether a state remedy to test petitioner's claim of ineffective counsel was by-passed or waived by him because he failed to assert the claim in his first application for post-conviction relief, which he abandoned by escaping. The veritable deluge of collateral attacks now being made by state prisoners on their convictions requires that such questions must not be dealt with lightly if the principle that criminal judgments must become final at some point in time is to continue to have meaning in this nation.⁸

The first question has been answered by the United States Court of Appeals for the Fifth Circuit in Strickland v. Hopper, 571 F.2d 275 (1978). The § 2254 petitioner in that case was convicted of burglary. He filed a motion for a new trial, and escaped after the motion was filed. The trial judge denied the motion on the ground that the movant was a fugitive from justice. After he was captured, the prisoner filed a petition for habeas corpus in the United States District Court for the Northern District of Georgia. He alleged several grounds for relief, including one ground that had been contained in the motion for a new trial. Judge Freeman declined to consider the merits of that claim because it had not been reached by the trial judge in the motion for a new trial due to the movant's fugitive status. The remaining claims were decided by Judge Freeman adversely to the prisoner's contentions. The Court of Appeals affirmed the dismissal of the § 2254 petition, holding that the "petitioner's escape during the pendency of his motion for new trial constituted a deliberate by-pass." The court recognized that "in a very practical sense petitioner knowingly abandoned the privilege of seeking in state court to vindicate his federal claims." It added that Georgia's practice of dismissing a motion for a new trial because of the fugitive status of a movant serves a legitimate concern, and that such a procedural default can be recognized in a federal habeas proceeding.

Although the opinion in Strickland is relatively brief and to the point addressed, it is highly persuasive. In the absence of any indication that our Court of Appeals would reject its sound reasoning, Strickland is considered to be persuasive if not controlling authority to justify a rejection of all federal claims contained in the petitioner's original application for post-conviction relief that he abandoned when he escaped from the South Carolina Department of Corrections. The fact that Judge Baggett reviewed the records and also rejected petitioner's claims on the merits does not alter this conclusion, which affects petitioner's grounds (1), (2), (3), (4), (7), (9), and (10) in his federal petition.⁹

Before discussing whether the petitioner's claim of ineffective counsel should be reached on the merits, his federal grounds (6) and (8) may be eliminated. The claim that petitioner did not receive a preliminary hearing is not a federal issue.¹⁰ Martin v. State of North Carolina, No. 76-2073 (4th Cir., September 30, 1976), citing Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 865, 43 L.Ed.2d 54 (1975). The petitioner's criticism of Judge Price also does not present a federal claim, and any contention that the petitioner did not receive a fair hearing on his motion for a new trial should have been addressed to the Supreme Court of South Carolina in the appeal.¹¹ A review of the transcript of the hearing on the motion for a new trial reveals that Judge Price let the petitioner practically retry his armed robbery trial, and the findings and conclusions set out by...