Fox v. State of North Carolina

• Decision Date: 03 April 1967
• Docket Number: Civ. No. 1885.
• Citation: 266 F. Supp. 19
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Donald FOX v. STATE OF NORTH CAROLINA, Warden R. L. Turner.

266 F. Supp. 19

Donald FOX v. STATE OF NORTH CAROLINA, Warden R. L. Turner.

Civ. No. 1885.

United States District Court E. D. North Carolina, Raleigh Division.

April 3, 1967.

Donald Fox pro se.

T. Wade Bruton, Atty. Gen., of North Carolina, by Theodore C. Brown, Jr., Staff Atty., Raleigh, N. C., for respondents.

OPINION AND ORDER

BUTLER, Chief Judge.

This is an application for writ of habeas corpus by Donald Fox, a state prisoner. The petitioner is confined pursuant to two consecutive sentences of life imprisonment imposed by the Superior Court of Buncombe County, North Carolina, at the March 1965 Term, upon the jury's verdict of guilty of first-degree murder and first-degree burglary.

In support of the contention that his custody violates the Constitution of the United States, petitioner alleges, among numerous other federal constitutional infirmities, that he had ineffective assistance of counsel at trial and at state post conviction hearing, that he was denied counsel during police interrogation, that his confession was coerced, and that he was denied the right to appeal.

It appears that petitioner presented these contentions, with the exception of alleged infirmities at post conviction hearing, to the Superior Court of Buncombe County in a post conviction proceeding pursuant to N.C.Gen.Stat. § 15-217 to § 15-222; that relief was denied, and that application for writ of certiorari, which included alleged infirmities at post conviction hearing, was denied by the Supreme Court of North Carolina.

The order denying post conviction relief includes the following findings of fact: that the jury rendered its verdict of guilty with recommendation of mercy at approximately 11 p. m., February 26, 1965; that at approximately 12 p. m. the same night petitioner was transported from Buncombe County jail to Central Prison, Raleigh, North Carolina; that prior to verdict petitioner's attorneys had conferred with him many times concerning an appeal in the event of an adverse verdict; that petitioner had authorized his attorneys to appeal only if the verdict resulted in a sentence of death; that after verdict and sentence petitioner did not authorize his attorneys to enter notice of appeal and no notice was entered; that petitioner on the night of the conviction expressed satisfaction with the verdict; that after sentence was imposed, petitioner told one of his lawyers that he wanted to talk with him about the case, and his lawyer told him he would see him a little later; that the lawyer did not go to see him in jail before he left, or in Raleigh after he was taken to Central Prison; that petitioner did not express a desire to appeal until some three or more weeks after he was committed to Central Prison. The transcript of the post conviction hearing reveals that the above findings are supported by the record as a whole.

The transcript further reveals that petitioner was kept "under attention"¹ for about four weeks after his arrival at Central Prison; that during that time he was permitted to leave his cell only on Saturdays to take a shower; that he had no association with other prisoners; that he is unable to write; that he had no access to a telephone; and that he made no attempt to communicate with the guards.

Generally, failure to utilize a State's appellate machinery precludes collateral relief if the errors alleged by petitioner could have been asserted on appeal. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Thomas v. Cunningham, 313 F.2d 934 at 937 (4 Cir. 1963). It is therefore incumbent upon this court to scrutinize carefully the entire record in order to determine whether petitioner's failure to appeal within the time allowed by statute² constituted a knowing and intelligent waiver of that right.³

The order denying post conviction relief concluded: "There was no notice of appeal given and * * * there was, in fact, an intelligent waiver of that right within the time allowed by law * * *"

In Fay v. Noia, the Supreme Court said:

"* * * The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 — `an intentional relinquishment or abandonment of a known right or privilege' — furnishes the controlling standard. * * * At all events * * * the standard of waiver * * * depends on the considered choice of the petitioner. * * * A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court's finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question." Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963).

The petitioner testified at the post conviction hearing (page 30):

"QUESTION: Now at the time you talked to your attorneys about appealing this matter, was any explanation given to you about when Emphasis ours. you had to serve notice of appeal?

"PETITIONER: No, sir.

"QUESTION: Was any statement given to you with reference to having to serve a notice upon the Solicitor in writing, in the event you did not enter your notice of appeal in open court?

"PETITIONER: No, sir."

Petitioner's trial attorney testified (page 49):

"QUESTION: Did you ever advise him petitioner of his right to appeal and what was required in the event he elected to appeal?

"MR. YOUNG: I think we covered that rather at length sometime prior to and during the trial, but in the light of a death sentence rather than an appeal on a life term.

"QUESTION: Yes, but did you ever make any statement to him as to how many days he had in which to make up and serve notice of appeal on the Solicitor with reference to filing application with the Clerk to appeal in the form of a pauper and with reference to filing an application with the Court with reference to securing a copy of the transcript?

"MR. YOUNG: I do not—(interrupted)

"QUESTION: Did you ever advise him—(interrupted)

"MR. YOUNG: I do not recall that I went into the details of the procedure of appeal with him at any time."

Furthermore, an examination of the transcript of the trial proceedings discloses that the trial court did not inform petitioner of his right of appeal nor the 10 day limitation for filing notice of appeal.

We find the following facts from the record:

1. Neither trial counsel nor the trial court informed Donald Fox of the statutory limit for filing notice of appeal to the Supreme Court of North Carolina.

2. Donald Fox did not know of the statutory time limit for filing notice of appeal until after the period had elapsed.

We conclude, therefore, that petitioner's failure to file notice of appeal within the 10 day time limitation did not constitute an intentional relinquishment or abandonment of a known right and that petitioner is entitled to relief in habeas corpus.

We do not decide whether failure to advise a defendant of his right of appeal and the time limitation within which the right must be exercised constitutes...