Gainey v. Turner

• Decision Date: 27 March 1967
• Docket Number: Civ. No. 1792.
• Citation: 266 F. Supp. 95
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Rufus GAINEY v. R. L. TURNER, Successor to K. B. Bailey, Warden, Central Prison, Raleigh, North Carolina.

266 F. Supp. 95

Rufus GAINEY v. R. L. TURNER, Successor to K. B. Bailey, Warden, Central Prison, Raleigh, North Carolina.

Civ. No. 1792.

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

March 27, 1967.

COPYRIGHT MATERIAL OMITTED

Rufus Gainey, pro se.

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

OPINION AND ORDER

BUTLER, Chief Judge.

The application of Rufus Gainey, a state prisoner, for writ of habeas corpus in forma pauperis was denied as frivolous without requiring an answer by the respondents and without a plenary hearing. Gainey appealed and the Fourth Circuit Court of Appeals by memorandum decision¹ remanded for two purposes:

1. For a determination of whether Gainey, after his prior conviction had been voided on constitutional grounds, voluntarily and intelligently elected to accept a retrial rather than reinstatement of his former sentence by waiving the constitutional defect in his first trial;² and

2. Whether a defendant who has been unconstitutionally convicted and has successfully pursued post conviction remedies is entitled to credit on the new sentence for the amount of time served under the void sentence.³

Gainey was tried for robbery with firearms and escape at the November 1960 Term of Nash County Superior Court, and was sentenced to consecutive sentences of 15 years and 2 years for the respective offenses.⁴ In January 1965 he filed a petition in Nash County Superior Court under the provisions of N.C.Gen. Stat. §§ 15-217, et seq., attacking his 1960 conviction on the ground that he had not been represented by counsel. In March 1965 an order was entered setting aside his conviction and granting a new trial. Subsequently, but prior to his new trial, he sought habeas corpus relief in the state court on the grounds that (1) he was not present when the post conviction order was entered, (2) he had sought release and not a new trial, and (3) a retrial would subject him to double jeopardy. On May 31, 1965, state habeas corpus relief was denied. The new trial was held at the July 1965 Term of Nash County Superior Court. Gainey entered a plea of not guilty to robbery with firearms and escape, but later changed his plea to guilty. He was sentenced to consecutive sentences of 12 to 15 years in the State's prison for robbery with firearms and 1 to 2 years for escape. The Supreme Court of North Carolina affirmed. State v. Gainey, 265 N.C. 437, 144 S.E.2d 249 (1965).

When the case came here by Gainey's application for writ of habeas corpus, he urged upon this court the same grounds for relief asserted in the state courts. We denied relief on all three grounds, expressing the opinion that petitioner's allegations were without merit. Gainey v. Bailey, Civil No. 1792, Raleigh Division (1965).

I.

On appeal to the Court of Appeals for the Fourth Circuit, this court was affirmed in its views that the allegations of double jeopardy and absence from the post conviction hearing did not entitle petitioner to habeas corpus relief. We were reversed, however, on our legal conclusion that from the facts alleged in petitioner's application he had waived the right to serve out his 1960 sentence without retrial. The Court of Appeals said:

"Here because we are without a transcript of the state proceedings surrounding the new trial, it is difficult to determine whether Gainey fully understood his options and waived whatever rights he had. The North Carolina Supreme Court, which presumably reviewed the proceedings, held that he did. Apparently the District Court was of the same opinion. Nevertheless, Gainey claims that he was forced to accept the trial and plead guilty. It appears likely that this objection is based upon the prisoner's belief that he was entitled to release and not from a denial of an asserted right to have the former sentence reinstated. Under the latter Gainey might be entitled to relief. See Ruckle v. Warden, supra. Under the former he is not. But without a transcript of the second trial we are not sure of the options offered him and cannot affirm the case in this posture."

On remand we were directed to make a record on which findings of historical facts with respect to the retrial might be intelligently reviewed on appeal. An examination of the transcript of testimony at the May 1965 habeas corpus hearing discloses the following colloquy (pages 12-13):

"THE COURT: I will either grant you the new trial or permit you to withdraw it, whichever you want to do, but I can't turn you aloose.

"PETITIONER: Well, if you can't turn me aloose, Your Honor, I mean dismiss this charge here, I would like for you just to let the Order vacating the convictions and sentences and ordering a new trial you have already issued stand without prejudice to me to deny that I asked for a new trial when the new trial comes up * * * I would like to leave your original Order as it is * * * In other words, I would just like to back out of this habeas corpus hearing the way it was when I came in here on it."

At the new trial Gainey's attorney entered a plea of not guilty and moved the court to dismiss on the ground of double jeopardy "which was his sole defense". The motion was denied. Thereupon, Gainey "withdrew his not guilty plea and pleaded guilty, having no defense in the trial on its merits."

Prior to the new trial Gainey had been informed by the state court that certain options were available to him: (1) he could accept the State's offer of a new trial, or (2) he could withdraw his post conviction attack upon the original trial which impliedly would result in reinstatement of the original conviction and sentence. He was expressly told by the state court that he was not entitled to release. Gainey refused to withdraw his attack, and thus waive the constitutional defect in his first trial. He chose, instead, to abide the result of the post conviction proceeding which set aside his conviction as a nullity and ordered a new trial. While it is true that Gainey's choice was without prejudice to him "to deny that I asked for a new trial when the new trial comes up," it is obvious that only by virtue of the new trial which resulted from his claim of constitutional infirmity was it possible for Gainey to assert his defense of double jeopardy. Clearly, it was not his intention to waive the new trial or the defect that produced it. When this defense proved ineffectual at the retrial, Gainey entered a plea of guilty.

Even if we were inclined to the view that Gainey did not voluntarily and intelligently accept a retrial, nevertheless, "misapprehension concerning the consequences of his refusal to acquiesce in a new trial does not affect the legal principle involved * * * A not guilty plea is entered for him and the case proceeds. The state does not need the defendant's consent to put him on trial * * *" Ruckle v. Warden, supra. Here Gainey entered a plea of not guilty and the trial proceeded until he voluntarily changed his plea to guilty. Gainey could have claimed the protection of his prior conviction and sentences and prevented a retrial and new sentence by withdrawing his attack on the constitutionality of his original trial. This he voluntarily and understandingly refused to do.

Where no express findings of fact have been made by a state court, the federal district court must initially determine whether the state court impliedly found material facts; if the federal district court is not able to reconstruct a finding the court must hold a hearing; but, if the court is able to reconstruct the finding, a hearing before the district judge is not necessary. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

We find the following facts from the record:

1. Gainey was afforded the option of choosing between a new trial or reinstatement of his former convictions and sentences.

2. Gainey did not voluntarily, intelligently and knowingly waive the constitutional defect in his first trial and assert the right to serve the remainder of his 1960 sentence without retrial.

We conclude, therefore, that Gainey, having sought and obtained nullification of his original conviction, was not entitled to release upon his plea of double jeopardy and was properly subjected to retrial and a lawful sentence.

II

We next proceed to a consideration of the second proposition—the merits of the credit⁵ question. Gainey was sentenced to maximum terms of 17 years at his original trial in November 1960 and at his retrial in July 1965. In its Memorandum Decision, the Court of Appeals said:

"The second issue has not been raised anywhere in the proceedings to date. However, the record is clear that Gainey did not receive any credit for the four and one-half years he spent in jail under the illegal sentence and that the maximum sentence he now faces makes it possible that he will suffer over four years imprisonment for asserting his rights * * * Because this practice seems to be frequently followed in North Carolina we will not relegate Gainey to the probable futility of presenting this claim first to the state courts."

Judge Craven's opinion in Patton v. State of North Carolina⁶ carefully considered the constitutional issues before the court in the instant case, and we are persuaded that the decision in Patton is determinative of the credit question presented here. In 1960 Patton, without the assistance of counsel, entered a plea of nolo contendere to the felony of armed robbery and was sentenced to 20 years in prison. In 1964 Patton obtained post conviction review and on the basis of Gideon v. Wainwright⁷ obtained a new trial. At the new trial in 1965, he entered a plea of not guilty, but was convicted of the same offense, and was sentenced to an identical term of 20 years imprisonment. Patton applied to the federal District Court for habeas corpus where it was held that the harsher sentence was a denial of due process and equal protection...