Gay v. Smith

• Decision Date: 29 November 1968
• Docket Number: Civ. A. No. 713.
• Citation: 294 F. Supp. 265
• Parties: John Wesley GAY, Petitioner, v. S. Lamont SMITH, Warden, Georgia State Prison, Respondent.
• Court: U.S. District Court — Southern District of Georgia

294 F. Supp. 265

John Wesley GAY, Petitioner, v. S. Lamont SMITH, Warden, Georgia State Prison, Respondent.

Civ. A. No. 713.

United States District Court S. D. Georgia, Dublin Division.

November 29, 1968.

John Wesley Gay, pro se.

Courtney Wilder Stanton, Savannah, Ga., for defendant.

ORDER

LAWRENCE, District Judge.

Petitioner is presently incarcerated in Reidsville State Prison for various offenses including burglary, escape, possessing burglary tools, and driving under the influence. Petitioner's convictions and corresponding sentences are so numerous and involved that it is difficult at best to determine exactly which sentence or sentences he is pressently serving. The State, in an effort to clarify the status of petitioner's presently existing sentences, has offered into evidence the affidavit of the Record Clerk for the State Board of Corrections. This affidavit is hereby made a part of this order.

Petitioner has limited his attack in this Court to those sentences imposed in the following counties of Georgia where he entered a guilty plea: Laurens, Twiggs, Montgomery, Toombs, Meriweather and Crawford. This Court has given petitioner the benefit of any doubt that might exist as to presently applicable sentences and has assumed that those which are challenged include all the State's present claims upon him.

Until recently it was clear that where a prisoner was detained under more than one sentence, he was required to be entitled to relief under Title 28, § 2241 et seq., to attack all of the sentences and prove that each is illegal or otherwise void. Brown v. Beto, 5 Cir., 377 F.2d 950. However, following the recent decision in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426, a prisoner serving one of several consecutive sentences may attack any or all sentences at any time. This decision has been interpreted to permit attacks upon the longer of concurrent sentences where the prisoner is presently serving a valid shorter sentence which is not challenged or, if challenged, is upheld. Stepp v. Beto, 5 Cir., 398 F.2d 814, Cloud v. Louisiana, 5 Cir., 397 F.2d 252. In this case several shorter sentences are running concurrently with a longer sentence, illegality of the shorter sentences is no requisite for an attack upon the longer.

Petitioner claims with respect to each of the sentences in question that he was either not represented by counsel or that he was inadequately represented and was, therefore, unable to knowingly and understandingly enter a guilty plea in any of the cases against him.

A guilty plea, if voluntarily entered, generally serves as a waiver of all non-jurisdictional defects occurring prior to the plea and later raised as grounds for relief in habeas corpus proceedings. Litton v. Beto, 5 Cir., 386 F.2d 820, Busby v. Holman, 5 Cir., 356 F.2d 75. This does not, however, appear to be applicable in the case of lack of counsel where the defendant pleading guilty is unaware of his right to have counsel appointed. Goslin v. Thomas, 5 Cir., 400 F.2d 594. For this reason the Court's inquiry here is directed to the question (1) whether or not petitioner's pleas were voluntarily entered and (2) whether he was either represented by counsel when they were entered or was aware of his right to representation. Evidence was heard before me on November 15, 1968.

In the instant case the Laurens County sentence of twenty years for burglary is controlling and consideration of petitioner's claims in respect to that will suffice to dispose of all the issues. All of the other sentences attacked by petitioner were imposed after that in Laurens County and are of equal or lesser duration. All of them ran concurrently and begin and end...