Goins v. Allgood

• Decision Date: 12 March 1968
• Docket Number: No. 24859.,24859.
• Citation: 391 F.2d 692
• Parties: Thomas GOINS, Appellant, v. J. Wayne ALLGOOD, Warden, Louisiana State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

391 F.2d 692 (1968)

Thomas GOINS, Appellant, v. J. Wayne ALLGOOD, Warden, Louisiana State Penitentiary, Appellee.

No. 24859.

United States Court of Appeals Fifth Circuit.

March 12, 1968.

James D. McGovern, Jr., New Orleans, La., for appellant.

John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, La., for appellee.

Before RIVES and GODBOLD, Circuit Judges, and HUGHES, District Judge.

RIVES, Circuit Judge.

On April 1, 1955, Anthony Meyers was brutally shot in the back while walking on a New Orleans sidewalk. Later the wound caused his death. On the evening of April 2, 1955 at 8:50 P.M., Goins, then approximately eighteen years of age, was arrested. Since then, for nearly thirteen years he has remained in custody. The longer part of that time has been spent in death row at the Louisiana State Penitentiary, Angola, Louisiana.

Goins' conviction and sentence were affirmed by the Supreme Court of Louisiana on February 25, 1957.¹ His first federal habeas petition was filed on November 29, 1957. It alleged exhaustion of all remedies available in the Louisiana State Courts. (R. 1.) This allegation was admitted (R. 47, ¶¶ 3 and 5) and there has since been no claim of a failure to exhaust state remedies. On oral argument on the present appeal the Court called to the attention of appellee's counsel the requirement for such exhaustion,² and suggested an expression from the appellee in the supplemental brief which appellee proposed to file on the merits of the appeal. No such insistence is contained in that brief, and we therefore hold that this appeal and any further proceeding on the present petition should be conducted as if all available state remedies had been exhausted. See Fay v. Noia, 1963, 372 U.S. 391, 420, 83 S.Ct. 822, 9 L.Ed.2d 837.

Goins' first federal habeas petition was denied before a response had been filed to the show cause order. This Court vacated the judgment and remanded for the filing of a proper response and for a hearing. United States ex rel. Goins v. Sigler, Warden, 1957, 5 Cir., 250 F.2d 128. On remand, after a hearing the district court again discharged the writ. United States ex rel. Goins v. Sigler, E.D. La.1958, 162 F.Supp. 256. District Judge J. Skelly Wright summarized Goins' claim as follows:

"Petitioner\'s primary contention in this application is that for thirteen weeks following his arrest he was in custody without counsel, and that on the trial of his case in the state court, admissions and a confession made by him during that time were admitted in evidence. It is further contended that the confession was coerced by police brutality." 162 F.Supp. at 257, 258.

In ruling against Goins, Judge Wright evidenced prophetic insight as to future development of the law:

"Unquestionably, Goins did not receive all the constitutional protection a court sworn to uphold the Constitution would have liked him to have received. He should have had a lawyer sooner than he did. He should not have been subjected, while in custody, to examination by police at odd hours of the night. In spite of the fact that definite progress is being made in the protection of constitutional rights, much is yet to be accomplished. Police do not insist on having a lawyer represent an accused from the moment of his arrest and some persons accused of crime unfortunately have no way of obtaining counsel until the court appoints one to represent them. In the interim, violation of constitutional rights remains an ever-present possibility. * * * He has had due process of law under the Fourteenth Amendment as that clause is currently being interpreted." 162 F.Supp. at 260.

This Court affirmed per curiam. United States ex rel. Goins v. Sigler, 5 Cir., 1959, 272 F.2d 148.

While that appeal was pending, Goins moved in the district court for a new trial on the ground of newly discovered evidence. Benjamin Mackey, Goins' codefendant, had testified in Goins' trial in rebuttal of Goins' claim that his confession was coerced. The jury returned its verdict finding Goins guilty as charged on October 26, 1955. Five days later, on October 31, Mackey was permitted to plead guilty without capital punishment and was sentenced to life imprisonment. Several years later, in February 1959, Mackey retracted his testimony, and swore that he had seen the police beat Goins and shoot blank cartridges at him during his interrogation. On November 18, 1959, the district court denied the motion for new trial without a hearing. This Court reversed and remanded. United States ex rel. Goins v. Sigler, 5 Cir., 1962, 297 F.2d 533. After a full hearing, the district court concluded that Goins "has not carried the burden of proving a valid recantation on the part of the witness Mackey." United States ex rel. Goins v. Sigler, E.D.La.1963, 224 F.Supp. 687, 690. This Court affirmed. United States ex rel. Goins v. Walker, Warden, 5 Cir., 1964, 340 F.2d 6.

On September 23, 1965, Goins presented his second federal habeas petition, the one involved on this appeal. On the same day the district court summarily denied the application, by endorsement as follows:

"This court being of the opinion that this application presents no issues that have not previously been considered by this court and decided adversely to petitioner, petitioner\'s application for habeas corpus is DENIED and his motion for an Order to Stay Execution is also DENIED.

"New Orleans, La. Sept. 23, 1965.

"E. Gordon West, U. S. District Judge."

This second federal habeas petition is on a mimeographed form. The grounds are stated in response to items 10 and 11 of the form as follows:

"10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:

(a) Denial of DUE PROCESS OF LAW

(b) Denial of FAIR TRIAL

(c) Denial of EFFECTIVE ASSISTANCE OF COUNSEL (See Attached Sheet for Further Grounds.)

"11. State concisely and in the same order the facts which support each of the grounds set out in (10):

(a) Petitioner is a member of the Negro race. The alleged victim (b) was a member of the Caucasian or White race. The Grand Jury which returned the indictment against him (See attached sheet (e) for further facts.)"

The attachment to the form is lengthy, and that part elaborating upon the claimed grounds for habeas corpus is attached as an appendix to this opinion.

On the same day on which the district court summarily denied the application, Judge Wisdom entered the following order for this Court:

"ORDER: —

"The Petitioner\'s application for issuance of a certificate of probable cause for allowance of this appeal in forma pauperis, and his further application for stay of execution of his death sentence set for 12:00 P.M. midnight, this September 23, 1965, are hereby GRANTED subject to further orders of this Court."

Thereafter, on October 1, 1965, the Court entered a further order as follows:

"BY THE COURT: —

"The Court having ordered the question of exclusion-inclusion of race in jury selection in the cases listed below to be heard en banc on December 16-17, 1965, and it being therefore unable to determine such question as may be present in this appeal, the stay of execution heretofore entered by Judge Wisdom is continued in effect pending further orders of this Court.

"No. 21345—Jackson v. United States

"No. 21256—Rabinowitz v. United States

"No. 21976—Davis v. Davis, Governor

"No. 20814—Scott v. Walker

"No. 22304—Billingsley v. Clayton

"No. 22809—Brooks v. Beto."

The last brief perfecting submission of the present appeal was filed on January 29, 1968. Thus, at long last we reach the merits of this appeal.

I.

It is a "familiar principle that res judicata is inapplicable in habeas proceedings." Fay v. Noia, 1963, 372 U.S. 391, 423, 83 S.Ct. 822, 840, 9 L.Ed.2d 837. In Sanders v. United States, 1963, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148, the Supreme Court formulated the basic rules to guide the lower federal courts in handling successive applications for federal habeas corpus. The application may be denied without a hearing "where the second or successive application is shown, on the basis of the application, files and records of the case alone, conclusively to be without merit. 28 U.S.C. §§ 2243, 2255." (373 U.S. at 15, 83 S.Ct. at 1077.) The rules formulated in Sanders make it clear that the district court erred in summarily denying the present application without a hearing. See also Labat v. Bennett, 5 Cir. 1966, 365 F.2d 698, 710.

II.

Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. State of Arizona, 1966, 384 U.S. 436, are not to be applied retroactively. Johnson v. State of New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. The nonretroactivity of Escobedo and Miranda is, however, subject to an important qualification in cases where confessions are claimed to be involuntary or coerced. On that subject, the Court said in Johnson v. State of New Jersey, supra, 384 U.S. at 730, 86 S.Ct. at 1779:

"At the same time, our case law on coerced confessions is available for persons whose trials have already been completed, providing of course that the procedural prerequisites for direct or collateral attack are met. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Prisoners may invoke a substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous through the years. See Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961). That test now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance.

See Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Prisoners are also entitled to present evidence anew on this aspect of the voluntariness of their confessions if a full and fair hearing has

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