Goodwin v. Page

• Decision Date: 06 March 1969
• Docket Number: No. 68-194-Civ.,68-194-Civ.
• Citation: 296 F. Supp. 1205
• Parties: Paul GOODWIN, Petitioner, v. Ray H. PAGE, Warden of the Oklahoma State Penitentiary, Respondent.
• Court: U.S. District Court — Eastern District of Oklahoma

296 F. Supp. 1205

Paul GOODWIN, Petitioner, v. Ray H. PAGE, Warden of the Oklahoma State Penitentiary, Respondent.

No. 68-194-Civ.

United States District Court E. D. Oklahoma.

March 6, 1969.

Milton Keen, Oklahoma City, Okl., for petitioner.

G. T. Blankenship, Atty. Gen., by Howard O'Bryan and H. L. McConnell, Asst. Attys. Gen. for State of Oklahoma, Oklahoma City, Okl., for respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BOHANON, District Judge.

This matter came on for consideration by the Court on the 24th day of January, 1969, and after hearing the evidence and argument of counsel, reviewing the excellent briefs and being fully advised in the premises, the Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. This is a Petition for Writ of Habeas Corpus filed by the petitioner, Paul Goodwin, against the defendant, Ray H. Page, Warden of the Oklahoma State Penitentiary, pursuant to 28 U.S.C.A. §§ 2241 and 2254.

2. Petitioner is presently incarcerated in the Oklahoma State Penitentiary, McAlester, Oklahoma, under a life sentence entered by the Superior Court of Seminole County, Oklahoma, on October 17, 1936, and a judgment and sentence entered by the District Court of Kingfisher County on April 30, 1963, assessing a sentence of five years in the State Penitentiary for the crime of robbery with firearms.

3. Petitioner filed a Petition for Writ of Habeas Corpus in the Oklahoma Court of Criminal Appeals and the Court did on July 31, 1968, deny said Petition. Goodwin v. Page, Okl.Cr.App., 444 P.2d 833. The Court of Criminal Appeals had before it the following contentions made by the petitioner:

(1) That petitioner was arrested in Pensacola, Florida, on July 20, 1936, and held for Oklahoma officers who removed him from Florida without extradition papers or waiver and returned him to Oklahoma, staying in various jails along the way.

(2) That on July 30, 1936, he was given an "automobile arraignment" before a justice of the peace who waived a preliminary hearing for the petitioner.

(3) That during all of this time until October 7, 1936, when the Court-appointed attorney visited petitioner at the jail, he had demanded, and was denied assistance of counsel.

(4) That there was considerable public excitement and prejudicial publicity about the crime which was the murder of a local peace officer, thus preventing a fair trial.

(5) Some of the jurors admitted having read newspaper articles about the crime.

(6) He was handcuffed when entering and leaving the Courtroom in front of jurors.

(7) He was denied effective assistance of counsel in that he only saw the Court-appointed counsel five days before trial, and then only for a short period of time; that counsel did not subpoena witnesses; that counsel failed to make an opening statement; failed to ask for a continuance or change of venue; placed no evidence before the Court; and did not keep his promise to appeal the conviction.

(8) That the Trial Judge did not advise him of his rights to appeal or his right to a Court-appointed attorney to perfect an appeal.

The Opinion of the Court of Criminal Appeals, supra, reflects that a hearing was had by the Court on February 8, 1967, at which time petitioner appeared with his attorney and was sworn and testified. No other testimony was before the Court.

The Court of Criminal Appeals answered petitioner's contentions substantially as follows:

(1) It is fundamental in Oklahoma that jurisdiction of a Court over the person of one physically before the Court upon criminal charges is not impaired by the manner in which accused is brought before it, and the fact that arrest was unlawful or removal proceedings illegal would not affect such jurisdiction.

(2) It is true that the delay in taking the accused before the Magistrate may constitute an important element, when considered with other elements, in the denial of Constitutional and Statutory due process, however, there was nothing before it (Court of Criminal Appeals of Oklahoma) to indicate a prejudicial delay in taking petitioner before a Magistrate.

(3) Considerable adverse pretrial publicity does not ipso facto require a continuance, a change of venue or a new trial. A defendant can be assured a fair and impartial jury in the face of wide-spread adverse publicity through the voir dire examination of the jury. Nor does the fact that jurors have read adverse publicity disqualify prospective jurors if they can act impartially and fairly upon the matters to be submitted to them. However, in the absence of any record of the voir dire examination of the jury, it is impossible for this Court to find that the jury impaneled was not impartial. The burden of establishing the allegations of the Petition is upon the petitioner.

(4) Prior to the amendment of 22 O.S.1961, § 15 in 1953, which prohibits trying a defendant in chains and shackles, the law in Oklahoma made it a matter of the Trial Court's discretion regarding the wearing or placing shackles or leg irons on a defendant in order to maintain order and prevent acts of violence.

(5) That there was no evidence to support the serious allegation that petitioner was denied the effective assistance of counsel.

(6) The law in Oklahoma has long been that accused is entitled to counsel at all stages in criminal proceedings and where it appears, on appeal, that defendant has been denied the right to aid of counsel and has substantially been injured resulting thereby, the same will constitute grounds for reversal; that the record does not disclose any substantial injury to the petitioner due to the fact that he did not have an attorney prior to trial. And there is no evidence in the record that petitioner was convicted at trial on the basis of a confession extracted from him before counsel was appointed; that in the absence of a casemade of the trial, it would be impossible to determine such fact; that while in Oklahoma law a defendant is entitled to counsel at all stages of criminal proceedings, the absence of counsel at pretrial proceedings does not by and of itself amount to denial of due process without a showing of prejudicial injury.

(7) Petitioner was furnished counsel long before the trial date. We cannot, absent a record of the trial, find that counsel was incompetent based on allegations that he failed to call defense witnesses or put on evidence. Nor, can we conclude that because petitioner was convicted that his counsel was ineffective.

(8) The Court of Criminal Appeals further said that there might be some merit to the allegation that petitioner may have been denied due process in that he was not advised of his right to appeal with the assistance of Court-appointed counsel, in view of Wynn v. Page, 369 F.2d 930 (10 C.A.1966). However, the record is silent on whether the Judge advised petitioner of his right. Consequently, since the Judge is now deceased, it would be impossible to find out if he so advised petitioner absent the record. Likewise, with both the Trial Judge and the petitioner's trial counsel deceased, it is impossible to find out why an appeal was not perfected.

4. At the evidentiary hearing before the Court of Criminal Appeals only one witness testified and that was the petitioner, Paul Goodwin, and a transcript of that testimony has been furnished to this Court and is marked Petitioner's Exhibit 13.

5. Petitioner could not take a direct appeal to the Court of Criminal Appeals from the judgment and sentence and could not take an appeal post conviction, because as the evidence before this Court shows there exists no transcript of the trial proceedings, nor can the Court Reporter's notes or additional material regarding petitioner's 1936 trial be located. On or about the 7th day of July, 1961, petitioner was paroled from the Oklahoma State Penitentiary under the life sentence imposed by the Superior Court of Seminole County, Oklahoma, and while on parole, petitioner committed an offense for which he was sentenced to a term of five years for robbery with firearms by the Judge of the District Court of Kingfisher County, Oklahoma, and his parole under the life term from Seminole County was revoked.

6. Having exhausted his available state remedies, petitioner is before this Court upon his Petition for Writ of Habeas Corpus and asserts briefly: (1) denial of effective assistance of counsel; (2) denial of a fair trial by an impartial jury because of prejudiced publications, affecting the rights of the petitioner; (3) denial of equal protection of the law; (4) use at his trial of an involuntary confession; (5) suppression by the prosecuting authorities of favorable evidence; (6) fundamental error in permitting the reading of a confession or written statement by a co-defendant at the trial while said co-defendant was present in the courtroom, thus denying petitioner the right to be confronted by witnesses to be used against him and to cross-examine said witnesses, and that the judgment and sentence of the Superior Court of Seminole County giving the petitioner a life sentence is void, and, therefore, petitioner has fully served the five year sentence from Kingfisher County, inasmuch as he was received at the Oklahoma State Penitentiary on April 30, 1963, to serve it and has been there since that date.

7. At the habeas corpus hearing in this case held on January 24, 1969, at McAlester, Oklahoma, petitioner called as a witness Mr. Walter Billingsley, an attorney at law who was the attorney for petitioner's co-defendant, Horace "Buster" Lindsey; T. G. Harrison, Wewoka, Oklahoma, Court Clerk for Seminole County for ten years; the petitioner, Paul Goodwin, and Mr. Criswell, Assistant County Attorney at the time of petitioner's trial and who participated in the trial of petitioner in Seminole County, Oklahoma. Also at the habeas corpus hearing petitioner introduced into evidence Exhibits 1 through 19, which among other things, included pertinent publicity in the Seminole, Oklahoma,...