Hale v. Cox

• Citation: 336 F. Supp. 1364
• Decision Date: 25 January 1972
• Docket Number: Civ. A. No. 71-C-110-R.
• Parties: Leroy Jones HALE, Petitioner, v. J. D. COX, Superintendent Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

336 F. Supp. 1364

Leroy Jones HALE, Petitioner, v. J. D. COX, Superintendent Virginia State Penitentiary, Respondent.

Civ. A. No. 71-C-110-R.

United States District Court, W. D. Virginia, Roanoke Division.

January 25, 1972.

Gilbert W. Haith, Asst. Atty. Gen., Richmond, Va., for respondent.

DALTON, District Judge.

Pursuant to 28 U.S.C. § 2241, Leroy Jones Hale petitions this court for a writ of habeas corpus to terminate his alleged illegal confinement in the Virginia State Penitentiary. Leave to proceed in forma pauperis has been previously granted.

Petitioner is currently detained under a judgment of the Hustings Court of the City of Roanoke imposed on June 23, 1958, in which he was convicted of murder in the second degree and sentenced to a term of eighteen (18) years. At trial petitioner, represented by court-appointed counsel, entered a plea of guilty and was tried by the court without a jury. The conviction and sentence were not appealed. Hale was released on parole on October 29, 1962, but the Hustings Court subsequently revoked his parole on January 5, 1967, because of his abnormal behavior.

Hale later filed a petition for a writ of habeas corpus in the Hustings Court, which denied and dismissed the petition on December 16, 1969. After his appeal from that judgment had been pending in the Virginia Supreme Court for one year, petitioner sought habeas corpus relief in this court. On April 14, 1971, the petition was dismissed because of petitioner's failure to exhaust his available state remedies. The appeal in the State Supreme Court still pending, Hale was permitted to file in this court a second petition, which forms the basis of this proceeding. This court retained jurisdiction of the case without considering its merits until December 9, 1971, when the Virginia Supreme Court dismissed the appeal for petitioner's failure to comply with appellate procedural requirements. Since the state's highest court has not reached the merits of the claims, Hale has technically failed to exhaust his state remedies in compliance with 28 U.S.C. § 2254. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967).

Upon consideration of its allegations, the court finds further reasons compelling dismissal of the petition. Hale bases his challenge of the original conviction upon several grounds, to wit: (1) he is not guilty; (2) the plea of guilty was involuntary; (3) he was denied his right to a jury trial; (4) he was denied his right to appeal; (5) he was denied the right to obtain favorable witnesses; and (6) the police obtained an illegal confession. He also alleges that counsel's representation was ineffective, apparently because counsel failed to correct these errors.

The indictment against petitioner charged inter alia that petitioner "feloniously did kill and murder" the victim. Petitioner claims that he should not have been advised by counsel to plead guilty to the higher count in the indictment, presumably first degree murder, when in fact the Hustings Court convicted him of only second degree murder. This, he argues, is sufficient reason to conclude that the plea was involuntary. The court does not agree.

Section 19.1-166, Virginia Code Annotated, contains the form which is deemed sufficient as an indictment for murder; that form was used in this case. Under the Code section, the indictment need not designate the degree of the offense charged nor allege facts which would describe that degree. This "short form" indictment, therefore, is sufficient to charge murder either in the first or second degree. Ward v. Commonwealth, 205 Va. 564, 138 S.E.2d 293 (1964).

Although a plea of guilty to an indictment in Virginia is a plea of guilty to the highest degree of the offense charged in the indictment, McGrady v. Cunningham, 296 F.2d 600 (4th Cir. 1961) cert. denied 369 U.S. 855, 82 S.Ct. 944, 8 L.Ed. 14 (1962), it is equally well established that every unlawful homicide is presumed to be murder in the second degree, with the burden on the Commonwealth to elevate the offense to murder in the first degree. Painter v. Commonwealth, 210 Va. 360, 171 S.E.2d 166 (1969). It is clear that petitioner knew and understood the offense charged in the indictment, and that the indictment provided him with sufficient information upon which to prepare a defense. This being so, even if petitioner did not also understand the presumption arising from the short form indictment for murder, there nevertheless has been no violation of any constitutional right cognizable in this proceeding. See generally Hayes v. Peyton, 364 F.2d 303 (4th Cir. 1966). Petitioner cannot seriously contend that the trial court should have either accepted a plea of guilty to first degree murder or refused to accept the plea altogether; but however incongruous this argument appears petitioner was obviously not prejudiced by the failure of the trial court to find him guilty of the lesser offense of second degree murder, to which as a matter of law he did plead guilty. Cf. Burton v. Cox, 312 F.Supp. 264 (W. D.Va.1970). Moreover the order of conviction clearly states that the guilty plea was entered knowingly and voluntarily and that the trial court opined that petitioner understood the nature of his plea. Based upon these considerations, and in the absence of any other facts to support his allegation, it is clear that the guilty plea was entered voluntarily and that it was responsive to the indictment. That it was entered on the advice of counsel does not alter this conclusion. Schnautz v. Beto, 416 F.2d 214 (5th Cir. 1969); Burton v. Cox, supra.

Nor is there any evidence to suggest that counsel's representation was constitutionally infirm. Petitioner does not sustain his burden of showing ineffective assistance of counsel merely by relying upon an ex post facto determination that counsel's advice to plead guilty must have been inadequate if the trial court convicted him of only second degree murder. We reiterate that petitioner was not misled by the short form indictment nor prejudiced thereby. Here also, with respect to the entry...