Hawks v. Cox
| Decision Date | 15 June 1970 |
| Parties | Chester Albert HAWKS v. James D. COX, Superintendent of the Virginia State Penitentiary. |
| Court | Virginia Supreme Court |
James D. Davis, Richmond, for petitioner.
Gerald L. Baliles, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on the brief), for respondent.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.
Petitioner, Chester Albert Hawks, was convicted of murder in the first degree in the Circuit Court of Carroll County on January 6, 1959. He was sentenced to life imprisonment in the State Penitentiary, where he is now confined. No appeal was taken but Hawks has been busily engaged in filing habeas corpus petitions in state and federal courts challenging his detention.
Hawks filed his present petition for a writ of habeas corpus In forma pauperis in this court on June 30, 1969. The usual order was entered requiring respondent, James D. Cox, to show cause why the writ should not issue. Respondent, declining to affirm or deny the allegations of the petition, moved the court to appoint counsel, require briefs and advance the cause on the docket to consider the question whether petitioner should be permitted to continue In forma pauperis to present allegations which have been the subject of previous adverse judicial rulings. We granted this motion.
In his petition Hawks alleges that his 1959 conviction was improper for the following reasons:
(1) He was denied the right to appeal.
(2) He did not intelligently and understandingly waive trial by jury.
(3) He was denied a pre-trial mental examination and a pre-sentence report.
(4) His conviction was secured by the use of inadmissible evidence.
(5) His indictment was illegal, null and void.
Each of these allegations has been previously asserted by Hawks and rejected by more than one court of competent jurisdiction. By stipulation the record contains a chronological list of habeas corpus proceedings initiated by Hawks. It is impressive evidence that the Great Writ, as the writ of habeas corpus has been known through the centuries, is now subject to serious abuse as a post-conviction remedy.
Twice the United States Supreme Court denied certiorari to judgments of this court refusing to grant writs of error on petitions presented by Hawks in habeas corpus proceedings. Hawks v. Virginia, 364 U.S. 839, 81 S.Ct. 76, 5 L.Ed.2d 63 (1960); Hawks v. Cunningham, 372 U.S. 921, 83 S.Ct. 736, 9 L.Ed.2d 726 (1963).
Although the allegation of mental incompetence at the time of trial had been decided against him in both state and federal courts, Hawks reasserted this ground in another petition, filed in 1963 in the United States District Court for the Eastern District of Virginia. After a plenary hearing his conviction was reversed, but this judgment in turn was reversed by the United States Court of Appeals. Hawks v. Peyton, 370 F.2d 123 (4th Cir. 1966). A petition for rehearing was refused, after which the United States Supreme Court denied certiorari. Hawks v. Peyton, 387 U.S. 925, 87 S.Ct. 2044, 18 L.Ed.2d 982 (1967).
All other allegations of the present petition were rejected by state courts and by the United States District Court for the Western District of Virginia. Hawks v. Peyton, 288 F.Supp. 94 (W.D. of Va.1968). Hawks' last effort failed in the Circuit Court of Carroll County in June, 1969.
Respondent, in his motion, asked us to consider the following questions:
Hawks contends that we should not consider the motion because it does not deny the allegations set forth in his petition. Respondent's position is that he should not be required to deny allegations which other courts have repeatedly ruled to be groundless, as shown in the 'Chronology of Litigation', attached to his motion. We will treat his motion as a motion to dismiss. See Ex parte Settle, 114 Va. 715, 718, 77 S.E. 496, 497 (1913).
Respondent, while not urging that we so hold, suggests that Code § 8--605 modifies the common law rule that the principle of res judicata does not apply to habeas corpus proceedings. He asks that this statute be construed as a rule of conclusiveness to prohibit frivolous use of habeas corpus petitions so that Hawks, and others like him, shall be denied the right to litigate endlessly, at state expense, issues which have been previously resolved.
Code § 8--605, applying solely to habeas corpus judgments, reads as follows:
'Judgment conclusive.--Any such judgment entered of record shall be conclusive, unless the same be reversed, except that the petitioner shall not be precluded from bringing the same matter in question in an action for false imprisonment.'
The statute in its present language has been in effect since 1849. Prior to that year Chapter 120 of the Revised Code of 1819 dealt with habeas corpus and included this provision:
Revised Code of 1819, Vol. 1, p. 470.
Thus, since 1849 the statute has been worded less restrictively than before.
The West Virginia statute, in identical language with § 8--605, has been construed as changing the common law rule by making an order in a habeas corpus proceeding remanding a petitioner to custody res judicata and conclusive on a subsequent application. State ex rel. Presty v. Lowe, 103 W.Va. 264, 137 S.E. 219 (1927). West Virginia also applies the principle of res judicata where the previous adjudication has been made by a federal court. State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851, 857 (1964); State ex rel. Cephas v. Boles, 149 W.Va. 537, 142 S.E.2d 463 (1965).
While our statute has not been directly construed, there are several cases which must be reviewed in considering it.
In Stonebreaker v. Smyth, 163 F.2d 498 (4th Cir. 1947), the petitioner had unsuccessfully sought release through habeas corpus proceedings in the Virginia courts. Thereafter, United States Supreme Court decisions were handed down which, by broadening his constitutional rights under the Fourteenth Amendment, changed the law applicable to his case. He filed a petition in the United States District Court which was denied. On appeal the judgment was affirmed because...
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Satcher v. Netherland
...appeal. On February 14, 1994, the Circuit Court entered an order dismissing the petition on the basis of the rule of Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970), which bars post-conviction relitigation on collateral attack of claims already raised and decided on direct appeal. Because o......
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Turner v. Williams
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Pruett v. Thompson
...argument, he notes that this order found many of the claims raised in the petition for appeal both repetitious under Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970)6 and procedurally barred under Slayton v. Parrigan. He argues both cannot logically be true, and that this order must be viewe......
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DeLong v. Thompson
...on their face and as applied, under the eighth and fourteenth amendments The Virginia Supreme Court applied the rule in Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970), and dismissed this claim for reasons of procedural default. Hence, this Court is likewise barred from reviewing this claim......