Hewett v. State of North Carolina

Decision Date28 August 1969
Docket Number12851.,No. 11772,11772
Citation415 F.2d 1316
PartiesJohn Henry HEWETT, Appellant, v. STATE OF NORTH CAROLINA, R. L. Turner, Warden, Central Prison, Appellees. Jerry Ray CASSADA, Appellant, v. STATE OF NORTH CAROLINA, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

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Graham C. Lilly, Charlottesville, Va., Court-appointed counsel, for appellants.

Jacob L. Safron, Raleigh, N. C., Staff Atty., Office of Atty. Gen. of N. C. (Robert Morgan, Atty. Gen. of N. C., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

We consolidated these habeas corpus appeals because each raises a question of mootness and a question of whether the petitioner was unconstitutionally denied the right to counsel when his probation was revoked. Petitioner Hewett's case also raises a question of exhaustion of available state remedies. We conclude that (a) Hewett exhausted state remedies as to his right to counsel at the revocation of his probation, and the district judge should have dealt with the issue of right to counsel on the merits, (b) the case of neither petitioner is moot, and (c) each petitioner had a right to counsel at the hearing on revocation of his probation, and this right was denied him. We reverse the judgments of the district courts, with directions to grant appropriate relief.

I

Petitioner Cassada was originally convicted in January, 1962, in a North Carolina Superior Court, upon pleas of guilty to two indictments charging breaking and entering, larceny and receiving stolen property. Resulting sentences of three to five years were suspended upon the conditions contained in N.C.Gen.Stat. § 15-199 (1965), inter alia, that he "violate no penal law of any state or the federal government and be of general good behavior." In November, 1965, Cassada pleaded guilty to other charges of carrying a concealed weapon and operating a motor vehicle without a proper driver's license and insurance. Immediately thereafter, he was brought before a judge for a determination of whether his probation on his first sentences should be revoked. At the hearing, Cassada requested that counsel be appointed to represent him, but this request was denied.1 A violation of probation was found to have occurred and Cassada was sentenced to a term of imprisonment of from three to five years.

While imprisoned, Cassada petitioned the United States District Court for the Western District of North Carolina for a writ of habeas corpus on three occasions. After the first petition was denied because of Cassada's failure to exhaust available state remedies, he petitioned the Supreme Court of North Carolina for a writ of certiorari, but the writ was denied by that court in May, 1966.

Following the state Supreme Court's denial of review, Cassada's next two petitions were filed pro se. The first contained several substantive allegations with which we are not concerned, and it was denied on June 10, 1966. The second alleged a denial of constitutional right in the failure to appoint counsel at the probation revocation proceeding. This petition was denied by the district court on the ground that no defendant, even though indigent, has a constitutional right to the appointment of counsel at a proceeding to revoke probation.

While Cassada's appeal was pending, but before oral argument, the state moved to dismiss the appeal on the ground that Cassada had finished serving his term and the case had, therefore, become moot.2 We denied the motion, without prejudice to the state to raise the issue later in the proceedings.

II

Petitioner Hewett was convicted in September, 1964, in a North Carolina Superior Court, upon his pleas of guilty to a series of charges, including store-breaking, larceny, escape from jail and injury to a building. Concurrent sentences of five to seven years were imposed, but service of the sentences was suspended and Hewett was placed on probation upon the conditions contained in N.C.Gen.Stat. § 15-199 (1965), inter alia, that he "avoid injurious or vicious habits."

About two years later, proceedings were begun to determine if Hewett's probation should be revoked. The state presented several witnesses, who were questioned at length by the solicitor for the state, the testimony of whom tended to show that Hewett had violated the condition of probation which we have quoted. Hewett requested the assistance of counsel but, when this request was denied, he attempted to conduct his own defense by cross-examining the state's witnesses and testifying in his own behalf. At the conclusion of the proceedings the judge found that Hewett had engaged in "injurious and vicious habits" and ordered that his probation be revoked. Hewett was relegated to serve the concurrent jail sentences originally imposed. Hewett appealed, and the North Carolina Supreme Court affirmed, holding that the appointment of counsel at revocation of probation proceedings was not a constitutional requisite. The court theorized that the guilt-determining process ends after trial, conviction, sentence and appeal (if any); the only question at revocation proceedings is whether the terms of probation have been violated. If so, the originally imposed sentence is automatically activated. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476, 479 (1967).

After the North Carolina Supreme Court had denied relief, Hewett filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. He alleged, inter alia, that his retention in prison was unlawful because he had been denied the assistance of counsel at the proceeding to revoke his probation. In the final paragraph of an addendum to his application, Hewett asserted that he had been under the "effect of drugs" (apparently prescribed during the course of hospital treatment) at the time of the revocation hearing. The district judge, without reaching the merits of the right to counsel issue, dismissed the entire petition on the theory that Hewett had failed to exhaust available state remedies concerning the allegation that he had been under the influence of drugs. Failure to exhaust was held to oust federal habeas corpus jurisdiction.

III

Hewett had exhausted the remedies available in the courts of North Carolina as to his claim that his constitutional right to counsel at the probation revocation proceeding had been denied. The contention was directly presented to the North Carolina Supreme Court in State v. Hewett, supra, and rejected. Exhaustion as to it had thus occurred. Grundler v. North Carolina, 283 F.2d 798, 800 (4 Cir. 1960).

The issue, then, is whether the introduction of the claim that he had been under the "effect of drugs" at the time of the revocation hearing, in a memorandum attached to Hewett's third petition pro se for habeas corpus, should be permitted to delay the determination of the right to counsel issue as to which exhaustion had clearly occurred. The answer is suggested in Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936, 939-941 (4 Cir. 1964), where, after extensive review of Supreme Court decisions, we stated in regard to the rule of exhaustion codified in 28 U.S.C.A. § 2254 (b) "in sum, exhaustion is a doctrine of comity; not a definition of power," and in Williams v. Coiner, 392 F.2d 210, 213 n. 2 (4 Cir. 1968), in which we pointed out that exhaustion "is not a jurisdictional concept but simply a flexible matter of comity." Moreover, in Williams, we directed the district court, upon remand, to determine an issue as to which exhaustion had not occurred because it was closely connected with an issue which had been fully presented to the state courts.

Directly in point are cases which hold that a district court must consider an exhausted claim even though an unrelated claim is pending in the state courts, United States ex rel. Sniffen v. Follette, 393 F.2d 726 (2 Cir. 1968), and that a district court may not dismiss a petition in toto when both exhausted claims and unrelated unexhausted claims are contained in the same petition, United States ex rel. Levy v. McMann, 394 F.2d 402 (2 Cir. 1968).

These cases, which we find persuasive, are fully applicable here. From the standpoint of comity, further proceedings should not be required in the state courts with regard to the issue of right to counsel. If it is assumed that Hewett has properly raised the question of drug influence, this claim is in no way related to the right to counsel contention. Since the latter has been fully explored by the state courts, it is ripe for federal consideration. We conclude that the district judge was in error in dismissing the petition on this ground.

IV

Although both petitioners have served the terms of imprisonment imposed when the probation was revoked, we conclude that neither case is moot.

In Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), the Supreme Court held that federal habeas corpus jurisdiction was not ousted when, pending disposition of the application for the writ, a prisoner was released after having served his full sentence. More recently, the Court has stated flatly that the "mere possibility" that "adverse collateral legal consequences" will flow from a prior conviction is sufficient to rescue the case from the potential "limbo of mootness." Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 (1968). See, Ginsberg v. New York, 390 U.S. 629, 633 n. 2, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).

In the instant appeals North Carolina seeks to distinguish these decisions on the ground that there criminal convictions were involved, whereas here the underlying convictions have not been challenged and will, therefore, remain in full effect no matter what we decide today. This distinction is not persuasive. See, Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 471, 1 L.Ed.2d 393 (1957) (...

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