Holland v. Boles, Civ. A. No. 1245-W.

Decision Date16 December 1963
Docket NumberCiv. A. No. 1245-W.
Citation225 F. Supp. 863
PartiesRichard HOLLAND, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.
CourtU.S. District Court — Northern District of West Virginia

Jeremy C. McCamic, Jolyon W. McCamic, Wheeling, W. Va., for petitioner.

Thomas B. Yost, Asst. Atty. Gen., for respondent.

CHARLES F. PAUL, Chief Judge.

Richard Holland is serving a life sentence, imposed in 1952, for murder. He complains that he did not enjoy his constitutional right to the effective assistance of counsel in the proceedings leading up to his conviction and sentence, because his lawyer was serving conflicting interests and could not and did not give his undivided loyalty to Holland's case.

Holland made the same contention in habeas corpus procedings before a State court in 1957. At the conclusion of a plenary evidentiary hearing, his claim was denied. Finding that that hearing was a full and fair one, this court will give full effect to the State court's findings of historical fact, insofar as there were such findings,1 but it cannot, pursuant to the guidelines laid down in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), give binding effect to the ultimate conclusion of the State court.

Holland and his sister June were jointly indicted by the grand jury for the same murder. Neither having funds to employ a lawyer, another sister employed one, Perry, to represent both. Both were arraigned by the regular Judge of the Common Pleas Court of Cabell County on the same day, and, with Perry representing them, entered pleas of not guilty and their cases were continued for trial. The regular judge died shortly thereafter and a special judge was elected by the Bar of the court, under appropriate statutory provisions, for the purpose of trying their cases. Perry negotiated with the Prosecuting Attorney and secured an agreement of the latter, as a package deal, that he would recommend to the court the acceptance of a plea of first degree murder by Holland, and would recommend life imprisonment, and a plea of guilty to voluntary manslaughter by June, carrying the mandatory sentence of 1 to 5 years. Perry recommended this arrangement to his clients and Holland readily agreed. Accordingly, the two, with Perry, appeared before the special judge, withdrew their pleas of not guilty, entered their guilty pleas, which were accepted by the court, and the agreed-upon sentences were imposed.

At the habeas corpus hearing held some 5 years later, it was shown that Perry had knowledge of the following factual situation:

The victim, Holland and his sister June, were mutual friends and had been engaged in a prolonged drinking party at Holland's mother's house, when a sudden altercation developed. The victim was knocked down by a blow upon the head. The record here does not show who inflicted the blow or with what instrument or effect, but Holland, in an intoxicated condition, brutually kicked the victim's face and head, whether before or after death does not appear. If the cases had gone to trial, Perry planned to defend June by attempting to show that Holland was solely responsible, and, to this end, had armed himself with a written statement by Holland exculpating June. Perry was convinced that Holland was principally responsible, but that June was involved, and was afraid that, because of the brutal nature of the murder, juries might convict both of the homicide and that the verdict against Holland might be for first degree murder without recommendation for mercy, and so advised both clients. This, in spite of the fact that the West Virginia statute (Code Chapter 61, Article 2, Section 1; Michie's Code Section 5916) makes premeditation an essential element of first degree murder, and that Perry knew that the killing was not in pursuance of any preconceived plan or in the commission of any other crime mentioned in the statute.

Even without second guessing the attorney on the propriety or desirability of the advice he gave his clients, it is impossible to escape the conclusion that he was laboring under the impossible task of correctly and effectively advising two clients with divergent interests.

The law is clear that such an attempt to serve two masters with conflicting interests renders the attorney incapable of giving to either the impartial, disinterested and effective representation that is the constitutionally-protected right of each. See, e. g., Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The constitutional infirmity inherent in proceedings conducted under such circumstances is not affected by the fact that the attorney with the dual and irreconcilable loyalties is privately employed rather than court appointed. Cf. Case v. North Carolina, 315 F.2d 743 (4 Cir. 1963); United States v. Harris, 155 F.Supp. 17 (D.C.Cal.1957); Porter v. United States, 298 F.2d 461 (5 Cir. 1962); Craig v. United States, 217 F.2d 355 (6 Cir. 1954).

There remains for consideration the effect, if any, of the fact that the record here is devoid of proof that either the regular judge or the special judge was sufficiently aware of the factual situation to recognize and appreciate the inevitable conflict of interests. The effect upon the accused is the same whether or not the court knew Holland was improperly represented. He has not been accorded the effective representation by counsel to which he is constitutionally entitled under the decision of the Supreme Court in Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (...

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14 cases
  • State v. Eden
    • United States
    • Supreme Court of West Virginia
    • July 10, 1979
    ...full knowledge of all facts and of his rights, but a full appreciation of the effects of his voluntary relinquishment. Holland v. Boles, 225 F.Supp. 863 (N.D.W.Va.1963). This Court has held that courts indulge every reasonable presumption against waiver of a constitutional right and will no......
  • State v. Kruchten
    • United States
    • Supreme Court of Arizona
    • August 2, 1966
    ...United States, 217 F.2d 355 (C.A.6, 1954); United States ex rel. Watson v. Myers, 250 F.Supp. 292 (E.D., Pa., 1966); Holland v. Boles, 225 F.Supp. 863 (N.D., W.Va., 1963); and for late cases finding that there was not a conflict, see Lugo v. United States, 350 F.2d 858 (C.A.9, 1965); Peek v......
  • State ex rel. J. M. v. Taylor, s. 15076-15078
    • United States
    • Supreme Court of West Virginia
    • March 10, 1981
    ...... Holland v. Boles, . Page 202. 225 F.Supp. 863 (N.D.W.Va.1963). This Court has ......
  • Langford v. State of Alabama, 27006.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 19, 1970
    ...366 F.2d 611, 615 (9 Cir. 1966); United States ex rel. Williamson v. LaVallee, 282 F.Supp. 968, 971 (E.D.N.Y.1968); Holland v. Boles, 225 F.Supp. 863, 865-866 (N.D.W.Va.1963). 9 In Breedlove v. Beto supra, the Court articulated the differences between the two "The first argument for the How......
  • Request a trial to view additional results

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