Hudson v. State of Alabama

• Decision Date: 07 August 1973
• Docket Number: Civ. A. No. 4008-N.
• Citation: 361 F. Supp. 1102
• Parties: Joe Ed HUDSON, Petitioner, v. STATE OF ALABAMA, Respondent.
• Court: U.S. District Court — Middle District of Alabama

361 F. Supp. 1102

Joe Ed HUDSON, Petitioner, v. STATE OF ALABAMA, Respondent.

Civ. A. No. 4008-N.

United States District Court, M. D. Alabama, N. D.

August 7, 1973.

Edwin K. Livingston, Montgomery, Ala., for petitioner.

William J. Baxley, Atty. Gen. of Ala., Kent B. Brunson, Asst. Atty. Gen. of Ala., Montgomery, Ala., for respondent.

ORDER

VARNER, District Judge.

This cause is now submitted for final determination upon the applications for writ of habeas corpus and upon all pleadings and evidence. Joe Ed Hudson filed two separate but related applications for writ of habeas corpus, said applications being considered together for the convenience of the parties and due to the relationship of said applications.

In the first application, Petitioner alleges that the sentences imposed upon him in Chilton County, Alabama (Circuit Court Case Nos. 7991 and 7992) on October 27, 1948, are unconstitutional in that (1) he was denied the effective assistance of counsel in connection with said convictions¹; (2) he was refused counsel for preliminary hearing; and (3) he has been denied the right to appeal from an adverse ruling on a petition for writ of error coram nobis. While these sentences have been served, the Petitioner alleges that setting said sentences aside would reduce the amount of time left to be served on a Lowndes County sentence to which he is subject.

Second, Petitioner alleges that the sentence he is presently serving (25 years for the offense of robbery imposed by the Circuit Court of Lowndes County, Alabama, on September 17, 1951, in Case No. 573) is unconstitutional in that he was not represented by counsel at arraignment and in that he was denied the effective assistance of counsel at trial. The Petitioner began serving this sentence on February 28, 1970, after completing his Chilton County sentences.

The Court will first address itself to the Lowndes County conviction. Upon a thorough examination of the evidence, this Court is of the opinion that the Petitioner has failed to establish any facts which would entitle him to relief. The evidence shows that the Petitioner has received a full and adequate hearing in all phases thereof in State Court and that said Petitioner has not been denied any due process. The evidence reveals that said Petitioner appeared with counsel representing him and changed his plea from not guilty to guilty. This plea of guilty waived these defects which were not asserted to have induced the plea. Busby v. Holman, 356 F.2d 75, 77 (5th Cir. 1966).

The Court now turns its attention to the Chilton County cases. It was stipulated at the hearing in this Court that state remedies were exhausted, but the State insists that, since these sentences have been served, this Court has no jurisdiction to question the priority thereof.

It has long been recognized that a conviction and sentence may not be attacked where the allegedly invalid sentence has already been served. Diehl v. Wainwright, 423 F.2d 1108 (5th Cir.). The theory of such holdings is that the issue is moot since the sentence has been served and the petitioner cannot be reinstated to any right which he originally had. However, the law in this circuit appears to be that, where a petitioner serves consecutive sentences and the first sentence is found to be void, the second sentence must be construed to have commenced to run as of the date of imposition thereof or such other date as it would normally have commenced to run had the first sentence not been in effect. Johnson v. Henderson, 455 F.2d 983 (5th Cir.); Meadows v. Blackwell, 433 F.2d 1298 (5th Cir.). It would, therefore, appear that questions of constitutional impropriety of the first sentence could not be considered moot since they effect the time when the second sentence which the Petitioner is presently serving actually commenced to run.² This case falls within the rule of Cappetta v. Wainwright, 406 F.2d 238 (5th Cir. 1969), which decided that a district court has jurisdiction to pass on a prior conviction, even though the sentence has been completely served when the petition for habeas corpus is filed, if there is a definite relationship between the prior conviction and sentence and the sentence currently being served. See Diehl v. Wainwright, 423 F.2d supra at 1109. It appears to this Court that, if the Chilton County sentence is set aside, then the Lowndes County sentence must be considered to have commenced to run on the date of imposition thereof and that, therefore, the question of propriety of the Chilton County sentence is not moot, though that sentence has been served. The apparent improprieties of the Chilton County sentences, under these circumstances, are not cured by the completion of service of those sentences.

The State insists that the Petitioner's delay in assertion of the errors, now insisted to be fatal to the two convictions, should defeat his claim. Delay in assertion of constitutional errors essentially involves at least two considerations: First, whether or not the delay effects a laches, waiver, estoppel, or some other legal cognizable reason for denying the relief; and, second, whether or not the delay, coupled with other aspects bearing on the weight of the evidence offered to prove the Petitioner's claim, effectively destroys the credibility of the evidence supporting the claim.

In regard to the credibility of a claim of constitutional improprieties alleged to have occurred in ancient trials, the Court in Dixon v. Caldwell, 471 F.2d 767 (5th Cir.), quotes the Court in Tyler v. Beto, 391 F.2d 993 (5th Cir.), that "credibility is for the trier of the facts and the uncontradicted testimony of a witness does not have to be accepted." However, that case makes it plain that such testimony must at least be considered. Considering that a convicted felon's credibility is basically suspect, the fact that the Petitioner has waited many years to file his claim may reasonably be argued to largely strip his claim of credibility. However, at first blush, the Petitioner's claims of constitutional error in Chilton County appear to be largely supported by the record.

The arraignment in these cases was on October 21, 1948, at which time said Petitioner pleaded not guilty. The trial of said causes was set for October 27, 1948, at which time the Petitioner renewed his not guilty plea. The jury then returned guilty verdicts in both cases. The record does not show that any evidence was presented by the State and, further, eleven of the jurors were the same in both cases. This sketchy record alone would, without more, make the defense attorney's competency questionable.

On August 9, 1965, a hearing was held on Hudson's writ of error coram nobis. While some aspects of the coram nobis hearing are confusing and uncertain, several factors are quite clear: (1) Mr. Hudson did not see his attorney until late Friday August 6, 1965. This was only two days before the hearing and apparently little time was spent at this meeting; (2) Mr. Hudson requested several witnesses but the State did not assist him in obtaining said witnesses; (3) the evidence indicating that the State's attorney may have misdirected some of the defense witnesses. All of the above facts raise serious questions as to whether Mr. Hudson was afforded due process at the coram nobis hearing.

During the coram nobis hearing, Hon. Alvin B. Foshee testified on behalf of the State. Mr. Foshee was the County Solicitor for Chilton County during the time in question and assisted in the prosecution of the cases. Mr. Foshee testified that there was an agreement made between the attorneys and that said agreement was affirmed by the jury. The agreement was that Hudson would receive a total of 25 years for the two alleged crimes. Mr. Foshee further testified that he never heard Hudson agree to said arrangement but merely assumed that he did agree. However, Hudson testified in this Court that he did not consent to the agreement but rather insisted upon a trial because he was innocent. Mr. Hudson's mother also testified in this proceeding that she was with her son until he entered the courtroom and that she does not remember any discussion about an agreement and that her son insisted that he wanted a trial.

The record, if believed, shows that Petitioner was found guilty without trials on two cases in which he pleaded not guilty. Failure of his attorney to question this procedure without more would justify a conclusion that Petitioner was denied effective assistance of counsel. However, Mr. Foshee, the County Solicitor aiding in the prosecution, testified that defense counsel was one of the better criminal lawyers in the State and that the sentences were based upon an agreement between the Circuit Solicitor and the defense counsel, both of whom are now deceased.

This Court judicially knows that the statute proscribing robbery in Alabama places on the jury the discretion of setting the sentence and that the practice in disposing of uncontested cases in some circuits has been the following: The defendant would plead not guilty, but his lawyer or the solicitor would explain to the jury in the presence of the defendant that it was agreed that he was guilty and that a fair sentence would be a certain number of years; and that, so forearmed, the jury would retire and shortly thereafter report a verdict supporting the agreed finding of guilt and sentence. This appears to have been the practice in Chilton County, Alabama, at the time the Petitioner was sentenced. An understanding of this practice demonstrates why a competent lawyer should not object to a jury's finding his client guilty without any formal presentation of evidence, and it further demonstrates why the prisoner himself was so long mute under the circumstances. The Chilton County sentences were by consent.

As a result of the uncertainties and complicities of this proceeding, the Court will also consider the question of whether Petitioner's claim is,...