Inge v. Slayton

• Decision Date: 04 June 1975
• Docket Number: Civ. A. No. 73-494-R.
• Citation: 395 F. Supp. 560
• Parties: Bobby Carl INGE v. A. E. SLAYTON, Jr., Sup't., etc.
• Court: U.S. District Court — Eastern District of Virginia

395 F. Supp. 560

Bobby Carl INGE v. A. E. SLAYTON, Jr., Sup't., etc.

Civ. A. No. 73-494-R.

United States District Court, E. D. Virginia, Richmond Division.

June 4, 1975.

Daniel A. Carrell, Joseph C. Carter, Jr., Richmond, Va., for plaintiff.

Robert E. Shepherd, Jr., Asst. Atty. Gen. of Virginia, Richmond, Va., for defendant.

MEMORANDUM

MERHIGE, District Judge.

Bobby Carl Inge, a Virginia prisoner currently on parole, brings this petition for a writ of habeas corpus in which he challenges his 1962 and 1965 convictions in the Corporation Court for the City of Newport News, Virginia — now the Circuit Court for the City of Newport News — on the grounds that in both instances he was denied due process of law. More specifically, petitioner contends that he was a juvenile at the time he was charged with each of the offenses for which he was convicted and that the juvenile court proceedings prior to his certification to Corporation Court for treatment as an adult offender were defective. He further alleges that the Corporation Court proceedings themselves rectified only certain irregularities which occurred at the juvenile court level and that the Corporation Court denied him due process of law by failing to divulge its reasons for retaining the criminal actions against him. Jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 2254.

While the facts in this matter are complicated by the absence of complete state court records — some of which were destroyed pursuant to state law — there is sufficient evidence before it for the Court to decide the issues raised. The record does indicate that on September 24, 1962, petitioner, than age 16, appeared before the Juvenile Court for the City of Newport News on a series of charges, two of which—burglary and grand larceny—were certified by the court to the grand jury. Subsequently, petitioner pled guilty to and was convicted of statutory burglary on October 29, 1962 in the Corporation Court for the City of Newport News and was sentenced to serve two years in the Virginia State Penitentiary.

Again in 1964, petitioner, then age 18, appeared before the Juvenile Court for the City of Newport News charged with several offenses, four of which were again certified to the grand jury. Thereafter on May 4, 1965, petitioner pled guilty to and was convicted of statutory burglary and was sentenced to serve five years in the penitentiary.

After having completely served his sentences for the 1962 and 1965 convictions, on May 19, 1971, petitioner was convicted of hit-and-run in the Hustings Court for the City of Newport News — now also the Circuit Court — and was sentenced to serve four years in the penitentiary. Thereafter, on November 24, 1971, recidivist proceedings were instituted against petitioner in the Circuit Court for the City of Richmond, based in part upon the 1962 and 1965 convictions in Newport News. Petitioner was convicted on this charge and an additional three-year sentence was imposed upon him.

On December 6, 1971, petitioner filed a pro se petition for a writ of habeas corpus in the Corporation Court for the City of Newport News in which he stated that the grounds which made his detention unlawful were:

DENIAL OF DUE PROCESS OF LAW, IN THAT:

1. Petitioner was denied a juvenile hearing to determine his ability to stand trial as an adult; and

2. Petitioner was denied counsel for a juvenile hearing.

Subsequently, counsel was appointed to represent petitioner and on November 13, 1972 an evidentiary hearing was held. At that time petitioner, by counsel, introduced into evidence the records of the Juvenile and Domestic Relations Court of matters pertaining to the petitioner in the years 1962 and 1964. Petitioner also testified that he did not recall being represented by counsel at his September 24, 1962, hearing before the Juvenile and Domestic Relations Court. He further stated that while he was represented by counsel at the time of his appearance before the Juvenile Court in 1964, no evidence was taken at that time as to whether he should be tried as a juvenile or an adult.

Upon cross-examination, petitioner testified that he was represented by counsel and pled guilty to the charges against him at his October 29, 1962 trial in Corporation Court. He also stated that he had appeared before the Juvenile Court on at least five occasions prior to the filing of charges against him in 1962 and that on at least two of those occasions he had been treated as an adult offender. Petitioner further stated that his parents had posted his bond prior to the 1962 Juvenile Court hearing. With regard to the 1964 charges, petitioner testified that he was represented by counsel in both the Juvenile and Corporation Court proceedings.

Evidence adduced on behalf of the Commonwealth of Virginia at the petitioner's hearing came from his former counsel and the Chief of Probation and Detention of the Newport News Juvenile Court. His former counsel testified that while some of his old records had been destroyed, he recalled representing the petitioner before the Juvenile and Corporation Courts with regard to the charges filed against the petitioner in September of 1964. He also noted that although he had no specific recollection as to the matters raised during the 1964 Juvenile Court proceeding, he could state that he recalled the Juvenile Court Judge invariably passed on whether a juvenile should be tried as an adult prior to certifying cases.

The probation officer then testified that he had been the probation officer assigned to petitioner in both 1962 and 1964. He stated that prior to his 1962 appearance before the Juvenile Court, petitioner has appeared on several occasions and, apparently based upon the disposition of the previous charges, had been treated as an adult offender. He additionally stated that the Juvenile Court Judge always held hearings on whether to treat a juvenile as an adult offender but that the Juvenile Court Judge never treated a juvenile as such if the juvenile had a previous record in the court of being treated as an adult offender. He indicated that the Juvenile Court Judge who presided over petitioner's proceedings was still sitting in that capacity and that while he had prepared and orally presented in court an investigative report for the 1962 and 1964 juvenile proceedings, he no longer had a copy of them.

On November 20, 1972, the Corporation Court dismissed the petition and a petition for a writ of error was denied by the Supreme Court of Virginia by order of June 26, 1973. Thereafter, on September 27, 1973, the petition sub judice was filed in which petitioner alleges three basically independent grounds for voiding his 1962 and 1965 convictions. They are:

1. That his conviction in the Corporation Court for the City of Newport News of October 29, 1962, was void by reason of his not having the assistance of counsel in the Juvenile Court for the City of Newport News when that court waived jurisdiction over petitioner and ordered the case certified to the Corporation Court;

2. That his conviction of October 29, 1962 was also void by reason of the fact that there is no record of notice to his parents or of his parents' presence at that proceeding;

3. That his convictions in Corporation Court on October 29, 1962 and May 4, 1965, are void because when each of those cases was certified to the court of record by the waiver of jurisdiction by the Juvenile Court, the Juvenile Court did not state the reasons for such waiver nor does petitioner recall any actual hearing being held to determine whether the Juvenile Court should retain jurisdiction over him or whether he should be certified to the Corporation Court for trial as an adult.

The threshold question raised by the respondent concerns petitioner's alleged failure to exhaust his available State remedies with regard to the issue of notice to or the presence of his parents at the 1962 Juvenile Court proceedings. Respondent contends that this issue was not raised by petitioner in his State habeas corpus petition and that, although it was noted in his petition for a writ of error to the Virginia Supreme Court, it was not actually ruled upon by that Court.

Petitioner alleges, however, that this issue was implicit in his State petition on due process grounds. In the alternative, petitioner argues that he no longer has any State court remedies available to him by virtue of the Virginia Supreme Court's recent ruling in Smith v. Superintendent of Virginia State Penitentiary, 214 Va. 359, 200 S.E.2d 523 (1973). There, with facts very similar to those present in the instant petition, Smith, in a habeas corpus proceeding, attacked a recidivist sentence on the ground that it was based in part upon a conviction against him in 1945. Smith further alleged that the 1945 conviction was void because he was denied proper juvenile court procedures in that he had not been properly certified for trial as an adult and had not been tried with the assistance of an attorney or guardian. In ruling that Smith lacked standing to challenge his 1945 conviction, the Virginia Supreme Court held:

The question thus presented for decision is whether a prisoner detained under a recidivism sentence has standing to attack by habeas corpus the validity of one of the convictions underlying the determination of his status as a recidivist when the sentence imposed for the challenged conviction has been fully served. We answer in the negative. We hold that such an attack must be made in the recidivism proceeding itself, else any objection to a prior conviction, the sentence for which has been fully served, shall be deemed forever waived. 200 S.E.2d at 524.

Consequently, and despite respondent's contention that petitioner may still attack his recidivist proceeding on the ground that counsel was ineffective in failing to assert an attack on the 1962 and 1965 convictions, the Court finds that the petitioner has no right under Virginia law to...