James v. Copinger, 12474

• Decision Date: 16 June 1970
• Docket Number: 13024.,No. 12474,12572,12570,12474
• Parties: Robert JAMES, Appellant, v. Roger B. COPINGER, Warden, Maryland Penitentiary, Appellee. Preston HANCOCK, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee. Edward L. TIBBS, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee. Matthew Mack CALLAHAN, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

428 F.2d 235 (1970)

Robert JAMES, Appellant, v. Roger B. COPINGER, Warden, Maryland Penitentiary, Appellee.

Preston HANCOCK, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.

Edward L. TIBBS, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

Matthew Mack CALLAHAN, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

Nos. 12474, 12570, 12572, 13024.

United States Court of Appeals, Fourth Circuit.

Argued February 5, 1970.

Decided June 16, 1970.

Irvin B. Nathan, Washington, D. C., (Court-assigned counsel), for appellants.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., of Maryland (Francis B. Burch, Atty. Gen., of Maryland and Edward F. Borgerding, Asst. Atty. Gen., of Maryland, on the brief), for appellee Mark B. Copinger.

Reno S. Harp, III, Asst. Atty. Gen., of Virginia (Robert Y. Button, Atty. Gen., of Virginia, on brief), for appellee C. C. Peyton.

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

CRAVEN, Circuit Judge:

These four cases were consolidated for appeal because they present a common question of law. Each petitioner contends, inter alia, that he was denied due process under the fourteenth amendment because his statutory right to appeal was effectively denied. It is each petitioner's contention that he was unfairly deterred from prosecuting an appeal by fear of receiving increased punishment if successful in obtaining a new trial. We think as a matter of comity this question should first be presented to the respective state courts and remand these cases to the district courts with instructions.

I.

A. Robert James

Robert James was convicted of first degree murder and sentenced to life imprisonment by the Criminal Court of Baltimore on March 31, 1939. He did not appeal from his conviction and sentence. On May 7, 1965, he applied for relief under the Maryland Post Conviction Procedure Act.

In his state petition James raised eight points of error. Among these were allegations that his motion for a new trial had been denied because he was unable to pay an attorney to represent him on the motion and that his request for an appeal was denied because he was indigent and unable to afford a transcript or counsel. After a hearing the state judge rejected all of James' contentions and denied his petition. The state court made the following comment in its opinion:

The court is satisfied that he was not deprived of his right to have his Motion for New Trial heard because of indigency; it is apparent that he was content to have it withdrawn in consideration of the fact that he was to receive life imprisonment rather than capital punishment.

Memorandum Opinion of O'Donnell, J. at 6 (March 10, 1966). The Maryland Court of Special Appeals affirmed the trial court's denial of relief.

The statement quoted above was predicated, at least in part, on the testimony of James' court-appointed attorney. That testimony, in pertinent part, was:

THE COURT: Mr. James, the Petitioner here, says that this motion for a new trial which you filed on his behalf was not prosecuted, was withdrawn without his knowledge and without his consent. Do you have any recollection in connection with that, Mr. Henry?

THE WITNESS: I guess I do, your honor. I talked with the defendant. This is customary after a trial to talk with the defendant. I talked with Mr. James about his case and told him that I thought he made a good witness. I thought he had had a fair trial and I said you know we have a right under the law to file a motion for a new trial, but, now, if that motion is granted to get a new trial and you\'re found guilty * * * your punishment may be greater, and I said, how do you feel about it. As I recall, he said that he didn\'t want to prosecute the motion.

Q. In other words, was this after he had realized he would get life imprisonment?

A. That\'s right. I told him that.

Record, State Post Conv. Hear. (James), vol. 2, at 4-5 (February 14, 1966).

On May 16, 1967, James petitioned the United States District Court for a writ of habeas corpus, alleging that he had been denied the assistance of appellate counsel because of indigency. After argument by James' privately retained counsel, the district court, in an oral opinion, denied James' petition. In this opinion the district court stated, inter alia:

Now, the allegation that Mr. Henry withdrew the motion for a new trial without the consent of the petitioner and the petitioner did not waive this right is fully dealt with by Judge O\'Donnell and is rather clearly negatived by Mr. Henry\'s testimony in the postconviction hearing. The Court sees no reason to doubt what Mr. Henry said. Everything seems to tie together to make it perfectly clear that the motion for a new trial was not pressed and was in fact waived by the defendant and that the defendant, as I have said before, was satisfied that he escaped the death chamber.

Record, Proceedings in United States District Court for the District of Maryland (James) at 3 (April 5, 1968). James has appealed from this denial of his petition. On appeal he asserts for the first time that he was denied his state statutory right to appeal because of fear of receiving the death penalty on retrial.

B. Preston Hancock

On October 4, 1961, two Baltimore City Judges, sitting without a jury, convicted Preston Hancock of rape, assault with intent to murder, and burglary and sentenced him to death. The Maryland Court of Appeals reversed his conviction because the court reporter in attendance at his trial died, and there was, as a result, no transcript to review. At his second trial a single judge sitting without a jury again convicted Hancock of all three charges. This time he was sentenced to life imprisonment for rape and concurrent ten year sentences for the assault and burglary offenses. He noted an appeal, but withdrew it within a month after he was sentenced.

On February 15, 1965, Hancock filed a petition under the Maryland Post Conviction Procedure Act, alleging seven grounds for relief. Among these grounds was the contention that his attorney had induced him to abandon his appeal by promising to get him into a hospital. With reference to this point Hancock's attorney testified, in part, as follows:

Q. Mr. Hancock filed an appeal to the Court of Appeals in proper person, and then he withdrew it, and he states, or he stated on the stand that the reason he withdrew it was because you induced him to withdraw it by promising him that he would get into a hospital, or you would attempt to get him into a hospital. Is this true?

A. I don\'t have any notes. I remember when we tried the case, that I told Preston that I felt that he was very lucky as a result of the facts of this case that he was not sentenced to death, as he had been originally; that with a life sentence he now had an opportunity at some future date to be released from the hospital, that I felt — from the Maryland Penitentiary; that I felt that he was in need of psychiatric treatment and that he should — and that I would try to help him get psychiatric treatment. I asked him why he was appealing his case, and — well, this then becomes almost a confidential communication — nevertheless, after talking to Preston, I think he agreed that he should abandon sic the appeal because I did explain to him that if he was successful, which I doubt anyway, that he would be faced with another trial, and could possibly be sentenced to death.

* * * * * *

Q. Well, Mr. Weisgal, as a matter of fact, didn\'t your discussions concerning his abandoning his appeal border on the fact that he could get, in fact, a death sentence if he was retried again?

A. I brought that up to him. I explained that to him.

Q. And whose decision was it to abandon his appeal?

A. It was his decision.

Record, State Post Conv. Hear. (Hancock) at 55-57 (September 30, 1965). The state court denied Hancock's petition, and the Maryland Court of Special Appeals denied him leave to appeal.

Thereafter, on November 14, 1967, Hancock sought a writ of habeas corpus in the United States District Court. In his petition he raised ten grounds for relief, including the ground that he was induced to abandon his appeal by his attorney's promise to have him admitted to a hospital. The district court, after concluding that the state court hearing satisfied the requirements of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and 28 U.S.C. Section 2254(d) (Supp. IV. 1965-68), denied the petition. Regarding Hancock's abandonment of his state appeal the district court stated:

After the conviction, Mr. Weisgal explained to petitioner that if an appeal was taken, and if the appeal was successful, petitioner at the third trial could receive the death sentence if convicted. According to Mr. Weisgal, petitioner thereupon decided to abandon his appeal and in fact wrote a letter so stating.

* * * * * *

* * * Having been sentenced to death following his first trial and having received a life sentence after his second trial, petitioner was well advised not to prosecute a further appeal, particularly in view of the convincing evidence produced against him by the State. At a third trial, a conviction by a jury or by still another judge might have again resulted in the imposition of the death sentence. The record clearly shows that after filing an appeal after his second conviction, he knowingly abandoned the appeal for good and sufficient reasons.

Memorandum & Order of Harvey, J. at 7-8 (May 9, 1968). Hancock now appeals from the unfavorable order of the district court. On appeal he complains for the first time that he was unconstitutionally coerced into forgoing his statutory right to appeal by fear of receiving greater punishment at a subsequent trial.

C. Edward L. Tibbs

On December 12, 1960, the Corporation Court of Charlottesville, Virginia, imposed a 15-year sentence on Edward Tibbs for robbery by force and violence. Tibbs is...