Johnson v. Riddle

• Decision Date: 16 September 1977
• Docket Number: No. 76-2035,76-2035
• Citation: 562 F.2d 312
• Parties: John Calvin JOHNSON, Appellant, v. Walter M. RIDDLE, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 312

562 F.2d 312

John Calvin JOHNSON, Appellant, v. Walter M. RIDDLE, Appellee.

No. 76-2035.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 18, 1977.

Decided Sept. 16, 1977.

Randall M. Chastain, Columbia, S.C. (G. Anthony Campbell, U.S.C. Law Center, Columbia, S.C., on brief), for appellant.

Jim L. Chin, Asst. Atty. Gen., Richmond, Va. (Andrew P. Miller, Atty. Gen. of Va., Richmond, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and CRAVEN ^* and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

In this federal habeas corpus proceeding, petitioner John Calvin Johnson challenges the validity of a 1957 armed robbery conviction upon which a current three-year recidivist sentence is partially based. ¹ The district court denied relief, and we affirm.

Johnson directs four assignments of error at his 1957 conviction: (1) The systematic exclusion of black people from the grand jury that indicted him; (2) denial of his right of appeal; (3) ineffective assistance of counsel at the appellate stage of the proceedings; and (4) the use of an impermissibly suggestive identification procedure consisting of a pre-trial showup.

I Grand Jury Selection

Petitioner is precluded from raising the issue of the exclusion of black people from the grand jury that indicted him in 1957. Under State law, such an issue must be raised at a preliminary stage of the original State court proceeding, prior to the time a plea is entered on the merits, or else the objection is waived. Bailey v. Commonwealth, 193 Va. 814, 71 S.E.2d 368 (1952). Petitioner having raised this issue for the first time 17 years after his trial and conviction, his objection was waived under State law, and cannot, under the facts before us, be asserted now in a federal habeas corpus proceeding. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). Neither cause for the failure to raise the point at the time nor actual prejudice has been shown here. Francis, p. 542, 96 S.Ct. 1708.

II Right to Appeal and Ineffective Assistance of Counsel

Although petitioner's brief phrases this aspect of the case in terms of denial of a right to appeal and ineffective assistance of counsel, both of these claims share the same factual basis, that petitioner told his appointed counsel that he wished to appeal his 1957 conviction but that counsel failed to follow through on the request.

Petitioner chose to raise these claims for the first time seventeen years after his trial and conviction, although nothing prevented him from doing so at a time when the State might have had a chance of reconstructing the record and surrounding events in an effort to explain why an appeal was never filed. We agree with the district court that petitioner's contention is raised too late to avail him. See Lunnermon v. Peyton, 310 F.Supp. 323 (W.D.Va.1970), aff'd per curiam in 440 F.2d 774 (4th Cir. 1971).

While in other contexts substantial delays in seeking habeas corpus relief have not precluded consideration of the points raised, see, e.g., Garland v. Cox, 472 F.2d 875 (4th Cir. 1973); Hairston v. Cox, 459 F.2d 1382 (4th Cir. 1972), in neither case cited was there so great, and so unjustified, a potential for prejudice to the Commonwealth. In Garland, for example, it was undisputed that petitioner's counsel had first been appointed the day of the trial, raising a strong presumption of ineffective assistance. And in Hairston, a case arising prior to Francis v. Henderson, supra, there was ample opportunity to gather evidence pertaining to the long standing practice of unconstitutionally excluding black people from grand jury service.

In the present case, in contrast, we have only petitioner's allegation that he requested an appeal, and that counsel failed to perfect one. Based on this allegation, easily made after 17 years of silence but obviously difficult to disprove, petitioner would have us remand for an evidentiary hearing, where, presumably, the State should be required to rebut what, on its face, is a claim that might entitle petitioner to the relief he seeks. If the State were shown to have a reasonable opportunity to make the kind of factual reconstruction necessary to such a task, that might be another case, but nothing in the record suggests the opportunity exists after a lapse of 17 years.

In arriving at our decision, we also give weight to the fact that petitioner makes no effort to explain or to justify the delay. Indeed, he did not even challenge the conviction now before us at the recidivist proceeding itself in 1971, where, generally, the only defense is the invalidity of a previous conviction. Smith v. Superintendent, 214 Va. 359, 200 S.E.2d 523 (1973). This failure is given added significance in this case because, in response to the State's contention that he still has available a State habeas corpus remedy by asserting the ineffective assistance of counsel at the 1971 recidivist proceeding, the petitioner here denies that he was ineffectively represented in the recidivist proceeding in 1971, thus admitting effective representation in the very proceeding from which came the sentence he is attacking. Because his admittedly effective counsel did not assert the invalidity of the 1957 conviction, we may only assume that in 1971 the petitioner did not have reason to believe his 1957 conviction was invalid because of any denied right to appeal, and, in the context we find the omission here, it must weigh heavily against the petitioner's position. It would be strange indeed that an admittedly effective attorney did not assert a good defense, and no explanation...