Jones v. Cunningham

• Decision Date: 03 January 1962
• Docket Number: No. 8385.,8385.
• Citation: 297 F.2d 851
• Parties: Claude O. JONES, Jr., Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

297 F.2d 851 (1962)

Claude O. JONES, Jr., Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee.

No. 8385.

United States Court of Appeals Fourth Circuit.

Argued October 3, 1961.

Decided January 3, 1962.

John W. Edmonds, III, Richmond, Va. (Court-assigned counsel), for appellant.

Reno S. Harp, III, Asst. Atty. Gen., of Virginia (Frederick T. Gray, Atty. Gen. of Virginia, on brief), for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and MICHIE, District Judge.

SOBELOFF, Chief Judge.

This state prisoner, Claude O. Jones, now in the custody of the Warden of the Virginia Penitentiary under consecutive sentences aggregating thirty-nine years, claims that he was denied the effective assistance of counsel at his trial on informations containing three counts of breaking and entering, two of grand larceny and one of possession of burglary tools. His claim was rejected by the state courts without a hearing, and certiorari was denied by the Supreme Court "without prejudice to an application for writ of habeas corpus in the appropriate United States District Court." Jones v. Smyth, 364 U.S. 853, 81 S.Ct. 72, 5 L.Ed.2d 76 (1960). Jones then addressed a petition for such a writ to the United States District Court for the Eastern District of Virginia, but this likewise was dismissed without a hearing. No plenary hearing ever having been given the petitioner in any court upon the issue raised, the only question on this appeal is whether sufficient facts are alleged in the petition to require the District Court to afford him an opportunity to prove them. For purposes of this inquiry, his allegations must be taken as true. They are as follows:

"On August 8, 1951, petitioner was arrested at his parents\' home by the authorities of Lunenburg County, Virginia, and subsequently lodged in jail without first having been presented with a warrant of arrest on any valid charge.

"That at the time of the petitioner\'s arrest he was seriously ill and in an alcoholic daze and was not permitted to contact an attorney at law or his family.

"That he was interrogated constantly by the authorities in a coercive manner and denied medical attention until a confession was obtained; that some four or five days after petitioner was forced to submission and unwittingly agreed to a statement amounting to guilt.

"That upon being forced into a statement by the authorities, petitioner was still held incommunicado in jail, and not presented before the Court to face any formal charge until the 18th day of August, 1951, ten days after his unlawful arrest, at which time, he learned for the first time what he was charged with.

"That upon appearing in Court petitioner was forced into a plea of guilty, and only after pleading, was he assigned counsel to represent him; that this was the first contact allowed with an attorney at law since his unlawful incarceration, and that upon his court-appointed counsel stepping into the case, the said counsel remarked to the petitioner: `Well, you\'ve made a confession there\'s nothing I can do for you.\'

"That thereupon the attorney for the Commonwealth brought forth his informations and told the appointed counsel that petitioner had already agreed to waive indictment and trial by jury and that he had the waivers and informations prepared; that then the court-appointed attorney had the petitioner to sign the waivers.

"That thereafter petitioner was tried within a matter of minutes on the six charges against him, and on the 30th day of August, 1951, petitioner was sentenced to confinement in the penitentiary for an aggregate sentence of thirty-nine (39) years."

Although it may be a complete fabrication, this detailed account raises substantial constitutional issues. It follows, therefore, that the District Court erred in dismissing the petition without a hearing, and its judgment must be reversed.

Of those protections which the state is required under the Constitution to furnish an indigent defendant, perhaps the most salutary is the "guiding hand of counsel." See Powell v. State of Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). While in non-capital cases not every defendant is constitutionally entitled to this protection, the Supreme Court has laid down the rule that where the circumstances are such as to prevent an indigent defendant from adequately conducting his own defense, the state, in the absence of waiver, is obligated to appoint counsel to defend him. See Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1945); Uveges v. Com. of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948); Palmer v. Ashe, 342 U.S. 134 (1951). Review of the relevant cases convinces us that the State was obligated to provide the present petitioner with counsel.¹

The crimes of which Jones stood accused, though not capital, were of a serious nature and carried in combination a maximum penalty of seventy years. He alleges that he was brought into court and required to plead while under the compulsive effect of an illegally obtained confession. Unaided, he was without knowledge of the legal steps he would have to take in his own behalf to exclude this confession, nor could he know at what stage of the trial such steps must be taken lest the point be irretrievably waived. Whether counsel could have successfully attacked the confession, we need not say. It is plain, however, that the procedural and substantive problems of such a challenge and the obvious advantage of interposing it at the trial and preserving the point for review on direct appeal rather than relying on a later collateral attack² strongly indicate this petitioner's need for professional guidance.

A second question confronting the petitioner, with which, as a layman, he was not competent to deal, was whether under Virginia law he could properly be convicted of both breaking and entering with intent to commit larceny and the larceny itself. On this issue the Virginia Supreme Court of Appeals has said, "Where the breaking and entering with intent to commit larceny and the commission of the larceny are one continuous act, the accused can only be convicted of the offense of breaking and entering with intent to commit larceny, * * *." Clark v. Commonwealth, 135 Va. 490, 115 S.E. 704, 706 (1923).³ It would be unreasonable to expect a layman to be aware of this state decision or to understand how it might help him. These are problems which only a skilled lawyer could handle, and on this issue also the petitioner was sorely in need of professional counsel.⁴

Analogous to the present case are Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1945), where the legal question was whether an offense committed on an Indian Reservation could be tried in a state court, and the Court held that this was of sufficient intricacy to require the appointment of counsel; and Hudson v. State of North Carolina, 363 U.S. 697, 80 S.Ct. 1314, 4 L.Ed.2d 1500 (1960), where the Court held that the tactical situation created by a plea of guilty unexpectedly entered by a co-defendant during the course of trial established the need of counsel. Surely, the two legal problems, with which the present petitioner was faced, are as baffling to a layman as the jurisdictional question in Rice v. Olson, or the jury instruction problem in Hudson v. North Carolina.⁵

We therefore reach the question whether, under the facts alleged, the State complied with its duty to supply counsel or gave it a merely formal recognition. The act of appointing counsel is not enough if in the circumstances the traverser is not afforded in any substantial sense professional advice and assistance.

In Powell v. State of Alabama, 287 U. S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court held that the appointment of "all the members of the bar" and an out-of-state attorney on the day of trial was "far short of meeting, in any proper sense, a requirement for the appointment of counsel." 287 U.S. at 56, 53 S.Ct. at 59. Later the Court said in Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), "The denial of opportunity for appointed counsel to confer, to consult with the accused and to...