Kelly v. State of North Carolina

• Citation: 276 F. Supp. 200
• Decision Date: 19 October 1967
• Docket Number: Civ. No. 2020.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: James Rayford KELLY, Petitioner, v. STATE OF NORTH CAROLINA, Vance Co., Raymond Hayes, Respondents.

276 F. Supp. 200

James Rayford KELLY, Petitioner, v. STATE OF NORTH CAROLINA, Vance Co., Raymond Hayes, Respondents.

Civ. No. 2020.

United States District Court E. D. North Carolina, Raleigh Division.

October 19, 1967.

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COPYRIGHT MATERIAL OMITTED

James Rayford Kelly, pro se.

T. Wade Bruton, Atty. Gen. of North Carolina, by Theodore C. Brown, Jr. Staff Atty., Raleigh, N. C., for respondents.

OPINION and ORDER

LARKINS, District Judge:

SUMMARY

This cause comes before the Court upon an application for a writ of habeas corpus filed by a State prisoner pursuant to the provisions of Title 28 U.S.C.A. § 2254. By leave of the Court, the application was filed in forma pauperis. Issues were joined by respondents' Answer to Petition and Motion to Dismiss.

Petitioner alleges that he is being held in custody in violation of rights guaranteed him by the Constitution and laws of the United States. Specifically, he asserts a denial of these rights by the State of North Carolina in each of the following particulars:

(1) that, having been retried after his original judgment and sentence had been set aside, he was denied credit for time served on the vacated sentence;

(2) that he was tried for and adjudged guilty of an escape carried out while he was serving an illegal sentence; and

(3) that, upon entry of judgment for the aforementioned escape, he was given a sentence of less than the minimum punishment prescribed by statute.

FINDINGS OF FACT

The petitioner, James Rayford Kelly, is presently incarcerated in North Carolina Prison Unit #032, Bunn, North Carolina, where he is serving a sentence of twenty-two months imposed upon a plea of guilty to one charge of forcible trespass (January 1966 Term, Vance County Superior Court, Docket No. 3933-A). Service of this sentence commenced on June 19, 1967.

This application stems from a series of events which began in June of 1962 when petitioner was tried in the Vance County Superior Court upon two bills of indictment (Docket Nos. 3932 and 3933), which had been returned as true bills, each charging him with the felony offense of arson. Unrepresented by counsel, Kelly entered a plea of guilty to the charges and on June 19, 1962, was sentenced to prison for a term of not less than ten nor more than fifteen years. This sentence was suspended and Kelly was placed on probation for a period of five years.

Kelly was subsequently cited for failure to comply with the conditions of the probationary judgment and on October 2, 1962, his probation was revoked and he was ordered to commence service of the ten to fifteen year prison sentence. Petitioner was also without benefit of counsel at the revocation hearing.

On October 17, 1964, having served two years and fifteen days of the felony sentence, James Rayford Kelly escaped from the confines of the State's Prison and remained at large until September 28, 1965.

Subsequent to his recapture Kelly filed, on November 6, 1965, an application for a post-conviction hearing in the Vance County Superior Court. He was granted a hearing and the Court found as a fact that James Rayford Kelly, at the June 1962 Term, when being tried for arson, was without the assistance of counsel and had not waived his right to counsel (and at the October 2, 1962 revocation hearing, was also without the assistance of counsel and had not waived his right to such assistance).¹ As required by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Court concluded that Kelly had been denied his constitutional rights and awarded him a new trial.

The State reduced the charges to forcible trespass (Docket Nos. 3932-A and 3933-A) but, of course, based them upon the same conduct (alleged involvement in the burning of two uninhabited buildings) from which the arson charges arose; and on January 13, 1966, Kelly was tried again and through his court-appointed counsel entered pleas of guilty which were accepted by the State. Judgment was entered in Case No. 3932-A on the misdemeanor of forcible trespass that defendant be imprisoned for a period of twenty-two months and assigned to work under the supervision of the North Carolina Prison Department. A like judgment was entered in Case No. 3933-A, this twenty-two month sentence to begin at the expiration of the one imposed in No. 3932-A and this being the sentence that Kelly is currently serving. Maximum sentence in each case under the North Carolina law regarding punishment for misdemeanors would have been twenty-four months. Kelly did not appeal and does not allege that he requested his counsel to do so. He does allege that he petitioned the Supreme Court of North Carolina for a writ of certiorari which petition was denied on September 30, 1966. This allegation is not denied by respondents and will be taken as true. There has been no review of the second trial and sentences pursuant to the North Carolina Post-Conviction Hearing Act.

On January 17, 1966, petitioner was brought to trial in the Superior Court of Granville County (Docket No. 28,720), the charge being escape while serving a felony sentence, specifically, the October 17, 1964 escape from service of the arson sentence. Through court-appointed counsel, Kelly entered a plea of guilty and was given a sentence of three months imprisonment in the State's Prison, to commence at the expiration of the sentences for forcible trespass imposed in the Superior Court of Vance County on January 13, 1966. No appeal was taken nor has petitioner sought post-conviction review under N.C.Gen.Stat. Secs. 15-217 to 15-222.

Respondents allege that on January 30, 1966, Kelly again escaped, was recaptured, tried and sentenced to another ninety days, to commence at the termination of all sentences then in existence. Record of this offense is not before the Court and petitioner makes no allegations in regard to it. Thus, fact findings regarding the alleged second escape are unnecessary to determination of the matters before the Court.

CONCLUSIONS OF LAW

Jurisdiction

An application for a writ of habeas corpus in behalf of a State prisoner shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or there is no available State corrective process, or there are circumstances rendering such process ineffective to protect the rights of the prisoner. 28 U.S. C.A. § 2254. The Congress of the United States has thus spoken on the circumstances in which a federal district court may review the constitutionality of the trial of a State prisoner through consideration of his application for a writ of habeas corpus. This codified doctrine of the exhaustion of state remedies is an important limitation on the availability of the writ of habeas corpus in the federal courts, and federal judges, in deference to the state courts, ought to give particularly close attention to jurisdictional facts when there is any doubt in this area.

North Carolina prisoners may obtain a review from the State courts of the constitutionality of their trials and imprisonment through the North Carolina Post-Conviction Hearing Act. N.C. Gen.Stat. Secs. 15-217 to 15-222. Kelly has not sought such a review as to the trials and sentences which he now attacks. Neither has he had the questions presented herein fully reviewed and decided by the State's highest court through appeal or certiorari, so as to preclude the necessity of proceeding under the post conviction statute. See Grundler v. State of North Carolina, 283 F.2d 798 (4th Cir., 1960). Too, it should be noted that the mere denial of petitioner's application for a writ of certiorari by the Supreme Court of North Carolina would not, in itself, mean that consideration of Kelly's contentions is foreclosed in the State courts, the post conviction remedy still being available. See Ganger v. Peyton, 379 F.2d 709 (4th Cir., 1967).

But, the respondents have stated in their answer that they specifically do not plead in bar of Kelly's seeking relief in this cause that he has not exhausted his state court remedies "for the reason that the record is clear in this case, that in the State of North Carolina, Kelly would not be entitled to any relief * * *." Can the State thus waive petitioner's failure to exhaust available state court remedies? This Court concludes that it can. It has been repeatedly held that the doctrine requiring prior exhaustion of state remedies is a rule of comity rather than a strictly jurisdictional requirement. Tolg v. Grimes, 355 F.2d 92 (5th Cir., 1966), certiorari denied 384 U.S. 988, 86 S.Ct. 1887, 16 L.Ed.2d 1005 (1966); Hunt v. Warden, Maryland Penitentiary, 335 F.2d 936 (4th Cir., 1964); Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 (1939). That is, the doctrine relates to the appropriate exercise of power and not to the very existence of power or jurisdiction. It is based upon a proper regard for the sovereignty of the states in American federalism. It would seem clear that if exhaustion of state remedies were a strict jurisdictional prerequisite, then no waiver by the state could be binding. It would seem equally clear, however, that since the rule is one of comity, observed in order to avoid unseemly collisions by allowing state courts the first opportunity to review alleged state abuses of federal constitutional rights, then the requirement is a proper one for waiver, should the state, in its discretion, choose to waive it. See United States ex rel. Boyance v. Myers, 372 F.2d 111 (3d Cir., 1967); Warren v. Conner, 365 F.2d 590 (5th Cir., 1966); Tolg v. Grimes, 355 F.2d 92 (5th Cir., 1966), certiorari denied 384 U.S. 988, 86 S.Ct. 1887, 16 L.Ed.2d 1005 (1966). The Court concludes that the State has waived application of the rule requiring prior exhaustion of state remedies.

In view of the particular facts presented herein, and notwithstanding its conclusion with regard to the State's waiver, the Court deems it proper to make an...