Kidd v. Coiner

• Decision Date: 29 May 1969
• Docket Number: Civ. A. No. 69-43-E.
• Citation: 299 F. Supp. 1380
• Parties: Donald M. KIDD, Petitioner. v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

299 F. Supp. 1380

Donald M. KIDD, Petitioner. v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. 69-43-E.

United States District Court N. D. West Virginia.

May 29, 1969.

No appearance for plaintiff.

Chauncey H. Browning, Jr., Atty. Gen. of West Virginia, Charleston, W. Va., for respondent.

MAXWELL, Chief Judge.

Petitioner, now incarcerated in the West Virginia State Penitentiary at Moundsville under an order of conviction from the Common Pleas Court of Cabell County, West Virginia, applies for a federal writ of habeas corpus pursuant to 28 U.S.C.A. §§ 2241, 2254 (Supp. 1967).

Previous to filing his petition in this Court, it appears that Petitioner presented comparable issues in an original petition for habeas corpus relief to the Supreme Court of Appeals of West Virginia wherein his petition was denied. Solely by this prior habeas corpus application, Petitioner claims to have exhausted his available state remedies as required by 28 U.S.C.A. § 2254 (Supp. 1967).

The statute, 28 U.S.C. § 2254, amended in 1966, relating to federal habeas corpus for state prisoners and dealing specifically with the requirement of exhaustion of state remedies, provides in part:

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

Although the above quoted paragraphs of 28 U.S.C. § 2254, have been carried forward from the earlier existing statute, it is necessary to presently evaluate these provisions within the context of the amended habeas corpus statutes, particularly the amendments to this section. The intent of the amendments, as articulated by the Habeas Corpus Committee of the Judicial Conference of the United States and adopted by Senate Report No. 1797 of the 89th Congress, Second Session, is expressed in this language:

Furthermore, we have revised the text of H.R. 1835, supra, in the form that it passed the House and was approved by the Judicial Conference, in certain particulars, in order to improve phraseology and to strengthen our purpose to provide for a qualified application of the doctrine of res judicata, to an extent we regard as needed and desirable to proceedings on applications for habeas corpus in the U. S. courts by persons in custody under judgments of State courts and by statutory enactment to create reasonable presumptions and fix the party on whom the burden of proof, as to certain factual issues, shall rest in such proceedings, but without the impairment of any of substantive rights of the applicant.

It is the opinion of your committee that the proposed legislation, if enacted, will be a strong inducement to the States that have not already done so to provide adequate postconviction remedies and procedures and to make and keep available records of evidentiary matter in criminal and postconviction proceedings, and to the State courts in criminal proceedings to safeguard the constitutional rights of defendants. 1966 U.S. Code Cong. & Adm. News, pp. 3671-3672.

In addition to setting forth the requirement of exhaustion, the amended statute provides a procedure whereby the federal courts may review findings made by a state court, after the state court hearing on the merits of factual issues, without conducting a new hearing thereon. The obvious intent of 28 U.S.C. § 2254, when read in conjunction with all other statutory provisions relating to federal habeas corpus, is to encourage states to provide effective methods for hearing factual issues raised in habeas corpus and to require state habeas corpus applicants to fully utilize the state procedures, when available in the state, before seeking federal relief.

In Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837 (1963), the Supreme Court discussed the exhaustion requirements within the context of the historical development of federal habeas corpus. The Court held that, while exhaustion cannot be interpreted as a forfeiture doctrine, a habeas corpus applicant must exhaust state remedies "still open * * * at the time he files his application in federal court." This exhaustion requirement, the Court points out, deals with the appropriate exercise of the power of the federal courts to review state convictions and is based upon the doctrine of comity between courts of concurrent jurisdiction whereby the federal court, having the power to review a matter in habeas corpus, abstains from acting until the courts of the state, also having jurisdiction, have had an opportunity to pass upon the issues. Federal jurisdiction is not lost by this exhaustion requirement. An applicant's right to have the federal court pass upon the matter, should the state refuse to grant him relief, is in no way diminished by first seeking the remedies available in the state.

In Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963), the Supreme Court sets forth the consideration which may make the exercise of the federal power to hear issues of fact mandatory. However, underlying these guidelines is the policy that the state be given the opportunity to conduct a full hearing in order to pass on the relevant factual issues. "The duty (of the federal court) to try the facts anew exists in every case in which the state court has not after a full hearing reliably found the relevant facts." Townsend v. Sain, supra.

West Virginia's Legislature has provided a broad and effective post-conviction review remedy in the post-conviction habeas corpus statute, W.Va. Code §§ 53-4A-1 to 11 (Michie Supp.1968), passed and effective as of January 25, 1967, superseding the older habeas corpus statute, W.Va. Code §§ 53-4-1 to 13 (Michie 1966). The intent and purpose of this new statute are to provide a complete forum to any person incarcerated under state conviction and sentence to raise all state and all federal constitutional issues in state courts and, thereupon, to receive a full evidentiary hearing on any and all factual questions before the appropriate state statutory or circuit court. The first section of the statute reads in part as follows:

(a) Any person convicted of a crime and incarcerated under sentence of imprisonment therefor who contends that there was such a denial or infringement of his rights as to render the conviction or sentence void under the Constitution of the United States or the Constitution of this State, or both, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the common-law or any statutory provision of this State, may, without paying a filing fee, file a petition for a writ of habeas corpus ad subjiciendum, and prosecute the same, seeking release from such illegal imprisonment, correction of the sentence, the setting aside of the plea, conviction and sentence, or other relief, if and only if such contention or contentions and the grounds in fact or law relied upon in support thereof have not been previously and finally adjudicated or waived in the proceedings which resulted in the conviction and sentence, or in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or in any other proceeding or proceedings which the petitioner has instituted to secure relief from such conviction or sentence. * * * W.Va.Code, § 53-4A-1 (Michie Supp. 1968).

A total reading and analysis of Chapter 53, Article 4A of the West Virginia Code, the article dealing with post-conviction habeas corpus relief, demonstrate that the legislative intent was to provide a forum for resolving questions of fact in the circuit court or statutory court of the county of conviction and sentencing or, alternatively, in the county of incarceration. See in particular W.Va. Code § 53-4A-3 (b) (Michie Supp.1968), dealing with how the writ is to be made returnable, and W.Va. Code § 53-4A-7(a) and (b), dealing with hearings, evidence, and the making of a record.

Section 9(a) of the statute provides the method of appeal from a final judgment entered under the provisions of this post-conviction habeas corpus statute by a state statutory court or a state circuit court. It is in the state trial courts, statutory and circuit, which are equipped to fully develop and hear issues of fact or mixed issues of fact and law, that full evidentiary hearings can be held. The West Virginia Supreme Court of Appeals, being an appellate review tribunal, is equipped to hear original petitions for habeas corpus on purely legal questions or to hear appeals on the full record from the findings of fact and conclusions of law made by state statutory or circuit courts.

In Petitioner's case the contention raised before this Court in the application for a federal writ of habeas corpus, and by the amendment to that application, i.e., that Petitioner was denied his right to seek an appeal due to the ineffectiveness of counsel in abandoning the appeal, presents a question of fact or at least a mixed question of fact and law.

To fully and effectively utilize the comprehensive West Virginia post-conviction habeas corpus statute, the available West Virginia remedy, Petitioner should originally present these issues in the state statutory court or the state circuit court of the county where...