Knight v. Johnson, Civ. A. No. 80-0916-R.

• Decision Date: 12 January 1982
• Docket Number: Civ. A. No. 80-0916-R.
• Citation: 529 F. Supp. 1309
• Parties: Bronson Howard KNIGHT v. Gene JOHNSON.
• Court: U.S. District Court — Eastern District of Virginia

529 F. Supp. 1309

Bronson Howard KNIGHT v. Gene JOHNSON.

Civ. A. No. 80-0916-R.

United States District Court, E. D. Virginia, Richmond Division.

January 12, 1982.

John A. Gibney, Jr., Richmond, Va., for plaintiff.

Linwood T. Wells, Jr., Asst. Atty. Gen., Richmond, Va., for defendant.

MEMORANDUM

WARRINER, District Judge.

This matter is before the Court on a petition for a writ of habeas corpus from a conviction in State court.

I.

Petitioner, Bronson Howard Knight, has moved the Court to issue a writ of habeas corpus or, in the alternative, to hold an evidentiary hearing on the matter. He alleges three grounds:

1. Petitioner's plea of guilty at his trial was involuntary and unintelligent, in violation of his rights under the Fifth and Fourteenth Amendments of the United States Constitution;

2. Petitioner received ineffective assistance of counsel at his trial, in violation of his rights under the Sixth and Fourteenth Amendments of the United States Constitution;

3. Petitioner received ineffective assistance of counsel at his habeas corpus hearing, in violation of his rights under the Sixth and Fourteenth Amendments of the United States Constitution.

The facts underlying Knight's petition follow. Petitioner was indicted on 4 April 1977 of statutory burglary and grand larceny. On 31 May 1977, the State trial court heard motions pertaining to an issue of double jeopardy. During argument on these motions, a dispute arose as to the waiver of a jury in the case. Petitioner was willing to waive but the Commonwealth refused to join in the waiver. See Va.Code § 19.2-257 (Repl. Vol. 1975). Petitioner's counsel, Richard Ryder, expressed concern that jury sentencing would take place without benefit of a presentence report. (Tr. A, p. 47).¹

The case came on for a jury trial on 2 June 1977. Ryder moved the court on the day of trial, but prior to its commencement, to overrule the Commonwealth's insistence on a jury trial. The court refused. (Tr. B, p. 1). After the jury panel was brought in, defendant was arraigned in the presence of the panel and was directed to plead. (Tr. B, p. 12).² Defendant pled "Guilty on the sic protest." (Tr. B, p. 12). Upon direction of the court to plead either guilty or not guilty, Ryder interposed and stated the plea to be guilty but under protest on the ground that Knight would be unable to have a presentence report prior to sentencing if he were convicted by a jury. (Tr. B, pp. 12-13). Ryder explained that Knight wanted a presentence report, which he would get if he were granted a bench trial, but which he would not get if he were tried on a plea of not guilty before a jury. (Tr. B, p. 13). The court noted his understanding of the federal practice providing for presentence reports in jury trials and indicated the probable invalidity of Ryder's argument. (Tr. B, p. 14). The court then continued, stating that defendant had pled guilty in front of the jury panel and that the court would accept the plea of guilty "if he tells me he is in fact guilty." Ryder then restated that his defendant's plea was guilty under protest as to the first count. (Tr. B, p. 14). Knight also pled guilty under protest on the second count. Ryder noted that by his plea Knight was not waiving his objection to a jury trial nor his contention as to the presentence report. (Tr. B, p. 15).

The court then directly addressed the defendant as to the first charge, asking whether he had broken into the house "with the intent to commit larceny." (Tr. B, p. 16). Defendant stated that he was "admitting it for B & E but I did not do it." On further questioning, he persisted in a denial of breaking into the house. (Tr. B, p. 16). The court nonetheless noted that it would accept the plea of guilty that "defendant admits — if you understand what you are charged with — breaking and entering into the daytime home of M. E. Mason in Henrico County, with the intent to commit larceny. That's what you have pled guilty to. I take it by your plea that you are guilty in fact of that charge." Defendant's response: "I didn't break in the house." (Tr. B, p. 16). Knight then denied guilt on the second count of stealing the property in direct response to the court's question. The court noted the guilty under protest plea but considered that the presentence report problem was not a substantial or justifiable reason for pleading guilty if defendant did not in fact commit the offense. (Tr. B, p. 17).

Upon Knight's statement that he would not get a fair trial by jury, the court stated that whatever protest defendant was making did not relate to the merits of the case but to some other extraneous matter, and that it understood the plea of guilty to be an admission of the things allegedly done in each of the two counts: "You did break and enter into the home of Mr. Mason with the intent to commit larceny, ... and did steal some Civil War items from Mr. Mason's home, in the value of more than $100. I understand that to follow from your plea of guilty." (Tr. B, p. 18).

The court then stated that the only remaining task was to determine the appropriate disposition of the case noting the possible sentence on each count which defendant indicated he understood. (Tr. B, p. 18). The court noted the limited grounds available to defendant for appeal as including the matters of the presentence report and waiver of trial by jury. Thereupon, the court "accepted the pleas of guilty" on both counts indicating it would hear "the evidence fully" and thereafter, "on the pleas of guilty" and with a presentence report, would dispose of the case. (Tr. B, p. 19). The court noted that defendant had consulted with his attorney constantly during the proceedings with respect to his plea, that he had been advised by the court what the court understood a plea of guilty to mean and the effect of his plea. The court reaffirmed that on appeal defendant would be precluded from raising the issue of his guilt or innocence following his guilty plea. (Tr. B, p. 19-20).

At this point, the Commonwealth's Attorney requested the court to accept pleas of not guilty and try defendant by jury, stating the Commonwealth was prepared to proceed. The court denied the motion stating that as the jury panel had been in the courtroom during the above deliberations defendant could not be fairly tried before a jury chosen from that panel and that to try defendant on anything but a guilty plea would make a mockery of the system, as it would lead to defendants pleading guilty under protest in every case in front of the jury, and cases never would be resolved. (Tr. B, pp. 21 & 22).³

The court indicated that it believed defendant's action was a calculated "play" to avoid being tried by a particular jury on that day and that the court would not allow a trial by a jury which had heard defendant plead guilty. The court added, however, that as to defendant's denials, "I told Mr. Knight that I accept his plea of guilty only on the condition that I understand that he did do the things alleged in the two counts of the indictment, which have been read to him, which I have explained to him. And I accept the plea of guilty on that basis." Then noting that the defendant had made no response to the court's comment as to this understanding, the court dismissed the jury. (Tr. B, p. 23).

The court reconvened after a brief recess and stated it was about to "try the case." (Tr. B, p. 24). The prosecutor, apparently addressing the court's prior statement as to receiving evidence for disposal of the case, sought to clarify whether the evidence to be submitted was for use in sentencing. The prosecutor stated: "... you know, I — is this on the court's own motion, I assume, about the disposure sic?" To which the court responded: "and I am going to try this case on that basis, yes, sir, Mr. Bradenham." The prosecutor then waived opening statement, "based on the plea," followed by Mr. Ryder, who also waived his opening statement. (Tr. B, pp. 24-25).

The Commonwealth then put on four witnesses and showed a videotape of defendant which included statements that he had committed the offenses as charged in the indictment. Ryder's cross-examination of each of the witnesses was limited and focused primarily on establishing extensive cooperation between the federal and State authorities. At the close of the Commonwealth's presentation, the defense put on no evidence on its own behalf. (Tr. B, p. 82). The court then asked counsel for "any comment on the issue of guilt or innocence...." Following a closing argument by the Commonwealth, Ryder interposed objection to the racial makeup of the jury panel, which objection was disposed of. The court then stated: "On the merits of the case ... and based solely on the evidence presented here today, this Court can and would and does find the defendant guilty on each of the counts of the indictment." (Tr. B, p. 85). Ryder then requested a presentence report.

Sentencing was heard on 3 August 1977 where Ryder moved for a stay of execution of judgment for a period of time sufficient for the defendant to petition the Supreme Court of Virginia for a writ of error. To the court's inquiry of how that were possible on a plea of guilty, Ryder reasserted that the plea was "guilty under protest." (Tr. B, p. 105).

In its order entered as of the trial date, the trial court recognized that at trial Knight, after consultation with his attorney, had pled guilty under protest to each count of the indictment. The court indicated that, "having made inquiry and being of the opinion that the accused fully understood the nature and effect of the plea of guilty and of the penalties that may be imposed upon his conviction, the waiver of trial by jury and effect upon his right of appeal, all as more fully reflected by the transcript, finding that his pleas were voluntary and intelligently entered, proceeded to hear and determine the case without the intervention of a jury as provided by law, and having heard...