Lanier v. Williams, Civ. No. 4331.

• Decision Date: 26 July 1973
• Docket Number: Civ. No. 4331.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Ray Holt LANIER v. George R. WILLIAMS.

361 F. Supp. 944

Ray Holt LANIER v. George R. WILLIAMS.

Civ. No. 4331.

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

July 26, 1973.

J. David James, Greensboro, N. C., for petitioner.

Richard N. League, Asst. Atty. Gen., State of North Carolina, Raleigh, N. C., for respondent.

ORDER

BUTLER, Chief Judge.

This cause coming on to be heard upon the application of Ray Holt Lanier, a state prisoner, for a writ of habeas corpus, under 28 U.S.C. § 2254 and being heard before the undersigned Judge Presiding at an evidentiary hearing on July 19, 1973, in Raleigh, North Carolina, the court finds the following facts:

FACTS

On June 22, 1959, the petitioner was convicted before the Superior Court of Davidson County, North Carolina, on three separate charges of breaking and entering, and sentences of three consecutive three-year prison terms were imposed, for a total of nine years. In May of 1963 the petitioner was released on parole from the sentences. On or about February 12, 1964, the petitioner was arrested and charged with violating the conditions of his parole. He was incarcerated in the Davidson County jail until April 15, 1964, at which time he was convicted before the Superior Court of Johnston County, North Carolina, of breaking and entering, breaking and entering and larceny, and possession of burglary tools, and total sentences of eight to ten years were imposed to run concurrently with the nine-year sentences imposed in Davidson County in 1959.

In the early part of 1967, the petitioner filed a petition in the Davidson County Superior Court for a state post-conviction review of his 1959 conviction, and on April 15, 1967, he was released by the Department of Correction to the custody of the Sheriff of Davidson County for return to Davidson County for the post-conviction hearing. On May 12, 1967, the post-conviction hearing was held, and the court held that the petitioner, in the June 1959 criminal proceedings, had not been afforded his constitutional right to counsel, and ordered that the petitioner be awarded a new trial at the next criminal term of the Davidson County Superior Court. The court further ordered that "in the meantime the defendant may be remanded to the State Prison Department to serve his remaining term upon another charge." However, the court also set a $3,000 appearance bond for the petitioner, and on May 12, 1967, the petitioner was released on bail pending the new trial.

On September 2, 1967, a capias was issued for the petitioner, his bond was doubled, and he was placed in jail. He remained in jail until September 28, 1967, at which time petitioner's new trial on the 1959 charges was scheduled to commence. On that day, petitioner's counsel appeared in the Davidson County Superior Court, and after he conferred with the solicitor for the state, the solicitor announced to the court that the petitioner was confined in the Davidson County jail, that certain charges were pending against him for which the state lacked sufficient evidence to prosecute, and that the state would nol pros those charges with leave to prosecute them at a later time. With the court's approval, the 1959 charges were thereupon nol-prossed, and the court ordered that the petitioner be released. The petitioner was not present in the courtroom when the above proceedings occurred, but was then confined in the Davidson County Jail.

After the entry of the nol pros, petitioner's counsel and petitioner's wife went immediately to the jail. When they arrived, the solicitor was present, and the petitioner had been released and was receiving his personal property from the jailer. The petitioner conversed briefly with his counsel, and was thereupon allowed to leave the jail, in the presence of the solicitor, without regard to the outstanding 1964 Johnston County convictions and sentences.

Thereafter, the petitioner remained free and lived with his family in the vicinity of Lexington, North Carolina. On December 6, 1968, the petitioner and his wife went to the Davidson County Courthouse to pay the fine on a speeding citation. While at the courthouse, the petitioner was approached by the Davidson County Sheriff, who informed him that the clerk of court had received a letter from the North Carolina Department of Correction stating that the Department was seeking the petitioner. The petitioner voluntarily accompanied the Sheriff to his office for the purpose of determining the nature of the letter from the Department of Correction. The Sheriff could not find the letter, and he placed several telephone calls to the Department of Correction in Raleigh to ascertain if petitioner was wanted. The Sheriff was informed that no warrant had been issued for petitioner. Eventually, the Sheriff placed a phone call to a Major at Central Prison in Raleigh, to whom the petitioner spoke directly. The Major told the petitioner he did not know anything about the Department wanting him and inquired of the petitioner as to how he was getting along, to which the petitioner responded that he was doing "good," upon which the major instructed the petitioner to go home and "keep up the good work". The Sheriff told the petitioner that he had no warrant or other process upon which to detain him, and likewise told the petitioner to go home.

The petitioner thereafter resided in or around Lexington, North Carolina. He obtained employment as a brick layer, and in all material respects, reestablished his home. He made no attempt to conceal either his identity or his whereabouts. The Sheriff of Davidson County testified that he had known petitioner for 25 years, that he could have located the petitioner at any time he had been so directed, and that he conversed with him by telephone on several occasions.

The petitioner remained free until May 14, 1972, a period of almost five years from the time he was released on September 28, 1967. On May 14, 1972, the petitioner was detained for questioning at the police department in Winston-Salem, North Carolina, in connection with other alleged criminal offenses, at which time two officers of the North Carolina Department of Correction took the petitioner into custody and returned him to Central Prison in Raleigh to complete the service of the eight to ten year sentences imposed by the Johnston County Superior Court in 1964.

The petitioner thereupon filed an application for a writ of habeas corpus in the Superior Court of Wake County, and on June 5, 1972, a hearing was held on his application. Relief was denied, the court holding that the petitioner was not entitled to credit on his 1964 sentence for time not spent in actual custody; that he had been improperly outside the custody of the state, and that petitioner must serve the remainder of the 1964 sentence.

While an appeal from the Wake County Superior Court was pending before the North Carolina Court of Appeals, the petitioner sought leave from this court to file in forma pauperis an application for a writ of habeas corpus. This court was of the opinion that appropriate federal-state relations and proper regard for state processes required the petitioner to exhaust his available...