Lawrence v. Henderson

• Decision Date: 13 October 1970
• Docket Number: Misc. A. No. 1642.
• Citation: 318 F. Supp. 230
• Parties: James LAWRENCE L.S.P. #66555 v. C. Murray HENDERSON, Warden.
• Court: U.S. District Court — Eastern District of Louisiana

318 F. Supp. 230

James LAWRENCE L.S.P. #66555 v. C. Murray HENDERSON, Warden.

Misc. A. No. 1642.

United States District Court, E. D. Louisiana, New Orleans Division.

October 13, 1970.

Louis B. Merhige, Baldwin & Merhige, New Orleans, La., for petitioner.

John Volz, Asst. Dist. Atty., Parish of Orleans, State of Louisiana, New Orleans, La., for respondent.

HEEBE, District Judge:

Petitioner James Lawrence brought this writ of habeas corpus to challenge the constitutionality of his conviction for possession of a narcotics outfit. Along with other issues, he contends that the prosecutor coercively used Louisiana's multiple billing procedure to deprive him of his due process right to an effective appeal. For reasons given below, we hold that the petitioner's due process rights as guaranteed by the Fourteenth Amendment were violated, and grant him an out-of-time appeal so he may pursue the other issues he raises in the state courts.

On January 15, 1968, James Lawrence was sitting in a bar between John Mosby and Ella Washington watching a pool game. Two police officers entered the bar and, on the grounds that he fit the description of an armed robbery suspect, frisked him.¹ During the course of the frisk, he was "interviewed" by the officers. Upon learning that he had no money on him and no present employment, the officers arrested him for vagrancy. Washington and Mosby were also arrested for vagrancy, and all three were taken in the same police car to the central lockup.² While Lawrence was being booked for vagrancy, the arresting officers left and then returned to the booking desk and claimed that upon searching the car they had found a narcotics outfit under the back seat. One officer testified he had seen Lawrence take the outfit out of his pants and stick it under the back seat. Lawrence was then additionally charged with possession of the narcotics outfit.

Lawrence was convicted of possession of the narcotics outfit and sentenced to twelve years in prison.³ He decided to appeal and was returned from Angola Prison for a hearing to set the appeal. At this hearing, the prosecutor told petitioner's counsel in his presence that he intended to multiple bill him under Louisiana's habitual offender statute.⁴ Petitioner's counsel explained to him that if this bill were filed, he risked having his sentence increased to thirty years. Lawrence then withdrew his appeal. The multiple offender bill was never filed.

Thereafter, Lawrence petitioned for habeas relief in the state courts raising three issues:

(1) That the narcotics outfit introduced at trial should have been excluded as the fruit of an illegal arrest;

(2) That he was denied a fair trial by the discussion in chambers between the trial judge and jury of a narcotics case, and by the trial judge's refusal to allow defendant's counsel to examine the jury as to this discussion.⁵

(3) That he was deprived of his rights to appeal by the threat of the prosecutor to multiple bill him.

After holding a hearing, the habeas judge, who had been the trial judge, dismissed the writ and the Louisiana Supreme Court affirmed the dismissal. Neither court made any findings of fact or stated any legal reasons.⁶ Lawrence then brought this writ attacking his convictions on the three grounds urged in the state proceedings as well as two more which devoloped from Washington's testimony.⁷

(4) That the state knowingly used perjured testimony by the police officer.

(5) That the state denied Lawrence compulsory processes of witnesses.

Pursuant to 28 U.S.C. § 2254, this Court ordered an evidentiary hearing at which the above facts were established. The Court expresses its appreciation to Mr. Louis B. Merhige for his able representation of the petitioner at this hearing.

Based on the facts established, we think that petitioner has raised serious doubts as to the constitutionality of his conviction which merit consideration. Especially impressive, we think, is petitioner's contention that his conviction was based on unconstitutionally seized, and hence inadmissible, evidence.⁸ However, since it appears that petitioner improperly lost his appeal, and since we feel that the state courts are primarily responsible for deciding questions of criminal procedure arising in the state courts, we shall not here decide these issues but shall rule only on whether petitioner's right to an effective appeal was denied. We have every reason to believe that the state will fully protect, on appeal, petitioner's rights under the United States Constitution.

The narrow question we are asked to decide is whether the threat by the prosecutor to multiple bill petitioner deprived him of any constitutional rights. As such, this is a case of first impression which leads us into as virginal an area of criminal procedure as probably exists—constitutional due process and a defendant's right to appeal.

Noting that every state grants a criminal defendant some appellate review, the Supreme Court has acknowledged that "a State is not required by the Federal constitution to provide appellate courts or a right to appellate review at all." Griffin v. Illinois, 351 U. S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956), citing McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). The present status of this rule is not at issue here for we are not called upon to grant petitioner a right to appeal. Rather, Louisiana law provides for a statutory appeal of right, La.C.Cr. P. Art. 911 et seq., and appellate review can truthfully be said to be a well-ingrained element of Louisiana's criminal justice system. As has often been noted, until a defendant has exhausted his avenues of appeal, he has not been finally and irrevocably adjudged guilty. See, e. g., Thomas v. United States, 368 F.2d 941 (5th Cir.1966). In correcting the occasional errors that occur in the lower courts, the appellate courts have become indispensable in maintaining that fundamental fairness every American expects from our system of justice.

It can hardly be doubted that where a state provides appellate review, it must comport with the due process and equal protection clauses of the Fourteenth Amendment. As the Supreme Court said in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969):

"It is now fundamental that, once avenues of appellate review are established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Griffin v. Illinois, 351 U.S. 12 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372 U.S. 353 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477 83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372 U.S. 487 83 S.Ct. 774, 9 L.Ed.2d 899; Rinaldi v. Yaeger, 384 U.S. 305, 310-311 86 S.Ct. 1497, 1500-1501, 16 L.Ed.2d 577." At 724-725, 89 S.Ct. at 2080.

The Pearce case recognized that a "`defendant's exercise of a right to appeal must be free and unfettered. * * * It is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.' Worcester v. Commissioner 1 Cir. 370 F.2d 713, 718." North Carolina v. Pearce, supra, at 724, 89 S.Ct. at 2080. The Court then held a defendant's open access to the appellate courts is unconstitutionally impeded if the appeal procedure is such that the defendant must risk the possibility of an enhanced sentence motivated by the vindictiveness of the trial judge against a defendant who has successfully attacked his first conviction.⁹ Such a procedure "chills the exercise of basic constitutional rights" by a criminal defendant by putting a high price on an appeal in violation of due process of law.¹⁰ United States v. Jackson, 390 U.S. 570, 582, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).

Here, petitioner attacks a procedure which he alleges threatens him with a greatly enhanced sentence if he even seeks appellate review. A successful attack is not a prerequisite to the enhanced sentence. Hence, the price of this petitioner's appeal — the risk of the increased sentence — is higher than the price in Pearce since this petitioner risks an increased sentence even if his attack is unsuccessful while Pearce risked an increased sentence only if he were successful. This procedure appears to be more chilling than that condemned in Pearce, and the price it puts on an appeal is clearly unconstitutional usury.

There remains the question of whether the procedure employed by the state in fact violated defendant's right to effective appellate review.¹¹ The state claims that petitioner waived his right to review when he withdrew his appeal. The classic definition of waiver first announced in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), requires "an intentional relinquishment or abandonment of a known right or privilege."

The evidence here showed that after sentencing petitioner requested an appeal. At a hearing on this appeal, the prosecutor informed petitioner's counsel in his presence that he intended to multiple bill him. Counsel informed peti...