Layer v. Lyles, Civ. No. K-81-2849.

• Decision Date: 01 October 1984
• Docket Number: Civ. No. K-81-2849.
• Citation: 598 F. Supp. 95
• Parties: Donald Lee LAYER, # 153-536 v. Howard N. LYLES.
• Court: U.S. District Court — District of Maryland

598 F. Supp. 95

Donald Lee LAYER, # 153-536 v. Howard N. LYLES.

Civ. No. K-81-2849.

United States District Court, D. Maryland.

October 1, 1984.

E. Clinton Bamberger, Jr., Lynne A. Battaglia, Richard L. North and Karen Czapanskiy, Baltimore, Md., for plaintiff.

Stephen H. Sachs, Atty. Gen. of Md., and Stephanie J. Lane, Asst. Atty. Gen., Baltimore, Md., for defendant.

FRANK A. KAUFMAN, Chief Judge.

Layer, seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254, challenges his conviction on April 30, 1980 in the Circuit Court for Wicomico County, Maryland for robbery and use of a handgun. Judge Alfred T. Truitt, Jr., who presided during Layer's jury trial, sentenced Layer to a ten-year sentence for the robbery charge and to a five-year concurrent sentence for the handgun violation. Originally, plaintiff stated two bases for relief in this case: (1) ineffective representation by his trial counsel and (2) denial of his Fifth and Sixth Amendment rights because Judge Truitt had both prosecuted and defended Layer in prior criminal cases involving offenses unrelated to Layer's 1980 convictions, that is, they were unrelated except to the extent they constituted background factual information presumably relevant and material to the sentencing decisions made by Judge Truitt. After Layer instituted the within case, this court informed plaintiff that he had seemingly not exhausted his state remedies with regard to his ineffective-assistance-of-counsel claim, as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In response, plaintiff's counsel¹ informed this court that plaintiff desired to press his contentions immediately in this case with regard to Judge Truitt's previous prosecution and representation of him and that Layer understood "that by pursuing federal habeas relief now, he will be waiving the right to pursue any future federal habeas claim related to this case."² Accordingly, the sole issue herein is whether a judge is required on Fifth or Sixth Amendment grounds to disqualify himself in a case involving a defendant whom he has both prosecuted and represented prior to going on the bench.³

The relevant facts are not in dispute. Plaintiff was convicted of robbery in the Circuit Court for Wicomico County, Maryland in 1966. On June 3, 1975, plaintiff was found not guilty of escape after a trial in the Circuit Court for Wicomico County, Maryland. The prosecutor in the 1966 case and the defense attorney in the 1975 case were the same person, namely, Alfred T. Truitt, Jr., who subsequently became a judge of the Circuit Court for Wicomico County and presided as the judge in plaintiff's 1980 jury trial. In the course of sentencing Layer, the following colloquy occurred between Judge Truitt and Layer:

THE COURT: Are these the only two convictions you have, '72 and '71?

THE DEFENDANT: As far as jail or something like that. Maybe an assault charge or something like that.

THE COURT: Well, the jury has decided you did it, and this is your second offense of robbery.

THE DEFENDANT: Well, yes.

THE COURT: I don't have much patience with robbery. Is there anything further you wish to tell me?

THE DEFENDANT: I would like to have the opportunity to try to rehabilitate myself.

THE COURT: Where you do work?

THE DEFENDANT: For John Hochsmouth, down in Mardela.

THE COURT: Farming. You work the crops?

THE DEFENDANT: Yes, sir.

THE COURT: You weren't working in November, I take it?

THE DEFENDANT: No, I happened to have been down in North Carolina and came back up here.

THE COURT: Where are you from? Are you from this area?

THE DEFENDANT: Right here in Salisbury.

THE COURT: I represented you in the past.

THE DEFENDANT: Yes, sir.

THE COURT: I thought I did.

All right, if there is nothing further, you may say, Mr. Clerk, under the second count the sentence of the Court is that Donald Lee Layer is to be incarcerated in the custody of the Commissioner of Corrections for a period of 10 years ...⁴

Judge Truitt apparently first recalled his prior contacts with Layer during the sentencing process. Neither plaintiff nor his counsel raised, during the sentencing proceeding, any question or made any objection to Judge Truitt's continued participation in the case. On the other hand, the judge did not ask whether the defendant desired him to recuse himself or allude to any possibility that he might recuse himself as the judge. In addition, the record does not disclose whether plaintiff had any recollection of his prior contact with Judge Truitt before Judge Truitt recognized plaintiff and, if so, whether plaintiff first so recalled before, during or after trial. Additionally, the record does not reveal whether plaintiff informed his trial counsel of what he remembered in that regard before Judge Truitt's above-quoted statement on the record and, if so, when plaintiff so informed his counsel.

In any event, plaintiff first complained in any court proceeding concerning Judge Truitt's participation in the case during plaintiff's appeal from his conviction in Judge Truitt's court. The Court of Special Appeals of Maryland, in the course of affirming plaintiff's conviction in a per curiam opinion, rejected all of plaintiff's contentions. Subsequently, plaintiff's petition for certiorari review by the Court of Appeals of Maryland was denied. Plaintiff thereafter unsuccessfully sought habeas corpus relief in the Circuit Court for Wicomico County, Maryland. Plaintiff at no time sought relief under Maryland's Post Conviction Procedure Act.⁵ However, since plaintiff did raise the issue of Judge Truitt's prior prosecution and representation of him on direct appeal, plaintiff did not need again to do so in a Post Conviction Procedure Act proceeding. If plaintiff had not raised the issue on direct appeal, he would be required to utilize the Maryland post-conviction route before this court could reach the merits of the issue herein since plaintiff's use of Maryland's habeas corpus procedure did not, without use of the Post Conviction Procedure Act, exhaust plaintiff's state remedies. Jenkins v. Fitzberger, 440 F.2d 1188, 1189 n. 1 (4th Cir. 1971); see Hunt v. Warden, 335 F.2d 936, 943 (4th Cir.1964).

The core of plaintiff's position is that when Judge Truitt noted his recognition of plaintiff before sentencing him, Judge Truitt, without more, should have disqualified himself. To begin with, plaintiff asserts a denial of his due process right to an impartial judge at all phases of trial, including sentencing. Plaintiff contends that, even in the absence of any actual bias, prejudice or hostility on the part of Judge Truitt, and no such bias, prejudice or hostility has been shown or even indicated,⁶ there is sufficient risk of the same, under the circumstances, to entitle plaintiff, as a matter of due process, to be resentenced by another state court judge. See, as to that form of relief in slightly different contexts, Hollis v. United States, 687 F.2d 257, 259 (8th Cir.1982), cert. denied, 459 U.S. 1221, 103 S.Ct. 1228, 75 L.Ed.2d 462 (1983), on remand, 718 F.2d 277 (8th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984); Willeford v. Estelle, 637 F.2d 271, 272 (5th Cir.1981).

Due process requires that a criminal defendant be tried "by an unbiased and impartial judge without a direct personal interest in the outcome of the hearing." Ungar v. Sarafite, 376 U.S. 575, 584, 84 S.Ct. 841, 846, 11 L.Ed.2d 921 (1964) (White J.).

Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered.

In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (Black, J.).

In Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), the Supreme Court reversed liquor law convictions handed down by the mayor of a town acting and sitting as a judge. In Tumey, the mayor received in his personal capacity a portion of the fees and costs assessed by him against convicted violators. "But no fees or costs in such cases are paid him the mayor except by the defendant if convicted. There is, therefore, no way by which the mayor may be paid for his service as judge, if he does not convict those who are brought before him ...." Id. at 520, 47 S.Ct. at 440. On behalf of a unanimous Court, Chief Justice Taft wrote:

It certainly violates the 14th Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case.

Id. at 523, 47 S.Ct. at 441.

In Ward v. Village of Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 83, 34 L.Ed.2d 267 (1972), the Supreme Court reversed a defendant's conviction for traffic infractions in a case in which the mayor-judge had responsibility for revenue production and where traffic fines constituted a major source of such revenues. Justice Brennan, writing for a 7-2 majority, stated: "Although `the mere union of the executive power and the judicial power in him the mayor-judge can not be said to violate due process of law.' ... the test is whether the mayor's situation is one `which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused ....'" Id. at 60, 93 S.Ct. at 83, quoting from Tumey v. Ohio, supra at 532-34, 47 S.Ct. at 444.

In In re Murchison, supra at 136, 75 S.Ct. at 625, Justice Black concluded that the due process requirement of an impartial tribunal was violated where a...