Lee v. Hopper

• Citation: 499 F.2d 456
• Decision Date: 23 September 1974
• Docket Number: No. 73-3601.,73-3601.
• Parties: William LEE, Petitioner-Appellee, v. Joseph S. HOPPER, Warden, Georgia State Prison, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

499 F.2d 456 (1974)

William LEE, Petitioner-Appellee, v. Joseph S. HOPPER, Warden, Georgia State Prison, Respondent-Appellant.

No. 73-3601.

United States Court of Appeals, Fifth Circuit.

August 23, 1974.

Rehearing Denied September 23, 1974.

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Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., B. Dean Grindle, Jr., Deputy Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.

F. Robert Raley, Macon, Ga. (Court-appointed), for petitioner-appellee.

Before BELL, GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

William Lee received a fifteen year prison sentence after his attorney, in Lee's presence and with his tacit approval, entered pleas of guilty to indictments charging two counts of rape. Three years later Lee initiated habeas corpus proceedings in the Georgia state courts claiming that the pleas had been entered by his privately retained attorney without authority and in contravention of his request for a jury trial.¹ The Superior Court of Tatnall County denied his petition after a full evidentiary hearing, finding that the decision to plead guilty had been made by Lee only after his attorney had investigated the factual bases of the charges and had fully apprised Lee of his rights and the consequences of his plea. The Georgia Supreme Court affirmed. Lee v. Smith, 229 Ga. 819, 194 S.E.2d 475 (1972).

A petition for relief under section 2254 was then filed with the federal district court. Respondent moved for dismissal or summary judgment on the basis of the facts as developed in the state habeas court. A ruling on the motion was delayed pending an evidentiary hearing. After the hearing, the district court denied the motion and concluded that because Lee's decision to plead guilty had been based on his attorney's advice that a bargained guilty plea was the only reasonable course open to him when in fact substantial legal and factual defenses had not been investigated, Lee's plea decision had not been knowingly made. The conviction was ordered set aside and Lee was remanded to a Georgia court for retrial within ninety days. Lee v. Caldwell, Civil No. 2785 (M.D.Ga., Aug. 24, 1973). That order has been stayed pending disposition of this appeal.

The grant of habeas relief is challenged here on two grounds. Respondent first asserts that it was an abuse of discretion for the district court to conduct an evidentiary hearing and make independent findings of fact when the case was ripe for summary disposition on the basis of the state court record. Respondent also contends that the court erred in its ultimate conclusion on the merits. After examination of the state and federal court hearings and opinions, we conclude (1) that the district court did not abuse its discretion in holding an evidentiary hearing, but (2) that one phase of the question whether the guilty pleas were knowingly made has not been adequately developed. We therefore remand for further proceedings.

The facts of the case were these: On October 10, 1967, Lee, an attendant at the State Hospital in Milledgeville, Georgia, was charged with the rape of two young mental patients. James M. Watts, an attorney in regular practice in Milledgeville who was then exercising the powers of a justice of the peace as judge of the Small Claims Court of Baldwin County, issued a warrant commanding Lee's arrest. Lee was apprehended in Ohio, waived extradition, and was returned to Georgia for trial. Shortly thereafter Lee's family retained Watts to represent Lee on the two rape charges as well as one charge of forgery and one of larceny. One of the two rape indictments returned by the Grand Jury of Baldwin County charged Lee with carnal knowledge of a named female, forcibly and against her will. The other indictment charged him with carnal knowledge of a named female under fourteen years of age without having previously become lawfully married to her. The state evidentiary hearing disclosed that a second male, also a patient at the hospital, was present at and participated in the rapes.

Lee's petition before the Tatnall County court initially alleged only that he had entered his plea of guilty after Watts' assurance that he would receive "a much lesser sentence than the sentence he received." Lee later amended his petition to allege that he had never authorized Watts to enter a plea of guilty for him and that Watts had not rendered effective assistance in representing him. He also alleged that he was never given a preliminary or bail hearing and was never informed of the indictments against him. The following excerpt from the Tatnall County court findings summarizes that court's factual conclusions:

The record shows that Mr. James M. Watts, Jr., attorney at law, Milledgeville, Georgia was privately employed by the family of petitioner; that he had practiced law in Milledgeville, Georgia for thirty-two (32) years; approximately ¼ of his time being devoted to criminal work; that he represented William Lee on two charges of rape and other charges in January, 1968, that he had talked with the father first and then with William, the defendant in jail; with his wife, with his mother-in-law, and also with his grandmother, and that defendant indicated to him that he wanted Mr. Watts to represent him and never indicated any dissatisfaction with his representation; that he was retained by the family in October, 1967, which was some several months prior to the sentencing of the petitioner; that he talked with defendant on several occasions in the jail; that he talked to both of the girls defendant was accused of raping; that he talked to the assistant superintendent of the hospital and checked the records concerning their commitment, the girls being patients at the Central State Hospital at the time, and the defendant being an attendant at the hospital. Mr. Watts stated that they talked about having a lie detector test but decided against it. The attorney advised him of the maximum punishment for rape which was death or life imprisonment. Mr. Watts told him that he had a right to a jury trial. Mr. Watts discussed the case also with the District Attorney, and it was his opinion that the state had a strong case or cases, and that he so advised defendant, after which defendant decided he would plead guilty. This fact was communicated to defendant\'s wife, his mother-in-law, his father, his grandmother, and a good friend of his father. After many discussions with the sheriff and the district attorney, the district attorney agreed to recommend the sentence of 15 years for the two offenses. Mr. Watts testified that the recommendation was never anything less than 15 years and that he advised petitioner that the Judge would not be bound by the recommendation but that he usually went along with the recommendation of the district attorney. Mr. Watts testified that he told the defendant on many occasions that the decision was strictly his as to whether he would plead guilty or not guilty, and that he was not coerced in any way to plead guilty. Mr. Watts testified that when petitioner was sentenced, he did not indicate any dissatisfaction with the sentence he received.

The court held the non-jurisdictional defects waived by Lee's guilty plea, see Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and focused on the adequacy of the representation afforded by Watts. Applying the Georgia standard of counsel "so ignorant, negligent, or unfaithful that the accused was virtually unrepresented or did not in any real or substantial sense have aid of counsel," Gardner v. State, 117 Ga.App. 262, 160 S.E.2d 271 (1968), the court found that Lee had failed to carry his burden of proof. Describing Lee's main contention as being that "he and his attorney had talked about a twelve year sentence when in fact he received fifteen years," the court viewed the relative leniency of the sentence received on charges for which the death penalty or life imprisonment could have been imposed as indicative of effective counsel.

I.

We first confront respondent's averment of error in the district court's refusal to grant the motion for summary judgment and the holding of an evidentiary hearing. This motion was filed in the district court simultaneously with the return and answer to Lee's habeas petition. Also submitted in support of the motion was the transcript and record of the state habeas proceeding.² Respondent contends that the district judge abused his discretion in failing to grant this motion in light of the presumption of correctness afforded the state court determinations by section 2254(d) and Lee's failure to contravene any of those determinations so as to create a "genuine issue for trial" under Rule 56(e), Federal Rules of Civil Procedure.³

That the district court has the power to hold an evidentiary hearing cannot be doubted. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In Townsend the Supreme Court set out criteria for determining whether to grant a federal hearing. Among these were findings that the record as a whole does not fairly support the state factual determinations and that the material facts were not adequately developed at the state court hearing. These two standards are identical to sections 2254(d)(3) and (d)(8), upon which the district court relied in deciding that the record before it was insufficient to afford a reliable basis for determining the difficult question of voluntariness presented. For instance, the court noted that Watts had not testified in person at the state hearing. His testimony had been preserved in a deposition taken in a proceeding not attended by Lee's counsel. The state trier of fact thus had no opportunity to evaluate Watts' testimony on the basis of a direct confrontation. Furthermore, the copies of the indictment submitted by respondent appeared to indicate that pleas of not guilty rather than guilty had been entered.⁴ In these circumstances...