Loomis v. Peyton
| Decision Date | 22 February 1971 |
| Docket Number | Civ. A. No. 69-C-4-H,69-C-42-H,and 70-C-17-H. |
| Citation | 323 F. Supp. 246 |
| Parties | Warren Earl LOOMIS, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent. Warren Earl LOOMIS, Petitioner, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Respondent. Warren Earl LOOMIS, Petitioner, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Respondent. |
| Court | U.S. District Court — Western District of Virginia |
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Warren Earl Loomis, pro se.
Reno S. Harp, III, Asst. Atty. Gen., Richmond, Va., for respondents.
By order entered May 22, 1970, these petitions for writs of habeas corpus were consolidated, as they contain common matters of law and fact. Petitioner, Warren Earl Loomis, a state prisoner, is presently serving sentences imposed by the Circuit Court of Augusta County, Virginia. He attacks the validity of those sentences, as well as sentences imposed by the Circuit Court of the City of Staunton, Virginia.
On October 26, 1967, Loomis was convicted in the Circuit Court of the City of Staunton upon his guilty pleas to one count each of burglary and possession of burglary tools. He was sentenced to three years' imprisonment on the former count and to one year on the latter, both sentences being suspended for five years, during which time Loomis was to be on probation.
In February, 1968, petitioner was indicted in the Circuit Court of Augusta County on identical counts growing out of events which took place on November 12, 1967, some seventeen days following his conviction in Staunton. Loomis was subsequently convicted of burglary following a jury trial in the Augusta County Circuit Court on April 1, 1968, and sentenced to serve eighteen years in the penitentiary. On May 1, 1968, that court sentenced him to ten years upon his plea of guilty to possession of burglary tools, such sentence to run concurrently with the eighteen-year sentence. After a hearing held on that same day, the Circuit Court of the City of Staunton revoked the probation granted October 26, 1967, and ordered petitioner to serve the earlier imposed one-year and three-year sentences, said sentences to run concurrently with each other but consecutively with the eighteen-year sentence imposed by the Circuit Court of Augusta County. Petitioner's claims regarding the sentences imposed in Staunton will be considered first.
Loomis filed a notice of appeal from his Staunton convictions on June 4, 1968, but withdrew it on June 10, 1968 in favor of a petition for writ of habeas corpus filed in the Circuit Court of the City of Staunton. He complained in his habeas corpus petition of an illegal arrest and search, illegal detention following arrest, and prejudicial pre-trial publicity. By a subsequent amended petition, he claimed also that he had been denied effective assistance of counsel. A plenary hearing was held on December 20, 1968, and the petition was thereafter dismissed. On October 14, 1969, the Supreme Court of Appeals of Virginia denied a writ of error to the judgment dismissing the petition. Loomis then filed his present petition (No. 69-C-42-H) attacking the Staunton sentences in the United States District Court for the Eastern District of Virginia, which petition was transferred to this court.
In his present petition (No. 69-C-42-H) as amended in response to an order requiring him to allege facts in support of his claims, Loomis sets forth five grounds for relief, which, except as hereafter noted, are identical to those asserted in his state habeas petition. All of the claims now urged were presented in the state habeas proceeding, and petitioner has therefore exhausted his state remedies as to those claims, as required under 28 U.S.C. § 2254. The state records which are before this court, including a transcript of the state habeas hearing, disclose all the pertinent factual matters necessary for determination of petitioner's contentions regarding the Staunton sentences, and no further hearing on them is required. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963). Upon examination of those facts, which will be briefly recounted, this court is of opinion that petitioner's allegations do not entitle him to relief.
At some time around midnight on September 9, 1967, Staunton police, who were on routine burglary patrol, discovered petitioner standing by his car which was parked beside a motorcycle shop with the driver's door open. Upon investigation, the officers found that the shop had been broken into. A search of the trunk of petitioner's car turned up various oxygen tanks, gauges, tools, and a cutting torch, which items were identified at the scene by the shop's owner as having been taken from the shop. The arresting officers also found an assortment of tools in the car's interior. Upon being placed under arrest, Loomis was photographed in handcuffs at the scene of the burglary by a Staunton news photographer, who was also a reserve police captain and who participated in Loomis' arrest. This picture was subsequently published in a local newspaper, the STAUNTON NEWS LEADER, along with a story describing the events surrounding petitioner's arrest. Following his arrest, petitioner avers he was illegally detained until September 13, 1967, when he was taken before a magistrate. Loomis was indicted for burglary and possession of burglary tools by a grand jury of the Circuit Court of the City of Staunton in October, 1967. At a hearing prior to trial, Loomis' retained counsel attempted unsuccessfully to have suppressed from evidence the items seized from Loomis' car. Thereafter, petitioner and his counsel were prepared to proceed to trial on pleas of not guilty until the Commonwealth's Attorney, allegedly on the morning of the trial date, advised counsel that he would recommend suspended sentences and probation upon petitioner's pleas of guilty to the offenses charged. Petitioner entered guilty pleas at his trial, and the trial court, after receiving evidence in the form of an arresting officer's testimony and photographs of the items found in petitioner's car, imposed the three-year and one-year sentences now complained of and suspended them for five years. As noted, the order suspending the sentences was revoked six months later following petitioner's convictions in Augusta County.
Turning to petitioner's five allegations, it is readily apparent that only one, ineffective assistance of counsel, would afford a basis for issuance of the writ if substantiated. It is a familiar principle that a voluntary plea of guilty forecloses subsequent collateral attack based upon an alleged deprivation at an earlier stage of the proceedings. White v. Pepersack, 352 F.2d 470, 472 (4th Cir. 1965). Thus, Loomis' alleged illegal arrest (which is not substantiated in fact) is not, without more, grounds for setting aside an otherwise valid conviction based upon his guilty plea. Crawford v. Cox, 307 F.Supp. 732 (WD Va.1969). Nor does his alleged illegal detention prior to trial have a bearing on the validity of his present confinement. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). His remedy for such detention would have been by petition for habeas corpus at that time. See Lacey v. Palmer, 93 Va. 159, 24 S.E. 930 (1896). The question of the admissibility of evidence alleged to have been illegally seized also does not survive petitioner's guilty plea. United States v. Ford, 363 F.2d 375 (4th Cir. 1966); see also McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 26 L.Ed.2d 763 (1970).
Petitioner's claim regarding prejudicial pre-trial publicity similarly fails to present a live issue at this stage of proceedings. The gravamen of his claim is that the newspaper publication of his arrest denied petitioner "any chance of receiving a fair and impartial trial." In his state habeas petition, Loomis additionally urged that the publicity impelled him to enter involuntary guilty pleas. That allegation is not made in the present petition, and the record does not otherwise indicate that his pleas were unintelligently or involuntarily entered. In any event, petitioner's proper remedy for adverse pre-trial publicity was by way of a motion for change of venue, for which both Virginia1 and federal laws provide. Va. Code § 19.1-224 (1960 repl.vol.); F. R.Cr.P. 21(a). Under both jurisdictions, questions of venue not raised at the trial stage are waived. Virginia Rules of Court of 1950, No. 1:8; Hicks v. Commonwealth, 157 Va. 939, 161 S.E. 919 (1932) (applying then Rule of Court No. 22); United States v. Semel, 347 F. 2d 228 (4th Cir. 1965) (applying F.R. Cr.P. 12(b)), cert den. 382 U.S. 840, 86 S.Ct. 90, 15 L.Ed.2d 82, reh. den. 382 U. S. 933, 86 S.Ct. 312, 15 L.Ed.2d 346. Petitioner in the instant case made no attempt to show that the pre-trial publicity denied him a chance for a fair trial until filing his state habeas petition some eight months after his conviction based upon his guilty pleas. Thus, even assuming that the publicity would have prejudiced his cause had petitioner chosen to stand trial before a jury, he waived such challenge and may not now raise it collaterally by way of federal habeas corpus. The sole basis for Loomis' claim, in any event, is the single story which appeared in the STAUNTON NEWS LEADER, which, without more, does not support the challenge. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Petitioner's trial was in no sense permeated with the circus atmosphere which characterized the prosecutions of Sheppard and Estes so as to prevent fair trials in their cases.
Finally, petitioner's claim that he was denied the effective assistance of counsel is wholly without merit. Loomis complains of his retained counsel's "sincerity" of representation, citing (1) the latter's...
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