Manning v. Jones
| Decision Date | 30 October 1974 |
| Docket Number | No. 74-155-HC.,74-155-HC. |
| Citation | 385 F. Supp. 312 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | John F. MANNING, Petitioner, v. Robert JONES, Superintendent, Polk Youth Center, Respondent. |
John F. Manning, pro se.
Robert Morgan, Atty. Gen. of N. C. by Richard N. League, Asst. Atty. Gen., Raleigh, N. C., for respondent.
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, in which petitioner John F. Manning, presently incarcerated at the Polk Youth Center, Raleigh, North Carolina, claims that he is being detained in violation of his rights under the Constitution of the United States.
Petitioner, having entered a plea of guilty to the offence of felonious breaking and entering and the misdemeanor offence of larceny which are violations of the North Carolina General Statutes, was sentenced the 26th day of January, 1973 to be imprisoned for a maximum of five years in the custody of the Commissioner of Correction as a "committed youthful offender" for treatment and supervision pursuant to North Carolina General Statutes Ch. 148, Article 3. The five year sentence was credited with the petitioner's 90 day confinement pending trial.
Petitioner asserts here that he was held under excessive bond; that he was subjected to an illegal search and seizure; that promises were made in exchange for his plea of guilty; that he did not receive a fair trial because of public opinion; that he was subjected to cruel and unusual punishment during his confinement pending trial; that he was not informed of his rights according to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 for a period of 24 to 36 hours after his arrest; that he was told by his court-appointed counsel that he had to testify; that the Columbus County Superior Court did not dismiss the case against him; that he was not tried for the same crime for which he was indicted; that no arrest warrant was presented to him for a week following his arrest and he was not allowed to retain a copy thereof; that he was allowed no telephone calls; that he was denied a speedy trial; that there are material variances between his warrant, indictment and commitment because of various name spellings; and, that the arrest warrant was not genuine.
The petitioner filed a petition in the General Court of Justice, Superior Court Division of Columbus County, North Carolina, for a post-conviction hearing pursuant to the "North Carolina Post-Conviction Hearing Act," North Carolina General Statutes Secs. 15-217 through 15-222 (1965). The concise grounds alleged in support of the petition filed in the State Court were that he was held under excessive bond, that his plea of guilty was coerced in some way by his attorney and that he did not receive a fair trial because of public opinion. These three assertions are only three out of fourteen contentions presented here for the first time by the petitioner in this application for federal habeas corpus.
The District Court of the United States, having jurisdiction in a habeas corpus proceeding in which the petitioner asserts that certain rights have been abridged which he possesses under the Constitution of the United States, need not exercise such jurisdiction and will not ordinarily do so until all available state remedies have been exhausted. The State and Federal courts have concurrent jurisdiction in collateral proceedings seeking vindication of Federal constitutional rights. It is recognized that Federal courts are not required to abstain or decline to exercise jurisdiction simply because the rights asserted may be adjudicated in the State courts; however, comity requires that the Federal courts recognize the primary responsibility of the State courts to correct their own errors of constitutional magnitude. Tyler v. Croom, 288 F. Supp. 870 (E.D.N.C.1968).
Failure by a defendant to appeal or to petition the State appellate court for certiorari within the respective time limits set by the State law is not a failure to exhaust "the remedies available in the courts of the State" as required by 28 U.S.C. Sec. 2254; that requirement refers only to a failure to exhaust State remedies still open to the applicant at the time he files his application for habeas corpus in this court. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The applicant before this court has previously asserted in the North Carolina post-conviction hearing only three of the fourteen claims he presents here in this application for Federal habeas corpus. As to the three claims presented in the post-conviction hearing, he failed to petition the appellate courts of North Carolina for a writ of certiorari within 60 days after such hearing as required by North Carolina General Statutes Sec. 15-222; therefore, as to those three claims he has no available State remedy at this time. Thus, petitioner's claims of excessive bond pending trial, that his plea of guilty was coerced in some way by his attorney and that he did not receive a fair trial because of public opinion, each having been asserted in the post-conviction hearing afforded to him in the State court, are properly before this court.
The remaining eleven allegations asserted by the petitioner in his application for Federal habeas corpus, not having been asserted in the appropriate State proceeding of a post-conviction hearing, are not now properly before this court in view of the fact that the applicant presently has a remedy available to him in the courts of the State of North Carolina. This remedy, which is presently available to the applicant, is the North Carolina Act, Article 22 of Chapter 15 of the General Statutes, entitled "Review of Criminal Trials." N.C. Gen.Stat. Secs. 15-217 through 15-222 (1965). The act is popularly known as the "North Carolina Post-Conviction Hearing Act." The Act provides that ". . . claims . . . not raised or set forth in the original or any amended petition shall be deemed waived, unless the court, upon consideration of a subsequent petition, finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately asserted in the original or amended petition." N.C.Gen.Stat. Sec. 15-218.
It is the opinion of this court that the petitioner must present each of his contentions raised in his application for Federal habeas corpus in a post-conviction hearing following the appropriate State procedure under the "North Carolina Post-Conviction Hearing Act" before such contention may be raised properly before this United States District Court. If it were otherwise, a State prisoner would be required only to raise one or two of his claims under the outlined State procedures and then, by contending that he has exhausted his available State remedies, bring the mass of his claims before the United States District Court in an application for Federal habeas corpus, as in the instant case.
The instant case is distinguishable from the case of Stem v. Turner, 370 F. 2d 895 (4th Cir. 1966). In the Stem decision it was found that the United States District Judge concluded that all of the petitioner's claims had been formally raised in the State court proceedings. The Court of Appeals for the Fourth Circuit reversed the District Court on the lower court's ruling that since the petitioner had failed to prove the claims in the State post-conviction hearing, the State remedy remained open. This is not the situation in the case before the court at this time. In the instant action the petitioner has failed either inadvertently or deliberately to present the mass of his claims in the State post-conviction hearing. The Supreme Court of the United States has held "that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies," Fay v....
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Malloy v. Sullivan
...than the state court. To support this argument he relies primarily on Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967); Manning v. Jones, 385 F.Supp. 312 (E.D.N.C.1974); and, Tyler v. Croom, 288 F.Supp. 870 (E.D.N.C.1968). Each of these cases, however, deals with the relationship between the ......