Marston v. Oliver, 272-69-R.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtMERHIGE
Citation324 F. Supp. 691
PartiesMartin P. MARSTON v. R. M. OLIVER, Superintendent of the Virginia State Farm.
Docket NumberNo. 272-69-R.,272-69-R.
Decision Date10 March 1971

James L. Sanderlin, Richmond, Va., for petitioner.

Overton P. Pollard, Asst. Atty. Gen., of Virginia, Richmond, Va., for respondent.


MERHIGE, District Judge.

Martin Marston petitions this Court for a writ of habeas corpus relieving him from the effects of a judgment of the Circuit Court of Chesterfield County.

When he filed the petition, Marston was confined in the Virginia State Farm by the respondent. Pertinent facts about his criminal conviction have been stipulated:

On February 24, 1969, Martin P. Marston, on a plea of guilty, was found guilty of driving on a suspended operator's license by the County Court of Chesterfield County, Virginia, and sentenced to one year imprisonment and $1,000 fine. From this sentence, Marston appealed and requested assistance of counsel on the appeal to the Circuit Court of Chesterfield County, Virginia. This request was denied. On May 27, 1969, on a plea of not guilty, Marston was found guilty by a jury and sentenced to 12 months in jail and a $100 fine.
During the period of his imprisonment Marston filed a petition for habeas corpus challenging the denial of counsel. Thereafter on October 23, 1969, Marston was released from state custody. Subsequently, on January 6, 1970, Marston was barred from operating a vehicle on the highways of the State of Virginia for a period of ten years, having come under the provisions of Virginia Code § 46.1-387.1 et seq., as a result of the conviction in the Circuit Court of Chesterfield County, Virginia, on May 27, 1969.

In addition to the factual stipulation, a plenary hearing revealed his indigency at the time of his request to the state court for assistance of counsel.

The question presented is whether the petitioner's sentence to imprisonment for twelve months cannot stand by reason of the refusal to afford him appointed counsel.


The case is not moot. Marston is now released from detention, but his conviction has given rise to the very real civil disability of ten years' withdrawal of his driving permit. In the record is the prosecutor's information which initiated the proceedings which resulted in this disability. One of the convictions listed in support of the claim that the petitioner is an "habitual offender" is that of May 27, 1969, attacked herein. Collateral prejudicial consequences, therefore, actually flow from the judgment here contested. Consequently the petitioner's release during the pendency of these proceedings does not moot his case. Sibron v. New York, 392 U.S. 40, 50-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Wood v. Ross, 434 F.2d 297 (4th Cir. 1970); Hewett v. State of North Carolina, 415 F.2d 1316, 1320-1322 (4th Cir. 1969).

Exhaustion of state remedies

Marston did not take any direct appeal, nor have any collateral proceedings been initiated in state courts. For two reasons, however, he is not obliged to seek relief in such forums.

First, the state habeas corpus procedure is not currently available to him. The Virginia Supreme Court of Appeals recently ruled that a prisoner whose sentences expired before a decision could be reached on his habeas corpus petition no longer presented the court with a litigable case:

Our habeas corpus statutes are designed to provide relief in the form of the "discharge" (Code § 8-603) from the "person in whose custody" (Code § 8-598) a petitioner is "detained without lawful authority" (Code § 8-596).
* * * * * * The petitioner is no longer detained and there is no custody from which to discharge him. To pass upon the merits of his claims would be to render an advisory opinion — a function our habeas corpus statutes neither provide for nor permit. This court, therefore, is without jurisdiction further to entertain the case, and the appeal will be dismissed. Blair v. Peyton, 210 Va. 416, 171 S.E.2d 690, 691 (1970).

There is no indication that the petitioner has deliberately bypassed state procedures by his failure to file a state habeas case while he was confined. Assuming that some prisoner might ever be so resolute in his efforts to avoid state procedures as to file only a federal petition and then await the expiration of his term to press for a ruling, this has not been Marston's strategy. That no intentional forfeiture of known avenues of relief has been made is plain if one considers the second reason for which exhaustion is not now necessary.

Whether or not Virginia courts might now afford Marston a forum to litigate his constitutional claims, recent actions of the state's highest court make it manifest that the prevailing constitutional doctrine in the state system is not in accord with his claims. Resort to state courts would be futile. In such circumstances it is not required. Ralph v. Warden, 438 F.2d 786 n. 1 (4th Cir. 1970); Rowe v. Peyton, 383 F.2d 709 (4th Cir. 1967) affirmed, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 420 (1968); Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968); Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964).

Recently the Virginia Supreme Court of Appeals denied two original petitions for habeas corpus by misdemeanor convicts who went to trial without counsel.

In Hackette v. Royster, R 9863, mem. decis. (Va.Sup.Ct.App., June 19, 1969), a habeas petitioner had been tried for two violations of Va.Code § 6.1-115 (1966 Repl.Vol.), the offense of passing bad checks, which carries a maximum sentence of twelve months, Va.Code §§ 18.1-101, 18.1-9 (1960 Repl.Vol.). The state supreme court appointed counsel to brief the issues, which principally involved denial of the right to appeal and refusal to appoint counsel. It is clear, therefore, that the original habeas petition was considered on its merits, as the Supreme Court of Appeals does on occasion. Va.Code § 17-97 (1960 Repl. Vol.); Burgess v. Cunningham, 205 Va. 623, 139 S.E.2d 110 (1964); see Taylor v. Cox, No. 14, 108, mem. decis. (4th Cir., Apr. 22, 1970); McLaughlin v. Royster, Civil Action No. 5667-R, mem. decis. (E.D.Va. Jan. 13, 1971).

Hackette's request for counsel's aid allegedly had been denied in the court not of record where he was tried. He pleaded guilty and allegedly sought to appeal. The guilty plea would not, under Virginia law, have precluded his contesting all issues in the de novo trial in a court of record afforded to appellants. Va.Code § 16.1-132 (1960 Repl.Vol.). His attorney specifically argued the applicability of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) to Hackette's case.

A procedural question arose as to whether the Supreme Court of Appeals should or could remand to a lower court for the determination of unrecorded matters of fact raised in the pleadings. See Va.Code §§ 8-596, 8-598 (1957 Repl.Vol., Supp.1970). The respondent had not denied, however, that the petitioner was not represented by counsel nor was he offered court-appointed counsel. Under Virginia pleading principles, allegations not denied are accepted as true. Morris v. Smyth, 202 Va. 832, 120 S.E.2d 465 (1961). Whether or not conclusive court records were available to settle the factual issues of offer or waiver of counsel's assistance, and whether or not a hearing to determine those questions could be conducted, it would appear that the state of the pleadings in Hackette left no facts material to the issue in dispute, and that the legal question of the duty to provide counsel in cases such as Hackette's alone remained. The dismissal of the petition consequently constituted a ruling on the merits adverse to the petitioner. Rowe v. Peyton, supra, offers a close analogy:

Rowe's petition was rejected by the Supreme Court of Appeals of Virginia without an opinion, but in light of the factual allegations of the petition, that rejection must have been upon the procedural ground that Rowe was not presently serving the sentence he seeks to attack. Thacker should not be required to travel the same road through the state courts to present a question which the Virginia Supreme Court of Appeals has so recently decided, when there is no indication that it is now prepared to depart from the former course of its decisions. Rowe v. Peyton, supra, 383 F.2d at 711 (footnotes omitted).

Carter v. Gathright, R 9840, mem. decis. (Va.Sup.Ct.App., June 17, 1969), is a similar case. Carter alleged that he asked the sheriff for an attorney before his county court trial. His request was denied. Responsive pleadings made no denial but stated ambiguously that "petitioner being tried for misdemeanors was not entitled as a matter of right * * * to counsel of his own choosing." The writ was denied in this case as well. Carter had faced two misdemeanor charges, each of which carried a maximum penalty of a year's confinement.

In view of these recent rulings of the state's highest court resolving the very issue which Marston raises here adversely to his contentions, it would be senseless, even if a state forum would consider his claim on the merits, to require him to seek relief there.

Right to counsel

Marston was, at the time of his trial in the court not of record and at the time of his de novo retrial, financially unable to retain counsel. He had $35.00 available for his use in the first instance and no money at all the second time. The circuit court made no inquiry as to his financial status, despite that he did request counsel's aid.

In view of Marston's request for counsel, it is obvious that he did not waive whatever rights he had. Nor did the petitioners who sought relief from the state supreme court in original habeas cases, for it has long been the law that a failure to request a lawyer's aid does not constitute an effective...

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