Matthews v. Wingo, 72-1515.

• Decision Date: 01 March 1973
• Docket Number: No. 72-1515.,72-1515.
• Citation: 474 F.2d 1266
• Parties: Neville P. MATTHEWS, Petitioner-Appellant, v. John J. WINGO, Warden, Kentucky State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

474 F.2d 1266 (1973)

Neville P. MATTHEWS, Petitioner-Appellant, v. John J. WINGO, Warden, Kentucky State Penitentiary, Respondent-Appellee.

No. 72-1515.

United States Court of Appeals, Sixth Circuit.

Decided March 1, 1973.

Certiorari Denied May 14, 1973.

Neville Parker Matthews, pro se.

Ed W. Hancock, Atty. Gen., Richard E. Fitzpatrick, Asst. Atty. Gen., Commonwealth of Kentucky, Frankfort, Ky., on brief for respondent-appellee.

Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and GUBOW, District Judge.^*

Certiorari Denied May 14, 1973. See 93 S.Ct. 2283.

PHILLIPS, Chief Judge.

Neville Matthews was adjudicated of unsound mind in 1951 and was committed to a State hospital until 1954. He has never been judicially declared to have been restored to a sound mind. In 1966 he was charged with two counts of armed robbery. While represented by privately retained counsel he entered a plea of guilty to both counts and was sentenced to life imprisonment on each indictment.

No issue was raised at trial as to the competency of Matthews to stand trial. After sentencing, he filed a motion to vacate judgment under RCr 11.42 in Kentucky State court. He alleged that he had insufficient mental capacity to stand trial and therefore asked that his plea be set aside. Judge Hayes of the Jefferson Circuit Court conducted a full evidentiary hearing and denied the motion. This decision was affirmed by the Kentucky Court of Appeals, Matthews v. Commonwealth, 468 S.W.2d 313, cert. denied, 404 U.S. 966, 92 S.Ct. 341, 30 L.Ed.2d 285 (1971).

In December 1971, Matthews filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky, alleging a violation of due process of law in that he was convicted at a time when he was not competent to enter a plea. His sole contention was that since he was never judicially declared to be restored to sound mind, he was incompetent. This petition was denied. No evidentiary hearing was held, the District Court relying upon the evidence presented at the State hearing. This decision was not appealed. Matthews filed a second petition for a writ of habeas corpus in which he alleged again that he was incompetent to enter a plea for the same reasons as averred before, and further that he was denied the effective assistance of counsel. This petition also was denied. The issue of the competence of Matthews was rejected on the basis of the prior adjudication, and the assistance of counsel issue was denied for failure to exhaust State court remedies.

We affirm.

The District Court had the right to reject the second petition to the extent it raised the same issues as had been resolved at the first proceeding. Under 28 U.S.C. § 2244(b) and the doctrine of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), a federal district court may deny a petition for a writ of habeas corpus where the ground presented in the second petition has been determined, on the merits, adversely to the petitioner at a prior habeas corpus proceeding, and the ends of justice would not be served by reaching the merits again, 373 U.S. at 15, 83 S.Ct. 1068. Here the issue of the competency of Matthews had been previously determined and rejected in the first petition.

The first dismissal was a proper adjudication on the merits even though no evidentiary hearing was held. 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Since Matthews did not raise the assistance of counsel contention before the Kentucky courts, the District Court dismissed the claim for failure to exhaust State court remedies. However, this court consistently has held that where resort to a State court would be a mere exercise in futility, the exhaustion requirement will not be applied. Allen v. Perini, 424 F.2d 134 (6th Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970); Lucas v. Michigan, 420 F.2d 259 (6th Cir.1970); Coley v. Alvis, 381 F.2d 870 (6th Cir. 1967). We believe that since Matthews previously has petitioned the Kentucky courts to vacate his sentence under the Kentucky post conviction relief provision, a subsequent motion would be denied without a hearing. RCr 11.42(3); See Walker v. Wingo, 398 S.W.2d 885 (Ky.1966). RCr 11.42(3) prov...