Mays v. Harris, Civ. A. No. 73-C-21-C.

• Court: United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
• Citation: 369 F. Supp. 1348
• Docket Number: Civ. A. No. 73-C-21-C.
• Parties: Curtis MAYS, Petitioner, v. William HARRIS, Sheriff, Respondent.
• Decision Date: 01 December 1973

369 F. Supp. 1348

Curtis MAYS, Petitioner,
v.
William HARRIS, Sheriff, Respondent.

Civ. A. No. 73-C-21-C.

United States District Court, W. D. Virginia, Charlottesville Division.

October 1, 1973.

Second Opinion December 1, 1973.

369 F. Supp. 1349

William M. McClenny, Amherst, Va., for petitioner.

Sam Eggleston, Commonwealth's Atty., Lovingston, Va., for respondent.

OPINION and JUDGMENT

DALTON, Chief Judge.

Mays, a Virginia state prisoner, seeks a writ of habeas corpus to redress misdemeanor convictions which resulted in his classification as a habitual offender pursuant to Va.Code Ann. § 46.1-387.1 et seq. (Repl.Vol.1972), and two subsequent convictions pursuant to § 46.1-387.8, for operating a motor vehicle while classified a habitual offender. The jurisdiction of this court is invoked pursuant to 28 U.S.C. § 2254.

On April 18, 1963, petitioner was charged with the first of four violations which eventually resulted in a court order declaring him a habitual offender. He plead guilty to the offense of operating

369 F. Supp. 1350

a motor vehicle while under the influence of intoxicants and received a $200.00 fine and 30 day suspended sentence. He entered a plea of guilty on May 9, 1968, to a charge of operating a motor vehicle without an operator's license and was fined $10.00. His first imprisonment resulted from a guilty plea on July 24, 1969, to a charge of driving while intoxicated. A $200.00 fine was imposed and petitioner was sentenced to 30 days in jail. On September 4, 1969, he again plead guilty, this time to driving with a revoked operator's license, and was fined $100.00 and sentenced to 10 days in prison. These misdemeanor convictions resulted in a court order on March 6, 1970, declaring petitioner a habitual offender. On June 4, 1973, petitioner was convicted in the Circuit Court of Nelson County, Virginia, of having violated, on December 4 and 10, 1972, § 46.1-387.8, to wit, operating a motor vehicle while classified a habitual offender. Conviction pursuant to this section mandates imprisonment for not less than one nor more than five years, and no portion of the sentence may be suspended

Petitioner challenges his convictions in light of the Supreme Court's recent ruling in Argersinger v. Hamlin, 407 U. S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). He alleges that at the time of his misdemeanor convictions he was indigent and therefore unable to retain counsel; and that sentence was imposed without the assistance of counsel or the intelligent waiver thereof. It is his contention that retroactive application of Argersinger requires that the misdemeanor convictions be declared invalid as in violation of the Sixth Amendment to the U.S. Constitution.

Petitioner has failed to exhaust the remedies available in the courts of Virginia, however, he need not do so. 28 U.S.C. § 2254 provides that exhaustion is not required whenever there exist "circumstances rendering such process ineffective to protect the rights of the prisoner." The Supreme Court of Virginia has recently ruled that Argersinger should only be given prospective application. Potts v. Superintendent of Va. State Penitentiary, 213 Va. 432, 192 S.E.2d 780 (1972). Petitioner's misdemeanor convictions occurred prior to the decision in Argersinger, hence, according to the Virginia Supreme Court's determination, petitioner's claims regarding right to counsel are without merit. Since state relief is foreclosed to the petitioner he is thereby relieved from the necessity of pursuing state remedies. Wood v. Superintendent Caroline Correctional Unit, 355 F.Supp. 338 (E.D.Va. 1973); Herndon v. Superintendent Va. State Farm, 351 F.Supp. 1356 (E.D.Va. 1972); Cordle v. Woody, 350 F.Supp. 479 (E.D.Va.1972). Accordingly, this action is ready for determination on the merits.

The Fourth Circuit Court of Appeals has recently ruled that the decision in Argersinger, holding that an accused may not be deprived of his liberty as the result of a criminal prosecution, whether felony or misdemeanor, where he was denied assistance of counsel, should be applied retroactively. Marston v. Oliver, Mem. 485 F.2d 705, Dec. No. 71-1329 (4th Cir., Jan. 7, 1972). This court is bound by the Fourth Circuit's determination.¹ Therefore, the only question remaining

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for disposition is whether, as asserted by respondent, petitioner waived his right to counsel as a consequence of his failure to request counsel and his imposition of guilty pleas to the misdemeanor charges

The guiding principle in analyzing alleged waivers of constitutional rights was established by the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937) held applicable to asserted waivers of the right to counsel in state criminal proceedings in Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1944). When considering purported waivers, courts must "indulge every reasonable presumption against waiver" and refrain from presuming "acquiescence in the loss of this fundamental rights." 304 U.S. at 464, 58 S.Ct. at 1023. Furthermore, the right to counsel is not dependent upon a demand for assistance by the defendant. Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed. 2d 70 (1961). Petitioner's failure to demand assistance, therefore, is not indicative of a waiver, especially when at the time of his prior misdemeanor convictions, there was no constitutional right which he could have demanded. It is clearly unpermissible to presume waiver from a silent record. Rather, "the record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1961) (Emphasis supplied). If the record does not explicitly reflect an intelligent waiver, the state has the burden of proving the defendant intelligently waived his right to counsel.

The record in petitioner's case reveals only that he was not represented by counsel.² There is no documentation of an offer of counsel or a waiver thereof. Rather, the only evidence presented in this regard, is petitioner's uncontradicted testimony during the preliminary hearing for his state criminal trial, that he was never advised of his right to counsel and never waived his right.

Petitioner's guilty plea, in itself, does not constitute an intelligent waiver. Although the Supreme Court, in discussing waiver of the right to counsel, has indicated the entry of a guilty plea may raise a fact issue,³ no such issue is evident here. The Supreme Court has recognized that expert advice in determining whether or not to plead guilty is invaluable and has indicated that "an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney." Brady v. United States, 397 U.S. 742, 748 n.6, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970); see United States ex rel. Urbano v. Yeager, 323 F.Supp. 774, 777 (D.N.J.1971). Additionally, in

369 F. Supp. 1352

considering respondent's claim of waiver, it is necessary to recall that petitioner's convictions occurred at a time when state courts were under no constitutional obligation to provide lawyers to indigent defendants in misdemeanor cases. Consequently, the state court was under no obligation to advise petitioner of his right to counsel, simply because indigents in misdemeanor cases had no constitutional right to counsel. It is unrealistic to assume that a guilty plea, without more, constitutes an intelligent and knowing waiver under these circumstances. Such reasoning would be entirely contrary to the bias against presuming waiver established by Johnson v. Zerbst and its progeny. Instead, the petitioner having established he was not assisted by counsel and having presented uncontroverted statements that he was never advised of his right, nor waived it, the burden was on respondent to produce evidence of affirmative action by petitioner which constituted an intelligent and knowing waiver. No such evidence has been proffered

Under the circumstances of this case no useful purpose would be served by an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1962). Petitioner has presented uncontroverted allegations that he did not waive assistance of counsel. The state court proceeding revealed that the record discloses only that petitioner was not represented and further, the Commonwealth's Attorney indicated that this was the only evidence available regarding waiver. The existing evidence establishes a prima facie case for relief and there appears to be no evidence available to respondent to rebut it. Therefore, Mays is entitled to relief on his habeas petition. The conviction, on July 24, 1969, for driving while intoxicated, which resulted in a thirty day sentence, and the conviction on September 4, 1969, for driving with a revoked operator's...