McBryar v. McElroy

• Decision Date: 17 March 1981
• Docket Number: Civ. A. No. C79-66R.
• Citation: 510 F. Supp. 706
• Parties: Bruce McBRYAR, Petitioner, v. Clay E. McELROY, Superintendent of Colony Farm Correctional Institute, Hardwick, Georgia.
• Court: U.S. District Court — Northern District of Georgia

510 F. Supp. 706

Bruce McBRYAR, Petitioner, v. Clay E. McELROY, Superintendent of Colony Farm Correctional Institute, Hardwick, Georgia.

Civ. A. No. C79-66R.

United States District Court, N. D. Georgia, Rome Division.

March 17, 1981.

Richard D. Allen, Jr., Atlanta, Ga., for petitioner.

W. Davis Hewitt, John C. Walden, Don A. Langham, Robert S. Stubbs, III, Asst. Attys. Gen., Arthur K. Bolton, Atty. Gen. of Georgia, Atlanta, Ga., for respondent.

ORDER

HAROLD L. MURPHY, District Judge.

Bruce McBryar, a state prisoner confined at the Colony Farm Correctional Institute, Hardwick, Georgia, has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In February, 1978, petitioner plead guilty in the Superior Court of Whitfield County, Georgia, to armed robbery and was sentenced to seven years imprisonment. Following his imprisonment, petitioner filed a petition for a writ of habeas corpus in the Superior Court of Butts County. Hearings were held on May 11, and June 8, 1978, but petitioner's motion to dismiss without prejudice was granted before a ruling on the merits of the petition was made. Petitioner then filed a petition in the Superior Court of Baldwin County, pursuant to which a hearing was held on November 8, 1978. After the relief sought was denied, petitioner applied for a certificate of probable cause to appeal and was denied. The petition in this Court followed. A hearing was held before a Magistrate who filed a Report and Recommendation adverse to the petitioner. On January 8, 1981, a hearing was held in this Court.

I. FINDINGS OF FACT

1. Following his arrest for armed robbery, Bruce McBryar retained Joe Wild, a Chattanooga attorney, to represent him.

2. Joe Wild informed Bruce McBryar that if McBryar would cooperate with the prosecutors, the prosecutors would get him probation.

3. Joe Wild was personally acquainted with one of the victims of the robberies which were allegedly perpetrated by his client, Bruce McBryar.

4. Joe Wild advised Bruce McBryar to talk with the prosecutors whenever the prosecutors requested information. Wild was aware that McBryar spoke with prosecutors on numerous occasions when Wild was not present.

5. Joe Wild advised Bruce McBryar to testify for the prosecution at the trials of his confederates.

6. Joe Wild advised Bruce McBryar to plead guilty in both Walker and Whitfield Counties to charges of armed robbery.

7. Joe Wild advised Bruce McBryar that by pleading guilty to the charges of armed robbery, after having cooperated with the prosecutors, he would get probation.

8. Bruce McBryar plead guilty in Whitfield County to the armed robbery charges and was subsequently sentenced to seven years in prison.

9. The guilty plea transcript shows that petitioner stated his pleas were voluntary and that he had not been threatened or pressured into pleading guilty nor induced by any promise.

10. Joe Wild made no statement at the Whitfield County sentencing hearing after the Judge set the sentence at seven years.

11. A concurrent sentence was imposed by the Superior Court in Walker County.

12. Joe Wild was not aware that a guilty plea was not final until signed by the Judge and that a guilty plea could be withdrawn until signed by the Judge, Ga.Code § 27-1404.

13. Joe Wild was not aware that a defendant could file a motion for reduction of sentence to the sentencing judge, Ga.Code § 26-2502.

14. Joe Wild made no post-sentence motions whatsoever.

15. The special prosecutor in the Whitfield County cases was Erwin Mitchell.

16. At no time did Erwin Mitchell tell Joe Wild or Bruce McBryar that McBryar would get probation, or that Mitchell would recommend to the Superior Court Judge that McBryar should get probation.

17. Erwin Mitchell did inform Judge Temple, the sentencing judge in Whitfield County, that McBryar had cooperated with the prosecution, as Mitchell promised he would do.

II. CONCLUSIONS OF LAW

The Magistrate concluded, as does this Court, that the petitioner did not receive a full and fair hearing in the State Courts. At the Baldwin County hearing, the only participant of the guilty plea proceedings to testify was Bruce McBryar. Neither Erwin Mitchell nor Joe Wild were present. The testimony of Bruce McBryar's wife was excluded as hearsay and cumulative. A brief portion of the Butts County hearing was read into the record. Mr. McBryar was not represented by counsel. It is clear from reading that transcript that pertinent and accurate findings of fact could not be reached without further inquiry. In Sumner v. Mata, ___ U.S. ___, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981) the Supreme Court cautioned the lower federal judiciary to observe strictly the requirements of 28 U.S.C. § 2254(d), and to disturb the findings of a state court only under the circumstances provided in § 2254(d)(1)-(8). The Court holds (1) that the exclusion of Mr. McBryar's wife's testimony, the absence of any live testimony by Mr. Wild and the absence of counsel to aid Mr. McBryar all constitute a fact finding procedure which was not adequate to afford a full and fair hearing, § 2254(d)(2); that the material facts were not adequately developed at trial, § 2254(d)(3); that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding, § 2254(d)(6); and that the factual determinations made by the state court are not fairly supported by the record, § 2254(d)(8).

Furthermore, the resolution of the issue of effective assistance of counsel presents a mixed question of fact and law. Davis v. Heyd, 479 F.2d 446, 450 (5th Cir. 1973); Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976). As the Fifth Circuit stated,

Regardless of the thoroughness of state fact-finding procedures, considerations of comity do not obligate federal courts in habeas corpus cases to defer to state determinations on matters of federal law.

West v. State of Louisiana, 478 F.2d 1026, 1031-32 (5th Cir. 1973). The conclusion of the state trial judge on the issue of effective assistance of counsel is not, therefore, enshrouded with § 2254(d)'s presumption of correctness. Had the state trial judge endeavored to make findings of fact, such as what the attorney actually did for his client, those facts would be presumed correct. However, the transcript of the Baldwin County proceeding reveals that other than finding that Bruce McBryar was a state prisoner, the judge made no findings of fact upon which the conclusions were based. See, Mason v. Balcom, supra, 722-23.

It was therefore proper for this Court to hold a thorough evidentiary hearing in order to determine the circumstances surrounding Mr. McBryar's plea of guilty in the state courts.

2. Having found that the prosecutor did not make a bargain to seek probation, the Court need not address the issues raised by the petitioner which are premised on such a finding. That is, the line of cases spawned by Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) are not relevant.

3. The petitioner did not receive the effective assistance of counsel and his plea of guilty was consequently not intelligent and voluntary. In assessing the effectiveness of Joe Wild, the fact that he was retained, rather than appointed, is of no import. In Cuyler v. Sullivan, 446 U.S. 335, 343-45, 100 S.Ct. 1708, 1715-16, 64 L.Ed.2d 333 (1980), the Court stated

Unless a defendant charged with a serious offense has counsel able to invoke the procedural and substantive safeguards that distinguish our system of justice, a serious risk of injustice infects the trial itself ... When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty.... Since the State's conduct of a criminal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.

The dual standard for gauging the effectiveness of retained and appointed counsel established by Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1975) (en banc) is therefore no longer valid law.

McBryar was sentenced pursuant to a plea of guilty. A guilty plea is a "grave and solemn act to be accepted only with care and discernment." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed. 747 (1970). Such a plea constitutes a waiver of several basic rights including the right to trial by jury, the privilege against self-incrimination, and the right to confront one's accusers. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). It is "more than an admission of conduct; it is a conviction." Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969); Brady, supra, 397 U.S. at 748, 90 S.Ct. at 1469.

To waive these fundamental rights by a plea of guilty, the accused must make an informed, knowledgeable, and voluntary decision. He must be aware of the relevant circumstances and likely consequences. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.2d 1461 (1938). Brady, supra, 397 U.S. at 748, 90 S.Ct. at 1468. In Brady, the Court observed that guilty pleas would not be sanctioned but for the caution with which trial courts accept them:

It is our expectation that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel ...

Brady, supra at 758, 90 S.Ct. at 1474. (emphasis supplied).

Fifty years ago the Supreme Court admonished trial courts to exercise the utmost caution in accepting the defendant's waiver of trial by jury:

Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become

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