McCormick v. Peyton, Civ. A. No. 67-C-25-L.

• Citation: 274 F. Supp. 797
• Decision Date: 27 September 1967
• Docket Number: Civ. A. No. 67-C-25-L.
• Parties: Sidney James McCORMICK, Petitioner, v. C. C. PEYTON, Superintendent, Virginia State Penitentiary, Respondent.
• Court: United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)

274 F. Supp. 797

Sidney James McCORMICK, Petitioner, v. C. C. PEYTON, Superintendent, Virginia State Penitentiary, Respondent.

Civ. A. No. 67-C-25-L.

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

September 27, 1967.

Reno S. Harp, III, Asst. Atty. Gen., for respondent.

OPINION and JUDGMENT

DALTON, Chief Judge.

This case comes before the court upon a petition for a writ of habeas corpus by Sidney James McCormick, a state prisoner, pursuant to the provisions of 28 U.S.C. § 2241 and is filed in forma pauperis. The case was ordered transferred to this court from the United States District Court for the Eastern District of Virginia on August 7, 1967.

Petitioner is currently serving a sentence of forty-five years for first-degree murder pursuant to a judgment of the Corporation Court of the City of Lynchburg, Virginia, on May 15, 1958. Petitioner was also convicted and sentenced by the court to ten years each for burglary, robbery and two counts of malicious wounding. The sentences were ordered to run consecutively.

Petitioner did not appeal his convictions. He filed a petition for a writ of habeas corpus in the Corporation Court for the City of Lynchburg, Virginia. After a plenary hearing before that court, petitioner's petition was denied on May 16, 1966. Petitioner applied to the Supreme Court of Appeals of Virginia for a writ of error to the judgment, which was denied on June 14, 1967. Petitioner is, therefore, properly before this court, having exhausted his presently available state remedies in compliance with 28 U.S.C. § 2254 as interpreted by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

The facts are as follows:

On January 22, 1958, petitioner was arrested in Parkersburg, West Virginia, and returned to Lynchburg, Virginia, to stand trial for the aforesaid offenses. Petitioner was placed in the City Jail of Lynchburg, Virginia, on January 23, 1958, and remained there until February 3, 1958, at which time petitioner was indicted and taken before the court. The court on that date appointed two attorneys to represent petitioner at trial. Petitioner was subsequently sent to the Southwestern State Hospital at Marion, Virginia, for a mental examination and was pronounced mentally competent. On May 14th and 15th, 1958, petitioner was tried by a jury in the Corporation Court of the City of Lynchburg, Virginia, and was found guilty on all five charges. Petitioner pleaded not guilty to all five charges and was represented by the two court-appointed attorneys.

Petitioner claims that he is entitled to a writ of habeas corpus on the following grounds:

1. Petitioner contends that he was denied a preliminary hearing before trial.

2. Petitioner contends that he was denied the right to produce material evidence on his behalf.

3. Petitioner contends that he was denied the right to appeal.

4. Petitioner contends that he was inadequately represented by counsel.

First of all, petitioner claims that he was denied a preliminary hearing. He was placed in jail on January 23, 1958, and first taken before the court on February 3, 1958, at which time he was indicted. At no time was petitioner given a preliminary hearing. We, however, find that petitioner is not entitled to relief on these grounds. The arrest and detention all occurred in 1958 and at that time the petitioner did not have a constitutional or statutory right in Virginia to have a preliminary hearing. Benson v. Commonwealth, 190 Va. 744, 58 S.E.2d 312 (1950). There the court said: "We hold that, under these circumstances, the defendant had no right, either statutory or constitutional, to be afforded a preliminary hearing prior to the finding of the indictment or to his trial thereon." 58 S.E.2d at 314. The defendant had been arrested on a warrant which the Commonwealth's attorney had dismissed to expedite the proceedings when the defendant demanded a preliminary hearing. At present an accused has a statutory right in Virginia to a preliminary hearing before his indictment¹ but he still does not have a constitutional right to a preliminary hearing. Dillard v. Bomar, 342 F.2d 789 (6th Cir. 1965) (and the long list of cases cited therein supporting that proposition.) Thus, the failure of petitioner to have a preliminary hearing does not entitle him to the relief sought.

Petitioner's second contention is that he was denied the right to submit material evidence in his behalf. The evidence shows that there actually were certain photographs and letters which could have been submitted as evidence at petitioner's trial. Petitioner, however, inconsistently claims on the one hand that his attorneys refused to obtain the evidence and on the other hand that they thought it shouldn't be used. Petitioner testified at the state habeas corpus hearing, after claiming in his petition that they refused to obtain the evidence, that "he (one of his attorneys) said he thought it was better not to use it (the photographs and letters)." His attorneys' testimony at the same hearing, however, shows that petitioner was not denied the right to submit the evidence in question. Petitioner had two attorneys representing him at his trial and both of them testified that they searched diligently to locate the letters and photographs knowing they would very likely help petitioner but could not find them. They ascertained that both petitioner's sister and a newspaper photographer who had gone to the scene of the crime to get the facts of the case had seen the evidence, but they both testified that no one including the police was able to tell them where to find the letters and photographs and that they were otherwise unable to locate them. It appears to the court that at no time was petitioner denied the right to submit evidence on his behalf. It rather appears that the petitioner's attorneys diligently attempted to find the evidence but without success. Since the evidence, if found, would probably have been to petitioner's benefit, his attorneys would not likely have sought to keep it out. Thus, we find no merit in this contention.

Petitioner's third contention is that he was denied the right to appeal. He testified that after the sentence was pronounced he talked to his attorneys about appealing the case and that he asked them to appeal it. He said that they told him not to appeal because he would be eligible for parole in only twelve years...