McGarrah v. Dutton, 24107.

• Citation: 381 F.2d 161
• Decision Date: 26 July 1967
• Docket Number: No. 24107.,24107.
• Parties: L. C. McGARRAH, Appellant, v. A. L. DUTTON, Warden, Georgia State Prison, Reidsville, Georgia, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

381 F.2d 161 (1967)

L. C. McGARRAH, Appellant, v. A. L. DUTTON, Warden, Georgia State Prison, Reidsville, Georgia, Appellee.

No. 24107.

United States Court of Appeals Fifth Circuit.

July 26, 1967.

C. B. King, Albany, Ga., Charles S. Ralston, New York City, for appellant.

Carter A. Setliff, Asst. Atty. Gen., Atlanta, Ga., Arthur K. Bolton, Atty. Gen., G. Ernest Tidwell, Executive Asst. Atty. Gen., Atlanta, Ga., for appellee.

Before BROWN, Chief Judge, BELL, Circuit Judge, and BREWSTER, District Judge.

JOHN R. BROWN, Chief Judge:

On July 26, 1955, the Appellant, McGarrah, unrepresented by counsel, waived indictment and pleaded guilty in Superior Court of Sumter County to two counts charging assault with intent to commit rape and three counts of burglary. He was sentenced to 20 years each on the first two counts and 10 years each on the three remaining counts to be served consecutively, a total of 70 years. On January 18, 1965, McGarrah filed a petition pro se for writ of habeas corpus in the City Court of Reidsville, Georgia, asserting that the waiver and plea had been obtained by threats and force on the part of state officials, and that he had been denied the federally guaranteed right to assistance of counsel. The petition was denied on March 27, 1965, and no appeal was taken. On March 10, 1966, a petition for habeas relief asserting similar grounds was filed by his present counsel in the United States District Court for the Southern District of Georgia. A hearing was held, relief was denied, and this appeal followed. We reverse.

The record is simple and uncomplicated concerning the events that occurred — or did not occur — in chambers when McGarrah waived indictment and entered his plea of guilty. McGarrah testified¹ that at no time during the proceedings was he advised by either Mr. Burgamy, the Solicitor General of the South Western Judicial Circuit, now deceased, or Judge Cleveland Rees of his right as an indigent to have the court appoint counsel to represent him if he so desired. Of particular importance here, this testimony is corroborated with respect to what the state trial judge did. Judge Rees testified that it was not his practice to advise defendants of their right to indictment or counsel unless the question was raised and that ordinarily those matters were handled by the Solicitor General.² There is, however, contradictory evidence as to the Solicitor's actions. It is in the form of answers by Solicitor General Burgamy to written interrogatories, not crossed, prepared in connection with and used in the state habeas proceeding and admitted in the District Court under F.R.Civ.P. 26(d) (3) and (4).³ Mr. Burgamy testified as follows:

"Interrogatory No. 3: If you were present when L. C. McGarrah entered his pleas of guilty, please state whether or not he was advised of his constitutional rights concerning the appointment of legal counsel for his defense?

"Answer: Yes.

"* * *

"Interrogatory No. 5: Did L. C. McGarrah, or did he not, request the trial judge to appoint him legal counsel?

"Answer: No.

"* * *

"Interrogatory No. 10: Please state any other facts which you deem pertinent to the question of whether or not L. C. McGarrah was denied legal counsel, was denied a trial by jury, or was beaten into entering a plea of guilty, or that he was denied any of his other constitutional rights when he entered pleas of guilty to assault with intent to rape and burglary in the Superior Court of Sumter County on July 26, 1955.

"Answer: I remember this case well and L. C. McGarrah was not denied legal counsel, was not denied a trial by jury, and was not beaten into entering a plea of guilty. L. C. McGarrah entered a plea of guilty to two accusations of assault with intent to rape, and three counts of burglary freely and voluntarily and he was not denied any of his constitutional rights." Emphasis added.

From the now well established constitutional precept that an indigent accused, even if he pleads guilty must be provided with counsel unless that right is intelligently and completely waived, Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Knight v. Balkcom, 5 Cir., 1966, 363 F.2d 221, it is axiomatic that unless the defendant knows of the right to counsel or is clearly advised of that right, then the right cannot be intentionally relinquished or waived. Reed v. United States, 5 Cir., 1965, 354 F.2d 227, Carnley v. Cochran, 1962, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed. 2d 70. Here there is no indication from the record either in the State Trial Court or in the Federal Court that McGarrah, then an illiterate seventeen-year old, knew of the right to counsel. The question is then sharply posed whether or not he was clearly advised of that right, for only then might the constitutional requirements for waiver of counsel be satisfied. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

This inquiry at once discloses the vice inherent in the conclusory form of the interrogatories propounded to, and the summary answers given by, Solicitor General Burgamy. As such, this appeal presents the identical question recently decided by this Court in Molignaro v. Dutton, 5 Cir., 1967, 373 F.2d 729 Mar. 3, 1967 and Lastinger v. United States, 5 Cir., 1966, 356 F.2d 104. Almost as though written for the present case, what we there said fits here too:

"From the evidence presented on this appeal, we are unable to determine whether the constitutional mandate was observed. Specifically, and without questioning in any way the professional competence, sincerity, or creditability of the Solicitor General, * * * the evidence adduced on the hearing was in such form that we are unable to determine how or in what way the accused was advised of the right to counsel. The vice is in the conclusory form of the question and followed by a like response * * * providing little insight into either the nature of, or the circumstances surrounding, the advice." 373 F.2d at 730.

See also Knight v. Balkcom, supra, at 223 n. 1.

We do not mean to intimate that merely because the testimony of McGarrah — verbally uncontradicted by any clear, specific testimony — denies that he had either knowledge or advice as to the right to counsel that such testimony necessarily had to be credited by the District Court. On the contrary, our disposition would be the same had the Federal Trial Judge expressly discredited it. The record, State and Federal, is clear that petitioner did not have counsel. Judge Rees candidly testified that it was not his practice to give such advice before accepting a guilty plea, and he did not do so here. In this setting, the unrevealing questions and answers in the interrogatories propounded to Solicitor General Burgamy fall short of satisfying the requirements set out by the Supreme Court:

"Presuming waiver from a silent record is impermissible. 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 a waiver."

Carnley v. Cochran, supra, 369 U.S. at 516, 82 S.Ct. at 890, 8 L.Ed.2d at 77. The doubts reflected on the face of the record casts upon the State, not the petitioner, the burden⁴ to substantiate a knowing waiver and to do so by evidence which is not so deficient in form that there is doubt as to whether constitutional requirements have been observed.⁵

There is a factor present in this case, however, which distinguishes it from the Molignaro-Lastinger cases where conclusory generalities require reversal and remand to the District Court for a new hearing. Ordinarily this would permit the introduction of additional testimony regarding the specific facts relating to the advice as a basis for the asserted waiver. Here Solicitor General Burgamy, the person who is supposed to have given the advice is deceased. Whether any other person was present who might have knowledge about the critical facts is not clear.⁶ We recognize therefore that this may be a situation where the State, on remand for a new hearing is unable to produce evidence sufficient to carry the burden. In that event, the only alternative would be to invalidate the conviction subject to retrial. But this is the consequence of the failure either to provide counsel or establish a knowing waiver.

The disposition we make of this case renders it unnecessary to consider the other contentions raised by McGarrah. We reverse the decision of the District Court and remand the cause with directions to hold a further factual hearing for development of specific facts consistent with this opinion.

By way of epilogue these comments certainly are in order. They express both disappointment as to the past and optimism for the days ahead. The disappointment comes from the great likelihood that had McGarrah appealed in the Georgia Courts the denial of habeas, the Supreme Court of Georgia would have found that he had been denied his constitutionally protected right to counsel and set aside the conviction. The Georgia Supreme Court even under its traditional narrow view of habeas⁷ would have, and would now, entertain this right to counsel question. Whippler v. Balkcom, 5 Cir., 1965, 342 F.2d 388; Smart v. Balkcom, 5 Cir., 1965, 352 F.2d 502; Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95. The doctrine of comity requires that a federal habeas petitioner exhaust state court remedies that are available to him when he applies for federal habeas corpus relief. Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. Here the appellant utilized his state remedy through the trial court but took no appeal. We could apply the rule of comity and require him to exhaust his still available state remedy but the state has waived the question of exhausting the available state remedy. This selective waiver practice on the part of the state diminishes our federalism in the area of the obligation of the state to maintain its...