Montgomery v. Hopper, 73-1886.
| Citation | 488 F.2d 877 |
| Decision Date | 13 December 1973 |
| Docket Number | No. 73-1886.,73-1886. |
| Parties | Henry Lewis MONTGOMERY, Petitioner-Appellant, v. Joseph S. HOPPER, Warden, Georgia State Prison, Reidsville, Ga., Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Charles B. Pekor, Jr., Columbus, Ga. (Court-appointed), for petitioner-appellant.
William F. Bartee, Jr., Courtney W. Stanton, Asst. Attys. Gen., Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for respondent-appellee.
Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
When this same habeas corpus case was here before (457 F.2d 767), we vacated the district court's action in dismissing on the pro se petition alone and remanded for a hearing. In enumerating various matters which the trial court might consider, we said:
It does not appear that this denial was appealed to the Georgia Supreme Court. However, whether such an appeal was taken, and if not, whether it was deliberately bypassed, are issues that must be confronted initially by the district court. 457 F.2d at 768
We likewise set out other procedural matters which were open for consideration on remand. The opinion intended to disabuse any notion that the only thing left to do was to proceed with a hearing on the merits of the petition. Unfortunately, the word choice used to convey to the trial court the idea that the failure to appeal could constitute a bypass (a fact matter which would require initial determination by that court) may have inadvertently spawned difficulty. Pursuant to our mandate, the court below held a hearing and entered a written opinion which, after setting forth the quoted excerpt, dealt with bypass as "the question presented" and found that no notice of appeal had been filed in the Georgia Supreme Court and that petitioner had deliberately bypassed available state remedies. A rereading of our prior opinion with the illumination of hindsight makes clear how a busy district judge might interpret it to require that he give first consideration to this issue. Now that the facts have been adduced, we are convinced that they simply will not support a determination that this petitioner, who was not a lawyer and was not then represented by counsel, understandingly and knowingly acted to deprive himself of all collateral review on the constitutional merits of his imprisonment in any state or federal court.
Following his 1961 guilty plea to charges of robbery by force and burglary, Henry Lewis Montgomery was sentenced to 20 years in a Georgia state penitentiary. Approximately ten years later, he filed a pro se habeas corpus petition in the Superior Court of Tattnall County alleging in substance that he had been denied his Sixth Amendment right to effective assistance of counsel at the guilty plea proceeding. This petition was dismissed, and Montgomery testified that he then attempted to appeal the dismissal to the Georgia Supreme Court. A copy of Montgomery's notice of appeal was received by the Attorney General of Georgia, but the Tattnall County Superior Court has no record of any filing by Montgomery of a notice of appeal, and the Georgia Supreme Court has no record of his appeal. Four months after the notice copy was received by the Attorney General, Montgomery brought this federal habeas corpus petition under 28 U.S.C. § 2254. The district court's denial of relief without holding an evidentiary hearing on the basis of failure to exhaust available state remedies produced the first appeal to this court.
After conducting an evidentiary hearing consisting of the testimony by petitioner and the Clerk of the Tattnall Superior Court, the court concluded that petitioner, contrary to his sworn testimony, never filed a notice of appeal in the court system of Georgia from the denial of habeas corpus relief. This conclusion, based on physical as well as testimonial proof,1 is not clearly erroneous. Alternatively, the court determined that even if petitioner did mail his notice of appeal he deliberately by-passed the appellate remedy by failing to follow his notice with inquiry as to its status. This latter conclusion was based in part on petitioner's demonstrated knowledge of how to ask for leave to amend his state petition and his subsequent ability to process his federal petition at the trial and appellate level. The court furthermore found Montgomery to lack credibility on three grounds: (1) his testimony concerning the plea he originally entered was inconsistent, (2) his statement that he was sentenced to a term of fifteen years on a not guilty plea without a trial was contradicted by court records and the clerk's personal recollection, and (3) his statement that he did not know people could be represented by lawyers was unbelievable in light of his...
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