Mosley v. Dutton

• Decision Date: 04 November 1966
• Docket Number: No. 23310.,23310.
• Parties: Russell MOSLEY, Appellant, v. A. L. DUTTON, Warden, Georgia State Prison, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

367 F.2d 913 (1966)

Russell MOSLEY, Appellant, v. A. L. DUTTON, Warden, Georgia State Prison, Appellee.

No. 23310.

United States Court of Appeals Fifth Circuit.

October 12, 1966.

Rehearing Denied November 4, 1966.

Barnee Baxter, Augusta, Ga. (Court appointed), for appellant.

Arthur K. Bolton, Atty. Gen., Joel M. Feldman, Atty., Atlanta, Ga., for appellee.

Before RIVES, BELL and THORNBERRY, Circuit Judges.

RIVES, Circuit Judge:

This appeal is from the district court's denial of a writ of habeas corpus to a prisoner of the State of Georgia. The application alleged and the answer admitted exhaustion of available State remedies.¹ The applicant is serving a term of life imprisonment imposed upon his conviction of murder by castration. The district court denied the writ after a hearing in which the applicant was represented by appointed counsel. The applicant and the respondent testified orally, and the other evidence was taken by deposition and by affidavit.² The district court found the facts against the applicant as to most of the grounds specifically alleged in his pro se application.³ There was no more particular findings of facts as to other grounds, either alleged in the application or tried by consent of the parties and, hence, treated as if raised in the pleadings.⁴

The only evidence in the record as to the events which occurred prior to April 9, 1962, when counsel was appointed to defend the applicant, comes from the sworn pro se application and from the testimony of the applicant himself. According to the application and the applicant's testimony, he was arrested on December 6, 1961 on a warrant charging murder and was placed in the Emanuel County Jail at Swainsboro, Georgia. He was held incommunicado in that jail from December 6, 1961 until either the 24th or 25th day of December, 1961, when his brother was permitted to visit him for a period of thirty minutes. On or about January 1, 1962, he was transferred to the Jefferson County Jail at Louisville, Georgia, and, on or about February 1, 1962, he was transferred to the Effingham County Jail, Springfield, Georgia. During the period from January 1, 1962 to April 4, 1962, the applicant was held incommunicado. On April 8, 1962, the applicant was returned to the Emanuel County Jail, Swainsboro, Georgia, and on April 9, 1962, Mr. Sidney B. Shepherd was appointed to represent the applicant. At no time prior to the appointment of Mr. Shepherd was the applicant advised of his right to be represented by counsel. Three days after that appointment, the applicant was tried and convicted of murder and sentenced to imprisonment for life. From the time of the appointment of Mr. Shepherd, the applicant's testimony is controverted by that of Mr. Shepherd with the possible exception of the claimed frustration of the applicant's right of appeal from his judgment of conviction.

No appeal was prosecuted. The application alleged:

"On, or about, the 17th day of April 1962, petitioner was transferred to the Georgia State Prison, Reidsville, Georgia. On, or about, the 27th day of April, 1962, petitioner wrote the Emanuel Superior Court, giving notice of intent to appeal, pro se. On, or about, the 11th day of May, 1962, petitioner filed a Motion for New Trial with the Emanuel Superior Court. Said letter of intent to appeal, and, said Motion for New Trial, have never been acknowledged by the court, nor, has this court ever afforded petitioner any judicial review of State v. Mosley, supra Emanuel Superior Court, Middle Judicial Circuit of Georgia, April 12, 1962."

The applicant testified orally that after the jury had been out forty-five minutes to an hour, it returned to ask the Judge "could they recommend mercy in the case?", and at that point, "I turned to my lawyer, Mr. Sheppard sic, and I told him, I said: `Mr. Sheppard sic, don't you think all the people down on the front here in the court know what I am going to get? I am going to receive a life sentence. I want the case appealed.' He said: `I will see you at the jail tomorrow and arrange for an appeal.' I have never seen Mr. Sheppard sic since, and it was about a year and a half before I ever heard of him until I certified the letter to him."

On the matter of appeal, Mr. Shepherd testified by deposition prior to the hearing, and, hence, there was no occasion for him to deny the applicant's testimony. Mr. Shepherd's testimony as to appeal was confined to the following:

"Immediately after the trial, I discussed the case with several members of the Bar who had heard the evidence, and it was a consensus of opinion that there had been no errors committed in the admission of evidence or in the judge\'s charge. It is my considered opinion, based on my conversation with the other lawyers, that an appeal or motion for a new trial would have been futile."⁵

Mr. Shepherd had graduated from the Law School of Emory University in June of 1957, after which he had passed the Georgia State Bar examination. He had then been a Deputy Legislative Counsel for the State of Georgia until November of 1961, at which time he had entered the practice of law in Swainsboro, Georgia.

Mr. Shepherd testified by deposition that:

"* * * upon my appointment as such, I proceeded with the preliminary investigation in the discussion of the case with law enforcement officers and any other witnesses or persons who knew, either directly or indirectly, of the circumstances surrounding this case.

* * * * * *

"* * * as soon as I was appointed, I proceeded with the investigation of the case, talked with all of the witnesses whose names the Defendant, Russell Mosley had furnished me, together with all of the witnesses for the State. I went to the scene and made an investigation and discussed the case with the Defendant on two or three occasions.

* * * * * *

"Q. Were any witnesses summoned on behalf of the defense? If not, was it your best judgment in handling the case that no witnesses be summoned?

"A. Yes, there were witnesses summoned on behalf of the Defendant, namely: Jack Armstrong, Garnette Lindsey, Wilson Morris, H. R. Mosley, Horrace Strange, Peyton Youmans, Sonny Mills, Bobby Horne, Carl Moore, Carry Morris, Maurice Jackson, B. L. Williamson and Avis Williamson.

"Q. What were your trial tactics as far as using certain witnesses were concerned?

"A. As stated previously, I had talked to each of these witnesses relative to the circumstances and events about which they had knowledge surrounding this offense for which Russell Mosley was accused. After talking with them and after the State had presented its case and put its witnesses on the

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