Moye v. State of Georgia

• Decision Date: 23 August 1971
• Docket Number: Civ. A. No. 14558.
• Citation: 330 F. Supp. 290
• Parties: James N. MOYE v. The STATE OF GEORGIA, Department of Law.
• Court: U.S. District Court — Northern District of Georgia

330 F. Supp. 290

James N. MOYE v. The STATE OF GEORGIA, Department of Law.

Civ. A. No. 14558.

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

August 23, 1971.

James N. Moye, pro se.

Arthur K. Bolton, Atty. Gen., David L. G. King, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent.

ORDER

EDENFIELD, District Judge.

Petitioner, a state prisoner incarcerated in the Georgia Diagnostic and Classification Center, was given leave to file in forma pauperis a petition for the writ of habeas corpus. Petitioner has amended twice and the State has filed in response a brief, several affidavits, and transcripts of the criminal trial and the state court habeas corpus hearing. Petitioner alleges exhaustion of state remedies and respondent does not challenge that allegation.

The material facts in this action are not at issue. Petitioner was tried and convicted in December, 1969, of the crimes of motor vehicle theft and credit card theft. Security personnel at a local department store suspected that petitioner had made purchases and refunds at branches of the store using a store credit card issued to a Mr. Holiday. On July 23, 1969, a store security guard observed petitioner making a refund and purchase and a check revealed that he fit the description of a man who had purchased items at another branch using the Holiday card. The guard notified personnel at other branches of the store, and on July 24, 1971, petitioner appeared at one of the branches and returned an item for a refund. A security guard "arrested" and searched him and discovered an oil company credit card issued to a Mr. Coursey. The police were called and the guard retained the Coursey card when petitioner was taken to jail. Subsequently, a car which petitioner had been seen driving but which did not belong to him was found at that branch store and in it was the Holiday credit card. Petitioner was booked on "open charges" and then presented for a preliminary (commitment) hearing. He requested counsel at the preliminary hearing but none was provided, and he pleaded not guilty.

Petitioner claims first that his "arrest" by the security guard was illegal and that evidence obtained thereby cannot be used against him. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). This same argument was made by petitioner's court-appointed counsel at trial on a motion to suppress, but the trial judge overruled the motion. The only evidence that resulted from the search by the security guard was the Coursey card which formed the basis for Count Two on the charge of credit card theft. At trial, it was found that Count Two charged petitioner with unlawful possession of the Coursey card on July 29, 1969. Since the security guard retained possession of the Coursey card after July 24 it was physically impossible for petitioner to have possessed it on July 29, and for this reason the trial judge struck Count Two of the indictment and instructed the jury to disregard all testimony related to it. The Mapp issue, therefore, was rendered moot, and petitioner's attack on that ground must fail.

Petitioner next says that he was denied counsel at the preliminary (commitment) hearing despite his requests. The preliminary hearing in Georgia Ga. Code Ann. Ch. 27-4 is strikingly similar to the one described by the Supreme Court in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), in which the Court held that Alabama's preliminary hearing was a "critical stage" at which counsel for defendant must be provided. The Georgia courts and the Fifth Circuit have repeatedly held, prior to Coleman, that the denial of counsel at the preliminary hearing is not unconstitutional. E. g., Kerr v. Dutton, 393 F.2d 79 (5th Cir. 1968).¹ In the instant case trial occurred before Coleman. The Supreme Court has not decided whether Coleman is to be applied retroactively, although it has granted certiorari recently on this very question. Adams v. Illinois, 401 U.S. 953, 91 S.Ct. 981, 28 L.Ed.2d 236 (1971). The Sixth Circuit has held that Coleman should not be applied retroactively. Harris v. Neil, 437 F.2d 63 (6th Cir. 1971). But this court will not reach that issue because petitioner did not raise it at his state court habeas corpus hearing, and having failed to exhaust his state remedies petitioner cannot raise that issue here. Donlavey v. Smith, 426 F.2d 800 (5th Cir. 1970).

Petitioner claims that he was paraded before the jury in handcuffs and was the only person at the trial not wearing a coat and tie. In Brooks v. State of Texas, 381 F.2d 619 (5th Cir. 1967), the Court stated:

"It is inherently unfair to try a defendant for crime while garbed in his jail uniform, especially when his civilian clothing is at hand. No insinuations, indications or implications suggesting guilt should be displayed before the jury, other than admissible evidence and permissible arguments." Brooks v. State of Texas, supra, at 624.

Question has been raised as to the extent and applicability of Brooks in factual settings which differ from it. Xanthull v. Beto, 307 F.Supp. 903 (S.D. Tex.1970). However, the trial transcript before this court discloses only that petitioner was seen in handcuffs by a witness in the anteroom leading to the courtroom. Although it is true petitioner did not have on a coat and tie in the courtroom, that is not sufficient to bring this case within the language of Brooks.

Petitioner contends that his in-court identification by one of the witnesses was tainted because there was no pre-trial lineup and her identification of him was based solely on the nature of his attire and the fact that she saw him in handcuffs. It is true that the witness concerned testified at one point: "I knew he was the defendant firstly because I knew that he was the man that I sold the razor to. Secondly, because of his handcuffs and the position in which he seated himself." (Trial Transcript, p. 126.) Nevertheless, the bulk of her testimony was that she remembered petitioner distinctly because when he purchased an electric razor from her he was dressed totally in black garments and black shoes. She further testified that she saw and recognized petitioner on two occasions prior to trial and prior to seeing him in handcuffs. This same issue was raised by petitioner's counsel before the Georgia Court of Appeals which fully considered the matter. Moye v. State, 122 Ga.App. 14, 176 S.E.2d 180 (1970). This court agrees with the Court of Appeals that the test is whether, under "the totality of the circumstances, the conduct of the identification procedure was so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process." Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 1128, 22 L.Ed.2d 402 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In this case, under the totality of the circumstances, the in-court identification procedure did not constitute a denial of due process.

The final issue is whether petitioner was denied due process and effective assistance of counsel because he was unable to obtain a rehearing of his appeal before the Georgia Court of Appeals. The record before this court shows that the decision on appeal of the Court of Appeals was rendered June 11, 1970. By letter dated June 14, 1970, petitioner asked the presiding judge of the Court of Appeals to grant him a rehearing, and if the Court of Appeals would not rehear the case he asked that he be appointed counsel to pursue his case to the Georgia Supreme Court. On June 16, 1970, the presiding judge of the Court of Appeals who received petitioner's letter sent a note to the Clerk of the Court asking him to advise petitioner "that we will consider a motion for rehearing if one is filed, and that if it is denied, he can file an application for certiorari to the Georgia Supreme Court, either by his attorney or acting as his own attorney." The Clerk, by letter dated June 16, 1970, wrote to petitioner:

"The Court wishes me to advise you that a motion for rehearing is proper and will be considered by the Court if it is filed in accordance with the rules. Under the rules of this Court, a motion for rehearing must be filed within ten days of the judgment. Your last day for filing such a motion in this case is June 22.

"In the event the motion for rehearing is denied, an application for a writ of certiorari may be filed in the Supreme Court, either by you or your attorney.

"Since you were represented in this Court by competent counsel, there is no provision in the law for the appointment for additional counsel by this Court."

Upon receipt of this letter petitioner says, and respondent does not deny, that he sent a special delivery letter to one of his court-appointed attorneys requesting that he file a motion for rehearing. Petitioner did not hear further from his counsel. On July 12, 1970, petitioner wrote to the Clerk of the Georgia Supreme Court applying for the writ of certiorari. In a series of letters the Clerk pointed out that in order to apply for the writ of certiorai petitioner should have: (1) moved for a rehearing in the Court of Appeals; (2) upon adverse disposition there given notice to the Clerk of that Court within ten days of the final judgment of his intention to apply for the writ of certiorari; and (3) applied to the Clerk of the Supreme Court for the writ within 30 days of the final judgment by the Court of Appeals. Since petitioner met none of these requirements, the Clerk of the Supreme Court could not entertain petitioner's application.

It is not disputed here that petitioner is indigent. The United States Supreme Court has held that on an appeal granted of right an indigent may not be denied assistance of counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Court held that should the indigent's counsel...