Nix v. State, 30569
| Decision Date | 27 January 1976 |
| Docket Number | No. 30569,30569 |
| Citation | 223 S.E.2d 81,236 Ga. 110 |
| Parties | Kirksey McCord NIX, Jr. v. STATE of Georgia et al. |
| Court | Georgia Supreme Court |
Kirksey M. Nix, Jr., pro se.
Lewis R. Slaton, Dist. Atty., Carter Goode, Asst. Dist. Atty., Atlanta, for appellees.
This is an appeal from the denial of the relief sought by Nix in a habeas corpus petition attacking his 1969 guilty plea to the felony of bribery. Though at the time of filing the petition Nix had completed service of the sentence, this court in Nix v. State, 233 Ga. 73, 209 S.E.2d 597 (1974) ordered the habeas court to entertain the petition on the merits. Subsequently, the habeas court (Fulton County Superior Court) afforded Nix a hearing on his petition, at which he was represented by two attorneys. Following the hearing the court denied relief in the order appealed from. We agreed to hear this appeal under the 1975 Amendment to the Habeas Corpus Act. Nix asserts basically that his guilty plea was not voluntarily and intelligently entered, and that his retained counsel at the time of that plea (who had represented him on a previous occasion involving three other charges) did not give him effective representation.
1. There is no merit in the allegation that the habeas court erred in failing to recuse himself at Nix's request because he was the judge before whom the guilty plea was entered. Nix wrote a letter to the court informally asking him to recuse himself, and saying that a formal motion would follow a refusal. The record contains no such motion, though Nix, in his voluminous papers and exhibits in the record, asserts variously that such a motion was filed on March 20, March 28, and March 30, 1975.
We find no error in the court's refusal to recuse himself. The two grounds asserted as a basis for disqualification were that the court was required to use its own recollections of the entry of the guilty plea, and that the court was biased against one of Nix's witnesses because a member of the court's family allegedly lost money in an undescribed business deal with this witness.
Neither of these asserted disqualifications is legally disqualifying under the Code of Judicial Conduct (see 231 Ga. page A-1) which in Savage v. Savage, 234 Ga. 853, 856, 218 S.E.2d 568 (1975) we held controlling on judicial disqualification. Moreover, at the time these motions were 'filed' by Nix by mail from prison, he was represented by counsel to whom he sent a copy of the alleged motion. The record reflects no attempt by counsel to file such a motion nor to secure a ruling on any formal or informal motion to recuse, though the actual hearing did not take place until a month after Nix's communication. We conclude that there was no formal motion; and to the extent that any such informal motion was before the court as a result of Nix's initial letter to the judge, the same was waived by counsel's subsequent decision to proceed before this judge without objection.
Answering Nix's additional allegations, Nix's attorney did not wish to call the court as a witness, and that was why the trial court's 'recollections . . . were never subjected to cross-examination' as Nix complains. Any problem inherent in one man's being both witness and judge was therefore not presented here.
To the extent to which Nix claims that the trial court made allegedly misleading out-of-court statements to his habeas attorney to discourage the attorney from calling the court as a witness, the claim is non-meritorious. The court, like any other witness, was first interviewed by the attorney as indicated by the attorney's affidavit, advanced by Nix. The attorney, on the basis of that interview, decided not to call the court because his testimony would not be helpful. Nix has nothing of which to complain. If the attorney had doubted the court's veracity, he could have cited him as a witness, put him under oath, and proceeded from there. In that event, of course, a different question would be presented on a motion to recuse.
2. Nix claims that the absence of certain witnesses whom he desired to have subpoenaed for the habeas hearing, including himself, deprived him of his rights to confrontation and to assit in his own case. The claim is without merit. Nothing in the record shows that his attorney even placed Pat H. Kerr or Kirsky Nix, Sr. (apparently, Nix's mother and father) under subpoena; no continuance nor other relief was asked for the failure of the subpoenaed John Ransom to appear; and a request voiced early in the hearing for the presence of Nix, who would have to be obtained from the custody of the State of Louisiana where he was incarcerated, was subsequently impliedly waived when his attorneys decided not to...
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Hackett, Matter of
...den. 399 U.S. 933, 90 S.Ct. 2249, 26 L.Ed.2d 806 (1970); Nix v. State, 233 Ga. 73, 209 S.E.2d 597, 598 (Sup.Ct.1974), aff'd 236 Ga. 110, 223 S.E.2d 81 (Sup.Ct.1976); Duran v. Morris, 635 P.2d 43, 45-46 (Utah Sup.Ct.1981). We have found no case quite like the instant one, where a successful ......
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Collier v. Evans
...as a matter of law, to support a motion to recuse. Savage v. Savage, 234 Ga. 853, 855-856, 218 S.E.2d 568. See Nix v. State, 236 Ga. 110, 111(1), 223 S.E.2d 81. Further, the fact that any judge of the panel selected to consider the cases sub judice may have considered another case in which ......
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