Paige v. Ross
| Decision Date | 30 June 1966 |
| Docket Number | Civ. No. 1841. |
| Citation | 257 F. Supp. 27 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Van R. PAIGE, Petitioner, v. Fred R. ROSS, Major, Odom Prison, Respondent. |
Van R. Paige, pro se.
T. Wade Bruton, Atty. Gen. of North Carolina, by Theodore C. Brown, Jr., Staff Atty., Raleigh, N. C., for respondent.
This cause comes before the Court as "the last button on gabe's coat," in a series of petitions and motions filed by this State prisoner, and filed in forma pauperis pursuant to the provisions of Title 28 U.S.C.A. Sec. 2254. Issues were joined upon respondent making answer and a motion to dismiss.
The grounds on which petitioner bases his allegation that he is being held in custody in violation of the Constitution of the United States are stated by him in his petition as follows:
Petitioner filed, as an addendum to his petition, a document entitled "Petitioner Defendant's Brief." In this document he insists that he was denied a preliminary hearing, that the indictment upon which he was tried was "False, void and intended to defraud the State and Federal tribunals * * *" in that the Solicitor for the State forged the signature of the foreman of the Grand Jury, which returned the true Bill of Indictment, upon the indictment.
He further states in this addendum that the presiding judge at his trial conspired with the Solicitor "to place petitioner illegally in prison on or before said Forged Indictment." Petitioner then proceeds to attack the integrity and competency of his trial counsel, by accusing them of being a party to the above proceedings. He further insists that they failed to make various motions or develop a case properly for purposes of appeal.
Petitioner has also filed a third document in reply to the answer of the respondent entitled "Ex Parte Motion For Counsel." The gist of this last document is the contention that petitioner was denied the right to appeal from his conviction of September 1963 due to his financial condition as a pauper.
Petitioner was first tried at the November 1957 Term of the Superior Court of Chowan County, for the offense of armed robbery. He pleaded not guilty, but was found guilty by the jury. Petitioner conducted his own defense, not being given the benefit of the assistance of counsel.
Thereafter, by means of petitions for a writ of habeas corpus, and by means of certiorari to the Supreme Court of the United States, he was granted a new trial. This Order for a new trial was issued on July 13, 1963, as a result of the United States Supreme Court decision of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
Petitioner's new trial was set for the September 1963 Term of the Superior Court of Chowan County. Two attorneys were appointed to represent petitioner, the appointment being dated August 14, 1963. These two attorneys, upon being appointed, drove to the place of petitioner's incarceration, some sixty (60) miles distant, and conferred with him. They further conferred with him on two other occasions subsequent to the trip, but prior to his trial. (Tr., P.C. Hearing, pp. 30-36, 9/14/65) Petitioner advised his attorneys that he would rely upon the defense of alibi. In order to prove this defense he advised his attorneys of certain possible witnesses who had previously worked with the petitioner in Brooklyn, New York. At that time, petitioner was using an assumed name. Petitioner did not know the addresses of these witnesses, but advised his attorneys that all worked at a factory together, and that his wife would assist in locating these potential witnesses. The factory was found to have since closed or moved its location and could not be located or contacted although a diligent effort was made by the attorneys to do so. (Tr., P.C. Hearing, pp. 31-36, pp. 49-53, p. 64 and p. 70, 9/14/65). Petitioner's wife was contacted by telegram where she resided in New York, but she did not respond to the attorneys, nor did she lend any assistance.
Petitioner was retried and convicted at the September 1963 Term, upon his plea of not guilty and a finding of guilty by a jury. He was actually convicted upon the testimony of two co-defendants. (Tr., P.C. Hearing, p. 59, 9/14/65).
Petitioner gave notice of appeal in open court and on November 26, 1963, a petition for a writ of certiorari to the Supreme Court of the State of North Carolina was denied by that Court. On April 14, 1964, the Supreme Court of North Carolina affirmed its denial of the writ of certiorari upon a writ of certiorari being denied petitioner by the Supreme Court of the United States.
Thereafter, beginning on September 14, 1965, a Post-Conviction Hearing was conducted on petitioner's behalf pursuant to the provisions of North Carolina General Statutes 15-217 through 15-222. At this hearing, which was conducted over two different days in order to accommodate petitioner, he was represented by counsel appointed by the Court. Petitioner expressed full satisfaction with the conduct of this attorney. (Tr., P.C. Hearing, p. 46, 9/14/65). At the Post-Conviction Hearing, there was explored the factual basis for all of petitioner's contentions such as his being denied competent counsel at his September 1963 Trial; the alleged failure to perfect his appeal from his conviction; improper bills of indictment and warrants; and, the general conduct of the trial and conviction. (Tr., P.C. Hearing, p. 7, 9/14/65; and pp. 3 and 4, 11/3/65). Petitioner was offered every opportunity to state any and all contentions and allegations he wished to present.
The Post-Conviction Hearing, which began on September 14, 1965, in Chowan County, and which was continued...
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Huffman v. Beto
...of the evidence that there has been a violation of his constitutional rights. Moore v. State of Michigan, supra; Paige v. Ross, 257 F.Supp. 27 (E.D.N.C.1966). The courts, however, will indulge every reasonable presumption against waiver of a constitutional right. Johnson v. Zerbst, supra. T......
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