Pate v. Holman

Decision Date16 February 1965
Docket NumberNo. 21428.,21428.
Citation341 F.2d 764
PartiesAubrey PATE, Appellant, v. William C. HOLMAN, Warden, Kilby Prison, Alabama, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Nicholas S. Hare, Monroeville, Ala., for appellant.

Richmond M. Flowers, Atty. Gen., John C. Tyson, III, Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before RIVES, WISDOM and BELL, Circuit Judges.

WISDOM, Circuit Judge.

Aubrey Pate, a prisoner in Kilby Penitentiary, Alabama, appeals from an order of the district court dismissing his petition for habeas corpus and denying an evidentiary hearing on the petition. The district court held that a full hearing was unnecessary because in coram nobis proceedings the State had previously resolved all the issues the petitioner raised in this habeas corpus proceeding. We find that the state courts gave full and fair consideration to all of the petitioner's contentions except his contention that the State deprived him of his right to appellate counsel and, in effect, to the right of appeal.1 The petitioner contends that his retained trial counsel withdrew from the case after his conviction and that he was unable to employ appellate counsel because of his indigency. The case turns on the principles established in Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, Norvell v. State of Illinois, 1963, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456, reh. den'd 375 U.S. 870, 84 S.Ct. 27, 11 L.Ed.2d 99, and Douglas v. People of State of California, 1963, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; reh. den'd 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200. We remand for an evidentiary hearing.


In September 1950 Pate, a parolee, was charged with burglary and grand larceny in the Circuit Court of Tallapoosa County, Alabama. His mother and wife employed Jesse W. Pienezza, a practicing lawyer in Tallassee, Alabama, to represent him at a preliminary hearing and at his trial for the modest fee of one hundred dollars. The jury found Pate guilty; he was sentenced to ten years imprisonment. Pate did not appeal.

In May 1962, after having served other sentences, including one for twenty-five years, Pate filed a petition for writ of error coram nobis in the Tallapoosa Circuit Court. The petition asserted two grounds for relief. First, Pate alleged that he was convicted on the uncorroborated testimony of two accomplices, contrary to Alabama law (Title 15, Section 307, Code of Alabama) requiring corroborative evidence to support the testimony of accomplices. Second, Pate alleged that he was deprived of his right to appeal his conviction. He contended that the attorney who had represented him entered the armed services shortly after the trial; that his attorney's departure and his confinement in the State Penitentiary prevented his obtaining appellate counsel.

The hearing on the coram nobis petition was fixed for September 28, 1962. Four days before, the court appointed Miss Ruth S. Sullivan and Mr. John P. Oliver, two experienced, diligent, practicing attorneys, to represent the petitioner. These attorneys tried to obtain a transcript of the testimony at the original trial, but it was not available: apparently, Pienezza had not ordered a transcript for use on appeal or it was lost; the court reporter was dead, his notes lost.

Seven witnesses testified at the coram nobis hearing, including Pate and Pienezza. The Alabama circuit court, seeking to exhume the events at the trial providing the basis for the coram nobis petition, allowed Pate and his attorneys broad latitude in their efforts to show the invalidity of the conviction. Thus, in addition to considering the two contentions stated in the petition, the trial judge considered two other contentions developed during the hearing: (1) that a bailiff or deputy sheriff or other court official was a member of the jury; (2) that the circuit solicitor, the chief deputy sheriff, and the county solicitor had induced two co-defendants, drug addicts, to change their story and perjure themselves in return for narcotics furnished or promised them. Perhaps because Douglas, Townsend v. Sain, and the other landmark cases of March 18, 1963, were still germinating, no one at the hearing, even Pate, focused on indigency as an important issue in relation to Pate's right to appellate counsel. In affidavits filed in the habeas proceeding, Pate's attorneys deposed that their argument "consisted chiefly of the contention that due to the loss or destruction of the records of the original trial, Mr. Pate was deprived of a fair hearing since he could not search the trial record for error and there was not any way to determine whether or not he was presenting new evidence not available on the original trial".

The circuit court denied relief, entering findings of fact and conclusions of law. The court commended Miss Sullivan and Mr. Oliver for their "thorough and complete service" in "most adequately representing" the petitioner. In proper person, Pate moved for a rehearing, alleging that he had "new evidence", affidavits in the possession of the Pardon Board at the time of the hearing. In these affidavits the co-defendants agreed that Pate's version of "the events as they happened was true and correct". In his motion the petitioner complained that the appointed counsel were ineffective because he was allowed to confer with them for only one hour prior to the hearing. The court denied the motion on the ground that it averred nothing new. In proper person, Pate appealed. The Alabama Court of Appeals affirmed. Pate v. State, Ala.App.1963, 154 So.2d 682; appeal dismissed, 275 Ala. 327, 154 So.2d 685. In August 1963, Pate filed a petition for a writ of habeas corpus in the Circuit Court of Montgomery County, Alabama. After a hearing, the circuit court denied this petition. Pate took no appeal from this judgment.

November 8, 1963, Pate sought habeas corpus in the United States District Court for the Middle District of Alabama. By then the Supreme Court had decided Douglas. The petition reiterates the contentions asserted in the coram nobis proceeding. But, for the first time, Pate clearly stated in his petition that "he was denied the right of appeal from his original trial because of his indigent status and official interference". Also for the first time, he alleged that he had been "denied a copy of his transcript of testimony of his original trial and he could not proceed any further in the state courts because of his indigent status."

After reviewing the record in that proceeding, the able district judge declined to hold an evidentiary hearing. Relying on Townsend v. Sain, the district judge held that in the coram nobis proceeding the state court had "conducted a full and impartial hearing" upon "substantially the same questions now presented to this Court". The district court denied the petitioner's request for a certificate of probable cause. This Court entered an order granting the certificate of probable cause and appointing counsel to represent Pate.


The Supreme Court has "consistently held that federal court jurisdiction in a habeas corpus proceeding is conferred by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings". Fay v. Noia, 1963, 372 U.S. 391, 426, 83 S.Ct. 822, 842, 9 L.Ed.2d 837. Respect for American federalism, however, may make it unseemly for a federal habeas court to resolve a factual dispute the State has already adequately resolved. Accordingly, Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, gives bare bones instructions to district courts to grant habeas hearings only when there are "unusual circumstances" or a "vital flaw" in the state proceeding. 344 U.S. at 463 and 506, 73 S.Ct. at 410 and 445.

Townsend v. Sain adds meat to the bare bones of Brown v. Allen:

"Where the facts are in dispute, the federal court on habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts." 372 U.S. at 313, 83 S.Ct. at 757.

Further particularizing the Court lists six criteria for the mandatory granting of hearings:

"We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing." 372 at U.S. at 313, 83 S.Ct. at 757.

As this case illustrates, the State of Alabama provides machinery for post-conviction relief. See Tyson, Whither: On Habeas, 24 Ala. Lawyer 271 (1963). Under Townsend v. Sain, therefore, ordinarily a federal district judge need not grant an evidentiary hearing on a habeas corpus petition, if the Alabama state courts have already resolved the factual issues in a full and fair hearing. Here, however, examination of the coram nobis record binds us to doubts and fears that Pate may not have received the full measure of protection the Constitution affords to indigent prisoners.

According to Pate, he was convicted on the perjured testimony of co-defendants who served their interests by changing their story adversely to Pate's interests; now, in affidavits, these co-defendants admit their wrong-doing and clear Pate of any complicity. For this and...

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