Pitts v. Hopper, C74-739A.

• Decision Date: 14 December 1974
• Docket Number: No. C74-739A.,C74-739A.
• Citation: 402 F. Supp. 119
• Parties: Clyde PITTS v. Joseph HOPPER, Warden, Georgia State Prison, Reidsville, Georgia.
• Court: U.S. District Court — Northern District of Georgia

402 F. Supp. 119

Clyde PITTS v. Joseph HOPPER, Warden, Georgia State Prison, Reidsville, Georgia.

No. C74-739A.

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

December 14, 1974.

Glenn Zell, Atlanta, Ga., for petitioner; Clyde Pitts, pro se.

Robert S. Stubbs, II, Asst. Atty. Gen., State of Ga., Atlanta, Ga., for respondent.

ORDER

MOYE, District Judge.

Clyde Pitts, a state prisoner presently incarcerated at the Georgia State Prison in Reidsville, Georgia, brings this habeas corpus action pursuant to 28 U.S.C. § 2254 in forma pauperis. Pitts alleges that the ineffective assistance of counsel before, during and after his burglary trial in the Superior Court of Henry County, Georgia, on October 27, 1971, prevented him from getting a fair trial.

A jury found Pitts guilty of burglary and, due to a prior conviction, sentenced him to 20 years imprisonment.

I.

Petitioner has exhausted his available state remedies, 28 U.S.C. § 2254(b), (c). On direct appeal to the Court of Appeals of Georgia, petitioner's conviction was affirmed. Pitts v. State, 128 Ga.App. 434, 197 S.E.2d 495 (1973) (four judges dissenting). Thereafter Pitts sought habeas corpus relief in the Superior Court of Henry County. As a basis for relief, Pitts asserted, inter alia, that he was denied effective assistance of counsel at his burglary trial. After a hearing, the Superior Court of Henry County found Pitts' contentions to be without merit and remanded him to the custody of the Henry County Sheriff.

On appeal the Supreme Court of Georgia affirmed the denial of habeas corpus relief by the Superior Court of Henry County. Pitts v. Glass, 231 Ga. 638, 203 S.E.2d 515 (1974).

Pitts, through counsel, filed this petition for habeas corpus relief in this district on April 18, 1974. In addition, this Court received a second pro se habeas petition from petitioner alleging that there was insufficient corroboration of an accomplice's testimony to convict him. The Court refuses to take cognizance of this second petition. Petitioner is represented by Glenn Zell, Esq., attorney of record in this case. Petitioner may not now appear or act in his own behalf unless notice is given the Court that Mr. Zell has withdrawn as attorney of record.

II.

As a threshold matter, the Court holds that a federal evidentiary hearing, pursuant to the standards set out in Townsend v. Sain, 372 U.S. 239, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and the provisions of 28 U.S.C. § 2254(d), is not required. Respondent has attached the pertinent portions of the transcript of the state habeas corpus hearing and a copy of the transcript of petitioner's burglary trial to its motion to dismiss or for summary judgment. The Court is also in receipt of a complete copy of the state habeas corpus court's order, including the written findings of fact and conclusions of law.

The Superior Court of Henry County, in its habeas corpus proceedings, examined the transcript of the burglary trial and heard testimony from Pitts; Ray Tucker, the attorney who represented Pitts at the burglary trial; Edward E. McGarity, the prosecuting district attorney; and an attorney who represented one of Pitts' coindictees.

On the basis of Attorney Tucker's testimony, the state habeas corpus court found that Pitts was represented in a competent manner, and denied habeas corpus relief. Pitts v. Glass, 231 Ga. at 639, 203 S.E.2d 515 (1974). Thus, it is apparent that the state habeas corpus judge credited the testimony of Attorney Tucker as opposed to the testimony of Pitts. The merits of the factual dispute having been resolved adversely to Pitts, the burden falls upon him to establish by convincing evidence that the findings of the state court are erroneous. 28 U.S.C. § 2254(d). See LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). An examination of the trial transcript, state habeas corpus court transcript and written findings of fact and conclusions of law convinces this Court that an adequate record was developed below and it appears to the Court that the findings of fact at petitioner's state habeas corpus hearing were not erroneous. Since Pitts, in his petition or by reference to the state habeas corpus record, has failed to show otherwise, the findings of the state court are presumed to be correct and further evidentiary development in this case is unnecessary. Dempsey v. Wainwright, 471 F.2d 604 (5 Cir. 1973); White v. Gnann, 422 F.2d 1306 (5 Cir. 1970). The Court can now reach the merits of petitioner's contentions.

III.

At the outset the Sixth Amendment standard of effectiveness of counsel should be stated by this Court. The Fifth Circuit in Williams v. Beto, 354 F.2d 698, 704 (5 Cir. 1965), repeated the general rule that:

". . . relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation."

In 1973, the Fifth Circuit in West v. State of Louisiana, 478 F.2d 1026, 1033 (5 Cir. 1973), rejected the rather low standard of effectiveness required by Williams v. Beto, supra, and stated: "We hold that the applicable standard should be that stated in MacKenna v. Ellis, 5 Cir. 1960, 280 F.2d 592, 599:

"`We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.'" (Emphasis by the Court)

Petitioner cites West v. Louisiana, incorporating the MacKenna v. Ellis standard, and alleges that his representation did not measure up to the West standard.

The Court in West found the following:

"From the facts of this case it is plain that West's lawyer fell far short of this standard. West might just as well have had no lawyer. By his own admission West's attorney conferred with West for no more than an hour prior to trial, and perhaps for little more than five minutes. He conducted no investigation. At the trial he called no witnesses for the defense. After the prosecution presented its case, the defense moved for a directed verdict. When the court denied this motion, the defense immediately rested. We hold that the district court was correct in finding that West's legal representation was so inadequate as to deny his constitutional rights." West v. Louisiana, supra, at 1033-34.

IV.

Petitioner claims that his conviction denied him due process and the protection of the Fifth, Sixth and Fourteenth Amendments in that his court-appointed counsel, Mr. Ray Tucker, did not effectively represent him before, during or after trial. Petitioner alleges the following eight particulars in support of his allegation of ineffective assistance of counsel: (1) Mr. Tucker waived a preliminary hearing, (2) Mr. Tucker did not know how the State could prove its case against the petitioner, (3) Mr. Tucker made no demand for a list of witnesses, (4) Mr. Tucker filed no pretrial motions for discovery or motions for any other reason, (5) Mr. Tucker did not advise and assist the petitioner in his unsworn statement to the jury and, therefore, petitioner's own testimony convicted himself, (6) Mr. Tucker failed to be familiar with the law of accomplice corroboration, (7) Mr. Tucker offered no proposed jury instructions, and (8) Mr. Tucker did not protect the appellate rights of petitioner.

Bearing in mind the West and MacKenna standards, the Court proceeds to petitioner's eight individual allegations of denial of the effective assistance of counsel.

(1) Waiver of Preliminary Hearing. Petitioner stated that counsel waived a preliminary hearing in his case in order to have bond set State Habeas Corpus Transcript, page 3 ("H.C.T. 3").

Counsel allegedly did not discuss with petitioner how valuable his rights are in a preliminary hearing H.C.T. 4. Mr. Tucker admitted that he did not ask for a preliminary hearing to determine what evidence the state had against Mr. Pitts H.C.T. 72, but stated that on two, three, or four occasions he had held conversations with the arresting officer, Dan Gardner, who told Mr. Tucker "very frankly" what evidence the state had against his client H.C.T. 58.

There is no federal constitutional right to a preliminary hearing, Siwakowski v. Beto, 455 F.2d 915, 917 (5 Cir. 1972). Absent a showing by petitioner that counsel's waiver of the preliminary hearing caused actual prejudice to his defense, this Court cannot hold that Attorney Tucker was ineffective simply because a preliminary hearing was waived. Petitioner has failed to show the Court any such actual prejudice, therefore, this allegation is without merit.

(2) Knowledge of the State's Case. Mr. Tucker testified that he was never apprised of the fact that a co-defendant, David Summerville, was going to testify against Pitts, until Summerville got on the witness stand H.C.T. 59. The testimony of Summerville, the accomplice, at trial proved very damaging to petitioner. Summerville testified that he and Pitts and another, Tarner met together on the preceding night; that they were all drug addicts, had no money and were in great need of drugs. They agreed to burglarize a drug store and steal narcotics from it. Pursuant to this agreement, they left Atlanta after midnight and drove to a drug store in Hampton, Georgia, which they burglarized. Summerville testified that Pitts and Tarner went into the drug store while he waited in the car.

This Court cannot hold that Mr. Tucker was negligent in not knowing that Summerville would decide to testify at Pitts's trial as an accomplice and later plead guilty. In Georgia there is no criminal discovery as such, and defendants have had little success in seeking to discover the State's case. See ...