Post v. Boles

• Decision Date: 19 May 1964
• Docket Number: No. 9133.,9133.
• Citation: 332 F.2d 738
• Parties: Burton Junior POST, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

332 F.2d 738 (1964)

Burton Junior POST, Appellant, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellee.

No. 9133.

United States Court of Appeals Fourth Circuit.

Argued November 14, 1963.

Decided May 19, 1964.

Arthur M. Recht, Wheeling, W. Va., Court-assigned counsel (Thomas B. Miller and Jeremy C. McCamic, Wheeling, W. Va., on brief), for appellant.

Claude A. Joyce, Asst. Atty. Gen. of West Virginia (C. Donald Robertson, Atty. Gen., of West Virginia, on brief), for appellee.

Before BOREMAN and J. SPENCER BELL, Circuit Judges, and BARKSDALE, District Judge.

BOREMAN, Circuit Judge.

Burton Junior Post has been a prisoner in the West Virginia Penitentiary since 1956, serving sentences aggregating 125 years imposed by the Circuit Court of Roane County, West Virginia, after accepting his pleas of guilty to twelve felony indictments in which he was variously charged with armed robbery, kidnapping, breaking and entering or entering without breaking, and forgery. Admittedly he was not represented by counsel in the state court proceedings. Post filed his habeas corpus petition and, after a plenary hearing, he was denied relief. The District Court prepared a comprehensive opinion which is reported as Post v. Boles, 218 F.Supp. 658 (1963).

It is of historical interest that Post applied to the West Virginia Supreme Court of Appeals for habeas corpus relief in 1961. His application was summarily denied. The Supreme Court granted certiorari and remanded the case for hearing.¹ The West Virginia Supreme Court of Appeals then appointed counsel for Post and proceeded to a determination of his contentions on the basis of affidavits and stipulations of facts. That court concluded that Post was advised by the Circuit Court of Roane County of his right to counsel before pleading to the indictments; that he competently waived the right; that he was fully informed of the possible consequences of his guilty pleas and that he received a fair hearing in accordance with the requirements of due process of law.² Certiorari was denied by the Supreme Court of the United States.³

The District Court first denied Post's habeas corpus petition without holding a hearing, concluding that disposition of Post's contentions had been made by the West Virginia Supreme Court of Appeals after full and fair consideration. Shortly thereafter, following announcement of the decision of the Supreme Court of the United States in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the District Court recalled this case, appointed counsel for Post and held a plenary hearing.

It is unnecessary to fully restate here certain matters mentioned and discussed by the court below. Post's early years, during which he was incorrigible and a serious disciplinary problem to his foster parents, his commitment to a West Virginia Mental Hospital and escapes therefrom, his conviction of a felony upon his plea of guilty when represented by court-appointed counsel, his confinement for that offense in the West Virginia Penitentiary for about six years, his release on parole only about three months before he "embarked on the criminal spree for which he is now incarcerated," the proceedings in the state court at the time of his arraignment and sentencing are noted by the District Court in its opinion⁴ and should be read in connection herewith.

The principal question presented on this appeal is whether Post intelligently and deliberately waived his constitutional right to the assistance of counsel in the state court proceedings. The District Court found as facts that he was offered counsel, that he declined the offer and that his waiver of assistance of counsel was deliberately, understandingly and intelligently made.

As stated by the District Court,

"* * * even prior to the Supreme Court\'s decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, it was clear that Post had a constitutional right to the assistance of counsel before being called upon to answer these numerous, serious and complex charges. Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127, and Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126, make that plain. It is true, also, that `where the right to counsel is of such critical importance as to be an element of Due Process under the Fourteenth Amendment, a finding of waiver is not lightly to be made.\' Brennan, J., in Moore v. Michigan, 355 U.S. 155 at 161, 78 S.Ct. 191 at 195, 2 L.Ed.2d 167. It has often been stated that the constitutional right to counsel may be waived only if the accused knows of the right and deliberately and intentionally abandons it. See, e. g., United States v. Lavelle, 306 F.2d 216 (2 Cir., 1962)."⁵

The District Court, after determining that Post had been advised by the presiding judge of his right to court-appointed counsel, correctly noted that Post had the burden of showing, by a preponderance of the evidence, that he did not intelligently and understandingly waive such right;⁶ further, that whether a waiver of counsel is understandingly and competently made "is a question of fact to be decided with reference to the particular facts of each case."⁷

The proceedings in the state court were not reported and the District Judge indicated his familiarity with this unfortunate but customary practice in the state courts of West Virginia. Only the formal orders showing Post's appearance without counsel, his arraignment, plea and sentence in each case were available. The presiding state court judge is deceased, the then Prosecuting Attorney is incapacitated and the Clerk of the state court, now ill, retired and living in Mississippi, was not available as a witness at Post's hearing.

Post testified that at no time before or during the state court proceedings was he offered the assistance of counsel and that there was no mention of counsel to him. This testimony was rejected by the court below. Mr. Scott, who was called as a witness for the respondent warden, testified that he was then the Assistant Prosecuting Attorney (now the Prosecuting Attorney) of Roane County; that he assisted in the preparation of the indictments against Post; that he was present in court during the proceedings in question; that the judge followed his usual practice of advising defendants of their right to counsel; that the judge, in his preliminary remarks to Post, included statements to the effect that Post was charged with a number of serious crimes and that the rape charge⁸ carried a possible death sentence; that the judge asked Post if he had counsel and if he wanted counsel and Post replied, decisively, that he did not desire an attorney but wanted to plead guilty; that each indictment was then read to Post and he was asked to plead thereto; that Post's codefendant,⁹ who was arraigned after Post was remanded to jail, was represented by counsel appointed by the court. The District Court stated: "* * * It is quite clear that the late Judge of the Circuit Court of Roane County made an offer of counsel to Post in unequivocal terms, and the latter declined the offer in a similar vein."¹⁰

There was introduced in evidence a detailed narrative statement, in Post's handwriting, of the events and exploits of the month preceding the arrest of Post and his companion. The statement was signed by Post and, according to the accredited testimony of the jailor, was prepared by Post, after he requested that he be supplied with pencil and tablet, while he was confined in jail and before he was indicted. Post testified that this statement, which fully disclosed the commission of the offenses (except rape) with which he was subsequently charged, was written by him at the direction of, and as dictated by, the jailor. Post's testimony in this regard was rejected by the court as incredible. Indeed, it was clear that the statement could only have been prepared by one with full knowledge of the facts recited therein. Post further testified that he was informed by the jailor that he would probably be sentenced to no more than ten years if he should plead guilty. The jailor emphatically denied making any such statement or representation and the court concluded that Post's statement was untrue.

In connection with the finding, as fact, that Post's waiver of the assistance of counsel was competently and intelligently made, the District Court had this to say:

"The record in this case reveals an individual who was ready, willing, and even anxious to face the consequences of a wild fling at lawlessness. Post\'s representations that he was not aware of his right to counsel do not impress the court. And no significant factor appears in the record from which it can be inferred that Post had any hidden doubt as to whether he should interpose an attorney between himself and a prompt liquidation of his criminal liability. Further, in spite of Post\'s previous mental condition, the evidence showed that he was acutely sensible of his predicament. He was described by all witnesses as appearing normal and lucid. His tolerably literate confessional statement discloses no hint of abnormality. On the contrary, it shows normal feelings of remorse and a not-unnatural concern for and desire to exculpate Peggy Ann Hosey, with whom Post was emotionally attached. That concern was reiterated in open court when the Judge asked Post if there was anything he wished to say prior to the imposition of sentence."

The court had the opportunity to closely observe Post as he testified and to form an opinion as to whether he was worthy of belief. Having found that Post's testimony with reference to the preparation of his written statement and the alleged conversation with the jailor was false, it is not surprising that the court should view Post's testimony as a whole with great suspicion. While the court made no specific findings concerning other portions of Post's testimony to...