Quillien v. Leeke, Civ. A. No. 69-475.

• Decision Date: 05 September 1969
• Docket Number: Civ. A. No. 69-475.
• Citation: 303 F. Supp. 698
• Court: U.S. District Court — District of South Carolina
• Parties: Lowman QUILLIEN, Petitioner, v. William D. LEEKE, Director, South Carolina Department of Corrections, et al., Respondents.

303 F. Supp. 698

Lowman QUILLIEN, Petitioner, v. William D. LEEKE, Director, South Carolina Department of Corrections, et al., Respondents.

Civ. A. No. 69-475.

United States District Court D. South Carolina, Columbia Division.

September 5, 1969.

COPYRIGHT MATERIAL OMITTED

Herbert M. Meeting, Columbia, S. C., Court-appointed attorney, for petitioner.

Daniel R. McLeod, Atty. Gen., Emmet H. Clair, Robert H. Hood, Asst. Attys. Gen., all of Columbia, S. C., for respondents.

OPINION AND ORDER

DONALD RUSSELL, District Judge.

This is a petition in habeas corpus by a state prisoner who had consented to a jury verdict of guilty of an assault with intent to ravish with recommendation to mercy in the General Sessions Court of Richland County, South Carolina. Under the terms of Section 16-72, Code of South Carolina (1962), the penalty for such crime is fixed at "death unless the jury shall recommend him to the mercy of the court in which event he shall be confined at hard labor in the State Penitentiary for a term not exceeding forty years nor less than five years, at the discretion of the presiding judge."¹ After the consent verdict, returned by a duly impaneled jury, had been published, the petitioner was on May 30, 1955, sentenced by the presiding judge to confinement in the State Penitentiary for a term of 30 years and he immediately commenced the service of such sentence. He has since been confined under that sentence in the State Penitentiary, save when he was an escapee for about four years.

The petitioner is now 32 years of age. At the time of his arrest, he was 18. He finished the second grade in school, but, since his confinement, he apparently has followed with good results an educational program made available by the prison authorities. He appears reasonably intelligent and shows some familiarity with the law, a familiarity no doubt developed through his associations in the Penitentiary. After his arrest on the charge for which he was later sentenced, his family employed private counsel to represent him. No attempt was made by the petitioner or his counsel to secure the petitioner's release on bail. Indictment of the petitioner followed. It consisted of three counts, charging statutory rape, assault with intent to ravish and assault and battery. The petitioner was given a preliminary hearing, at which the father of the victim testified. The record of such proceeding is not before me but it is assumed that the petitioner was identified as the assailant in the charged crime. At the commencement of the following term of Court of General Sessions, the petitioner entered an initial plea of "not guilty". After reviewing with his retained counsel the evidence against him, the petitioner agreed to a consent verdict, as set forth above. According to the petitioner's testimony in one of his habeas corpus hearings, the victim of the assault was called as a witness and testified in connection with this consent verdict. It is to set aside this consent verdict, which was tantamount to a plea of guilty, as involuntary, that petitioner files this proceeding.

Since beginning the service of his sentence, the petitioner has filed three petitions in habeas corpus in the appropriate Circuit Court of South Carolina. All of them were dismissed as without merit. In the first two of these proceedings petitioner was represented by appointed counsel and was accorded an evidentiary hearing.² The third proceeding was dismissed without the appointment of counsel for the petitioner and without an evidentiary hearing. No appeal was taken from the order of dismissal entered by the Circuit Court in any one of the proceedings.

In the first State proceeding, begun in 1959, the petitioner based his right to the writ on the claim that the Court had denied him the opportunity "to challenge the jurors," who had returned the consent verdict. However, in stating his claims at the evidentiary hearing given by the State Court, he contended, also, that the State had "refused to get my (his) witnesses" and asserted that the "witnesses that they have against me, they didn't even appear in Court." In addition, he testified that "during the time when I was tried, I haven't seen any jury." Considering these claims in reverse order, the official records of the Court, contrary to petitioner's claim, showed that a jury had been duly impaneled in the presence of the petitioner and his retained counsel.³ Moreover, he later conceded his agreement to a consent verdict, thus contradicting his allegations in this regard. In stating his complaint about the failure of the State to secure his witnesses for trial he did not at this first hearing identify such witnesses. He did, though, identify, by their first, but not their family name, these alleged witnesses at the later hearing in the State Court. They were the two persons who, he said, were with him on the night of the alleged crime. It was conceded by the petitioner in the hearing before this Court that both of these witnesses disappeared immediately after the alleged crime and, though both he and his lawyer, along with petitioner's brother-in-law, had made diligent inquiries about them, they could not be located. Perhaps these putative witnesses feared involvement in the prosecution. It may be remarked, too, that the petitioner's failure to identify them by family name raises some doubt even about their existence. It is clear, then, that, irrespective of whether it be deemed that the failure of the State to produce for petitioner his alleged witnesses is foreclosed by the guilty plea (see, Davis v. United States (C.C.A.Cal.1956), 237 F.2d 794, 795, cert. denied 352 U.S. 961, 77 S.Ct. 370, 1 L.Ed.2d 317), the fact remains that the petitioner could hardly complain of the State's failure to locate and therefore to produce such witnesses when the petitioner concedes his attorney and others acting for him could not ascertain their whereabouts. Finally, petitioner, when questioned further in this first State hearing, refuted his own earlier statement that no witnesses for the State against him "appear(ed) in Court"; he testified unequivocally that "in General Sessions Court the girl testified."⁴ On this record, abundantly sustaining its conclusions, the Court found against the petitioner on all the grounds raised by him and dismissed his petition.

It should be noted, also, that, during his testimony in this first evidentiary hearing, the petitioner was closely questioned by the Court on his reasons for entering a plea of guilty. He testified that he knew that, under his plea, he could have been given a sentence of forty years of confinement.⁵ Though the Court pressed him to say that his retained counsel had told him that his choice was to go to trial, in which event a guilty verdict would mean "the electric chair", or to enter a guilty plea, assuring him thereby a sentence for a term of years, the petitioner steadfastly clung to the statement that "I can't recall him telling me that." The petitioner, also, was asked by his appointed counsel at this hearing:

"Q. As I understand it, you were drunk at the time of the commission of this crime?

"A. I was."⁶

At the evidentiary hearing on his second petition in the State Court, the petitioner and his retained counsel both testified. In this hearing, the petitioner raised the point that he had never knowingly plead guilty, "that he didn't consent to any of that and wanted a jury trial." He, also, renewed his previous claims as asserted in the earlier proceeding. It should be observed, in connection with the claim of the petitioner that he never understood that he was agreeing to a consent verdict of guilty with recommendation that in the verified petition filed in this Court he swore that he had plead "guilty", and, on hearing herein, he explained his agreement to a guilty verdict by stating that he had relied on the assurance of his retained counsel that his sentence would be ten to fifteen years. While petitioner's trial counsel could not recall exactly his conversations with the petitioner, he was positive that he had never entered a plea of guilty for any defendant without the defendant fully understanding and agreeing to such plea. On this record, the Court dismissed his second petition as without merit.

In his third petition in the State Court, the petitioner renewed the several grounds for relief which he had set forth in his earlier petitions. The Court held that the previous decisions of the Court had disposed of those grounds and dismissed the petition without an evidentiary hearing.⁷

More than six years after the dismissal of his third State proceeding, and almost fifteen years after his sentence, the petitioner filed his application with this Court for a writ. The Court appointed counsel to represent him and granted a full evidentiary hearing to the petitioner. The grounds on which relief is sought here track in many respects the contentions advanced in the earlier proceedings. I am satisfied that the conclusions of the State Court in those proceedings are sound and are not merely "fairly" but are overwhelmingly supported by the record in such Court. Section 2254(d), 28 U.S.C. And, the evidentiary hearing in this Court re-inforces materially those conclusions. Thus, the petitioner very candidly admitted in this Court that he had agreed to the consent verdict of guilty with recommendation. While at first he was insistent that the complainant against him was not present when he was sentenced, he finally conceded that he wasn't really sure whether she was there or not. He put it that, "If she was there, she didn't say nothing", thereby contradicting his testimony at the second State Court hearing. He followed this up by conceding "Or if I was to see her, I wouldn't know her no way." And, though he complained that the State failed to produce his alleged two companions on the unfortunate night of the crime, he testified that his lawyer sought to find...