Ray v. Rose, 75-1795

• Decision Date: 10 May 1976
• Docket Number: No. 75-1795,75-1795
• Citation: 535 F.2d 966
• Parties: James Earl RAY, Petitioner-Appellant, v. J. H. ROSE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 966

535 F.2d 966

James Earl RAY, Petitioner-Appellant, v. J. H. ROSE, Warden, Respondent-Appellee.

No. 75-1795.

United States Court of Appeals Sixth Circuit.

Argued Feb. 3, 1976.

Decided May 10, 1976.

James Hiram Lesar, Bernard Fensterwald, Jr., Washington, D. C., Robert I. Livingston, Memphis, Tenn., for petitioner-appellant.

R. A. Ashley, Atty. Gen. of Tennessee, William J. Haynes, Jr., Nashville, Tenn., for respondent-appellee.

Before PHILLIPS, Chief Judge, and CELEBREZZE and MILLER, ^* Circuit Judges.

PER CURIAM.

James Earl Ray appeals from the denial of his petition for habeas corpus following an evidentiary hearing in the district court. Two primary constitutional issues were raised at the hearing and are before us on appeal: (1) whether Ray received effective assistance of counsel in the state criminal proceeding in which he was indicted for the murder of Dr. Martin Luther King, Jr., and (2) whether Ray intelligently and voluntarily pleaded guilty to the charge.

Ray entered his plea of guilty to the charge in the Criminal Court of Shelby County, Tennessee, on March 10, 1969. Judge Preston Battle, after carefully advising Ray as to the consequences of his plea and meticulously examining him as to whether the plea was voluntarily and understandingly made, accepted the plea and imposed a sentence of 99 years imprisonment a sentence agreed upon after plea bargaining. Immediately thereafter, Ray wrote to Judge Battle and requested permission to withdraw his plea and to stand trial. Judge Battle died on March 31, 1969, without acting on Ray's request. Ray unsuccessfully sought post-conviction relief in the state courts. His habeas corpus petition filed in the United States District Court for the Middle District of Tennessee was denied without evidentiary hearing. Ray v. Rose, 373 F.Supp. 687 (M.D.Tenn.1973). This Court, Ray v. Rose, 491 F.2d 285 (6th Cir.), cert. denied, 417 U.S. 936, 95 S.Ct. 2650, 41 L.Ed.2d 240 (1974), reversed the district court and remanded the case for a "full-scale judicial inquiry" into Ray's allegations.

The facts in this case are set forth in detail in the district court's opinion concluding that Ray was not entitled to relief and dismissing the petition. Ray v. Rose, 392 F.Supp. 601 (W.D.Tenn.1975). ¹ Therefore, we will undertake to summarize only those facts pertinent to the two primary issues before us.

Dr. King was assassinated in Memphis on April 4, 1968. Ray's indictment for the slaying followed on May 7, 1968. He was arrested in London on June 8, 1968, and was returned to Memphis on July 19, 1968.

While Ray was awaiting extradition in London, he contacted attorney Arthur Hanes of Birmingham, Alabama, and asked Hanes to represent him. Before Hanes visited Ray, Hanes was contacted by William Bradford Huie, a writer, about the possibility of Ray's selling his story to finance his defense. Hanes and his son, Arthur Hanes, Jr., also an attorney, met with Ray in London in July, 1968. On July 5, 1968, Ray signed two agreements on the advice of Hanes. One of these gave Hanes complete power of attorney to act for Ray. The other, furnished by Huie, assigned to Hanes 40% of all monies that Ray would receive as a result of a subsequent agreement with Huie and gave Hanes authority to act as exclusive agent and attorney for Ray in handling of contracts, negotiations, and other matters relating to sale of any information.

After extradition, ² Hanes, Huie, and Ray entered into an agreement dated July 8, 1968, whereby Huie was given exclusive rights to receive information on Ray's participation in the King assassination. The agreement stated that its purpose was to establish the truth regarding the assassination. It provided that Hanes and Ray would each receive 30% of gross receipts of all literary works while Huie would receive 40%. Huie also was given power to execute contracts for the sale of his book and other rights to Ray's story. Huie agreed to furnish, at quarterly intervals, statements reflecting all transactions and to give Ray and Hanes copies of all contracts entered into by him. The district court found that Huie did not comply with either of these two latter provisions. The agreement was accompanied by a letter from Huie dated July 8, setting forth a schedule of cash payments to be made to Hanes and Ray until Ray had been in jail five months. Ray and Hanes both indicated that they entered into these agreements to provide funds for Ray's defense.

In September 1968, at Ray's request, the July 5 agreement between Hanes and Ray whereby Hanes was to receive 40% of the money Ray received from Huie was amended to limit the amount to be received by Hanes to $20,000. Ray testified that he made the request in order to have funds to appeal the case or to institute post-conviction proceedings.

After the three-party agreement was entered into, Huie signed a contract with Cowles Communications, Inc., to write a series of three articles about Ray for Look magazine. This contract was amended by an instrument dated March 17, 1969, to reduce the monetary value of the Ray story because of Ray's guilty plea. The district court found that, despite the date of the amendment, it was drafted prior to the plea because the amendment stated that it was expected that Ray would plead guilty on or about March 10. The amendment also provided that Huie would obtain from Hanes and Percy Foreman, Ray's second attorney, articles of 1000 words for which Cowles would pay them each $1000. The first two articles under this contract appeared in Look in November 1968. ³ The third Look article was published in April, 1969, along with the articles by Hanes and Foreman. ⁴

Huie also entered into a contract with Dell Publishing Company regarding the publication of a non-fiction book. By the terms of the agreement, Dell could publish the book no sooner than four weeks after the last Look article or, at the latest, on or after March 5, 1969. This agreement was also amended after the guilty plea was entered to reduce the amount to be paid by Look. The Dell contract provided that no proceeds could be used directly or indirectly for Ray's benefit. Huie was either unaware of this provision or was ready to violate it when the book produced any royalties. Ray did not know of either the Cowles or Dell contract until the hearing in district court.

Because of restrictions on who could visit Ray in the Shelby County jail, Huie obtained his information by an exchange of letters or from a list of questions by Huie which Ray would answer in his own handwriting. First Hanes and later Foreman carried the information and questions back and forth between Huie and Ray. Huie made an investigation to verify much of the information he received from Ray. Although Huie gave information from his investigation to Ray's attorneys, the attorneys did not consider Huie a hired investigator for Ray's defense. The district court found that Hanes hired a private investigator named Renfro Hayes to do the investigatory work which Hanes and his son did not do and thus rejected Ray's allegation that Hanes refused to hire a private investigator. Huie promised that he would not publish before Ray's trial anything about Ray's activities in the latter part of March, 1968, and Ray testified at the hearing that Huie kept the promise.

The district court also rejected several of Ray's allegations in regard to Hanes' representation of Ray by finding that: (1) Hanes did not refuse to request a continuance because the contract with Huie provided that Ray must go to trial within a certain number of days, (2) Hanes did not reject Ray's desire to testify or state that Ray's testimony would reveal information which could be sold, and (3) Hanes did not allow Huie to dictate the manner in which the criminal case would be tried.

Toward the end of Hanes' representation of Ray, Ray's brother Jerry visited Huie in Huntsville, Alabama, and erroneously reported to James Earl Ray that Huie was trying to bribe James Earl not to take the stand. The district court found that Ray never seriously considered taking such a bribe and that, in any event, the alleged bribe was not a factor in the guilty plea.

Trial for Ray was set for November 12, 1968. On November 10, 1968, Ray fired Hanes because, as he testified, he felt Hanes was working for Huie and not for Ray. Ray's brothers and Percy Foreman, a well-known Texas attorney, who had come to talk to Ray at the instance of Ray's brothers, both urged Ray to fire Hanes. At the time Hanes was fired, Ray hired Foreman to handle his defense. At the time he was hired, Foreman took the position that he would not get involved with Huie or any other writers until after the trial.

Foreman obtained a continuance to prepare for trial and the case was re-set for March 3, 1969. Later, Foreman advised the court that he could not be ready for trial on that date. The court refused to change the date and ordered the public defender to be ready to take over the defense if necessary. Ray did not approve the appointment and refused to talk to the public defender. Later Foreman obtained a continuance until April 7.

The court found that Foreman did fail to associate experienced Tennessee counsel in the case as Ray alleged, but considered this irrelevant since the public defender's appointment made experienced local counsel available; furthermore, a Memphis State University Law School professor gave Foreman some advice on Tennessee law and there was no money to hire other counsel. The court also found that Foreman did not refuse to attempt to halt adverse pretrial publicity despite Ray's urgings. Rather, the court found that the publicity had tapered off when Foreman entered the case and that Ray did not urge Foreman to take action in this regard.

Two days after Foreman was hired, he had Ray sign over to him the alleged murder weapon and a white Mustang found in Atlanta. By an agreement dated December 6, 1968, and signed by Ray on...