Redd v. Peyton

• Decision Date: 05 July 1967
• Docket Number: Civ. A. No. 67-C-36-D.
• Citation: 270 F. Supp. 757
• Parties: Willie REDD, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

270 F. Supp. 757

Willie REDD, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent.

Civ. A. No. 67-C-36-D.

United States District Court W. D. Virginia, Danville Division.

July 5, 1967.

Reno S. Harp, III, Asst. Atty. Gen., Richmond, Va., for respondent in all cases.

No counsel for petitioners.

OPINION and JUDGMENT

DALTON, Chief Judge.

This case comes before the court upon a petition for a writ of habeas corpus by Willie Redd, a state prisoner, pursuant to the provisions of 28 U.S.C. § 2241 and is filed in forma pauperis. The case was ordered transferred to this court from the United States District Court for the Eastern District of Virginia on June 2, 1967.

Petitioner is currently serving a thirty-five (35) year sentence for murder pursuant to his conviction in the Circuit Court of Henry County on January 5, 1948.

Petitioner did not appeal his conviction. He subsequently filed a state habeas corpus petition which was denied by the Circuit Court of Henry County on July 18, 1966 after a plenary hearing. On April 21, 1967 the Supreme Court of Appeals of Virginia refused petitioner's writ of error.

Petitioner is properly before this court, having exhausted his presently available state remedies in compliance with 28 U.S.C. § 2254 as interpreted by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

The record discloses the following facts:

Petitioner was indicted on January 5, 1948 for the murder of one Guy Brim. On that same day he was tried to the court without a jury and sentenced to a term of thirty-five years on a plea of guilty.

Petitioner had an attorney to represent him at trial and pleaded guilty on his attorney's advice.

The record reveals considerable dispute over the length of time petitioner's attorney had to prepare the case. Petitioner claims that he did not have the benefit of his attorney's service until the morning of the trial, thus leaving little time for counsel to prepare an effective defense.

The allegations which petitioner says entitle him to a writ of habeas corpus are as follows:

1. Petitioner was coerced into making a plea of guilty.

2. Petitioner was the victim of racial oppression at trial.

3. Petitioner was not effectively represented by counsel.

The court having closely examined the record finds no evidence of either coercion of petitioner's plea of guilty or racial oppression by the court. The only support petitioner has for either of these claims lies in his bare allegations of these facts in his petition for state habeas corpus relief. No other evidence of any kind that would buttress petitioner's claims is revealed by the record. It is well settled that the petitioner in a habeas corpus proceeding has the burden of proving by a preponderance of the evidence the alleged violations of his constitutional rights. Post v. Boles, 332 F.2d 738 (4th Cir. 1964); Stewart v. Smyth, 288 F.2d 362 (4th Cir. 1961); United States ex rel. Jackson v. Brady, 133 F.2d 476 (4th Cir. 1943). In Stewart the court said:

He cannot merely allege that he is illegally detained and, without more, require his custodian to prove the legality of his confinement. It is his burden "to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court's intervention to protect the rights of the accused." 288 F.2d at 363.

The court finds that the petitioner has failed to meet this burden on either point where the only evidence he submitted to support these contentions were his mere allegations that his constitutional rights were violated.

Petitioner also alleges that he was denied effective assistance of counsel because he did not obtain counsel until the morning of the trial. He claims that the alleged short period of 35-40 minutes between the time he obtained counsel and the trial was insufficient for petitioner to be adequately represented. He contends that he could not have a fair trial having obtained counsel and having been indicted, tried, convicted and sentenced all on the same day. He testified at the state habeas corpus hearing that after he secured counsel allegedly shortly before trial they did not discuss the case and that his attorney told petitioner he could either plead guilty and be sentenced to thirty-five years or plead not guilty and be sentenced from sixty years to life. He also testified that he told his attorney that he had witnesses to call but that his attorney said he did not have time to discuss the case with them. He further claims he asked his attorney to put the case off, which he alleges his attorney said he could not do.

It is clear that the length of time petitioner's attorney has to prepare for trial is not of itself sufficient to show petitioner was inadequately represented. To establish that a person has been inadequately represented he must show that his attorney made a farce of the trial. As stated in Root v. Cunningham, 344 F.2d 1, 3 (4th Cir. 1965), "Ordinarily, one is deprived of effective assistance of counsel only in those extreme instances where the representation is so transparently inadequate as to make a farce of the trial."

In United States ex rel. Thompson v. Nierstheimer, 166 F.2d 87 (7th Cir. 1948) the Court of Appeals for the Seventh Circuit found petitioner was not denied due process under similar circumstances. In that case petitioner had counsel appointed to represent him, was indicted, arraigned, tried and convicted also all in one day. Petitioner sought habeas corpus relief on the grounds that the expeditiousness of the trial denied him due process in that his counsel allegedly did not make any independent investigation, subpoena any witnesses nor ask for a continuance as requested by petitioner. Petitioner's attorney was officially appointed on the day of his indictment and conviction but he had discussed petitioner's...