Roach v. Bennett, 18914.

• Decision Date: 15 April 1968
• Docket Number: No. 18914.,18914.
• Parties: James Paul ROACH, Appellant, v. John E. BENNETT, Warden of Iowa State Penitentiary at Fort Madison, Iowa, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

392 F.2d 743 (1968)

James Paul ROACH, Appellant, v. John E. BENNETT, Warden of Iowa State Penitentiary at Fort Madison, Iowa, Appellee.

No. 18914.

United States Court of Appeals Eighth Circuit.

April 15, 1968.

James Paul Roach, pro se.

Richard C. Turner, Atty. Gen. of Iowa, and William A. Claerhout, Asst. Atty. Gen., Des Moines, Iowa, on brief for appellee.

Before VOGEL, Senior Circuit Judge, LAY, Circuit Judge, and BECKER, Chief District Judge.

LAY, Circuit Judge.

Appellant appeals from the district court's denial of his petition for a writ of habeas corpus. On April 21, 1964, appellant pleaded guilty in the presence of his counsel to second degree murder of his wife, Melba Louise Roach, in Jasper County, Iowa. He was sentenced to the Iowa Penitentiary for sixty years imprisonment. Thereafter, on March 12, 1965, he petitioned for a writ of habeas corpus. This was denied after a hearing in Lee County District Court on September 8, 1965. The denal of his petition was affirmed on February 7, 1967. Roach v. Bennett, Iowa, 148 N.W.2d 488. Appellant then filed his petition in the federal district court seeking further relief. The federal district court, the Honorable Roy E. Stephenson, denied his petition without further hearing. This court granted probable cause for appeal. Appellant has sought appointment of counsel both in the state and federal courts throughout all collateral proceedings. This at all times has been denied. He has appeared pro se throughout these proceedings.

Among appellant's many contentions upon appeal he includes:

(a) That he was held at the scene of the crime for three hours and forced to submit to questioning concerning said offense.

(b) That he was denied the right to call, consult or have appointed an attorney on the date of his arrest and was held incommunicado for eight days and was refused the right to advice or appointment of counsel and was refused correspondence with members of his family.

(c) That he was released from the Mental Health Hospital as unimproved and not cured and that he thereupon entered an unintelligent plea of guilty before a different district judge.

(d) That no hearing was ever had to determine his sanity.

The State of Iowa contends that appellant has had a full hearing, and as set forth by the Supreme Court of Iowa that there was no proferred evidence in the habeas corpus hearing which would indicate his plea to the crime of second degree murder was coerced or involuntarily entered. The opinion of the Supreme Court of Iowa reads:

"* * * Appellant makes no contention that this plea was coerced or was entered when he was not duly advised by his counsel or that the court acted improperly in accepting his plea. * * *." (Emphasis ours).

148 N.W.2d 488 at 491.

The Supreme Court of Iowa indicates that Roach gave admissions and statements as to his guilt during his first two days of detention without being advised of his right to counsel. However, the court indicates that his plea of guilty was prior to June 22, 1964, the date of the Escobedo v. State of Illinois case, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and that he therefore cannot raise the denial of counsel.

During the course of the habeas corpus hearing before the state district court, when appellant was attempting to examine the sheriff, it is reported:

The Sheriff testified: "Well, he seemed to be a little upset. Of course being in jail by himself, I thought was probably what brought it on. Upset in that I mean he didn\'t have anything to say or anything like that. It\'s kind of hard to explain. I didn\'t notice that he was very much out of the ordinary until he attempted to commit suicide by cutting his wrist."

* * * * * *

"The Court: Am I to understand, Mr. "Roach, you are now claiming you were insane at the time this crime was committed?

"Mr. Roach: Absolutely not, your Honor."

* * * * * *

"Q. (by Roach) You feel that the defendant because of the bewilderment and chain of events that had brought him to his present circumstances, do you feel that he could comprehend everything promptly and correctly and so on?

"(Atty. Gen.) — That\'s incompetent, irrelevant and immaterial. There has been no claim made of this type of incapacity.

"The Court: Sustained. * * *" (Emphasis ours). (Transcript pp. 137-40)

Among appellant's contentions in his original petition for habeas corpus filed in the state court was the allegation that "defendant is called mentally non-suijuris * * * (while no where) in the files of any court can a ruling be found to support such action." This allegation of "mentally non-sui-juris" appears in the application of his attorney to obtain a psychiatric examination in the district court prior to appellant's plea. In the various rambling briefs (five in number) filed by appellant in this court, we now find arguments which are directed to appellant's incompetency.

Appellant files a newspaper article of March 16, 1964, relating to the murder of his wife, which relates (1) Roach's previous commitment in 1961 to the State Mental Institute at Clarinda; (2) that as a child he had suffered a concussion in a streetcar accident; (3) that at the age of fifteen he was wounded by mortar fire as a marine in Saipan; and (4) that the family had been concerned over his erratic behavior for some time. He then, in his brief before us, in self-contradictory terms, alleges that this "attack of (his) mental incapacity directed to this petitioner is the result of long-standing venom, personal animosity by the mentioned attorneys, officials. * * *" Perhaps this inconsistency is somewhat explained by the State Mental Health Institute's earlier letter written to Judge L. R. Carson, Jasper County District Judge, prior to appellant's plea of guilty, based upon a pre-trial examination:

"He is unrealistic in the sense that in attempting to deny psychopathology he ignores or is unaware of its significance for his present predicament. The somewhat absurd lengths to which he goes in this respect suggests that he has long attempted to deny any sense of personal inadequacy. * * * In any event, these data are suggestive of a schizophrenic-like person with paranoid features whose behavior can achieve psychotic proportions, especially under what, or him, constitutes undue stress." (Emphasis ours).

This examination was March 20, 1964, and Roach pleaded guilty on April 21, 1964.

On the same psychiatric report submitted by the state is an indication of abnormal changes on the electroencephalographic test and a diagnosis of (a) "Chronic Brain Syndrome Associated with Brain Trauma, Minimal," and (b) "Paranoid Personality." Appellant offered the record of the Mount Pleasant Health Institute of March 26, 1964, which read:

"Discharges: Discharge direct from Institute Unimproved (not cured) March 26, 1964." (Emphasis ours).

The federal district court denied appellant a hearing on the ground that a plenary hearing had taken place before the state district court upon appellant's petition. The federal district court likewise found that there existed "no evidence that the petitioner's plea of guilty was not freely, voluntarily and intelligently given." We feel that this finding is true, but only for the reason that it was not considered as an issue in the previous state hearing.

It is manifest from the original petition and transcript in the state district court that petitioner did not raise the issue of mental incompetency existing as of the time of the plea or as of any other time. As above set forth, the record reveals only appellant's abortive attempt to show the "involuntariness" of his plea, to which the court sustained the attorney general's objection as not being relevant. The first time such a claim is made is in the federal district court. Because of this fact, notwithstanding his prior state hearing, the petitioner is entitled to a plenary hearing as to his competency to make a plea (Massey v. Moore, 348 U.S. 105, 75 S.Ct. 145, 99 L.Ed. 135 (1954); Thomas v. Cunningham, 313 F. 2d 934 (4 Cir. 1963); Kibert v. Peyton, 383 F.2d 566 (4 Cir. 1967)), which should also include any other evidence which relates to the voluntariness of the same. See Grindstaff v. Bennett, 389 F.2d 55, (8 Cir. 1968); Smiley v. Wilson, 378 F.2d 144 (9 Cir. 1967).¹

Ordinarily, we would affirm the lower court's denial of the writ on the ground that appellant has failed to exhaust his state remedies. In discussing the Nebraska Post-Conviction Act, we have observed:

"Nevertheless, the teaching of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) emphasizes that a federal district court should not `upset a state conviction without an opportunity to the state courts to correct a constitutional violation.\' The rationale of the rule aids petitioner. The state district court is cognizant of the litigation and if constitutional guarantees not otherwise litigated need correction, the state courts are the logical courts to hold the hearing and review their own cases.

"Title 28 U.S.C. § 2255 providing for federal post-conviction relief was passed for correcting erroneous sentences of federal prisoners without cumbersome resort to habeas corpus. It was designed to afford the same rights to a petitioner in another, but more convenient, forum. Likewise, the Nebraska Post-Conviction Act inures to the direct benefit of the petitioner, providing a more expeditious remedy to correct a possible erroneous sentence. It is compelling that the `federal system entrusts the states with primary responsibility\' in their own criminal cases. This policy was recently affirmed by Mr. Justice Brennan, when he said:

"`* * * Although relief may ultimately be denied, that the state courts should have the opportunity to decide in the first instance is a course consistent with comity, cf. 28 U.S.C. § 2254, and a full and fair hearing in the state courts would make unnecessary further evidentiary proceedings in the federal courts. See Townsend v. Sain, 372 U.S.

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