Roberts v. Dutton

• Decision Date: 01 November 1966
• Docket Number: No. 23494.,23494.
• Citation: 368 F.2d 465
• Parties: Marvin ROBERTS, Appellant, v. A. L. DUTTON, Warden, Georgia State Prison, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

368 F.2d 465 (1966)

Marvin ROBERTS, Appellant, v. A. L. DUTTON, Warden, Georgia State Prison, Appellee.

No. 23494.

United States Court of Appeals Fifth Circuit.

November 1, 1966.

Casper Rich, Atlanta, Ga., Emmett Calvin, Jr., Dallas, Tex., for appellant.

Arthur K. Bolton, Atty. Gen., Carter A. Setliff, Asst. Atty. Gen., Atlanta, Ga., for appellee.

Before RIVES, BELL and THORNBERRY, Circuit Judges.

RIVES, Circuit Judge:

This appeal is from the district court's denial of a writ of habeas corpus to a prisoner of the State of Georgia. The application alleged and the answer denied exhaustion of available State remedies.¹ The ground assigned in the application is that Roberts was denied effective representation of counsel for his defense. The same ground had been assigned in a petition for habeas corpus presented to the City Court of Reidsville, Georgia. The Judge of that Court granted the petition upon a finding that Roberts' counsel declined to appeal from the judgment of conviction, though requested by Roberts to do so. The Supreme Court of Georgia reversed upon a holding that, "Whether it was advisable and to his best interest to seek and obtain a new trial for him was a decision which his attorneys ought to have made and evidently did make for their illiterate client."² On appeal there is no contention that Roberts failed to exhaust his State remedies. To the contrary, the appellee insists that the sole question presented is "whether the evidence supports the lower court's finding that appellant was not denied effective assistance of counsel?" We accept that statement of the issue.

The original record on this appeal did not contain the testimony of the applicant other than his affidavit attesting to the truth of the facts stated in his application. The parties stipulated that no transcript had been made of Roberts' testimony in the district court, but that it was substantially the same as his testimony before the City Court of Reidsville, Georgia, and consented that a transcript of Roberts' testimony in the State court be considered as a part of the record on this appeal. Prior to the oral argument and submission, this Court so ordered.

The hearing in the City Court of Reidsville was held on June 23, 1965. Roberts testified that he was then forty-four years old; that he was arrested in White County, Georgia, and charged with the offense of statutory rape "the first part of July 1951"; that from the time of his arrest until the date of his trial, October 11, 1951, he remained in jail and did not see or talk with any lawyer; that he had no money, no training in law, and only a second grade education; that he had no family or relative able to aid him in obtaining an attorney, and no one offered to assist him; that the sheriff or the sheriff's son brought him to the courthouse on October 11 "around 10:00 or 10:30 in the morning." Continuing, Roberts testified:

"Q. Tell us what happened when you were brought into the Courtroom.

"A. I was brought into the Courtroom, I had a seat and was there for a few minutes, I was called before the Judge. He read the charge and asked me how I pleaded, guilty or not guilty.

"Q. What did you reply?

"A. I pleaded not guilty.

"Q. Then what happened?

"A. He ask (sic) me if I had an attorney?

"Q. What did you tell him?

"A. I told him no.

"Q. What did he do?

"A. He appointed Mr. Edwards as my attorney.

"Q. Then tell us what happened?

"A. They proceeded with the case at that time.

"Q. Did some other lawyer, other than Mr. Edwards, assist in your case?

"A. He was talking with Mr. Edwards, Mr. Underwood.

"Q. Do you know whether or not either of these gentlemen are still alive?

"A. I do not know personally.

"Q. Did either Mr. Edwards or Mr. Underwood go into the facts of your case with you?

"A. No sir.

"Q. Have either one of these people been to the county jail at any time to see you?

"A. No sir.

"Q. Was this a jury trial or a nonjury trial?

"A. Jury trial.

"Q. Now how long did the trial of this case take?

"A. Actual time I can\'t say, but from the time I entered the Courtroom until the time I was back in jail I would say approximately one hour and a half."

Roberts further testified that he had no witnesses; that he recalled making a statement to the jury, that prior to making the statement he did not discuss it with his attorneys.

"Q. Did they counsel with you in any way relative to how you should act, what you should say or what you should cover in your statement?

"A. No sir.

"Q. Were you at any time advised of any of your rights according to the laws of the constitution either of Georgia or the United States?

"A. None whatsoever."

Roberts further testified that after the verdict and before he was taken back to jail, he asked Mr. Edwards to appeal the case but "I got no answer from him." The sheriff then carried him back to jail where he remained from October 11 to November 11. During that time no attorney came to see him or discussed with him any of his rights relative to an appeal. On November 11, he went to the Cherokee County public works camp. He stayed there until January 20, 1952, when he escaped and went to California and from there to Texas, where he was recaptured and returned to prison.

On cross-examination, Roberts testified that he had known "all my life" the two attorneys who were appointed to represent him; that Mr. Edwards was the older and was about eighty years old; that Mr. Underwood "was close to the same"; that both of them had been in that community "as far back as I can remember"; that he did not know how long Mr. Underwood had practiced law, but that Mr. Edwards had either practiced law or been Mayor, or held some political office, as long as he could remember; that though he was convicted in 1951, he was out on escape for a while, and had (on June 23, 1965) served only seven months in prison; that the two attorneys did represent him "the best they knew how."

One of the attorneys, Mr. Edwards, had died before either the State or the federal habeas corpus hearing. The other attorney, Mr. Underwood, testified in the present case by answers to written interrogatories propounded by the respondent, and was orally cross-examined by applicant's counsel. On direct examination, Mr. Underwood testified that he was admitted to the Bar September 7, 1914, and that he studied law in the office of Charles H. Edwards. In response to the question "to what extent do you practice criminal law," he answered, "General practicing, practiced, represented criminals I was so employed to do through the years." He testified that he assisted in the representation of Marvin Roberts during the October Term 1951; that he and Colonel Charles H. Edwards were appointed by the court; "Colonel Edwards and I went thoroughly into the case with Mr. Roberts of course because it is generally understood that if a man is appointed he had better do his very level best or get criticized, and we did that"; that "Marvin Roberts was intelligent and understood exactly where he was at sic"; that "we did not file an appeal in the matter because he requested that we didn't sic. He was elated over the fact that he did not receive electrocution." "We advised him thoroughly as to his right of appeal and asked him if he wanted it appealed. Of course, we pointed out to him he might win a new trial and he might get worse and might get electrocuted at the next trial, and he explicitely sic asked that we not appeal his case"; that he "assisted Colonel Edwards"; "Colonel Edwards was an outstanding criminal lawyer in North Georgia, considered one of the best. He has been dead for several years. * * * we did the very best we could under the circumstances made and provided."

On cross-examination by applicant's counsel, Mr. Underwood testified that he did not remember how long it took to try the case and was asked "could it be that it started in the morning and finished by dinner time?" He answered: "Might have been; I don't know. We went thoroughly into the matters as we always did, Colonel Edwards and I. I was not his partner at that time; I studied law under him. Partners for 15 years. I wasn't at that time." As to any conference with the accused prior to trial, Mr. Underwood testified:

"Q. Had you prior to the day of this trial discussed Marvin Roberts\' case with Marvin Roberts?

"A. No. Colonel Edwards, he lived right across the street from the jail and he went over there and interviewed him.

"Q. You say he did or you did?

"A. He did.

"Q. But you did not?

"A. Because he stated to me he spent about thirty or forty minutes with him going over the case, in jail."

Mr. Underwood further testified that after the trial was over and before Roberts was taken back to jail by the sheriff, "we took him in the back room before — in the jury room before he was taken to the jail and went over it thoroughly about the appeal of the case, if he wanted to." His cross-examination concluded as follows:

"Q. Since you left the Courthouse that time, Mr. Underwood, have you ever seen Marvin Roberts again?

"A. No, sir, I have not.

"Q. Mr. Underwood, do you still practice?

"A. In a way. I don\'t take any cases in Court; I\'m just abstractor and pass on land titles, things of that kind, practice some in the Ordinary\'s Court. I retired two years ago from active practice."

Roberts and Mr. Underwood were the only two witnesses whose testimony was introduced at the habeas corpus hearing. The only other evidence consisted of four documentary exhibits introduced by the applicant Roberts.

Exhibit 1 is the copy of the indictment returned at the October Term 1951 of the Superior Court of White County, Georgia, of the verdict of the jury, and of the formal sentence by the court. The indictment charges Marvin Roberts with the offense of rape "for that the said accused on the 1st day of July in the year 1951, in the County aforesaid, did then and there, unlawfully and with force and arms, have carnal knowledge of Barbara Sue Tullis, a...