Root v. Cunningham, No. 9606.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtHAYNSWORTH, , J. SPENCER BELL, Circuit , and CHRISTIE
Citation344 F.2d 1
PartiesJesse ROOT, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
Docket NumberNo. 9606.
Decision Date26 March 1965

344 F.2d 1 (1965)

Jesse ROOT, Appellant,
v.
W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee.

No. 9606.

United States Court of Appeals Fourth Circuit.

Argued February 2, 1965.

Decided March 26, 1965.


344 F.2d 2

John O. Peters, Richmond, Va. (Court-assigned counsel), (Williams, Mullen & Christian, Richmond, Va., on brief), for appellant.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, J. SPENCER BELL, Circuit Judge, and CHRISTIE, District Judge.

CHRISTIE, District Judge.

This is an appeal under 28 U.S.C. § 2253 by Jesse Root from a judgment of the United States District Court for the Eastern District of Virginia, entered on July 6, 1964, denying his petition for a writ of habeas corpus. In his petition before the district court he claimed that the judgment entered by the Circuit Court of Accomack County, Virginia, on October 12, 1954, committing him to eighteen years imprisonment for statutory burglary, was unlawful and void. We find the appeal to be without merit.

Appellant's principal contentions on this appeal are:

(1) Whether the district court was in error in finding as a matter of fact that he was represented by counsel at his arraignment;

(2) Whether the district court was in error in finding as a matter of fact that he was not denied effective assistance of counsel in the state trial; and

(3) Whether the district court was in error in finding as a matter of law that his absence during the consideration of instructions by the trial judge and counsel did not constitute a violation of his constitutional rights.

In considering appellant's attack on the district court's findings of fact, this Court is bound by those findings unless they are shown to be clearly erroneous. Federal Rules of Civil Procedure, Rule 52, 28 U.S.C.A. Cf. Crabtree v. Boles, 339 F.2d 22 (4th Cir. 1964); James v. Boles, 339 F.2d 431 (4th Cir. 1964).

I

While appellant contends that he was not represented by counsel at his arraignment, the Common Law Order Book of the Circuit Court of Accomack County, Virginia, revealed on October 5, 1954, the following:

"This day came the attorney for the Commonwealth; and thereupon said defendant was brought into Court and set to the Bar by the Jailor of this Court, and after being advised by counsel, pleaded not guilty thereto. * * *"

It was noted on the criminal docket that appellant was represented at this proceeding by Frances F. Ames, self-employed attorney. Furthermore, at the hearing before the district court, Frances

344 F.2d 3
Ames testified that she was present when appellant entered his plea of not guilty. Thus, in light of this testimony by Mrs. Ames and the documentary records of the circuit court, it is apparent that the finding of the district judge that counsel was present at the arraignment was clearly warranted

II

In regard to appellant's second contention, i. e., that he was not effectively represented by counsel at trial, it is to be noted that his counsel in this proceeding takes the position in his brief, and correctly so, that this question is one of fact. The district court made the following findings of fact thereon:

"The evidence shows and the Court finds that Mrs. Ames interviewed the defendant several times in jail, that she traveled throughout the county interviewing every witness that he had told her about; that she examined the file in the Clerk\'s office concerning the case; and that she prepared her defense of the case on behalf of the petitioner in line with the defense which he urged upon her."

The district judge further found that appellant knew the charges against him, understood them, and actively directed and assisted his counsel in formulating defense strategy. From the foregoing findings of fact, the district judge concluded that appellant was effectively represented by counsel. A careful review of the record, the affidavit and deposition of Mrs. Ames and the correspondence she addressed to appellant shortly after the trial relative to his charge of misconduct by certain jurors, demonstrates that the findings and conclusions of the district judge have ample factual and legal support and this court is bound by them. Moreover, it may be said that, while a defendant is undeniably entitled to a fair trial according to the law of the land,...

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83 practice notes
  • State v. Buchanan, No. 317A89
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 6, 1991
    ...denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972); United States v. Sinclair, 438 F.2d 50, 52 (5th Cir.1971); Root v. Cunningham, 344 F.2d 1, 3-5 (4th Cir.) (several cases cited which "found nothing wrong with the universal practice of judges and counsel discussing in conference pro......
  • Com. v. Beneficial Finance Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 4, 1971
    ...be borne in mind that although 'a defendant is entitled to a fair trial, he Page 44 is not guaranteed a perfect one. Root v. Cunningham, 344 F.2d 1, 3 (4th Cir.). Johns v. Smyth, 176 F.Supp. 949, 952 (E.D. Va.).' Barber v. Commonwealth, supra, at 240, 230 N.E.2d at PART I. PRE-TRIAL ISSUES.......
  • Johnson v. State of Maryland, Civ. No. 73-576-W.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 15, 1976
    ...cert. denied, 400 U.S. 881, 91 S.Ct. 126, 27 L.Ed.2d 120 (1970); Kearney v. Peyton, 360 F.2d 589, 590 (4 Cir. 1966); Root v. Cunningham, 344 F.2d 1, 3 (4 Cir.), cert. denied, 382 U.S. 866, 86 S.Ct. 135, 15 L.Ed.2d 104 As regards contentions 1 and 2, Petitioner's charges of inadequate repres......
  • Bradshaw v. State of Oklahoma, No. 74-335-C.
    • United States
    • United States District Courts. 10th Circuit. Eastern District of Oklahoma
    • February 25, 1975
    ...of principles of law to which he could contribute nothing. Deschenes v. United States, 224 F.2d 688 (CA10 1955). In Root v. Cunningham, 344 F.2d 1, 5 (CA4 1965) the court "In Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, the Supreme Court said that the pr......
  • Request a trial to view additional results
84 cases
  • State v. Buchanan, No. 317A89
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • December 6, 1991
    ...denied, 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793 (1972); United States v. Sinclair, 438 F.2d 50, 52 (5th Cir.1971); Root v. Cunningham, 344 F.2d 1, 3-5 (4th Cir.) (several cases cited which "found nothing wrong with the universal practice of judges and counsel discussing in conference pro......
  • Com. v. Beneficial Finance Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 4, 1971
    ...be borne in mind that although 'a defendant is entitled to a fair trial, he Page 44 is not guaranteed a perfect one. Root v. Cunningham, 344 F.2d 1, 3 (4th Cir.). Johns v. Smyth, 176 F.Supp. 949, 952 (E.D. Va.).' Barber v. Commonwealth, supra, at 240, 230 N.E.2d at PART I. PRE-TRIAL ISSUES.......
  • Johnson v. State of Maryland, Civ. No. 73-576-W.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 15, 1976
    ...cert. denied, 400 U.S. 881, 91 S.Ct. 126, 27 L.Ed.2d 120 (1970); Kearney v. Peyton, 360 F.2d 589, 590 (4 Cir. 1966); Root v. Cunningham, 344 F.2d 1, 3 (4 Cir.), cert. denied, 382 U.S. 866, 86 S.Ct. 135, 15 L.Ed.2d 104 As regards contentions 1 and 2, Petitioner's charges of inadequate repres......
  • Bradshaw v. State of Oklahoma, No. 74-335-C.
    • United States
    • United States District Courts. 10th Circuit. Eastern District of Oklahoma
    • February 25, 1975
    ...of principles of law to which he could contribute nothing. Deschenes v. United States, 224 F.2d 688 (CA10 1955). In Root v. Cunningham, 344 F.2d 1, 5 (CA4 1965) the court "In Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, the Supreme Court said that the pr......
  • Request a trial to view additional results

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