Sanders v. State of South Carolina, Civ. A. No. 68-877.

• Decision Date: 23 January 1969
• Docket Number: Civ. A. No. 68-877.
• Citation: 296 F. Supp. 563
• Parties: Ernest Leroy SANDERS, Petitioner, v. The STATE OF SOUTH CAROLINA; Mr. Daniel R. McLeod, South Carolina Attorney General, Columbia, South Carolina; Mr. W. D. Leeke, Director, South Carolina Department of Corrections, Columbia, South Carolina; Mr. John H. Hydrick, Jr., Attorney at Law, Lexington, South Carolina; Mr. William F. Rogers, Attorney at Law, Lexington, South Carolina; Mr. Hubert E. Long, Solicitor, Eleventh Judicial Circuit Court, Lexington, South Carolina; et al., Respondents.
• Court: U.S. District Court — District of South Carolina

296 F. Supp. 563

Ernest Leroy SANDERS, Petitioner, v. The STATE OF SOUTH CAROLINA; Mr. Daniel R. McLeod, South Carolina Attorney General, Columbia, South Carolina; Mr. W. D. Leeke, Director, South Carolina Department of Corrections, Columbia, South Carolina; Mr. John H. Hydrick, Jr., Attorney at Law, Lexington, South Carolina; Mr. William F. Rogers, Attorney at Law, Lexington, South Carolina; Mr. Hubert E. Long, Solicitor, Eleventh Judicial Circuit Court, Lexington, South Carolina; et al., Respondents.

Civ. A. No. 68-877.

United States District Court D. South Carolina, Columbia Division.

January 23, 1969.

COPYRIGHT MATERIAL OMITTED

J. Lewis Cromer, Columbia, S. C., for plaintiff.

Daniel R. McLeod, Atty. Gen., of S. C., Columbia, S. C., by Emmett H. Clair, Asst. Atty. Gen., Columbia, S. C., for defendant.

ORDER

SIMONS, District Judge.

This matter is before the court on the last of a long series of petitions of Ernest Leroy Sanders for a writ of habeas corpus. He is presently confined to the Central Correctional Institution of the South Carolina Department of Corrections, pursuant to orders of commitment of the Clerk of Court of General Sessions for Lexington County, South Carolina.

Petitioner, who was indicted for and found guilty of the crime of forgery, was represented at his trial on September 6-7, 1967 by his court appointed counsel, John H. Hydrick, Jr., and William F. Rogers, both of the Lexington County Bar. Subsequent to his conviction he was sentenced to a period of confinement for seven years (the maximum confinement for forgery under the South Carolina Statute) and to pay a fine of $5,000¹ by Honorable John Grimball, Presiding Judge of the Lexington County Court of General Sessions.

A review of the file will readily substantiate that petitioner is no stranger to this court or to the state courts of South Carolina in connection with his arrest, detention, trial and sentence for the crime of forgery with which we are concerned in this proceeding. He has filed numerous petitions for habeas corpus and for restraining order in the state courts, both Circuit and Supreme, and the United States District Court, even before he was actually tried, convicted and sentenced in the Lexington County General Sessions Court. His previous petitions in this court were dismissed for failure to exhaust his state court remedies pursuant to the provisions of 28 U.S.C.A. § 2254.²

In its opinion filed September 5, 1968 the South Carolina Supreme Court affirmed petitioner's conviction for forgery in State v. Sanders, S. C., 163 S.E.2d 220.

Although petitioner has filed no state court habeas petitions since the State Supreme Court's affirmance of his conviction he and respondents have admitted that in his current petition to this court he raised substantially the identical questions presented to and ruled upon by the South Carolina Supreme Court in State v. Sanders, supra. Therefore, in considering petitioner's petition herein and respondents' return thereto the court concluded that he had sufficiently exhausted his state remedies in accordance with Section 2254, supra, to require this court to consider his petition on the merits. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Grundler v. North Carolina, 283 F.2d 798 (4th Cir. 1960); United States ex rel. Frinks v. Barwick, 331 F.2d 597 (4th Cir. 1964); Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964); Hayes v. Boslow, 336 F.2d 31 (4th Cir. 1964).

In his twenty-six page current petition petitioner alleges a violation of his rights under the Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments of the United States Constitution on the following grounds:

"1. That he was denied the assistance of counsel.

2. That he was denied a Fair and Impartial Trial.

3. That he was denied the right to obtain certain witnesses in his behalf.

4. The petitioner was denied the right to an Impartial Jury.

5. The Petitioner was denied the right to a Speedy and Public Trial.

6. Excessive Fine and Excessive Sentence has been imposed upon the Petitioner.

7. Cruel and Unusual Punishment has been inflicted upon the Petitioner.

8. The Petitioner has been held in involuntary Servitude.

9. Due Process and Equal Protection of the laws has been denied to the Petitioner.

10. The Grand Jury that returned the indictment against the Petitioner, was not a Proper sic Constituted Grand Jury.

11. The Trial Court was without Jurisdiction.

12. Court appointed attorneys representing the Petitioner were Inadequate, inefective sic and Incompetent."

After a careful review of petitioner's petition, respondents' return, the transcript of the trial proceedings in the Lexington County General Sessions Court, and the transcript of the record before the South Carolina Supreme Court in State v. Sanders, supra, this court concluded that petitioner was entitled to an evidentiary hearing to present such evidence and witnesses as he so desired in support of all of his contentions, especially in view of the fact that no evidentiary hearing in the state court had been held in a habeas or other proceeding wherein petitioner had been given the opportunity to present testimony and evidence in support of his twelve contentions listed above. The court appointed J. Lewis Cromer, Esquire, of the Richland County Bar to represent petitioner in the proceeding in this court.

A full evidentiary hearing was held in Columbia, South Carolina on the 21st day of November, and December 12, 1968. Prior to the hearing the court granted petitioner's request for orders subpoenaing all witnesses that he and his counsel desired to subpoena and required their presence at government's expense. After one full day's proceedings the hearing was adjourned at the request of petitioner and his counsel in order that additional witnesses might be located and presented. The court received all testimony and evidence which petitioner desired to present in connection with all twelve of his contentions listed above, although a study of the record, including the trial and appeal transcripts and the South Carolina Supreme Court opinion in State v. Sanders, supra, reveals that most of petitioner's allegations had been fully explored, considered and correctly disposed of in the state court. Nevertheless, no limitations as to the testimony or evidence which petitioner desired to present was imposed and petitioner was also given leave to, and was in fact specifically requested to raise any other issues or claimed violations of his constitutional rights not asserted in his petition. No additional grounds for relief were claimed by petitioner or his counsel. During the hearing petitioner at his request was permitted to examine personally all witnesses and to make any points for the record he cared to, in addition to the questioning by his court appointed counsel.

Upon a careful review of the record, it has been concluded that the South Carolina Supreme Court in its opinion, supra, fully and properly disposed of petitioner's contentions with the exception of petitioner's grounds I, III and XII, supra. Nevertheless, all twelve of his contentions will be considered and discussed hereinafter.

For a better understanding of the court's discussion and determination of the issues presented by petitioner a finding of the relevant facts are set forth as follows:

1. Petitioner was arrested on November 4, 1966 at Florence, South Carolina, by federal authorities in connection with a federal crime involving forgery. He was carried before a commissioner at Florence and counsel was appointed for him. On November 5, 1966 he was turned over to the Lexington County authorities on a state forgery charge. Shortly thereafter he became violent and on November 6, 1966 was placed in the South Carolina State Hospital for examination and treatment for acute alcoholism and malnutrition. He remained in the State Hospital for approximately four months, or until early March 1967. While there on one or more occasions he was interviewed by Clifford Moyer, an FBI agent in connection with certain federal offenses. He apparently advised Moyer during this period that he would like to have counsel. He also wrote Solicitor Hubert Long of the Eleventh Judicial Circuit, which includes Lexington County, asking for the assistance of a lawyer. Long advised him by letter that counsel would be appointed for him by the court prior to his trial.

2. He was released from the State Hospital in early March, 1967 to the state authorities and returned to the Lexington County Jail. While there awaiting trial he claims that on several occasions he told Sheriff Boatwright and other of his deputies and jailers that he desired counsel and that he wanted a preliminary hearing. All of the officers subpoenaed by petitioner stated that they did not have any recollection of these requests by petitioner, but did not deny that such requests were made.

3. On May 19, 1967, John H. Hydrick, Jr., Esquire, of the Lexington Bar was appointed by the Presiding Judge to represent petitioner. This was on Thursday afternoon before court convened the following Monday when petitioner's case was going to be submitted to the grand jury. On Monday following Hydrick's appointment on Thursday, May 19th, the all male Lexington County Grand Jury which had been duly and legally selected in December 1967 for the entire year 1968 considered the indictment against petitioner for forgery and returned a true bill, which was read in open court in the presence of the foreman and all members of the grand jury, as is the established custom in South Carolina.

4. Petitioner was arraigned on May 25th and his case was called for trial on May 26th. In the meantime Hydrick had asked the Solicitor and Magistrate Forte Taylor for a preliminary hearing which was not held at that time because the grand jury had already returned a true bill. In his conferences with counsel petitioner furnished a list of twenty-five or thirty potential...