Shaw v. Martin

• Decision Date: 02 January 1980
• Docket Number: No. 79-6819,79-6819
• Citation: 613 F.2d 487
• Parties: Joseph Carl SHAW, Petitioner, v. Joseph R. MARTIN, Warden, Central Correctional Institution, and Hon. Daniel R. McCleod, Attorney General for South Carolina, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 487

613 F.2d 487

Joseph Carl SHAW, Petitioner, v. Joseph R. MARTIN, Warden, Central Correctional Institution, and Hon. Daniel R. McCleod, Attorney General for

South Carolina, Respondents.

No. 79-6819.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 13, 1979.

Decided Jan. 2, 1980.

Dallas D. Ball, Kermit S. King, W. Thomas Vernon, William Gambrell, Columbia, S. C., Richard H. Burr, Nashville, Tenn., Richard Shapiro, New Orleans, La., John Charles Boger, New York City, for petitioner.

Brian Gibbes, Asst. Atty. Gen. Columbia, S. C., for respondents.

Before JAMES DICKSON PHILLIPS, Circuit Judge, Fourth Judicial Circuit.

JAMES DICKSON PHILLIPS, Circuit Judge:

This matter came before me at 8:00 A.M. on December 13, 1979, on the application of Joseph Carl Shaw for an order staying execution of the death sentence imposed upon him by the State of South Carolina and scheduled for 5:00 A.M., December 14, 1979. For reasons that follow I decided to grant the stay on certain conditions looking to the expeditious pursuit by Shaw of traditional avenues of post-conviction review in state and federal courts that have not yet been exhausted and that would otherwise be foreclosed.

The application was made to me as a single circuit judge acting under the power conferred by 28 U.S.C. § 2251 to grant stays of execution in pending habeas corpus proceedings, incident to appeal by Shaw from the denial of his petition for habeas corpus and application for stay of execution made to the United States District Court for the District of South Carolina, Honorable Robert W. Hemphill. The application was considered on a stipulated hearing record and the oral arguments of counsel for Shaw and for the State of South Carolina.

The record consisted of the following items in addition to the application itself: 1) Order of the district court denying stay; 2) Petition to district court for Writ of Habeas Corpus and Application for Stay of Execution (filed by appointed counsel); 3) Supplemental Petition for Writ of Habeas Corpus and Application for Stay (filed by retained counsel); 4) Return to Petition for Writ of Habeas Corpus filed by State; 5) Opinion of the Supreme Court of South Carolina affirming conviction; 6) Transcript of Record on Appeal to State Supreme Court; 7) Application for certificate of probable cause to appeal and for appeal in forma pauperis; 8) Stipulation of counsel re State Supreme Court's denial of motion of appointed counsel to be relieved; 9) Motion of appointed counsel to State Supreme Court for relief from representation and for stay of execution; 10) Authorization by Shaw for representation by retained counsel; 11) Stipulated chronology of proceedings.

Representing the Petitioner Shaw at the hearing were Messrs. Dallas D. Ball, Kermit S. King, W. Thomas Vernon, and William Gambrell, all of the South Carolina bar; and Messrs. Richard Burr, Richard Shapiro, and John Boger (of counsel) of the Southern Prisoners' Defense Fund of Nashville, Tennessee.

Representing the State of South Carolina was the Honorable Brian Gibbes, Assistant Attorney General.

I

At the outset, I was concerned about the status of the various attorneys appearing for Shaw, and, for reasons that I considered relevant to determination of the application, sought to establish that status for the record. These facts appeared.

Messrs. Ball and King were appointed by the State of South Carolina to defend Shaw in the early stages of the criminal prosecution, and have represented him throughout. Mr. Vernon was added to the appointed defense team by subsequent appointment by the State; and Mr. Gambrell is an associate in Mr. King's law firm. This group of attorneys is hereafter referred to as "appointed counsel."

Messrs. Burr and Shapiro associated with the Southern Prisoners' Defense Fund, were retained by Shaw, first orally, then by written authorization filed in the record of this proceeding. Mr. Boger, associated with the Legal Defense Fund of the NAACP, appeared of counsel to the Southern Prisoners' Defense Fund, having been associated by Messrs. Burr and Shapiro. This group of attorneys is hereafter referred to collectively as "retained counsel."

II

The salient facts before me on this application are quickly stated. The hideously brutal crimes of which Shaw stands convicted occurred on October 29, 1977. Shaw and two others were arrested on November 3, 1977, and each was indicted for two counts of murder, two counts of conspiracy, rape, kidnapping, and armed robbery. On the advice of his court-appointed counsel, Shaw pled guilty to the crimes charged to him on December 12, 1977. On December 16, 1977, after a sentencing hearing, a state trial judge sentenced Shaw to death.

Shaw timely appealed to the Supreme Court of South Carolina which, on May 28, 1979, affirmed the conviction and death sentence. On August 24, 1979, appointed counsel then timely petitioned the Supreme Court of the United States for writ of certiorari. On November 13, 1979, the Supreme Court denied the petition. Shaw's appointed counsel received notice of the denial on November 15, 1979, and immediately began considering the steps now to be taken in discharge of their obligations of representation. At this time the Supreme Court of South Carolina, acting pursuant to a state statute, S.C.Code § 17-25-370, which directs setting of the execution of a death sentence on a date four weeks after affirmance of a judgment of conviction, set the execution for 5:00 A.M. on December 14, 1979.

On November 28, 1979, in the course of consultation with his appointed counsel about legal steps that might now be taken to obtain further review, Shaw suggested a possible desire to have raised the issue of ineffectiveness of the assistance provided him by those counsel. On November 30, 1979, in further consultation, he confirmed a specific desire to raise this issue by appropriate means. At this time he had employed no other counsel.

Presented with an obvious problem of professional responsibility by this development, Shaw's appointed counsel, facing an execution date only two weeks away, now sought means by which they might continue their representation in protection of Shaw's rights and at the same time expedite the retention of other counsel to present any claim of ineffective assistance of counsel thought warranted. To this end, appointed counsel then moved expeditiously on several fronts. They first filed a motion and conferred on November 30, 1979, with the state trial judge whom they considered empowered to relieve them of representation responsibilities so that other counsel could take over. Advised, however, on December 4, 1979, to file their motion to be relieved as appointed counsel and for stay of execution pending retention of new counsel in the Supreme Court of South Carolina, they did so on December 6, 1979. On December 10, 1979, the State Supreme Court heard this motion on the record and oral arguments; and on the same day denied it without stating its reasons.

While these proceedings were underway, appointed counsel on December 8, 1979, filed a timely petition in the Supreme Court of the United States for rehearing of the petition for certiorari. This had not been acted upon at the time of the hearing before me.

Contemporaneously with these efforts, appointed counsel undertook the responsibility of seeking out new counsel who might be competent, independent, and acceptable to Shaw as retained counsel. It was by this means that Mr. Burr of the Southern Prisoners' Defense Fund was put in touch with Shaw. As a result of this contract and ensuing conference, Shaw first orally, then in writing, retained the attorneys associated with the Southern Prisoners' Defense Fund who appeared with appointed counsel at the hearing before me.

Following the denial on December 10, 1979, of their motion in the State Supreme Court, appointed counsel filed a petition for habeas corpus and for stay of execution incident thereto in the United States District Court for the District of South Carolina. The habeas petition was based upon a claimed denial by the State of Shaw's Present right to effective assistance of counsel by its action in denying appointed counsel's motion to be relieved, with the consequence of Shaw's practical inability to pursue within the short time remaining to him the post-conviction remedies provided by the State.

Retained counsel also filed in the district court a supplemental petition for habeas corpus and application for stay which raised, among other issues, one of ineffective assistance of appointed counsel. Following a hearing on December 12, 1979, the district judge denied the petitions and the applications for stay. In an accompanying memorandum the district judge noted that no state post-conviction proceedings had been instituted by Shaw, and based his denial on a determination that the petitioner had not met the burden of showing constitutionally ineffective assistance of appointed counsel. This determination was made on the basis of the state court record, and judicial notice of the general competence and expertise of appointed counsel. The court did not address any of the several additional grounds presented in retained counsel's supplemental petition, nor did it specifically address appointed counsel's claim of a present denial of effective assistance by reason of the state's refusal to relieve appointed counsel and grant a stay to allow new counsel an opportunity to assume representation and take such action as they might deem appropriate.

Shaw then noted appeal to the United States Court of Appeals for the Fourth Circuit and applied to me for stay of execution incident to the appeal. I was advised at the hearing before me that following the denial of relief in district court, Shaw, through his retained counsel, had now commenced statutory post-conviction proceedings in the state court system,...