Shear v. Boles

• Decision Date: 03 February 1967
• Docket Number: Civ. A. No. 570-E.
• Citation: Shear v. Boles, 263 F.Supp. 855 (N.D. W.Va. 1967)
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Lee SHEAR, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

263 F. Supp. 855

Lee SHEAR, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. 570-E.

United States District Court N. D. West Virginia.

February 3, 1967.

No appearance for petitioner.

C. Donald Robertson, Atty. Gen. of W. Va., George H. Mitchell, Asst. Atty. Gen., Charleston, W. Va., for respondent.

MAXWELL, Chief Judge.

This memorandum concerns a habeas corpus petition instituted by Lee Shear, an inmate of the West Virginia Penitentiary. The circumstances leading to Shear's present incarceration are as follows.

On February 10, 1964, the Ohio County Grand Jury returned two indictments against Shear. Felony indictment 214 appears to relate to an attempted armed robbery of one George Carter during January, 1964. Felony indictment 215 similarly appears to relate to an attempted armed robbery on one Robert Rose in December, 1963.

On February 14, 1964, Shear, who was represented by two earlier court appointed attorneys, appeared before the Intermediate Court of Ohio County, West Virginia, and pleaded guilty to the charges contained in both indictments. He was, on the same day, given two concurrent ten year prison terms at the West Virginia State Penitentiary. Shear was credited for the time spent in the Ohio County Jail awaiting trial from the day of his arrest on January 4, 1964.

Shear filed a petition for habeas corpus with the West Virginia State Supreme Court of Appeals on May 22, 1964, contending, for the most part, (1) that his court appointed counsel had not adequately represented him; and (2) that his guilty pleas were coerced, mainly by the threats of his court appointed counsel and of the Judge of the Ohio County Intermediate Court. On June 8, 1964, the writ was refused.

On July 22, 1964, Shear petitioned this Court for federal habeas corpus relief, in Civil Action File No. 1389-W, again alleging, for the most part, (1) ineffective assistance of counsel, and (2) coercion of his two guilty pleas. Charles F. Paul, then Judge of this Court, appointed counsel and granted a plenary hearing, which was conducted on September 22, 1964. Judge Paul then found (1) that Shear had been afforded effective assistance of counsel, but (2) that the pleas had been involuntary.

By order entered September 22, 1964, Judge Paul determined that Lee Shear be released from incarceration, but that the release be stayed for ten days, during which time the State might initiate proceedings for the purpose of rearresting and retrying Shear on the two indictments.

Subsequently, Shear went to jury trial on the two charges contained in each indictment. His trials were conducted in the appropriate court of Ohio County. He was represented by the same two attorneys who had earlier handled his federal habeas corpus proceedings. He was not tried before the same state trial court judge who had accepted his guilty pleas in February, 1964.

On October 28, 1964, the jury found Shear guilty of the charges precipitated by felony indictment number 214. On February 3, 1965, at a subsequent term of court, with an entirely new jury panel from that which the earlier jury had been selected, a second jury returned a guilty verdict as to the charges precipitated by felony indictment number 215. On January 11, 1965, Shear was sentenced to fifteen years at the West Virginia Penitentiary in Moundsville for the first conviction, and on February 3, 1965, he was given a consecutive fifteen year sentence at the same institution for the second felony conviction. Under West Virginia Code, § 61-2-12 (Michie 1966), armed robbery and attempted armed robbery carry a minimum of ten years confinement.

At this point, it should be noted that while the copies of the indictments contained in the court file indicate that both indictments returned against Shear were for attempted armed robbery, this Court notes that copies of the second sentencing court's two orders recite that Shear's second sentences are posited on his having been convicted of armed robbery, and not attempted armed robbery. Shear himself states in his petition that he is serving because of convictions for armed robbery, and the trial transcript of felony indictment 214 supports him in at least the one instance. The Respondent's answer to the Court's latest show cause order also indicates Shear is correct when he states that he is serving for armed robbery.

As has been indicated, this possible discrepancy is not critical as to the amount of time which Shear may be required to serve, because under West Virginia Code, § 61-2-12 (Michie 1966), both armed robbery and attempted armed robbery carry the same sentences. What is critical, of course, is whether Shear was sufficiently informed of the offenses with which he was actually charged.

Having raised this side issue, the Court now redirects its attention to the circumstances surrounding Shear's present incarceration. The record is silent as to whether Shear was credited with the time served following his initial incarceration on January 4, 1964, and up to the imposition of sentence for his first felony conviction on January 11, 1965.

If he was so credited, his two new sentences then would run approximately 29 years beyond January 11, 1965. If he was not credited, the total length of his incarceration, absent parole, would be about 31 years beyond January 4, 1964. Since the trial judge who imposed both later sentences did not indicate whether credit was to be given, this Court must assume that Shear was not given the benefit of the time he had already served. He would, of course, later be eligible for a deduction from his sentence for good conduct under West Virginia Code, § 28-5-27 (Michie 1966).

On April 30, 1965, Shear petitioned the West Virginia State Supreme Court of Appeals for habeas corpus relief, contending (1) that his trials for the two felony charges, after Judge Paul had granted federal habeas corpus relief, constituted "double jeopardy" within the meaning of the United States Constitution; (2) that he was Constitutionally aggrieved when the State failed to reindict him before he was subjected to the two subsequent trials; and (3) that the imposition of more severe sentences the second time in the state trial court was Constitutionally impermissible.

On July 12, 1965, the Supreme Court of West Virginia summarily denied the petition without a hearing.

On December 1, 1965, Lee Shear then petitioned this Court for federal habeas corpus relief, generally contending (1) that he had been denied his rights, as enunciated in Escobedo v. State of Illinois, 84 S.Ct. 1758, 12 L.Ed.2d 977, 378 U.S. 478 (1964); and (2) that the state trial court was not Constitutionally entitled to impose a longer prison obligation, after his two subsequent jury trials and guilty verdicts, than he had originally received after entering his two guilty pleas.

On the day Shear's petition was filed, the Court ordered the Respondent to show cause why the relief prayed for should not be granted, and on December 13, 1965, the Respondent answered, contending, in part, that Shear had not exhausted his available state remedies, as is now necessitated by the Court's ruling in Miller v. Boles, 248 F.Supp. 49 (N.D.W.Va. 1965). On January 12, 1966, therefore, the Court ordered Shear's petition be dismissed, because of the reasons suggested by the Respondent. Several weeks later the Court also denied a certificate of probable cause, but allowed Shear leave to proceed further on appeal in forma pauperis.

It was in this posture that the case was appealed to the Fourth Circuit Court of Appeals in February, 1966.

Because one of the contentions in the present petition raises novel questions regarding the rights of a successful habeas corpus applicant, on the occasion of renewed state prosecution, the Court asked that the case be remanded for further consideration. This request was granted by order dated March 9, 1966.

The present opinion is confined to the following two questions of law: (1) May a successful habeas corpus applicant, serving a state imposed sentence, on the occasion of renewed prosecution, be given a more severe sentence than that originally given; and (2) may the second sentance be imposed without giving credit for time already served under the first sentence?

Whether or not Shear was Constitutionally aggrieved by the seeming discrepancy between the indictments and the offenses for which he has been convicted is a question which this Court does not answer at this time, partly because the contention has not been raised anywhere in the record of the case, and partly because this Court requested a remand only for the specific purpose of considering the Constitutional issues underlying more severe second sentencings.

It has been traditionally accepted that a state may reinstitute criminal proceedings against a successful habeas corpus applicant. Irvin v. Dowd, 366 U.S. 717, 728-729, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Wiman v. Argo, 308 F.2d 674 (5th Cir. 1962); Wiman v. Powell, 293 F.2d 605 (5th Cir. 1961); United States ex rel. Jones v. Nash, 264 F.2d 610 (8th Cir. 1959); United States ex rel. Almeida v. Baldi, 195 F.2d 815, 825 (fn. 30) 33 A.L.R.2d 1407 (3rd Cir. 1952); Mitchell v. Youell, 130 F.2d 880 (4th Cir. 1942); 39 C.J.S. Habeas Corpus, § 104 (1944); 25 Am.Jur. Habeas Corpus, § 157 (1940).

Recently, however, some have challenged a state's power to impose a longer sentence in a new criminal proceeding. E. g., Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful" Criminal Appellant, 74 Yale L.J. 606 (1965). The main thrust of such arguments is that to require a criminal defendant to risk the chance of a more severe sentence, as a condition of exercising his Constitutional right to a fair trial, results in an unconstitutional plight. More simply stated, it is unconscionable to place a petitioner in a quandary. On one hand, he might continue to serve a sentence which is...