St. Clair v. Cox, Civ. A. No. 70-C-13-R.

• Decision Date: 18 March 1970
• Docket Number: Civ. A. No. 70-C-13-R.
• Parties: Lucian D. ST.CLAIR, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Virginia

312 F. Supp. 168

Lucian D. ST.CLAIR, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary, Respondent.

Civ. A. No. 70-C-13-R.

United States District Court, W. D. Virginia, Roanoke Division.

March 18, 1970.

Gerald L. Baliles, Asst. Atty. Gen., Richmond, Va., for respondent.

OPINION and JUDGMENT

DALTON, Chief Judge.

This case comes before the court on a petition for a writ of habeas corpus filed in forma pauperis by Lucian D. St.Clair, a state prisoner, pursuant to 28 U.S.C. § 2241. The petition was filed with this court on January 23, 1970.

Petitioner is currently serving a sentence of eighteen years in the Virginia State Penitentiary, pursuant to a judgment of the Hustings Court of the City of Roanoke, imposed on December 28, 1955, for murder in the second degree. Petitioner entered a plea of guilty and was tried by a judge without a jury.

Belatedly on May 30, 1968, St.Clair filed a petition for a writ of habeas corpus in the state courts. After appointing counsel to represent petitioner, the Hustings Court of the City of Roanoke held a plenary hearing on January 7, 1969, and thereupon dismissed the petition. The Virginia Supreme Court of Appeals affirmed this judgment on October 14, 1969. Petitioner's present claims were heard in this state habeas corpus proceeding. Because the Virginia Supreme Court of Appeals has heard and rejected these contentions, petitioner has exhausted his available state remedies as to these claims in compliance with 28 U.S.C. § 2254.

Petitioner seeks relief on the following grounds: (1) The plea of guilty was involuntary; (2) Petitioner was coerced into confessing to the murder; and (3) Petitioner was denied effective assistance of counsel.

The initial question to be answered on the voluntariness of the guilty plea is the applicability of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Boykin held that "It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary." 395 U.S. at 242, 89 S.Ct. at 1711, 23 L.Ed.2d at 279. The effect of Boykin is to impose on the state courts similar standards as those imposed on the federal courts by Rule 11, Federal Rules of Criminal Procedure. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), makes the failure of the federal courts to comply with Rule 11 reversible error. But Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), refused to give McCarthy retroactive application. The Supreme Court held:

Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively. 394 U.S. at 833, 89 S.Ct. at 1499, 23 L.Ed. 2d at 20.

For similar if not more compelling reasons, I decline to apply Boykin retroactively. The same conclusion has been reached by all federal courts which have to date been called upon to determine the question. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd Cir., 1969); Arbuckle v. Turner, 306 F. Supp. 825 (D.Utah 1969); Bishop v. Sharkey, 306 F.Supp. 246 (D.R.I.1969); Quillien v. Leeke, 303 F.Supp. 698 (D.S.C.1969).

While the strict requirements of Boykin are not applicable to the present case, the court must still determine the voluntariness of the guilty plea. Petitioner alleges that the guilty plea was involuntary because of coercion by his attorney. He alleges his attorney told him that he had better plead guilty to second degree murder or face the possibility of the electric chair. At the state plenary hearing, petitioner testified:

Q. Well, was it your free will to enter a plea of guilty to murder?

A. Well,—

Q. And accept eighteen years?

A. Well, we had been—my mother and brother-in-law and sister while we was in the ante room was talking about it and they said that would be the best thing for me to do on account of I might get the electric chair.

Q. Well, is that what you wanted to do?

A. No, sir, I didn't want to; that is what my mother wanted and she was paying most of the lawyer bill so I told her all right.

The fact that petitioner enters a plea of guilty on the considered advice of counsel does not make such plea involuntary. Schnautz v. Beto, 416 F.2d 214 (5th Cir. 1969). The fact that the law imposes the threat of the death penalty does not make the plea involuntary. Moore v. Wainwright, 401 F.2d 525 (5th Cir. 1968); Smith v. Wilson, 373 F.2d 504 (9th Cir. 1967). Nor are the entreatments by the family sufficient to make the plea involuntary. Denson v. Peyton, 299 F.Supp. 759 (W.D.Va.1969); United States ex rel. Piracci v. Follette, 284 F.Supp. 267 (S.D.N.Y.1968). In pertinent language, I previously stated in Denson v. Peyton, supra, 299 F.Supp. at 763:

The fact that the choice was made as the petitioner approached the courtroom or that his attorney strongly urged the plea does not detract from its voluntary nature. Neither does this court think that the conference with the mother and sisters before the trial destroyed the voluntary nature of the plea.

The petitioner has not alleged any facts sufficient in law to render the guilty plea involuntary.

Petitioner claims that a confession was obtained from him while he was drunk, that unauthorized additions were later made to it, and that it was the only evidence used against him at the trial. Once a determination is made that a guilty plea was voluntarily entered, the plea of guilty acts as an admission of guilt and is a waiver of all non-jurisdictional defects. White v. Pepersack, 352 F.2d 470 (4th Cir. 1965); Bloombaum v. United States, 211 F.2d 944 (4th Cir. 1954). In White the rule was stated:

It is a familiar principle that a voluntary plea of guilty does foreclose subsequent collateral attack upon the judgment and the sentence when the attack is based upon an alleged deprivation at some earlier stage of the proceedings. The guilty plea is acceptable however, only after a searching inquiry to assure that its tender is voluntary. Even so, the plea is not a bar to a subsequent collateral attack if it is found in those proceedings that, because of the alleged deprivation, the plea was involuntary. The rule is applied in recognition of the fact that a defendant, aware that a confession may be excludable as involuntary, may still enter a truly voluntary plea of guilty if he also knows that other admissible evidence will establish his guilt overwhelmingly. If it appears, however, that the plea was the coerced product of a tainted confession, the involuntary plea, entered in ignorance of his rights, does not bar the collateral attack. 352 F.2d at 472.

Nowhere does petitioner allege that the confession in any way affected his decision to plead guilty. The record indicates that petitioner knew the evidence was overwhelmingly against him. Petitioner admits his guilt:

Q. Did you discuss with him and ask his advice concerning how you should plead?

A. No, sir, I did not. I figured, well, I was—I knowed I was guilty so— I done it; I wasn't denying that. And he just said we would—he would get me off as light as he could.

Petitioner does not claim that the confession induced the guilty plea. He claims that the guilty plea was the product of threats of the electric chair and of coercion by his family and attorney. Because the confession did not effect the decision to plead guilty and its voluntariness is not a jurisdictional defect, petitioner is precluded from attacking the confession on habeas corpus. Finally, a plea of guilty is itself a conviction and nothing remains but to give judgment and determine the punishment. Boykin v. Alabama, supra; Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Whether or not the confession was the sole evidence introduced against petitioner has no constitutional significance.

Petitioner's last claim is that his counsel was ineffective. Thirteen years after petitioner's conviction and after the death of his counsel, petitioner decides to make this claim. Under Wade v. Peyton, 378 F.2d 50 (4th Cir. 1967), this court is not required to consider extremely belated claims when the possibility of rebuttal is substantially diminished by the death of counsel.

But further, the evidence does not disclose that petitioner's contentions are meritorious. Petitioner alleges that his counsel was not adequately prepared and that he failed to...