Stanley v. Peyton, Civ. A. No. 68-C-34-D.

• Court: United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
• Citation: 292 F. Supp. 209
• Docket Number: Civ. A. No. 68-C-34-D.
• Parties: Alexander STANLEY, Petitioner, v. C. C. PEYTON, Superintendent, Virginia State Penitentiary, Respondent.
• Decision Date: 09 October 1968

292 F. Supp. 209

Alexander STANLEY, Petitioner,
v.
C. C. PEYTON, Superintendent, Virginia State Penitentiary, Respondent.

Civ. A. No. 68-C-34-D.

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

October 9, 1968.

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

OPINION and JUDGMENT

DALTON, Chief Judge.

This case comes before this court on a petition for a writ of habeas corpus, filed in forma pauperis by Alexander Stanley, a state prisoner, pursuant to 28 U.S.C. § 2241. This case was originally filed in the United States District Court for the Eastern District of Virginia and was transferred to this court on June 18, 1968.

Petitioner is currently serving a sentence of ten years pursuant to a judgment of the Corporation Court of the City of Danville on November 17, 1958, wherein he was convicted for the crime of larceny. An additional ten years sentence was imposed for the crime of attempted robbery. Both convictions resulted after the petitioner, represented by court appointed counsel, entered pleas of guilty to the two charges.

A plenary hearing was held in the Corporation Court of Danville on September 28, 1967, as a result of a petition for a writ of habeas corpus which petitioner had filed in the state courts. Petitioner was represented by court appointed counsel at this hearing. The Circuit Court denied the writ and dismissed the petition by an order dated October 20, 1967, which was accompanied

292 F. Supp. 210

by a memorandum opinion. An appeal was taken to the Virginia Supreme Court of Appeals and on March 6, 1968, the writ of error was denied and the petition for a writ of habeas corpus refused. As a result, we think that the petition is properly before this court in compliance with 28 U.S.C. § 2254, as interpreted by Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)

Petitioner presents two claims to this court: that he was denied effective assistance of counsel at trial and that the petitioner had no counsel to represent him at a waiver hearing held in the Juvenile and Domestic Relations Court of the City of Danville.

The pertinent facts are these. Petitioner was fifteen years of age when he was taken into custody pursuant to a petition issued by the Juvenile and Domestic Relations Court of the City of Danville on October 16, 1958. The petitioner was charged with larceny, larceny from the person and attempted robbery. A probation officer was appointed guardian ad litem to represent the petitioner at the hearing on the petition. A prehearing report was completed on October 22, 1958 and on October 30, 1958, as a result of the hearing, the petitioner's case was certified over to the Corporation Court of Danville. The grand jury, on November 3, 1958, indicted the petitioner for the crimes of larceny from the person and attempted robbery. The court on this same day, November 3, 1958, appointed counsel to defend the petitioner. On November 17, 1958, the petitioner after consultation with his attorney, entered pleas of guilty to both charges, and after the court had heard the evidence, the petitioner was sentenced to ten years confinement in the Virginia State Penitentiary on each charge, the sentences to run consecutively. The petitioner was released from the Virginia State Penitentiary on parole on October 28, 1963, but was subsequently returned to prison for violation of parole on March 30, 1967.

Petitioner's first claim is that he was denied effective assistance of counsel. We find no merit in this claim. Petitioner's counsel testified that he talked to the police authorities, the Juvenile Court authorities, and the Commonwealth's Attorney; examined the various records; and talked to the petitioner on three occasions in his investigation of the case. He further testified that the petitioner indicated that he was involved in the crimes, and based on all of the information counsel advised a plea of guilty. The petitioner on the other hand testified that no investigation was made, but he admits that he has no knowledge other than if an investigation had been made the case would have resulted differently. Petitioner does not allege that his pleas of guilty were not voluntary or that he did not understand the nature of the pleas. In fact the petitioner admits a discussion in which the various advantages and disadvanages of a trial by jury or without a jury were discussed. It is well settled that the petitioner must prove by a preponderance of the evidence that a constitutional right has been violated before he may be granted relief on a habeas corpus petition. The petitioner cannot bear this burden when his allegations, supported only by his testimony are clearly contradicted by testimony to the contrary. Redd v. Peyton, 270 F.Supp. 757 (W.D. Va.1967). We think that petitioner has clearly failed to carry this burden and thus we find no basis for relief on the claim.

Petitioner's second claim is that he was not represented by counsel at the hearing held by the Juvenile and Domestic Relations Court which certified his case over to the Corporation Court of the City of Danville for trial as an adult. There is no dispute that the petitioner did not have the aid of counsel, but rather a probation officer assigned as guardian ad litem, at the Juvenile proceedings. The hearing held at the Juvenile and Domestic Relations Court is commonly called a waiver hearing.

The United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) held inter alia that

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the Due Process Clause of the Fourteenth Amendment requires that the right to counsel be guaranteed to juveniles in "proceedings by which a determination is made as to whether a juvenile is a "delinquent" as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution." 387 U.S. at 13, 87 S.Ct. at 1436. The Supreme Court was careful to point out that "we do not even consider the...