State ex rel. Harrison v. Coiner

• Decision Date: 06 October 1970
• Docket Number: No. 12947,12947
• Citation: 176 S.E.2d 677,154 W.Va. 467
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Oscar A. HARRISON v. Ira M. COINER, Warden, West Virginia Penitentiary.

Page 677

176 S.E.2d 677

154 W.Va. 467

STATE ex rel. Oscar A. HARRISON v. Ira M. COINER, Warden, West Virginia Penitentiary.

No. 12947.

Supreme Court of Appeals of West Virginia.

Oct. 6, 1970.

Syllabus by the Court

1. Findings of fact made by a trial court in a case submitted to it for decision will not be set aside or reversed on appeal of the case to this Court unless such findings are clearly wrong.

2. 'A decision of the United States District Court is final and conclusive in a habeas corpus proceeding in a state court by virtue of the doctrine of res judicata, when such decision involved identical parties and determined identical questions.' Point 2 Syllabus, State ex rel. Cephas v. Boles, 149 W.Va. 537 (142 S.E.2d 463).

3. 'An unreversed judgment which remands the petitioner after a hearing in a habeas corpus proceeding is conclusive upon a subsequent application based upon the same facts.' Point 6 Syllabus, State ex rel. Beckett v. Boles, 149 W.Va. 112, (138 S.E.2d 851).

Samuel J. Smith, Wayne, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Asst. Atty. Gen., Charleston, for appellee.

CALHOUN, Judge:

This case is before this Court on a writ of error to a final judgment of the Circuit Court of Wayne County entered on July 28, 1969, by which that court denied the relief sought by Oscar A. Harrison in a habeas corpus proceeding.

In the habeas corpus petition filed in the trial court and in the petition for a writ of error filed in this Court by the State of West Virginia at the relation of Oscar A. Harrison, it is alleged that, on November 25, 1947, a grand jury of the Circuit Court of Wayne County returned an indictment which charged Oscar A. Harrison, hereafter referred to in this opinion as the relator, with the offense of murder in the first degree; that he employed J. J. N. Quinlan and Wilbur C. Perry as counsel to represent him at his trial upon the indictment; that these two attorneys represented him at his trial; that, on December 16, 1947, a jury returned a verdict by which he was found guilty of murder in the first degree; and that, on December 31, 1947, pursuant to the jury verdict, the Circuit Court of Wayne County sentenced the relator to confinement in the state penitentiary for the duration of his natural life. The facts thus alleged are undisputed. In the habeas corpus proceeding, the relator seeks to be released from imprisonment in the state penitentiary pursuant to the sentence thus imposed.

As grounds for the relief sought by him, the relator alleges (a) that he was denied ffective assistance of counsel, particularly because of the failure of the two attorneys employed by him to prosecute an appeal to this Court; and (b) that he was improperly denied a transcript of the proceedings of the trial which resulted in his conviction and consequent imprisonment.

On May 12, 1969, the relator appeared in the trial court in person and by his court-appointed counsel, Samuel J. Smith. The prosecuting attorney of Wayne County appeared in behalf of the respondent warden. Thereupon a hearing was had pursuant to the prayer of the habeas corpus petition, which petition, by permission of the court, was then amended to include the allegation that the constitutional rights of the relator were violated by denial of his request for a transcript of the proceedings of the trial on the murder indictment.

In connection with the habeas corpus hearing, various exhibits were filed in behalf of the relator. The record discloses that the trial court had before it copies of proceedings held in 1967 in the United States District Court for the Northern District of West Virginia, as a consequence of which proceedings the relator in this case was denied relief in a habeas corpus proceeding instituted by him in that court.

Attorney J. J. N. Quinlan testified in behalf of the relator and the relator testified as a witness in his own behalf in the trial court at the habeas corpus hearing involved in this appeal. Wilbur C. Perry, the other attorney who represented the relator at his trial, was deceased at the time the hearing was held.

Mr. Quinlan testified that he had destroyed his file in connection with the murder trial which took place more than twenty years prior to the date he was called as a witness and that his recollection of the facts and circumstances pertaining to the trial was very indistinct. The judgment order entered by the trial court in the murder case on December 31, 1947, discloses that, upon a motion of counsel for the relator, the trial court granted a stay of execution of the sentence for a period of sixty days 'from the rising of' the court in order to enable the relator to apply to this Court for a writ of error and supersedeas. Mr. Quinlan testified that he had no independent recollection in relation to the making and the granting of that motion; that it was his uniform custom and practice to make such a motion as a matter of course in all situations of that character; and that he was certain the 'custom was carried out in this case.'

When asked whether he and Mr. Perry wer employed and paid merely for services in the trial of the case or whether the employment and compensation also contemplated appellate procedure, Mr. Quinlan stated: 'I would say that, in my experience, I have never taken a case in which I have contracted to do more than try the case in the Circuit Court or the Common Pleas Court and I could see no reason for me to make an exception in this case.' When asked whether he recalled ever having accepted employment in a criminal case for a specified fee which was intended to include services in prosecuting an appeal, Mr. Quinlan replied: 'No, sir, except in a personal injury damage case of a civil nature I will charge a certain percentage for trial in the Circuit Court and a certain additional percentage if it goes to the Supreme Court. That is my contract and I don't believe that I ever took a case in which I told the man or the woman who was the defendant in a criminal case, 'I will charge you so much for the trial in the Circuit Court and I will take care of everything up to the Supreme Court.' I wouldn't be able to do it.' Mr. Quinlan's recollection was that both he and Mr. Perry agreed that the trial involved no reversible error which would have warranted an appeal to this Court.

At the habeas corpus hearing in the trial court, Oscar A. Harrison, the relator, testified that he paid Mr. Quinlan and Mr. Perry an attorney fee of $3,000 for which they agreed to represent him at his trial and also in prosecuting an appeal to this Court. He testified that he desired an appeal but that he did not see or have any communication with either of his two attorneys, in relation to an appeal or otherwise, after his conversations with them in court on the day the motion for a new trial was denied, sentence was imposed and the stay of execution of sentence was granted.

An order of the Circuit Court of Wayne County, made an exhibit as a part of the testimony of the relator at the habeas corpus hearing, discloses that, on March 10, 1958, the relator filed in the office of the clerk of that court an affidavit and a motion by which he requested that the court furnish to him a transcript of the proceedings of his trial pursuant to the provisions of Code, 1931, 51--7--7, as amended, which provides for furnishing such a transcript at public expense to an indigent person 'for use in seeking his appeal or writ of error.' The court order proceeds to recite 'that the statutory period has expired in which the said Oscar A. Harrison could apply to the Supreme Court of Appeals of this State for an appeal or writ of error and that therefore the affidavit and motion should be denied.' The record does not disclose that any request for a transcript was made by or in behalf of the relator to the trial court or to the clerk thereof at any time prior to March 10, 1958. This, of course, occurred more than ten years after the entry of the final judgment order by which the relator was sentenced to the state penitentiary.

An order entered by the Circuit Court of Wayne County on September 19, 1964, recites that Oscar A. Harrison, the relator, filed with the court a petition by which he again requested that he be furnished a transcript of the proceedings of his murder trial. By that order the trial court directed the court reporter to prepare such a transcript and to furnish it to the relator pursuant to the prayer of his petition and that the cost thereof be paid by the Auditor of the State of West Virginia. The transcript was prepared and transmitted to the relator at some subsequent time in 1964.

At the habeas corpus hearing in the circuit court, the relator testified that theretofore he had filed habeas corpus proceedings in various courts, including the one previously referred to in 1967 before Judge Robert E. Maxwell in the United States District Court for the Northern District of West Virginia; that he had 'several hearings' in the same court at Fairmont before the former judge, Honorable Harry E. Watkins; that he filed a petition in the Supreme Court of the United States in 1960 based on the denial of a transcript of the proceedings of his trial; and that he filed a petition in habeas corpus in this Court, pursuant to the provisions of Code, 1931, 53--4--1, which was 'flatly refused.' He testified that the grounds upon which his 1967 habeas corpus petition was based in the United States District Court for the Northern District of West Virginia, designated as Civil Action No. 700--E, were the same as those asserted in the habeas corpus proceeding involved in the instant case, including the grounds of ineffective assistance of counsel who represented him at his trial upon the charge of murder and denial of 'a free transcript of the trial.'

The 1967 habeas corpus proceeding previously referred to was heard in the United States...