Stubbs v. Bordenkircher, 82-6175
| Decision Date | 30 September 1982 |
| Docket Number | No. 82-6175,82-6175 |
| Citation | 689 F.2d 1205 |
| Parties | Paul D. STUBBS, Appellee, v. Donald E. BORDENKIRCHER, Warden, West Virginia State Penitentiary, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Silas B. Taylor, Asst. Atty. Gen., Charleston, W. Va., (Chauncey H. Browning, Jr., Atty. Gen., Charleston, W. Va., on brief), for appellant.
David A. Jividen (Paul D. Stubbs on brief), for appellee.
Before BUTZNER, Circuit Judge, FIELD, Senior Circuit Judge, and MURNAGHAN, Circuit Judge.
The Warden of the West Virginia State Penitentiary has appealed from a final order of the district court for the Northern District of West Virginia granting habeas corpus relief to Paul Stubbs, a state prisoner.
In March, 1980, the petitioner was tried and convicted of second degree murder in the Circuit Court of Ohio County, West Virginia. On the second day of the trial, Stubbs took the stand, and after some 38 minutes of direct testimony, the following discussion took place:
Neither Stubbs nor his counsel objected to this admonishment of the Court, and after lunch neither suggested that they had wished to confer during the recess. The trial resumed without any reference to this incident, and at no other recess during its course was there any similar admonition.
Stubbs appealed his conviction to the West Virginia Supreme Court of Appeals, but did not assign the subject admonishment as error. The appeal was summarily denied without comment, and thereafter Stubbs sought habeas corpus relief from the Supreme Court of Appeals, invoking its original jurisdiction, and for the first time alleged as one of his grounds for relief that he had been denied effective assistance of counsel as a result of the trial court's restriction. The West Virginia Court summarily denied his petition, again without comment.
Stubbs then filed his petition in the district court, incorporating by reference all grounds which he had alleged in his State habeas petition. In a memorandum order, the district court denied relief on all grounds except that which alleged ineffective assistance of counsel and ordered the State to file a supplemental response on this claim. The supplemental response included an affidavit of Stubbs' trial counsel that the restriction had no adverse impact on the defense, and requested an opportunity to present further evidence on the issue at such time and place as the Court might direct. Stubbs subsequently filed a counter-affidavit which contained a general statement that the restriction did have an adverse impact upon his defense. The district court did not resolve this factual issue nor did it request any additional evidence. Instead, based upon its reading of Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) and our opinion in United States v. Allen, 542 F.2d 630 (4 Cir. 1976) the Court concluded that the petitioner was entitled to relief.
In Geders the trial judge had ordered that during an overnight recess the defendant and his attorney should not consult on any subject. The Court held that this restriction impinged upon the defendant's right to the assistance of counsel and violated his rights under the Sixth Amendment. The Court, however, expressly noted that the question of whether a defendant's rights would be violated by such a restriction during a brief and routine recess of trial was not before it. 1
Shortly after Geders was handed down we had occasion to consider the question which had been...
To continue reading
Request your trial
-
Haney v. State
...that the action of the trial court deprived her of a constitutional right which she sought to exercise. See Stubbs v. Borderkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). However, there is no evidence that she made any attempt to co......
-
State v. Mebane, 13037
...454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310, reh. denied, 455 U.S. 995, 102 S.Ct. 1624, 71 L.Ed.2d 857 (1982),] and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983)." Allen involved a routine recess. Bryant concerned ......
-
Perry v. Leeke
...States v. Allen, 542 F.2d 630, 633-634 (1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977); Stubbs v. Bordenkircher, 689 F.2d 1205, 1206-1207 (1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). The Court of Appeals, sitting en banc, reversed. 832 ......
-
Crutchfield v. Wainwright
...hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir.1981), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 As we noted above, Crutchfield's lawyers did not object, mov......