Sweezy v. Garrison

• Decision Date: 28 February 1982
• Docket Number: Civ. No. A-C-81-109.
• Citation: 554 F. Supp. 481
• Court: U.S. District Court — Western District of North Carolina
• Parties: Ivery SWEEZY, Petitioner, v. Sam P. GARRISON, Warden, and the State of North Carolina, Respondents.

554 F. Supp. 481

Ivery SWEEZY, Petitioner, v. Sam P. GARRISON, Warden, and the State of North Carolina, Respondents.

Civ. No. A-C-81-109.

United States District Court, W.D. North Carolina, Asheville Division.

February 28, 1982.

Charles T.L. Anderson, N.C. Prisoner Legal Services, Inc., Durham, N.C., Gary S. Cash, Asheville, N.C., for petitioner.

Richard N. League, Sp. Deputy Atty. Gen., N.C. Dept. of Justice, Raleigh, N.C., for respondents.

MEMORANDUM OF DECISION

WOODROW WILSON JONES, Chief Judge.

Petitioner, a state prisoner, seeks federal habeas corpus relief, pursuant to 28 U.S.C. Section 2254, claiming that he is being unlawfully held in state custody for the following reasons:

A. that he was incompetent to assist in his defense at trial, and

B. that he was denied effective assistance of counsel.

STATEMENT OF CASE

The Attorney General of North Carolina answered, moved to dismiss, and furnished this court with numerous documents relating to the proceedings in state court, including a copy of the trial transcript.

The petitioner, pro se, filed a paper writing entitled "Motion to Amend," from which the court ascertained the petitioner was attempting to expand the allegations above or to submit additional allegations. The "Motion" was overly broad and ambiguous to the extent this court could not determine its purpose. The petitioner and his attorney were advised by order that it was necessary for a supplemental application to be filed so that this court could properly consider petitioner's claims. Petitioner's attorney (Charles T.L. Anderson, 2727 Hillsborough Road, Durham, North Carolina 27705) did not respond to this court's directive. Petitioner, however, did respond, pro se, stating:

C. that he was on drugs before, at, and after trial;

D. that he was convicted by an all-white jury;

E. that there was insufficient proof of his guilt; and

F. that the grand jury should not have indicted him and a transcript of trial should be subpoenaed.

Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 654 (1972).

Petitioner was convicted at the January 26, 1976, session of Superior Court for Cleveland County, North Carolina, of first-degree burglary in case number 10545 and was sentenced to life imprisonment. He appealed his conviction to the North Carolina Supreme Court, which court, in an opinion filed December 21, 1976, and reported at 291 N.C. 366, 230 S.E.2d 524, found no error. At trial and on appeal, petitioner was represented by Michael K. Hodnett and Fred A. Flowers. Petitioner sought postconviction relief, pro se, in the Superior Court of Cleveland County on February 14 and May 27, 1977. He withdrew his first application, and Judge Thornburg denied petitioner relief on the second application on June 28, 1977, without a hearing. Petitioner applied for and received appointment of counsel, William E. Lamb, Jr., for the purpose of seeking a writ of certiorari from the North Carolina Court of Appeals to review Judge Thornburg's denial order. However, Mr. Lamb's application on behalf of petitioner was denied by the North Carolina Court of Appeals on November 7, 1978.

It appears to the court that, in the context of his state applications for postconviction relief, contentions (C) through (F) recited above are secondary claims relating to and included in his allegations (A) and (B). Petitioner presented allegations (A) and (B) to the North Carolina courts in his postconviction application and sought appellate review of the denial of same. He did not, however, further proceed to the North Carolina Supreme Court as he should have done to completely exhaust his state remedies.

Petitioner has not, therefore, completely exhausted his state remedies as required by 28 U.S.C. Section 2254. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Patterson v. Leeke, 556 F.2d 1168 (4th Cir.1977), cert. denied, 434 U.S. 929, 98 S.Ct. 414, 54 L.Ed.2d 289 (1977). Title 28 U.S.C. Section 2254(b) provides that a writ of habeas corpus shall not be granted by a federal court unless it is apparent that the applicant has exhausted the remedies available in the courts of the state, or that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. Strader v. Troy, 571 F.2d 1263 (4th Cir.1978). Petitioner has neither exhausted his state remedies nor alleged and shown that there is an absence of available state corrective process or the existence of circumstances rendering such process ineffective as to his allegations. Inasmuch as all the remedies available in state courts as to all the petitioner's allegations have not been exhausted, the relief request cannot be granted. Thompson v. Peyton, 406 F.2d 473 (4th Cir. 1968); Ganger v. Peyton, 379 F.2d 709 (4th Cir.1967). However, even if state remedies have been exhausted, a petitioner is not entitled to federal habeas corpus relief if his allegations are without merit. Jenkins v. Fitzberger, 440 F.2d 1188 (4th Cir.1971). The Attorney General of North Carolina states in his answer that he waives the requirement of further exhaustion; therefore, this court will examine petitioner's claims on the merits. Strader v. Allsbrook, 656 F.2d 67 (4th Cir.1981); Jenkins v. Fitzberger, supra.

The state offered evidence which showed the following:

Mrs. William R. Grigg (Mrs. Connie Grigg) was married to William R. Grigg and was living between Lawndale and Polkville. On September 7, 1975, she was at her home at Route 1, Lawndale, where she ran a ceramic shop which was located to the rear of the house. Her two children were in the house on this occasion. She said on the night in question she had gone to the ceramic shop at approximately 10:00 and had returned, closed the outside door to the porch, and heard a click when she reentered the house from her ceramic shop. Her oven in the ceramic shop was on and had to be watched about every hour and a half. She said that she reentered the house and that her husband was in the front room, had a headache on this occasion, and had fallen asleep. She had gotten her son to bed about 9:00 and her daughter about 11:00 p.m. and had then gone to the bathroom and was rolling up her hair. The light in the bathroom was on and had a hundred or hundred and fifty watt bulb. The dining room lights were also on, and there were two bulbs in there located in a chandelier in the center of the dining room. She testified that the light from the dining room and the light from the bathroom lit up the porch and that it was not necessary for them to burn the light on the porch, which was located adjacent to the living room and the bath, when these other lights were on.

She stated that while she was in the bathroom rolling up her hair she heard some noises, decided to disregard them, and continued rolling up her hair. She walked to the entrance to the dining room. There was no screen on the outside door of the porch. Her husband had put this door up on the Saturday before this day. There were some deep freezes located on the porch, and there was a hutch located in the dining room. She walked over to that piece of furniture and picked up some bills she was considering paying the next day and then walked to the door between the porch and the dining room. She testified that as she did this she saw a man there, a black man, and that he had a woman's stocking over his arm. He was inside the porch, was beginning to step up, and that one foot was inside the porch, the other foot was on the steps leading up to the porch, and the other hand was on the outside of the door. She said she observed him about two minutes, the light was on him and she saw him, and she began screaming. The man began saying "s-h-h-h" and motioning for her to come toward him. She testified that she screamed and froze, observed him for about two minutes, and screamed again. Then she ran through the house to awaken her husband, who was sleeping in the living room. She testified the man who was at the door and opened the door and had his hand inside was the petitioner, Ivey Sweezy, Jr.

On cross-examination, she testified she did not see any scars about his face on this occasion.

She further testified, on direct examination, that the petitioner was wearing blue trousers and a blue, short-sleeved shirt on the occasion in question. She said of Sweezy, "He is the man that was in my house on this occasion."

On cross-examination, she said she could identify white people better than black people.

Petitioner, by his own testimony and that of several other witnesses, offered evidence to show that he was in Hickory, North Carolina, at the time the crime was allegedly committed.

II. ALLEGATIONS

Petitioner is entitled to no relief on either of his contentions—(A), that he was incompetent at the time of his trial; and (B), that his lawyer rendered him ineffective assistance of counsel by not attempting to have the trial interrupted for a mental examination, and that the trial judge denied him due process by not ordering such an examination sua sponte. Petitioner bases each of his claims on essentially three things: (1) a history of mental illness; (2) a prior aversion to taking medication which would keep his illness in remission; and (3) disruptive behavior during trial. None of these, however, are conclusive as evidence of petitioner's incompetency at the time he was tried. With regard to the first, petitioner's history of mental illness had resulted in two pretrial competency reviews, with each resulting in an opinion that petitioner was competent to stand trial. As there was no reason advanced to view the two reports as inaccurate, the trial properly proceeded. United States v. Bradley, 463 F.2d 808 (D.C.Cir.1972). This was made manifest by the reports from petitioner's prior hospitalizations, which indicated that...