Taylor v. Cox
| Decision Date | 03 September 1970 |
| Docket Number | Misc. No. 445-69-N. |
| Citation | 315 F. Supp. 1316 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | William Carlyle TAYLOR, Petitioner, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Respondent. |
Andrew P. Miller, Atty. Gen., Richmond, Va., for respondent.
Remanded to this court by memorandum decision No. 14,108, filed April 22, 1970, the court entered a further order on July 8, 1970, pursuant to the mandate received and filed on May 15, 1970. The respondent answered on July 16, 1970, and has now produced the transcripts of the state court habeas corpus hearing conducted in 1966. Since the petitioner had filed a later state habeas corpus proceeding, the respondent had incorrectly assumed that only the record of the most recent state habeas proceeding was requested by the federal court when the federal petition was filed.
As reflected by Memorandum Decision No. 14,108, the state court judge entered an order on November 11, 1966, in petitioner's first state habeas proceeding finding as a fact that petitioner was not denied his right to appeal and that petitioner was not denied any constitutional rights either prior to or during the course of his trial in 1957. The difficulty is that the transcript had not been submitted in support of this finding.
In his federal petition, petitioner states:
The transcripts supporting the findings of the state habeas judge are contained in two volumes. One hearing was in open court on June 27, 1966, the transcript consisting of 158 pages. The other volume is 116 pages in length and contains the depositions of a number of prisoners, as well as others, taken at the Virginia State Penitentiary. It is unnecessary, in the opinion of the court, to review the depositions as they relate solely to an issue of cruel and inhuman punishment which is not presently before the court.
With one minor correction, the Court of Appeals has correctly stated the factual situation with respect to the claims not previously resolved by the district court. The memorandum decision states "The petitioner was already in lawful custody under a prior conviction for a previous murder." While the petitioner was already in lawful custody at the time he killed Isaac Peart (as so stated in the indictment, but referred to as Potts in the plenary hearing), petitioner's criminal record, while extensive, does not reflect a "previous murder." In all other respects the Court of Appeals has disposed of the frivolous allegation that petitioner was arrested without a warrant.
The respondent concedes that no transcript of the 1957 murder trial1 is available or can be made available. It is now abundantly clear that the alleged deprivation of the right of an appeal from the 1957 murder conviction was before the state habeas court, and that the findings of that court are amply supported by the record.
The facts are that C. Willard Norwood, a Richmond attorney, was hired by petitioner's father during March 1957 following the homicide which took place on February 14. Although petitioner testified that he only saw his attorney two or three times, and he alleged that this was immediately prior to trial, petitioner testified that he first saw the attorney in March or April. The attorney stated that he made 8 or 10 trips to the State Farm to interview petitioner and interrogate possible witnesses. Petitioner states that the interviews were confined to five or six minutes. The attorney, while maintaining no time record as to the length of any particular interview, testified that no restrictions were imposed by the penal authorities with reference to his interviews and interrogation of petitioner or any other potential witness. The simple fact is that Peart (Potts) and petitioner were in a solitary confinement cell with no one else present. Peart (Potts) was strangled by a rope. Petitioner was then the sole surviving occupant of the cell.
There is no denial of the right of appeal merely because no court reporter was present and no transcript is available. In 1957 there was — and still is — a provision for appeal based upon a narrative summary of the evidence. Of course, in more recent years provision has been made for reporting or recording all felony trials, but this statute was not on the books in 1957.
While there is no claim of ineffective counsel in the federal petition, it was raised in the state petition. Contrary to what the petitioner has intimated, and despite the tendency of some courts to "Monday morning quarterback" the quality of services performed by an attorney many years prior thereto, the evidence discloses that Mr. Norwood took a case which had the potential of capital punishment and ethically built a moral defense predicated upon the bad record of Peart (Potts), thus resulting in 30 years' punishment as fixed by the jury.
The references with respect to an appeal are few in number. For convenience, the page and line references of the state habeas transcript of the proceedings on June 27, 1966, are set forth in the footnote.2 Of course, the appellate court is at liberty to read the two-volume transcript but, if any other references pertain to an appeal, they have escaped the attention of the district court.
We are not here confronted with the factual situation presented in Nelson v. Peyton, 415 F.2d 1154 (4 Cir., 1969), cert. den. sub nom. Cox v. Nelson, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970). In that case the state prisoner did not know that he had a right to appeal. In the present case the petitioner relies upon an alleged statement by the attorney that he, the attorney "was going to appeal this case to the Supreme Court and get me another trial and through this other trial I would be found not guilty." Mr. Norwood could not recall, after nine years, any conversation relative to an appeal and, in answer to a question propounded by petitioner's habeas corpus counsel as to whether Mr. Norwood explained to petitioner his right to appeal, the attorney said:
The record is devoid of any suggestion that petitioner did not know that he had a right of appeal. In fact, all intimations are to the contrary. Moreover, with five prior felony charges on his record and having been continuously confined in the penal system since November 30, 1955 (except during three periods when he escaped and on one elopement two felonies were committed), it is ridiculous to say that petitioner did not know of his right to appeal.
Obviously the state habeas judge gave no credence to petitioner's statement that the attorney had agreed to appeal the case. If we assume that petitioner's testimony is false in its entirety, we are then left with a record under which the attorney has no recollection of any conversation relative to an appeal and nothing is affirmatively disclosed as to whether petitioner had an awareness of his right to appeal. We must conclude that he did have such an awareness as otherwise he would have complained that he was not advised of his rights.
Although the opinion in Nelson v. Peyton, supra, was applied retroactively as to that particular habeas petitioner, the Court of Appeals does not specifically state that it should be so applied to all state cases tried prior to June 25, 1969, the date of the Nelson opinion. Assuming arguendo that Nelson was to be applied to all state cases tried prior to June 25, 1969, we wonder what vitality Nelson now has in light of McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, where the Supreme Court, in discussing confessions given prior to Jackson v. Denno, 378 U. S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), pointed out that the legal advice given in the pre-Jackson days was adequate, even though it may have been erroneous if the case had been tried in the post-Jackson days. At best, we interpret Nelson, which in itself is a reversal of prior opinions by the same court, as a warning to attorneys representing defendants in state criminal trials that, in the future, advice must be given with respect to appellate rights.
We know of no case decided prior to petitioner's trial on June 13-14, 1957, which has resulted in a state sentence being invalidated solely by reason of the fact that the attorney failed to advise a defendant as to his right of appeal unless, of course, specific inquiry was made of the attorney. To hold otherwise would invalidate hundreds of thousands of state criminal sentences, either on habeas corpus or coram nobis.
The language of the court in Nelson does suggest that the newly adopted rule by the Fourth Circuit may be hereafter applied retroactively where the opinion states: "While we do not now decide the issue, we note that the rules in right of counsel cases are generally applied retroactively," citing McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968).
There can be little doubt as to the status of the law in 1957. In Lovvorn v. Johnston, 118 F.2d 704 (9 Cir., 1941), cert. den. 314 U.S. 607, 62 S.Ct. 92, 86 L.Ed. 488, the court said:
(Ci...
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Younger v. Cox, Civ. A. No. 70-C-70.
...recently been discussed by dicta and inference by the Chief Judges of the Eastern and Western Districts of Virginia in Taylor v. Cox, 315 F.Supp. 1316 (E.D.Va.1970), and St. Clair v. Cox, 312 F.Supp. 168 (W.D.Va.1970). Neither case dealt with a Nelson type situation where the defendant was ......