Thomas v. Cunningham, 9324.

• Citation: 335 F.2d 67
• Decision Date: 23 June 1964
• Docket Number: No. 9324.,9324.
• Parties: Nathan THOMAS, Appellee, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

335 F.2d 67 (1964)

Nathan THOMAS, Appellee, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellant.

No. 9324.

United States Court of Appeals Fourth Circuit.

Argued April 21, 1964.

Decided June 23, 1964.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellant.

Lewis T. Booker, Richmond, Va., for appellee.

Before SOBELOFF, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.

PER CURIAM.

The District Court upon remand after the first appeal, Thomas v. Cunningham, 313 F.2d 934 (4 Cir. 1963), granted Nathan Thomas a full and complete hearing on his petition for habeas corpus. An order was then passed requiring petitioner's jailor, the Superintendent of the Virginia State Penitentiary, to release him unless the State within 60 days "elects to retry him or perfects its appeal". On that appeal we affirm.

As the prior opinion narrates in some detail, Thomas was convicted upon pleas of guilty on July 22, 1955 in the Circuit Court of Buchanan County, Virginia of six larcenous felonies, with sentences totaling twelve years in the penitentiary, two on each indictment. The Circuit Court denied his counsel's motion after indictment for Thomas' commitment for observation and report of his mental competency to stand trial. The September following he was indicted, and on his plea — without request for a mental determination — found guilty of grand larceny in the Circuit Court of Dickenson County, Virginia and sentenced to five years more.

The Buchanan judgments are assailed in the present petition on the averment that the refusal of the mental examination was a deprivation of Federal due process, inasmuch as the evidence before the State court disclosed "reasonable ground to doubt his sanity". In these circumstances the Virginia statute commands such an inquiry. Va.Code 1950, § 19.1-229. See Wood v. Commonwealth, 146 Va. 296, 135 S.E. 895, 898 (1926). The Dickenson sentence is also attacked for want of due process — the inadequacy of Thomas' legal representation. His assigned attorney (not his counsel here) conferred with him for only a few moments before entry of the guilty plea.

As regards the Buchanan sentences the clearly acceptable findings of the District Judge disclose a sufficient indication of mental deficiency to have required an advance inquiry of Thomas' capacity to comprehend the trial. A preliminary legal determination must be made, however, as to the justiciability of the Buchanan sentences by the District Court because Thomas had finished serving the last of them before entry of the order now on appeal.

With respect to the Dickenson proceeding the District Judge found, securely underpinned in the evidence, a want of adequate legal counsel prior to plea and sentence. First, however, we must determine whether Thomas had exhausted his State remedies — a prerequisite under the pertinent habeas corpus statute, 28 U.S.C. § 2254 — before seeking relief in the Federal Court from the Dickenson mittimus, which still imprisons him.

I. The ratio decidendi of Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), suggests that jurisdiction of the District Court to adjudicate the validity of the Buchanan sentences survived the expiration of their imprisonment of him, because at the date of his petition Thomas was detained under the last of the Buchanan judgments and through no fault of his, decision on the petition could not be reached until after service of the term. With this greater breadth accorded the writ, we do not think, certainly in the present circumstances, Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960) would be a bar. The review should comprehend not only the last but all the Buchanan sentences. The entire sequence of them was passed at the same time and each was infected with the same infirmity. Furthermore, every preceding term was a factor in the detention under every succeeding one, because Thomas was held not only for service of the current term but as well to satisfy the subsequent terms.

Reason and necessity underlie these conclusions. As pointed out in United States v. Morgan, 346 U.S. 502, 512, 513, 74 S.Ct. 247, 98 L.Ed. 248 (1954), a sentence results in more than physical confinement and is not spent by the lapse of its stated period. It persists in many aspects beyond its calendared end. With its effect projecting beyond termination of the imprisonment, its termination should not foreclose correction.

If the conviction is not genuine, the record should be effaced forthwith. More, we are not told of a means as efficient or orderly as habeas corpus for the absolution. Error coram nobis, as indulged in United States v. Morgan, supra, 346 U.S. 502, 74 S.Ct. 247, cannot issue under the instant proceeding, nor may it be read as a 28 U.S.C. § 2255 motion; Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); for the...