Walker v. Caldwell, Civ. A. No. 2573.

• Decision Date: 07 October 1971
• Docket Number: Civ. A. No. 2573.
• Citation: 335 F. Supp. 308
• Parties: Roosevelt WALKER, Petitioner, v. E. B. CALDWELL, Warden, Georgia State Prison, Successor to S. L. Smith, Respondent.
• Court: U.S. District Court — Middle District of Georgia

335 F. Supp. 308

Roosevelt WALKER, Petitioner, v. E. B. CALDWELL, Warden, Georgia State Prison, Successor to S. L. Smith, Respondent.

Civ. A. No. 2573.

United States District Court, M. D. Georgia, Macon Division.

October 7, 1971.

Joseph W. Popper, Jr., Macon, Ga., for petitioner.

Dorothy T. Beasley, Asst. Atty. Gen., Atlanta, Ga., for respondent.

BOOTLE, Chief Judge:

This case is before the court for the second time. Initially, petitioner sought a writ of habeas corpus from this court after having been denied a writ from the state courts. The petition was denied without a hearing because this court was of the opinion that the record established in the state habeas court was adequate to establish that the denial of relief by that court was proper. Furthermore, this court was of the opinion that petitioner had deliberately by-passed available state remedies in favor of bringing his action here. The Court of Appeals for the Fifth Circuit stating that "against the backdrop of this cause in which the claims of an indigent illiterate are denied without a hearing, based upon a record which is supported only by uncrossed written interrogatories to his court-appointed attorney whose competency has been specifically attacked, the trial court should have held an independent hearing to determine whether there was any basis for federal habeas corpus relief", reversed and remanded with instructions for this court to hold an "adequate evidentiary hearing to permit Walker to develop his contentions that he was deprived of his constitutional rights in connection with his criminal conviction by the State of Georgia, and to accord Walker representation in connection with such hearing if that court should, in its discretion, determine that such representation is required by the interests of justice." Walker v. Smith, 5th Cir., 439 F.2d 392 (1971). Accordingly, this court appointed counsel to represent petitioner and an evidentiary hearing was held, in which petitioner, through counsel, availed himself of every opportunity to develop and present his case.¹

Having carefully studied the record made at the hearing before this court and the record previously made, both in this court and in the state court, I have concluded, as previously, that petitioner was not deprived of any of his constitutional rights in the Superior Court of Baldwin County, where he was convicted and sentenced on valid pleas of guilty to the charges then pending against him.

To enable the court to more fully develop its conclusions it will be advantageous to briefly review all the evidence now before the court. Petitioner was convicted by the State of Georgia of ten separate charges of burglary and theft by taking for which he received consecutive three year sentences. At the same time he was also convicted of the misdemeanor of carrying an unlicensed, concealed pistol and received a concurrent six-month sentence. All convictions were based on pleas of guilty signed by petitioner's court appointed attorney, but not by petitioner (who was illiterate). Subsequent to his conviction and imprisonment petitioner brought an action for habeas corpus relief in the Superior Court of Tattnall County, Georgia in which he contended that his alleged waiver of his right to counsel at questioning and his right not to incriminate himself was involuntary, that he was denied a right to trial by jury, that he did not waive any of his federal constitutional rights, and that appointed counsel inadequately assisted him in his defense. At the state habeas corpus hearing, testifying in his own behalf, petitioner stated that the authorities questioned him for five days without counsel, that he had never seen his appointed counsel prior to his court appearance and then had only five minutes to talk with him before his plea was entered, that he asked his appointed counsel to plead him not guilty and to ask for a jury trial, that he did not wish to plead guilty but his attorney nevertheless plead him guilty, that he told the judge in open court that he was not pleading guilty because he was not guilty of any of the charges placed against him and on which he was convicted. Nevertheless, despite all his protestations, he was convicted, sentenced and subsequently imprisoned.

The state habeas judge, following a hearing, found that "none of the constitutional rights of the petitioner have been denied and that he is now serving legal sentences."²

Following denial of habeas corpus by the state court petitioner sought the writ from this court, making essentially the same allegations here as he did before the state court.³ The writ was denied without a hearing, from which denial petitioner appealed. As previously stated, the Court of Appeals for the Fifth Circuit reversed and remanded for the purpose of holding an evidentiary hearing to more fully develop petitioner's contentions.

A hearing was held on July 26, 1971, at which petitioner, represented by able counsel, appeared and testified in his own behalf. The testimony of Sheriff Lingold, Deputies Hall and Freeman, Attorney Watts, and Judge Carpenter was before the court on deposition.

At this hearing petitioner's testimony in part was as follows. He talked to his lawyer for only five minutes before court, during which time his lawyer failed to inform him of the charges against him. (However, near the end of the hearing petitioner under questioning by the court did admit his attorney told him that there were eight charges pending against him). On direct examination petitioner denied that his lawyer had informed him what the possible consequences of a plea of guilty would be; however, again, on closer examination by the court petitioner stated that his lawyer had informed him that he could get "life". According to petitioner, his appointed lawyer refused to represent him in a jury trial, instead telling him that the best thing for petitioner to do would be to "go on down to Reidsville and learn some kind of trade." On being taken before the judge, the charges were read to petitioner after which he asserted that he was not guilty and did not wish to plead guilty. Nevertheless, petitioner asserts that he was sentenced to 30 years.

At first petitioner asserted he was not guilty of any of the charges which had been placed against him, that he did not commit any act of burglary. But, later on being questioned by the court petitioner did admit that he committed one of the acts of burglary with which he had been charged and convicted, that is, he did unlawfully enter someone's residence and take therefrom a record player.

Petitioner did not allege or contend that he had been coerced into making the guilty plea, or that he had been induced to make the plea as a result of promises made to him. Rather, his sole assertion in this regard was that he did not enter a plea of guilty, nor did he authorize his lawyer to do so for him. There is no evidence in the record which would indicate that petitioner was in any way threatened or abused while in jail, other than his allegations that he was denied counsel and taken against his will to the courthouse to enter his plea.

During the course of the hearing this court was of the opinion that petitioner was evasive. As noted above, petitioner would testify to certain facts, but would later change his testimony. An apparently poor memory, improved considerably under close questioning, particularly after being confronted with facts which conflicted with his testimony. Review of the transcript of petitioner's testimony strengthens this initial impression.

At the conclusion of oral argument the court requested that counsel brief the question under what conditions, if any, can the State meet the proof requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) when the state court plea session record is silent.

In response petitioner asserts that under the Boykin rationale the absence of a formal trial court record, contemporaneously made, demonstrating that he intelligently and knowingly pleaded guilty vitiates any guilty pleas in his case.

After careful study of this question, I am convinced, as the state urges, that on a collateral attack all that the Constitution and Boykin require is that this Court be able to conclude that the record as it now exists, including the transcript, if any, made at the plea session, the record made at the state habeas corpus proceeding and the record made before this Court, conclusively establish that the guilty pleas of petitioner were in fact freely, voluntarily, and knowingly entered.

In Boykin the defendant pleaded guilty to common-law robbery and was given the death penalty. His conviction was affirmed on appeal to the Supreme Court of Alabama. On certiorari, the United States Supreme Court reversed on the grounds that the record did not disclose that the defendant voluntarily and understandingly entered his guilty plea. The Court stated that "In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 77, we dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held: `Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' We think that the same standard must be applied to determining whether a guilty plea is voluntarily made." Boykin, 395 U.S. at 242, 89 S.Ct. at 1712, 23 L.Ed.2d at 279.⁴ (Emphasis added). The question is thus raised as to what was the standard adopted in Carnley v. Cochran? There the defendant had been convicted of the noncapital offenses of incest and assault in a lewd, lascivious, and indecent manner upon a female child under the age of 14. He was not afforded the assistance of counsel at trial. He obtained a provisional writ of habeas corpus from the Florida Supreme Court...