Wells v. Stallings, Civ. No. 1810.
| Decision Date | 04 May 1966 |
| Docket Number | Civ. No. 1810. |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Allen C. WELLS, Petitioner, v. M. L. STALLINGS and the State of North Carolina, Respondents. |
Allen C. Wells, pro se.
T. Wade Bruton, Atty. Gen. of N. C., Raleigh, N. C., for respondents.
This application for writ of habeas corpus raises the question whether a state prisoner who attacks his conviction in a state court but withdraws his objections can later present the same allegations in a federal habeas corpus proceeding when there are no presently available state remedies.
No purpose would be served by a detailed analysis of the proceedings in this case. We would be constrained to afford petitioner a hearing on at least one allegation1 were it not for the events which are discussed below.
Petitioner alleges that he withdrew the petition because his attorney at the post-conviction hearing was incompetent, and because "he also threaten of my getting more time." The contention that petitioner's attorney was incompetent is conclusory in the absence of supporting facts, and is entitled to no consideration here. Nor can petitioner brush aside his election not to pursue state post-conviction remedies by alleging that his lawyer "threatened" him with the possibility that, upon a new trial, petitioner might receive a longer sentence than was pronounced at the first trial. Indeed, there was the duty of counsel so to advise his client. An attorney would be derelict who did not apprise his client of the consequences of each considered choice, both in respect to the wisdom of seeking a new trial as well as in the determination of how to plead upon the trial.
The question is posed whether petitioner's election not to pursue the state post-conviction remedies bars collateral relief here.
Petitioner alleges that he is not barred, because in the state attack at the August-September 1964 Term of Wilson County Superior Court he brought into question only the validity of his conviction in Case No. 120. A later post-conviction application attacking the conviction in No. 124 was denied, he says, due to the state court's erroneous conclusion that petitioner was barred from further post-conviction relief by virtue of his election not to pursue the attack in Case No. 120. The issues which petitioner assigned as voiding the convictions were the same in both cases. Hence, the usual rule that different allegations may be presented in successive collateral proceedings does not apply.
It is true that in his first application for post-conviction relief petitioner asserts that he is attacking the conviction in Case No. 120. There is no mention, per se, of Case No. 124. However, the minutes of the court show that both cases were consolidated for trial and judgment, and that petitioner was sentenced to eight years in the state prison. It is that judgment of conviction which petitioner collaterally attacked in the state court. The application for post-conviction relief which he says was confined to Case No. 120 recites:
"Wherefore the premises considered petitioner respectfully prays that a nunc pro tunc order be issued from out and under the seal of this court setting aside the plea of guilty and vacating the sentence of eight (8) years * * *"
Obviously, the attack at the August-September 1964 Term of Wilson County Superior Court was not restricted to alleged infirmities in Case No. 120, for the judgment was inextricably a part of both cases. They were consolidated and heard together, and one judgment was rendered. The petitioner himself recognized the unity of the cases when he attacked the sentence. When he elected to withdraw his attack, he asserted his desire to serve the balance of the term as it was imposed—not a proportionate part that might have been assigned to Case No. 120. The two state cases being inextricably merged in the consolidated judgment, and the petitioner having asserted all of his constitutional claims with respect to one case, the State was not required to adjudicate the same claims in the companion case in an attack upon the same judgment.
Unquestionably, rights secured to criminal defendants by the United States Constitution can be waived. The waiver can apply to rights that attach before, at, and after the trial proper.4 A convicted defendant who lately learns of these rights is not compelled to assert them in a collateral proceeding; he may elect, as countless numbers have no doubt done, to complete service of a technically void conviction rather than risk the possible consequences of a new trial. When at a trial he knowingly and intelligently waives constitutional rights he cannot be heard later to demand a new trial on the theory that he has changed his mind; his waiver binds him for all time. Similarly, when he knowingly and intelligently waives post-conviction remedies, he should be denied resort to later collateral proceedings for relief upon the abandoned claims. It would be an anomaly, indeed, to say that a defendant could be bound by his election at a trial, but that he is not bound by an election after the trial. This court is not disposed to announce such a paradox.
The conclusion that petitioner is bound by his state court waiver is compelled by the statute and case law of federal habeas corpus. The statute, 28 U.S. C.A. § 2254, requires that a petitioner attacking a state conviction exhaust available state remedies before pursuing the attack in a federal court.
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State ex rel. Strickland v. Melton
...case to the assistance of counsel may be waived by such defendant at any time, before, at or after the trial of the case. In Wells v. Stallings, 253 F.Supp. 748, a habeas corpus proceeding in the United States District Court for the Eastern District of North Carolina, the opinion contains t......
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Zink v. Estelle, Civ. A. No. 74-G-157.
...principal constitutional infirmity in dispute stems from an alleged failure to observe a standard of state law. See Wells v. Stallings, 253 F.Supp. 748, 751 (E.D.N.C.1966). This application of the concept of comity is not without precedent. In Tyler v. Croom, 264 F.Supp. 415 (E.D.N. C.1967)......
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Tyler v. Croom
...to correct their own errors and avoid abdicating their jurisdiction to the federal courts. This court stated in Wells v. Stallings, 253 F.Supp. 748, 751 (E.D.N.C.1966): "* * * The primary responsibility to correct federal constitutional errors which vitiate a state conviction rests upon the......