Wiley v. Sowders, 80-3445

Citation647 F.2d 642
Decision Date24 April 1981
Docket NumberNo. 80-3445,80-3445
PartiesEarl Wayne WILEY, Petitioner-Appellant, v. Dewey SOWDERS, Superintendent, Kentucky State Reformatory, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Kevin Michael McNally, Asst. Public Advocate, Frankfort, Ky., (Court-appointed), for petitioner-appellant.

Earl Wayne Wiley, pro se.

Steven Beshear, Atty. Gen. of Ky., Michael R. Beiting, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellee.

Before WEICK and ENGEL, Circuit Judges, and HILLMAN, * District Judge.

DOUGLAS W. HILLMAN, District Judge.

Earl Wiley, petitioner, was indicted by the Henderson County Grand Jury on August 1, 1978, along with his brother, Elmer Wiley, of first degree burglary, 1 theft of On August 8, 1978, Earl Wiley was arraigned and counsel appointed to represent him. Earl Wiley pled "not guilty." Separate counsel was appointed for Elmer Wiley. Elmer Wiley also pled "not guilty."

                the value of $100 or more 2 and being a persistent felony offender in the second degree.  3  The offenses were allegedly committed on July 13, 1978
                

The Wileys were tried together on September 20, 1978. The jury found both Earl Wiley and Elmer Wiley guilty of first degree burglary and theft, and sentenced each to 10 and 5 years respectively. 4 At the persistent felony phase of the trial held that evening, the same jury found the Wileys guilty and the first degree burglary charge was enhanced to life imprisonment. Judgment was entered October 2, 1978, sentencing Earl Wiley to life.

The Wileys appealed to the Supreme Court of Kentucky which affirmed their convictions on September 11, 1979. In this habeas corpus petition, Earl Wiley challenges both the conviction and the habitual criminal sentence. The district court denied his petition. We reverse.

In challenging his convictions, Wiley raises several constitutional challenges. Principally, he argues that because his court-appointed lawyer repeatedly admitted his guilt to the jury without his prior consent, he was denied effective counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution. Our disposition of this issue makes it unnecessary to consider his other constitutional claims.

At the close of proofs in the first phase of trial, petitioner's counsel presented the closing argument on behalf of both defendants. 5

Defense counsel's closing argument, apparently a "trial tactic," contained several unequivocal admissions that the defendants were guilty while at the same time attempting to obtain mercy. The following are excerpts from defense counsel's closing argument:

"Ladies and gentlemen, I think it's very important that you realize what the function of (counsel for Elmer Wiley) and mine is in the case. We were appointed to represent these two men, 6 and we are going to represent them to the best of our ability, and that is what I want to talk to you about right now. (Emphasis added.)

"Often times when a lawyer gets involved in a case, he gets stars in his eyes and he starts having notions that there may be some way, you know, if I examine this case and I do my homework and I go out and I investigate as much as I can and I interview all the witnesses, that I'll be able to get a man off. That I will be able to prove to a jury that he is not guilty with what they have got him charged with.

"The stars aren't in our eyes in this case, ladies and gentlemen. They never have been. We're all adults. We're all mature thinking human beings

"But as I said, the stars aren't in my eyes in this case Because unfortunately for these two men that you see here today, they are guilty. They're guilty as charged by the Commonwealth's Attorney's office. (Emphasis added.)

"Mr. Walker (the prosecutor) in voir diring you all said, do you understand that the indictment doesn't become a question of fact until I prove beyond a reasonable doubt that they are in fact guilty.

"We have to stand and give him credit for that because, ladies and gentlemen of the jury, he has proved to you beyond a reasonable doubt that these gentlemen are guilty of this crime. We don't have stars in our eyes, and we never have. They're guilty. (Emphasis added.)

"I couldn't stand up here and argue to you on behalf of Earl Wiley you know there were no eye witnesses, and I could make the same argument about Elmer Wiley you know there were no eye witnesses, nobody saw them go in and come out. I'm not that foolish. I'm not that naive. And I know you're not.

"I know, and you know, you're going to give these men time in the penitentiary. And they know it, or they had better know it after they've heard the evidence here today. They're going to the penitentiary. That part's easy because they're guilty. I can't stand up here and say they didn't do it, they haven't proven that they did it, I'd be foolish and naive and immature. Because they did do it. And the Commonwealth's Attorney's office has proven to you that they have done it. (Emphasis added.)

"I told you before we know they are going to the penitentiary. And they know that they're going to the penitentiary. And you know they're going to the penitentiary.

" It's bad, and it's a crime, and you know and I know and they know they are going to the penitentiary

"Ladies and gentlemen, we submit to you that in this case, in this case, that we are here about today the question of guilt is absolutely clear. Absolutely clear, beyond a question of a doubt. You know sometimes we stand up and we argue beyond a reasonable doubt. We don't have that argument here today. We don't have that argument here today. I don't think there is a reasonable doubt. I don't think there is a shadow of a doubt that these two men are guilty. (Emphasis added.)

"We ask that you be a compassionate jury and a merciful jury within reason because we know good and well as I stand here today that you're going to find these boys guilty. I know you are going to find them guilty. There is no question in my mind about it. There is no question in your mind about it I'd venture to say that there's not a single one of you sitting here who is not going to say that these boys are guilty. I know that. It's going to happen. We know that it is going to happen." (Emphasis added.)

At the close of the proofs of the second phase of trial, counsel for petitioner's brother made the closing argument for both defendants. Again, the predominant theme of this closing argument was that both men were guilty of the burglary and theft with "Your first verdict reflects what (attorney for Earl Wiley) forthrightly told you before you went out to deliberate on it that these men did that. That they definitely did do it. He also told you in first summation here that these men had been, his quote was 'down the road before'

the added admission that both men had prior convictions. The specific strategy is unclear, particularly when counsel told the jury he was not asking for mercy. Following is an excerpt from the closing argument:

"Elmer and Earl Wiley have been here before. Each of these men has been previously adjudged guilty of going where they had no right to be, and taking what did not belong to them. That's in the record here.

"Earl in 1974. Elmer in 1972. Both in McCracken Circuit Court down in Paducah. In the most literary sense of the term, ladies and gentlemen, when that happened in '74 and '72 to him both of these men incurred a debt to society

"Elmer Wiley's first debt in '74 excuse me, in '72, and Earl's first one in '74, that that means that you must assess an ultimate toll here today that is far far heavier than anything that you have done before.

"I submit that you folks had a very very strong suggestion, a very very strong indication before you were sent out the first time garnered from (counsel's) statement that these guys had been down the road before. Well there it is. They have. They have been down the road before and they are still on the same road

"(Attorney for Earl Wiley) told you if you will recall in the first summation before you ever went out that first time that these men were guilty. That those men were guilty

"We don't ask you folks for mercy here. I feel there's little enough of that in the world anyway and what there is isn't to be applied in a case like this. These men are guilty. They are guilty of a serious crime. We haven't tried to duck that. We haven't tried to pull any wool over your eyes on that." (Emphasis added.)

EXHAUSTION OF STATE REMEDIES

Before addressing petitioner's claim of ineffective counsel, a threshold question must be considered. Respondent contends that petitioner has failed to exhaust available state remedies with respect to the ineffective counsel claim and therefore federal habeas relief is inappropriate.

It is, of course, well recognized that a state convicted prisoner must first exhaust his available and adequate state remedies as a condition precedent to federal habeas relief. 28 U.S.C. § 2254(b). See, Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The exhaustion doctrine springs from considerations of comity between the states and federal government. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The required exhaustion is "designed to give the state an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971).

Exhaustion is satisfied and comity preserved when a federal constitutional claim which arises in a state criminal proceeding is "fairly presented" to the state court for initial determination. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971).

Under the law of Kentucky, claims of ineffective counsel are initially addressed to the trial court through a post-trial motion under Kentucky Rule of Criminal Procedure 11.42. Petitioner made no such motion....

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