Wiley v. Sowders, 80-3445
Citation | 647 F.2d 642 |
Decision Date | 24 April 1981 |
Docket Number | No. 80-3445,80-3445 |
Parties | Earl Wayne WILEY, Petitioner-Appellant, v. Dewey SOWDERS, Superintendent, Kentucky State Reformatory, Respondent-Appellee. |
Court | United 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.
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:
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:
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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