Williams v. Smith, 30336 Summary Calendar.

• Citation: 434 F.2d 592
• Decision Date: 17 November 1970
• Docket Number: No. 30336 Summary Calendar.,30336 Summary Calendar.
• Parties: Leroy WILLIAMS, Petitioner-Appellant, v. S. Lamont SMITH, Warden, Georgia State Prison, Reidsville, Georgia, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

434 F.2d 592 (1970)

Leroy WILLIAMS, Petitioner-Appellant, v. S. Lamont SMITH, Warden, Georgia State Prison, Reidsville, Georgia, Respondent-Appellee.

No. 30336 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 17, 1970.

Leroy Williams, pro se.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Dorothy T. Beasley, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

PER CURIAM:

This appeal is taken from an order of the district court denying the petition of a Georgia state convict for the writ of habeas corpus. We affirm on the basis of the district court's opinion-order attached as Appendix A.

Appellant was convicted on his pleas of guilty of three counts of burglary, one count of auto larceny, and eleven counts of forgery, and was sentenced on October 15, 1964, to a total of 18 years imprisonment. He filed a petition in the state court for habeas corpus relief, whereupon an evidentiary hearing was held. Relief was denied, the court making findings of fact and conclusions of law. An appeal to the Georgia Supreme Court was dismissed for lack of prosecution.

Appellant then filed his habeas petition in federal court alleging illegal arrest, incommunicado detention for ten days before being brought before a magistrate, ineffective court-appointed counsel, racial discrimination in selecting the grand jurors, and that he did not receive a full and fair hearing in state court. The court below denied relief, making independent findings of fact from the record and transcript of the state habeas proceedings.

The court below found that appellant's guilty pleas were voluntarily entered on advice of counsel, that counsel was not ineffective, that no evidence was presented to show discrimination in selecting the grand jury, and that the hearing in state court satisfied the standards of 28 U.S.C. § 2254.

A reading of the state record reveals no clear error in these findings. Appellant stated at the hearing that he pled guilty upon advice of counsel. This is supported by the testimony of counsel, who based his advice upon an investigation of the facts and circumstances of the case and appellant's previous record. Counsel also testified that he met with appellant on several occasions before trial. The record is completely devoid of anything more than the conclusory allegation that there was racial discrimination in grand jury selection. No facts are alleged and no evidence was presented at the hearing to support that conclusion.

Appellant's guilty pleas having been voluntarily entered, he is not entitled to challenge his arrest having been held incommunicado, and the construction of the grand jury. A voluntary guilty plea constitutes a waiver of all prior non-jurisdictional defects. Abraham v. Wainwright, 5th Cir. 1969, 407 F.2d 826; Picard v. Allgood, 5th Cir. 1968, 400 F.2d 887; Busby v. Holman, 5th Cir. 1966, 356 F.2d 75; Cooper v. Holman, 5th Cir. 1966, 356 F.2d 82; File v. Smith, 5th Cir. 1969, 413 F.2d 969.

Perceiving no clear error in the findings of the district court, and no error in its application of the law, the judgment below is affirmed.

Affirmed.

APPENDIX A

(Name and style of case omitted)

ORDER

Petitioner is presently incarcerated in Georgia State Prison, Reidsville, Georgia, where he is serving sentences totaling some eighteen years for burglary, larceny, and forgery. The convictions were pursuant to a guilty plea entered in the Superior Court of Chatham County, Georgia, on October 15, 1964. Petitioner never appealed his case but, subsequently, filed a petition for a writ of habeas corpus in the Tattnall County Superior Court. An evidentiary hearing was conducted and relief was denied by order dated November 25, 1969. Petitioner filed a notice of appeal on December 1, 1969, and was promptly informed by the Clerk of the Supreme Court of Georgia that the case had been docketed and that Supreme Court Rules 15-23 should be read regarding the form of appeal. Petitioner apparently failed to read the Rules, for he did not file an enumeration of errors, and his case was dismissed by the Supreme Court of Georgia on April 9, 1970, for want of prosecution. Within two weeks petitioner applied to this Court for a writ of habeas corpus and a show cause order was issued to respondent.

Petitioner makes the following contentions: (1) his state habeas corpus hearing was unfair, (2) he was illegally arrested without a warrant and was held eight to ten days incommunicado before he was bound over to the Superior Court, (3) he had ineffective court-appointed counsel, and (4) the composition of the grand jury which indicted him was unconstitutional since it was based on Georgia Code Annotated § 59-106 which was held unconstitutional in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599.

Respondent has moved to dismiss the petition on the grounds that (1) the prisoner has failed to exhaust his available state remedies as to a possible contention that the guilty plea was involuntary, and (2) that petitioner deliberately failed to appeal to the Supreme Court of Georgia. In paragraph (b) of the application, petitioner alleges that he was virtually unrepresented by counsel. However, in conjunction therewith he states, "Petitioner did not give said counsel authority to enter a plea of guilty in his behalf. As a matter of facts, petitioner refused to sign the waived copy of the indictment — the petitioner plea, not guilty." Since petitioner's only statements regarding the voluntariness of his guilty plea were included in the paragraph which was primarily concerned with the ineffective assistance of counsel, it is not clear whether he intended to raise the voluntariness of his guilty plea as an issue. Notwithstanding the statements in his petition, the prisoner stated on pages 6 and 21 of the record of the State habeas corpus hearing that he plead guilty. Furthermore, petitioner stated at the hearing that his attorney advised him to plead guilty and he did so. The record is bereft of any evidence to indicate that petitioner's plea was involuntary. The record shows that a guilty plea was entered as evidenced by the signature of petitioner's court-appointed attorney in the indictment. In addition, his attorney testified at the hearing that his advice to plead guilty was a result of having investigated the facts and circumstances of the case. The plea was voluntary.

It also appears that the prisoner may have deliberately bypassed his state remedies in violation of 28 U.S.C. § 2254 and within the meaning of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. This Court, however, is not compelled to reach the exhaustion question since the case can be adjudged on its merits.

The first contention that the state hearing was unfair is patently absurd. The Court allowed the prisoner to present his contentions and testify in his own behalf. In addition, he cross-examined the state's witnesses. The transcript of the habeas corpus proceeding shows conclusively that petitioner received a fair hearing in every respect. The prisoner's second, third and fourth contentions were presented in his state habeas corpus petition. Where petitioner's allegations have been considered in a full and fair hearing at the state level, a second evidentiary hearing in this Court is not required. 28 U.S.C. § 2254; Shinall v. Breazeale, 5th Cir., 404 F.2d 785; Moore v. Dutton, D.C., 294 F.Supp. 684.

A plea of guilty knowingly and intelligently made is a waiver of all non-jurisdictional defects. Moore v. United States (5th Cir., April 30, 1970), 425 F.2d 1290; Henderson...