Wilson v. Cox, Civ. A. No. 70-C-8-D.
| Decision Date | 17 April 1970 |
| Docket Number | Civ. A. No. 70-C-8-D. |
| Citation | 312 F. Supp. 209 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | Wesley Howard WILSON, Petitioner, v. J. D. COX, Superintendent, Virginia State Penitentiary, Respondent. |
Edward J. White, Asst. Atty. Gen., Richmond, Va., for respondent.
This case comes before the court on a petition for a writ of habeas corpus filed in forma pauperis by Wesley Howard Wilson, a state prisoner, pursuant to 28 U.S.C.A. § 2241.
Petitioner Wilson is currently serving a thirty year sentence in the Virginia State Penitentiary pursuant to a judgment of the Corporation Court of the City of Danville, imposed on January 19, 1966, for first degree murder. The petitioner was found guilty by a jury and sentenced to thirty years imprisonment. The record indicates that no appeal was taken from this conviction, however, during the past three years the petitioner has sought habeas corpus relief.
On August 11, 1966, Wilson filed a petition for a writ of habeas corpus with the Corporation Court of the City of Danville. After a series of continuances, the petitioner was afforded a plenary hearing on the 8th of June, 1967. The court denied and dismissed the petition on the 27th of June, 1967. Petitioner Wilson was represented by court appointed counsel at this hearing. No appeal was taken from said hearing.
On September 12, 1968, a second habeas corpus petition was filed in the Corporation Court of the City of Danville. Some six days later the court denied and dismissed the petition.
A third petition was filed in the same Corporation Court on the 13th of March, 1969. The Court again denied and dismissed the petition on the 21st of March, 1969, but granted petitioner an appeal therefrom. On the 3rd of December, 1969, the Virginia Supreme Court of Appeals affirmed the decision of the Corporation Court. The issues presented in the third petition encompass the same issues that are now before this court in Civil Action Number 70-C-8-D. Therefore, the petitioner having presented the above mentioned issues before the Virginia Supreme Court of Appeals, this court concludes that an exhaustion of available state remedies has been fulfilled in compliance with 28 U.S.C.A. § 2254, as interpreted in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 837 (1963).
Petitioner Wilson's first claim is that "negroes were systematically and discriminatorily excluded from the Grand Jury which indicted your petitioner". A review of petitioner's brief and respondent's answer thereto, demonstrates that petitioner's allegation of systematic discrimination of negroes from grand jury service is derived from the factual situation in the case of Witcher v. Peyton, 4 Cir., 382 F.2d 707 (1967). Both the Witcher case and the case at bar were tried during the 1959-1966 period discussed in Witcher. The primary allegations raised in Witcher centered on an intentional and systematic discrimination against members of the negro race in the selection of grand and petit juries in Pittsylvania County, Virginia. In the case at bar, petitioner Wilson points out on Page 7 of his amended complaint that there was no discrimination on the petit jury, but only on the grand jury in Danville, Virginia. Other than this mere statement by the petitioner, and the facts as presented in the Witcher case, petitioner Wilson has made no basis for his claim. On the one hand, Wilson contends that his indictment by a grand jury in Danville was illegal because the factual matters in the Witcher case pointed to a systematic discrimination of grand juries in Pittsylvania County. Next, petitioner contends that there was no illegality in the selection of the petit jury in Danville, but that discrimination did exist in Pittsylvania County, as stated in the Witcher case.
This court has reviewed the Witcher case and its application to the case at bar and concludes that petitioner's claim is without an adequate factual foundation. The court in Witcher was faced with a substantial factual basis upon which claims of discrimination could have been proven. In the case before this court no "substantial" factual proof has been presented at all. Without an adequate factual basis the court cannot grant the petitioner a hearing as provided for in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The Fourth Circuit Court of Appeals emphasized in Witcher that a hearing should be granted the petitioner "unless a case is patently frivolous". The court views Wilson's allegation of systematic discrimination of negroes from the grand jury in Danville as "patently frivolous".
This court has recently considered a similar contention in the case of Hairston v. Cox, 311 F.Supp. 1084, which arises out of a jury conviction in the Circuit Court of Henry County. In that case we said a petitioner, in order to obtain relief, must demonstrate to the court purposeful discrimination which is based on race. Likewise, purposeful discrimination may not be assumed or proved by the mere assertion of the petitioner that such discrimination did exist. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
Therefore, the burden of proof is placed squarely on the petitioner at the outset and not upon a factual situation found within a totally different case. Petitioner's claim seems nothing more than a mere assertion, at the most. In accordance with the foregoing, the court concludes that the petitioner has failed to establish a claim upon which habeas corpus relief can be granted.
The second allegation raised by Wilson is that the evidence, as presented, was insufficient to support the verdict of first degree murder. This court follows established procedures which make it clear that an inquiry into the sufficiency of the evidence is not within the proper functions of a federal court when reviewing a state conviction by way of habeas corpus. Our inquiry, based upon the records before the court, is one which only considers whether there was any evidence to support the verdict, not the sufficiency of such evidence. The district court in United States ex rel. Simmons v. Commonwealth of Pa., 292 F. Supp 830, 833 (1968) said:
* * * The cases have held that federal jurisdiction is established only when the petitioner has alleged that there was a total absence of evidence to support a guilty verdict. See, e. g. Deham v. Decker, 361 F.2d 477 (C.A. 5, 1966), and Edmondson v. Warden, Maryland Penitentiary, 335 F.2d 608, 609 (C.A. 4, 1964). To permit a federal court acting upon a petition for a writ of habeas corpus to inquire further than this into allegations challenging the sufficiency of the evidence presented at the state criminal trial, would be to improperly convert the federal court into a substitute for a state appellate court. See, e. g. United States ex rel. Bower v. Banmiller, 232 F.Supp. 627, 628-629 (E.D.Pa., 1964).
This court has followed this procedure in Wheeler v. Peyton, 287 F.Supp. 930, 931 (W.D.Va., 1968) and Cooper v. Peyton, 295 F.Supp. 21, 23 (W.D.Va., 1968). Also, the Fourth Circuit Court of Appeals in Grundler v. North Carolina, 283 F.2d 798, 802 (1960) expressed a similar concept.
* * * Normally, the admissibility of evidence, the sufficiency of evidence, and instructions to the jury in state trials, are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. The role of a federal habeas corpus is not to serve as an additional appeal.
In light of the above, the court concludes that the record amply demonstrates that evidence was present to support the ultimate conviction and sentence.
Thirdly, petitioner Wilson contends that since his fellow co-defendants received lesser sentences of 20 years and 17 years respectively, his ultimate conviction and sentence of 30 years, for first degree murder, was unconstitutional as being "cruel and unusual punishment". This contention is clearly without legal foundation. Wilson's ultimate sentence was within the provisions of the Virginia statute. (See Va.Code Ann. § 18.1-22) This court cannot impeach the sentence that was returned by the jury as being excessive inasmuch as the petitioner was found guilty of first degree murder which is punishable "by death, or by confinement in the penitentiary for life, or for any term not less than twenty years".
Thusly, the guaranty under the Equal Protection clause does not mandate a court to impose equal sentences on co-defendants, as in the case at bar, especially when the sentencing procedure is left to the discretion of the judge or jury, and the ultimate sentence is completely within the guidelines of the applicable statute.
Fourthly, Wilson maintains that he did not have the effective assistance of counsel during his trial in January, 1966. Petitioner claims that (1) counsel failed to adequately prepare for trial, and (2) that counsel failed to advise Wilson of his appeal rights. As to the first point, a review of the transcripts of the original criminal trial and the subsequent habeas corpus hearing in 1967, shows that Mr. W. Bascom...
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Woods v. Beto
...that such an appeal would not have any valid grounds. Further, this holding is in accord with other recent decisions, Wilson v. Cox, 312 F.Supp. 209 (W.D.Va.1970), and Hairston v. Cox, 311 F.Supp. 1084 (W.D.Va.1970). In both decisions, which are factually akin to the instant case, the Court......