Winegar v. CORRECTIONS DEPARTMENT

• Decision Date: 19 August 1975
• Docket Number: No. M24-72 C. A.,M24-72 C. A.
• Citation: 400 F. Supp. 392
• Parties: William W. WINEGAR, Petitioner, v. CORRECTIONS DEPARTMENT, Respondent.
• Court: U.S. District Court — Western District of Michigan

400 F. Supp. 392

William W. WINEGAR, Petitioner, v. CORRECTIONS DEPARTMENT, Respondent.

No. M24-72 C. A.

United States District Court, W. D. Michigan, N. D.

August 19, 1975.

J. Kent Bourland, Hancock, Mich., for petitioner.

James R. Stegman, Asst. Atty. Gen., Lansing, Mich., for respondent.

OPINION AND ORDER

FOX, Chief Judge.

This is a petition for a writ of habeas corpus.

On November 17, 1961, petitioner was convicted in the Circuit Court of Ingham County, Michigan, upon his plea of guilty to a charge of assault with intent to commit murder (C.L.1948 § 750.83). He now attacks the validity of the conviction on various grounds, which may be summarized as follows:

I. He was deprived of his Sixth Amendment right to counsel prior to entering his guilty plea.

II. His guilty plea was not intelligently and voluntarily made.

III. His guilty plea was coerced.

IV. The State's appeal to the Michigan Supreme Court was based in part upon a fraudulently prepared transcript of the trial proceedings.

The respondent filed a motion to dismiss the petition for failure to state a claim upon which relief may be granted. An evidentiary hearing was held on May 12, 1975 and on June 2, 1975, at which petitioner was represented by counsel.

I

Petitioner claims that he was denied his Sixth Amendment right to counsel. This is not the first time petitioner has raised this issue in a habeas petition. Petitioner made this identical claim in a habeas petition filed by him in the United States District Court for the Eastern District of Michigan in 1968. Winegar v. Kropp, Civil Action No. 31051. Judge Kaess in an opinion issued on May 28, 1968, found this claim to be without merit. He stated:

"This is precisely the same issues presented before the Michigan courts and, in view of the record, this factual conclusion by the petitioner that he was deprived of his right to counsel, is without foundation.

"The record is clear that the petitioner was informed of his right to counsel and counsel would be appointed if he were financially unable to employ counsel. Informed of this, petitioner still desired to plead guilty. There is no indication that any rights of the petitioner were not protected and the reasoning of the Michigan Supreme Court and its application of the law is both sound and correct. Petitioner voluntarily waived counsel and mere dissatisfaction with the sentence imposed is not a basis for the issuance of a writ of habeas corpus."

Although the doctrine of res judicata is generally held not to be applicable in habeas proceedings, the court would be fully justified in rejecting petitioner's claim on this issue since it was resolved adversely to the petitioner by Judge Kaess in the proceeding before him. This is so even though Judge Kaess based his decision on the state court record and did not hold an independent evidentiary hearing. See Matthews v. Wingo, 474 F.2d 1266, 1268 (6th Cir. 1973), cert. den. 411 U.S. 985, 93 S.Ct. 2283, 36 L.Ed.2d 963 where the court stated:

In December 1971, Matthews filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky, alleging a violation of due process of law in that he was convicted at a time when he was not competent to enter a plea. His sole contention was that since he was never judicially declared to be restored to sound mind, he was incompetent. This petition was denied. No evidentiary hearing was held, the District Court relying upon the evidence presented at the State hearing. This decision was not appealed. Matthews filed a second petition for a writ of habeas corpus in which he alleged again that he was incompetent to enter a plea for the same reasons as averred before, and further that he was denied the effective assistance of counsel. This petition also was denied. The issue of the competence of Matthews was rejected on the basis of the prior adjudication, and the assistance of counsel issue was denied for failure to exhaust State court remedies.

We affirm.

The District Court had the right to reject the second petition to the extent it raised the same issues as had been resolved at the first proceeding. Under 28 U.S.C. § 2244(b) and the doctrine of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), a federal district court may deny a petition for a writ of habeas corpus where the ground presented in the second petition has been determined, on the merits, adversely to the petitioner at a prior habeas corpus proceeding, and the ends of justice would not be served by reaching the merits again, 373 U.S. at 15, 83 S.Ct. 1068. Here the issue of the competency of Matthews had been previously determined and rejected in the first petition.

The first dismissal was a proper adjudication on the merits even though no evidentiary hearing was held. 28 U.S.C. § 2254(d); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Although the court is in agreement with Judge Kaess' opinion, and would be justified in rejecting petitioner's claim on the basis of that opinion, it has, nevertheless, also considered the issue. Petitioner was first arraigned on November 3, 1961, at which time he stood mute and the court entered a plea of not guilty. He was again arraigned on November 17, 1961, at which time he changed his plea to guilty. At the November 3, 1961 arraignment, the court advised him as follows:

"The Court: The court wishes to advise you that you are entitled to be represented by a lawyer and if you are not financially able to employ one and will so advise the court, the court will see that you have a lawyer. Do you understand that?

"Defendant: Yes, sir. But they have impounded all my money.

"The Court: Well, you understand what I just said to you?

"Defendant: Yes."

(November 3, 1961 arraignment transcript, page 2)

Petitioner does not dispute that he was advised of his right to have counsel appointed if he was financially unable to employ counsel. He claims, however, that the trial court did not give him an opportunity to request counsel. The Michigan Supreme Court found otherwise, noting that there were two full weeks between petitioner's first arraignment on November 3, 1961, when he stood mute, and his second arraignment on November 17, 1961, when he changed his plea to guilty. The court stated:

"Defendant had many opportunities during his first arraignment to ask for the appointment of counsel. He then had two full weeks in which to make the request before being brought back to court. He had still another opportunity to request counsel before changing his plea." People v. Winegar, 380 Mich. 719, 726, 158 N.W.2d 395, 398 (1968).

The court agrees with that finding. Petitioner was no stranger to criminal proceedings.¹ He was not only advised of his right to appointed counsel if he was financially unable to employ one, but he was also told that if he would "so advise the court" the court would appoint counsel for him. Asked if he understood, he replied that he did. He did not choose to so advise the court, either during the initial arraignment, or during the full two weeks before he was returned to court for his change of plea, or in the conference held in the judge's chambers at the second arraignment.

The court is well aware that the right to counsel does not depend upon a request, and that waiver of counsel cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The record here, however, is not a silent one. The court is also aware that "waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and that petitioner did not say "I waive counsel" in so many words. This definition of waiver, however, is followed by the following sentence:

"The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." 304 U.S. at 464, 58 S.Ct. at 1023.

This, then, is a case of an accused, who is no stranger to the judicial process, who is told that he has the right to appointed counsel if he cannot afford to hire one, and that if he will so advise the court, the court will appoint counsel for him. He is asked if he understands this, and he replies that he does. He chooses not to do so. Under the circumstances, the court finds that petitioner was fully advised of his right to appointed counsel, that he had ample opportunity to request counsel, that knowing and understanding his right he chose not to have counsel, and that his choice was intentional, voluntary, and knowledgeable.

II

Petitioner claims that his plea of guilty was not intelligently and voluntarily made because he was not advised of his right not to incriminate himself, his right to confront his accusers, the nature of the charge, and the consequences of entering a guilty plea.

It should be noted at the outset that the guilty plea in this case was taken in 1961, long before Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Boykin held that a guilty plea involves a waiver of the privilege against self-incrimination, of the right to confront one's accusers, and of the right to trial by jury, and that a waiver of these important constitutional rights could not be presumed from a silent record. The Michigan counterpart of Boykin is People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972). It is now well established, however, that both Boykin and Jaworski have only prospective effect and do not apply to pleas of guilty taken before Boykin's decisional date, June 2, 1969. As to Boykin, see Lawrence v. Russell, 430 F. 2d 718 (6th Cir. 1970); United States ex rel. Rogers v. Adams, 435 F.2d 1372 (2nd Cir. 1970); United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd...