Woodard v. State
| Decision Date | 02 February 1965 |
| Docket Number | 4 Div. 508 |
| Citation | 171 So.2d 462,42 Ala.App. 552 |
| Parties | Willie M. WOODARD v. STATE. |
| Court | Alabama Court of Appeals |
Henry B. Steagall, II, Ozark, for appellant.
Richmond M. Flowers, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., for the State.
Woodard appeals from denial of his petition for writ of error coram nobis.
Originally he was indicted May 27, 1963, on three separate true bills, each charging second degree burglary.
The next day, May 28, Woodard, attended by counsel hired by his mother, plead guilty to each indictment and asked for probation. The trial judge denied probation May 31.
Thereupon, no appeal having been noted, Woodard was taken from the Dale County jail to a place of detention within the penitentiary system to endure the punishment prescribed on his plea of guilty, viz., three consecutive terms of two years each. Code 1940, T. 45, § 32, as amended.
On November 5, 1963, Woodard filed a written petition for a writ of error coram nobis designating in his caption 'Case Numbers 3841-3842-3843.' Appended was an affidavit of poverty.
The solicitor filed a motion to dismiss. Many of these grounds were apt. See Rule 23, U.S.Dist.Ct.N.D.Illinois, 33 F.R.D. at 391 et seq., for information to be supplied by State and Federal prisoners seeking post conviction review in that court; also Acts 525 and 526, September 16, 1963, Laws 1963, pp. 1129, 1136.
However, on the day of the solicitor's motion being first filed, the court determined that the merits of the petition and the motion to dismiss could be heard together. Accordingly, it was ordered that the Warden of Kilby Prison transport Woodard as soon as practicable to the Dale County jail.
On December 9, 1963, we find appellant at a preliminary proceeding:
Woodard being in court on December 18, filed an amendment to his petition and the solicitor refiled his motion to dismiss.
The court took the motions to dismiss under advisement and directed that the petitioner bring on his evidence in support of his petition. In addition to himself, Woodard called seven witnesses: the sheriff, deputies, policemen and State investigators.
A trier of fact could reasonably infer from this testimony that:
1) Woodard was, April 10, 1963, 'invited' by policemen of the City of Ozark who had no warrant nor knowledge (direct or hearsay) of his having committed a felony to go with them to the sheriff;
2) Woodard was held incommunicado in the county jail some twelve to eighteen hours before confessing;
3) Woodard undisputedly was not before a committing magistrate until May 6, 1963, at which time he plead guilty and waived to the grand jury; and
4) Woodard plead guilty to the indictments.
There was no tendency which showed that Woodard, in confessing, did so because of any improper inducement save that of his own ipse dixit that the State investigator promised to recommend him for probation.
This confession was taken April 11, 1963. According to the endorsement on his warrant of arrest, from April 10 onwards Woodard was bailable on bonds totaling $3,000.00. On May 6, 1963, Woodard in county court waived to the grand jury. On the coram nobis hearing the court found that Woodard was represented from 'shortly after his arrest, during his preliminary hearing * * * and upon his appearance in chambers * * * for the purpose of pleading guilty to the three indictments' by competent counsel.
The minute entry in evidence shows Woodard, attended by this counsel of forty years practice, on arraignment, plead guilty to each indictment.
On the coram nobis hearing Woodard did not subpoena his former lawyer. Substantially all that Woodard complains of as to his pleading guilty on arraignment on the indictment lies in his own testimony from which we excerpt:
'A. Well, I came in and they said--'Have a seat'. And I set down there where Mr. Kemp is setting now. Mr. Matthews [county solicitor] was standing where Mr. Boswell [circuit solicitor] is seated over by the window there. Mr. Matthews says: 'Do you want to see the indictments, you have been indicted on three counts of burglary in the second degree.' 'Do you want to read the indictments?' And I told him 'No, that I didn't care anything about reading them' He said: 'Raise your right hand and I will read the indictment to you.' And then he read off the first indictment. And, when he got through reading the first indictment, Judge Sollie said: 'Do you understand the charge against you?' I said: 'Yes, I do.' He said: 'How do you plead to said indictment?' I said: 'Guilty.' He said: 'Do you have anything to say before the sentence of this court is imposed upon you?' And, I says: 'No, I do not have anything to say.' At that time Mr. Martin, W. R. Martin, said: 'Your honor, I would like [to] ask for the mercy of the Court.' Let us go back to prior to when the indictment was read. Lets go back to before the indictment was read. The Judge asked me was I represented by counsel. I told him that I was, that Mr. Martin was my attorney. He said: 'Do you wish to sonsult with your attorney?' When he said that, me and Mr. Martin went outside of the door, into the hallway of the courthouse, and Mr. Martin said: 'Well, you are going to plead guilty.' I said: 'Under the circumstances there don't seem to be much else to do.' He said: 'I will stand with you and ask for the mercy of the Court.' Then we returned to the courtroom.
'Q. While your lawyer, Mr. W. R. Martin was talking to you, did he ask you of the charges that had been preferred against you?
'A. Oh yes, he did ask me, he said: 'You are charged with burglary, aren't you * * * my mother had employed him'?
'Q. Did he ask you any of the circumstances of the case?
'A. No, sir.
'Q. Did he tell you that you were entitled to a trial before a jury?
'A. No, sir, he just asked me was I going to plead guilty.
'Q. And that was all that was said?
'A. That was all that was said and we returned to the courtroom.
'Q. And then is when Mr. Matthews read the indictment?
The judgment here appealed from concludes:
'The Court is of the further judgment and opinion that many of the allegations of the petitioner, after considering the testimony, lack the probability of truth, but, aside from this, and considered in their most favorable light, they are matters which could and should have been properly presented upon a trial of this case.
'It appears to the Court from the above, and from the fact that neither in the original nor in the amended petition is there an allegation that defendant is innocent of the offenses charged or show a valid defense.
'It is, therefore, ORDERED AND ADJUDGED by the Court that the motion of the State of Alabama to dismiss the original petition and the amended petition be, and the same is hereby granted.'
Before a State prisoner can ask a Federal court to examine the cause of his detention, he must show that he has exhausted the post conviction remedies then open to him under the State's procedure. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. This seems to mean that the failure to appeal is not fatal. 1
The convict, not the State, must move for collateral relief. Comity and 28 U.S.C. § 2254, require him to exhaust the available state remedies before a Federal court will take up his case. Cook v. Hart, 146 U.S. 183, 13 S.Ct. 40, 36 L.Ed. 934.
Some writers have asserted that a state must afford post conviction review. Mooney v....
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