465 F. 2d 675 - Hairston v. State of Alabama

As this appeal from denial of habeas corpus percolates to us the substantive question is whether petitioner-appellant had counsel at the time he withdrew his former plea of not guilty and entered a guilty plea to an Alabama charge of burglary. The Federal District Court, although going to the brink of squarely holding absence of counsel, stopped short by his determination that petitioner had failed to exhaust his state remedies. We hold the Judge erred in this assessment which brings into play the question of what should now be done. In this roundabout fashion we determine that the record which needs no more amplification compels a finding of the absence of counsel so the Writ must conditionally issue. We reverse.

Petitioner pleaded guilty on March 20, 1963, to burglary in the first degree. No direct appeal was taken to an appropriate Alabama court of review. Subsequently, Petitioner filed for a Writ of Error Coram Nobis claiming, inter alia, that he was denied effective representation of counsel. Relief was denied by the Circuit Court of Mobile County, Alabama, on May 26, 1970. No appeal was taken from that denial.

On May 24, 1971, Petitioner filed a pro se petition for Federal Habeas Corpus relief. The District Court appointed counsel and an amended petition was filed. The sole ground for relief asserted in the amended petition was the absence of counsel when petitioner pleaded guilty.

After the state replied to the Show Cause order, an evidentiary hearing was held. The sole issue at the hearing was whether or not Defendant was represented by counsel at his pleading.

For reasons we point out, the evidence that he was not represented is not merely substantial-it is overwhelming.

An attorney did appear for Defendant at a February 1, 1963, arraignment, where the Defendant pleaded Not Guilty, but this attorney testified that he did not represent Defendant at the March 20, 1963, hearing where Defendant withdrew the original plea and pleaded guilty. The docket sheet shows the appearance of counsel at arraignment, but none at the March 20 hearing. In fact, the docket sheet shows no other attorney to have appeared for Defendant at any time.1 The official minute entry of the judgment gave no indication that Defendant was represented by counsel. To the contrary, the entry reads, "This day in Open Court came the State of Alabama by its solicitor and the Defendant in his own proper person * * *."2 Petitioner's court files show no order appointing counsel to represent him. Additionally, the Defendant testified affirmatively that he was not represented by counsel at the hearing where he pleaded guilty.

In fact, the only evidence to suggest even faintly the slightest whisper of a hint that Defendant might have been represented by counsel is a hearsay carbon copy of a pay voucher authorizing payment of $100 to another attorney for allegedly representing the Defendant on the day in question. That attorney was not called by the State at the Federal evidentiary hearing and not even so much as an affidavit from him was introduced into evidence. As already explained, the docket sheet does not reflect this attorney's presence-or any other's. There is no order appointing him-only the hearsay carbon copy of the pay voucher.

On that evidence we would be required as a matter of law to declare clearly erroneous any pronouncement that Defendant was represented by counsel at this "trial" held only two days after Gideon v. Wainwright3 was decided. Difficult as it is to establish a negative proposition, Petitioner has adequately done so, for he has shown, as a matter of law, that he was not represented by counsel at the March 20 hearing. Indeed, as we discuss later the District Judge, although denying habeas, declared that it "was questionable whether Petitioner was represented by counsel" (note 6, infra).

In many respects the case is markedly similar to Craig v. Beto, 5 Cir., 1972, 458 F.2d 1131. In Craig, the only evidence offered to contradict the petitioner's allegation that he did not waive his right to counsel before pleading guilty to a burglary charge was a copy of the docket sheet of the 1951 proceeding which asserted, "Defendant stated that he did not desire Counsel and wanted to plead." This Court held that evidence insufficient to support a finding of intelligent and understanding waiver of counsel, particularly because "the evidence relied upon to controvert Craig's direct testimony is in the nature of hearsay." 458 F.2d 1136. On that approach, we are compelled to conclude that Hairston has sustained his burden of demonstrating that he was not represented by counsel when he pleaded guilty.

Only three impediments to relief are available or urged, one going in indigency4 the other two being branches of failure to exhaust.

There are two aspects to the exhaustion contention. One is the failure ever to assert non-representation, now urged by the State as its sole ground. The other, adopted by the Federal habeas corpus Court is the failure to appeal the coram nobis decision.

(i) Does Mis Include Non-Representation?

Alabama's sole contention on appeal-unfortunately never presented to the Court below-is that Petitioner has never sought coram nobis relief in the Alabama Circuit Court on the precise claim urged here-absence of counsel at his guilty plea.

Admittedly, the previous coram nobis petition specifically alleged ineffective representation of counsel-not denial of counsel. Nevertheless and despite the fact that Petitioner's pro se application for coram nobis relief might have characterized his claim inartfully by phrasing it in terms of ineffective representation of counsel,5 a resolution of that claim adverse to Petitioner necessarily presupposes a rejection of a denial of counsel claim. If Alabama is convinced that counsel was effective, it must be satisfied that counsel was provided for the indigent defendant. A determination that representation by counsel was effective necessarily determines that there was representation in fact. Having considered the effectiveness of counsel, the Alabama courts certainly had the opportunity-in fact the responsibility-to make an initial determination of whether or not petitioner was in fact represented by counsel. The exhaustion principle and the comity concept require no more.

(ii) Failure To Appeal Coram Nobis

As we stated, the Federal habeas corpus Court, after declaring that it was "questionable whether Petitioner was represented by counsel," aborted any further consideration of the case, by dismissing instead for failure to exhaust state remedies.6 It is apparent this action was based on Petitioner's failure to take an appeal from the Alabama Court's denial of coram nobis. Here the District Court erred. Bell v. Alabama, 5 Cir., 1966, 367 F.2d 243; Lizana v. Alabama, 5 Cir., 1968, 394 F.2d 512; Harris v. Alabama, 5 Cir., 1970, 429 F.2d 1236.

In the first place, the exhaustion principle is one of comity, not jurisdiction. Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Whippler v. Balkcom, 5 Cir., 1965, 342 F.2d 388, 390; Bell v. Alabama, supra. Although this Court is committed to the proposition that the responsibility for determining compliance with constitutional standards ought first to be on the state concerned so that state post-conviction facilities should be fully exploited,7 with Alabama having been afforded the opportunity of testing out the claim of mis and non-representation in her own Courts there is no need to go back again. "Neither the statute nor the spirit of needed comity behind it requires such a formalistic waste of precious judicial energy, state or federal. Adaptation in efficient judicial administration suggests no less." Reed v. Beto, 5 Cir., 1965, 343 F.2d 723, 725.

Secondly, as was made crystal clear in Fay v. Noia, supra, the "only remedies which must be exhausted are those effective8 state remedies which are presently available * * *." Bell v. Alabama, supra, 367 F.2d at 248. We are convinced that Appellant is now without any effective remedy in the State courts of Alabama.9

We can borrow fully what Judge Tuttle has written for us in Bell v. Alabama, supra. "Under Alabama law, an appeal from a criminal conviction must be taken within six months. Code of Ala., Title 15, Section 368. * * * A denial of a petition for coram nobis relief may be appealed in Alabama. Ex parte Keene, 275 Ala. 197, 153 So.2d 631 (1963). Here again, the appeal must be taken within six months, and 'the matters adjudicated on hearing of a coram nobis application are quasi res judicata, i. e., repeated applications or petitions merely resting on the same allegations should not be entertained.' Allen v. State, 42 Ala.App. 9, 150 So.2d 399, 401 (1963). * * * The right of appeal is considered a creature of statute in Alabama, and the statutes granting it are strictly construed. The insistence of the appellate courts of that state upon meticulous observance of procedural niceties (including time limits) in the taking of appeals is well demonstrated in Albert v. State, 274 Ala. 579, 150 So.2d 198 (1962), and Relf v. State, 267 Ala. 3, 99 So.2d 216 (Ala.1957). * * * Thus, it is apparent that once the six month time limit for appealing the denial of [appellant's] first coram nobis petition expired, there was no way to obtain appellate review of the contentions presented therein in the courts of Alabama. Since the findings of such proceedings are 'quasi res judicata' in Alabama, an appellate court would not reach the merits in an appeal from the denial of a subsequent coram nobis petition based on the same grounds alleged in the first. The Court of Appeals of Alabama has indicated that the failure to appeal the first such denial constitutes grounds for refusal of appellate review in subsequent proceedings. Ex parte Allison [42 Ala.App. 507], 169 So.2d , at 437 (1964)" 367 F.2d at 248-249.

Thus the issue of non-representation has been presented to the Alabama Courts and by the operation of Alabama's doctrine of "quasi res judicata", Petitioner was without any effective state remedy at the time he filed his federal claim.

Consequently, the guilty plea must be vacated. And unless the State commences prosecution of the case within 90 days10 the Writ shall issue.11

Reversed and remanded.