*1 beyond against legal rights Atlantic insurable inter- amount of loss their by part fully est, satisfied is now Masseys noth- judgment, assign. judgment in favor That against Masseys Atlantic
appellees judgment favor
is affirmed. against Atlantic is Fireman’s remanded case is
versed and the in favor
directions to enter against Fireman’s.
of Atlantic and Counsel, Special Davies, Nash-
Ed R.
Henry
ville, Tenn.,
appellant,
C.
for
Atty. Gen.,
Foutch,
Ten-
Asst.
George
Petitioner-Appellee,
LEWIS,
Tenn.,
brief,
nessee, Nashville,
Cornelius
Nashville,
McCanless, Atty. Gen.,
F.
Tenn., of counsel.
HENDERSON, Warden,
Murray
C.
Respondent-Appellant.
Tenn.,
Nashville,
Bateman,
James H.
Nashville,
Bateman,
No.
Fritz
16985.
Tenn., on brief.
Appeals
United States Court
McCREE, Cir-
Circuit.
Before
Sixth
EDWARDS
McALLISTER,
Judges,
Senior
cuit
July 19, 1967.
Judge.
Circuit
Judge.
McALLISTER,
Circuit
Senior
arising
of two
out
sad
This
during
trials,
were
which mistrials
Thereafter,
con-
clared.
charge
assault
on a
victed
the first
murder in
intent
commit
degree,
punishment
fixed
Penitentiary for
confinement
twenty-one
period
not more than
years.
appellee was
started
attempted
murder
two
arrested
Tennessee,
Nashville,
members of
Department. He was thereafter
Police
Court of David-
indicted in
Criminal
charges
Tennessee,
County,
on two
son
murder.
assault with intent
in-
Appellee
to each
dictment,
defender was
appointed
represent him. Both
cases
and,
were thereafter
called for
arraignment,
entered a
jury
impaneled,
A
and evi-
Cir.,
prosecution.
presented
See also 6
not understand the and not recall whether he had talked to the plea guilty his guilty. from public to not A mis- wanting testify. defender about trial was entered in both cases. He stated that he did not tell the defender plead guilty that he wanted to Later, the two cases was the second of offense, to a lesser and did not know again trial, appellee plead- called for and whether such plea counsel entered guilty. and ed not for him. present He stated that he evidence, jury, hearing after in court when his motion for a new trial charged, appellee guilty and found was denied but did not talk to the punishment in fixed his at confinement appealing defender case, about and Penitentiary than for not more the latter had not said twenty-one years. On the same date him about an and did not advise Thereafter, first case was continued. right he had a public defender filed a motion for a new trial the second over- hearing corpus On the of the habeas judg- passed ruled. The trial court then petition, controlling evidence is to be appellee. ment on candid, explicit, found in the and credible 12, 1963, On November the first case obviously just of the hu- and again called for and public defender, mane who testified as pleaded guilty. introduced Evidence was follows: by prosecution, but when the court jail defendant “I interviewed the questioned again further he the as- received office as soon responded that he did not understand the investigation signment revealed changed plea his to not attempting he accused of A mistrial was entered for the second stopped policemen murder two who February time. On the first morning one-thirty on him about case was “retired” motion of the leading off Jefferson a side street attorney. district Pigg’s by Brother Meat out Street August 3, 1965, appellee On filed his investigation My revealed —I Market. petition for corpus a writ of habeas got he details from the defendant Court, the United States District con- pistol walking with out and had taining allegations a number of of denial purpose. He him for no unlawful rights: “(1) compulsory his process why explain had it too never did obtaining for the witnesses; (2) as- carefully realize that and that he didn’t counsel; (3) sistance of cruel and un- him and asked a man who accosted punishment usual in that he was shot doing there him what he was arresting officers; (4) right to coun- police officer. preliminary sel at hearing; his (5) ef- counsel; “But he he was someone (6) fective copy assistance of trying So, indictment; right to do him harm. some (7) testify himself, behalf; his (8) own effort defend turned entry unauthorized shooting plea guilty and then around started person murder; (9) he shot and his com- appeal; panion, them, (10) being one or both of shot him boy’ by called a ‘black his times, presence own number and he was taken to jury.” counsel in the hospital jail. put and later Respondent admitted that exhausted remedies, his state “He wasn’t too communicative negotiations great was void or that after a deal of pellee unlawfully or unconstitutional- him it was enter decided that ly Appellee confined. plea testified that and after recitation of hearing petition attorney, a writ of the facts the state’s corpus habeas asked him if he understood placed he, the record that at that facts and through attorney. was made indicated did not. course, personally judge said, this man mis- “I not recall “So the do anything. granted. pleading guilty to trial would be ever trial Lewis “He came advised *3 substantially good to have a chance opinion, testified he had involved officers and outlined the that I overturned to facts have his conviction trial. reporter I new and for a we did not have court a motion I filed And being my exact must confess to not very handi- I was in mind “Bear it, recall, details, I Mr. Lewis but as of- assistant capped. I one he that the stand he testified did take assigned another he and was fice thought fear, he he that was under that help in effect, So, I had no court. being someone who was accosted responsi- I was Court Criminal that under him harm would do for. ble trying to he those circumstances certain must I “And defend himself and shot the officer. my represen- inadequacy degrees of my theory the clients at all tation Mr. under set Lewis the facts help frankly have did I out, attempt probably guilty of an job I good asdo and the time manslaughter to commit not mur- but done. to have would liked was, my opinion, der because there event, discussed “In and the record I believe bear me General, Attorney think was record, out if there was a so there Judge. Hollins, even Mr. record, proof not a that there was no arrangement, an there was an any premeditation which, course, is if he were—if necessary ingredient for the State charge of second would withdraw degree offense of first murder. with intent assault premedita- proof “There was no gree nobe there would murder that proof tion. There was no that Lewis peal made. committing attempting or to com- agreement re- into this “I entered felony supply amit that would ab- luctantly the overwhelm- but realized premeditation. sence overturning jury against me odds argument “So, my advised—in approved Trial Court verdict jury I in fact admitted that though personally convinced justified they would be proved premeditation no that enough there attempt finding conviction. sustain a voluntary manslaughter, which commit hand, faced with other “On the been, probability would’ve dilemma, they put him trial workhouse sentence. the facts were on the second indictment exactly “He had had a number months awas same and there hospital jail, under confinement and convicted chance he would be and if he had a workhouse received twen- three to another effect, sentence in he would’ve been ty-one year would’ve sentence already free because he had built his impossibility for him itmade almost an sentence. any period been released in to have jury buy theory many years. my many, “The did not other than convicted him of first “So, Lewis. I discussed murder. under three I told him in effect that interpreted year he had that “I think the ten eligible jury technically guil- for re- statements to the he would ty twenty-seven months to commit the crime lease in some involuntary manslaughter already credit built less the got finally peti- to —at least I Mr. Lewis claims in his although, impression agreed, rep- tion that effective through frankly, get you never did too resentation. Do have well, say got across him that about that? dropped. other case would be If he Well, just pointed have as I forego constitutional out, because of the lack of facilities of that was the reason holding the office office did not the case. representation perhaps not as appealed case if effective as should’ve been. have “I would for the it hadn’t been “I didn’t have time nor staff dropped. charge other would be really well, instance, lack — thing reporter big I do at this reiterate “And I *4 this pre- case that I think would proved have handi- think not that * * * capped appeal.” him on have constituted that would meditation record. At had no public this but I ques- defender was then reporter in Ten- law had no we tioned the District Court: goodness. now, thank have nessee. We “Q. [Tjhis was case accord- get task to a burdensome And it was copy to the certified record exceptions. up bills narrative day October, on the 31st 1963. Was having every on instance “I was Now, you date of trial. after filed get of ex- attempted narrative bill to your motion for a new and after great having deal ceptions, a overruled, that motion was wasn’t there Attorney to getting the trouble State’s a start the trial on other ? case authenticity agree it to No, “A. sir. approve them un- not trial would “Q. it was —it less There not? was great deal effort took a of time and “A. Not I recall. get excep- narrative bills of those “Q. just Other dropped just, up, circum- tions under the so after for motion trial new only stances, this was overruled ? thing to do.” Yes, sir, “A. I checked with the By (counsel Mr. Bateman yesterday clerk in that court re-we defender): examining freshed our memories about that. * * * “Q. you I believe said was retired. you actually didn’t whether recall “Q. Yes, sir, it was retired anything guilty Mr. Lewis right, but the record shows that after during or not himself this second trial? overruled, the motion for trial new pleading “A. I don’t recall him ever one, that another another occasion sev- guilty. I remember on occasion days later, eral this other case came going he had indicated to me he was hearing, plea guilty on was en- plead guilty but when the time came tered, finally and then Judge accepts Leathers never gone proof asked about it after had plea through attorneys. always He on he said he didn’t understand and de- up makes the defendant stand * * * clared a mistrial? plea makes the defendant enter his Yes, you I believe now that charge, plea himself to a is a mention that did occur. In other words, he up tried —he made his mind accept plea guilty “He will of not occasions, guilty that he wasn’t on both through attorneys plea not but I believe that recall. guilty up so never stood guilty said he was When as I call. made it because were mally adequate effectively represent drop After going case? the other again? on a client an declared the matter. mistrial been instance, I, way limited believe “For is the “A. Here —I budget had, there please, hired man as happened, if having secretary com- rather than made an typist position of- petent second to the would investigate concurrent needed someone would fense he help actual courtroom work. amount would in con- thing far as the same reporter facilities “I had no be concerned. would finement office felt the that I I said and when entering modesty didn’t again inadequate, in all on “Then, balked any though reflections been to cast it had mean adequacy courtroom. as counsel be—it explained not amount paperwork that was These penitentiary. true. That is that made piling that time together. of run cases kind perfect an difficult then, term of the next impression give the didn’t mean would have come court when ade- man had think this didn’t normally meanwhile I do representation court. quate *5 agreement the made that had been represented adequately believe than rather just be retired modesty case would court, say, But aside. given plea of concurrent sentence guilty. opinion the prove premeditation. failed to good opinion we “Q. So, any agreement there wasn’t going appeal it because it was not Yes, “Q. retired ? sir. be Yes, sir, we “A. fact that there was. “A. But view the is, the for—that could settle the case agree- “Q. thought you said yet case, pending one that was appeal ment not to it was based it a manner be such getting of concurrent sentence? give exposure more him wouldn’t agreements “A. There were two time; keep but Mr. Lewis failed to his and great de- it with discussed agreement, anticipated part of the first understanding it tail and was is, he would of, one, than take the risk win- rather ning getting in return for sen- concurrent subsequent appeal and tence. trial of that case. apparently didn’t “He understand it winning pending it though thought it care- had been go and with- be better to ahead would fully explained at the time and accept appeal concur- draw the agreed it. He didn’t. pending case. rent on the was after that instead of # # it, approach concurrent sentence “Q. And was then determined State and approach office took a retirement appeal pending later to not and with the under- —rather, appeal the conviction standing appeal that there would be no agreement retire the return of the first case.” pending case. Is that correct? by government On cross-examination agreement Well, “A. counsel, defender testified: that he the same con- would be before the office was with- sideration he offered “[A]t had been out the facilities felt were mini- either case tried. “That is on retirement of the second case in ex- offense, change recommend a for no of the first case He, concurrent sentence. probably agreement as the brought into court and asked risk of another conviction in the second understood, if he he indicated he present. agrees The court did not for the second time a mistrial reasoning on the entered, was just so General Defender, Hollins and Public but the record does well, agreed, the same effect petitioner not show that the ever knew had if this case was retired. and understood the made indicates, strongly, that, even more re- “And on the State’s he had proposed understood the pending case, I, turn, tire the agreement, he would have dissented not to the conviction. (Emphasis it. supplied.) from your agreement done And was “The court realizes the difficulties knowledge your and consent of appointed counsel and client? dealing extremely fenders have in my understanding ignorant persons whom some- are certainly explained was. it to him. times called to defend. At the not, Now, whether it or he understood hearings on this matter the court I don’t know.” very strong impression ceived the extensively quoted from petitioner We have person herein is a with a important issue intelligence. spite low In and because the involved regrettable situation, of this the state- presents all of evidence above referred ments made Public [the Defender] we consider facts the detail which due to no fault of his own but due understanding necessary of the is- to an overwhelming amount of work analyzed by clearly sue so which was in his staff, office and his limited *6 granting ap- District Court in its order inadequate representa- furnished pellee’s petition for habeas a writ of petitioner tion to impel
corpus declaring to by denied, the conclusion that he was in the conviction void. In his decision action, right State appellate his * * * Court, Judge Gray, District Frank Jr. review of his conviction. problems summed and reduced petitioner “It is that the be Ordered single controlling them ato factor. days by respondent ten released within entry order, judg- Referring from the of this testimony being record, Judge ment under which he is hereby held Gray, in his determination petition declared void.” of the for the writ of habeas cor- pus, stated: We are accord with determina- Court, judg- tion of the District “After this abortive to con- ment is affirmed for the reasons set clude the second a new by Judge Gray. forth apparently reached between Judge Gray, decreeing judg- that the prosecuting Galbreath and the attor- being ney’s ment under which office that the second case would void, held was an order that entered be retired if no was had in the pellee by within be released the Warden first case. Mr. Galbreath indicated days entry ten thereof. This was his that he was reluc- stay order, 49, under Section Rule tant to pre- enter into 4, Court, Supreme cluding of the Rules of the because he felt that stay only such initial order covered not he had a chance to overturn court, possible conviction, review this but also strongly but that Supreme review in the Court. motivated the work situation in the Public stated, Defender’s office. He regard consider We
however, that did feel question the final of violation of constitutional Brown, rights, in Lane to that v. similar 892, 477, 768, 9 L.Ed.2d 83 S.Ct. 372 U.S. defender in state where court, discretion, exercise appeal in criminal to file an
refused un- be
case because action, that this successful. It was held defender, raised question deprivation the court the rights under defendant’s constitutional
the Fourteenth Amendment. is, therefore, ordered that State, by further released unless proceedings be initiated days entry
within ten the date of opinion and order.
McCREE, Judge (concurring). Circuit agree concur in the result finding district court that
petitioner the effective assist- guaranteed counsel, ance of
under the Fourteenth Amendment. Gid- Wainwright, 335,
eon v.
792,
372 U.S.
83 S.Ct.
(1963);
State of
386 U.S.
87 S.Ct.
(May
1967).
UNITED STATES Appellee, MILLER,
James Frank James a/k/a Coppola, Appellant. 471,
No. Docket 30989. Appeals
United States Second Circuit.
Argued June 1967. July
Decided 1967.