Clonch v. Boles
This text of 287 F. Supp. 367 (Clonch v. Boles) is published on Counsel Stack Legal Research, covering District Court, N.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Petitioner, who is presently incarcerated in the West Virginia State Penitentiary, is serving the life sentence ordered by the Common Pleas Court of Cabell County on August 27, 1937. The sentence was imposed after Petitioner entered a plea of guilty on June 14, 1937, to the indictment charge of rape.
Pursuant to Title 28, § 2254, United States Code, Petitioner applied for a writ of federal habeas corpus in this court to challenge the constitutionality of his arraignment and sentencing. Petitioner contends that he was without counsel and was not warned of his right to counsel or the consequences of his plea. The issue to be resolved by this Court is whether Petitioner, in fact, was represented by counsel at these critical stages in his conviction process.
On the basis of the evidence presented in the record and at Petitioner’s plenary hearing in Elkins on May 10, 1968, it is this Court’s determination that Petitioner has not met his burden of proof. The records of the orders entered by the Common Pleas Court of Cabell County in Petitioner’s case recite that Petitioner [368]*368appeared with counsel.1 Several attorneys familiar with the practice of the Common Pleas Court at the time of the proceedings against Petitioner testified in depositions that, although they did not recall the proceedings against Petitioner, they knew that the general practice of the trial judge was to appoint counsel for persons accused of serious offenses if such persons did not have counsel.
Petitioner introduced no conclusive facts to rebut the record and testimony on this point. The fact that, after thirty-one years, there is no record of the identity of his counsel and the fact that none of the persons questioned recalls Petitioner’s case raises some doubt as to the existence of counsel, but this supposition does not prove the allegation.
The contention that Petitioner was one of seventy to ninety persons brought into the court for arraignment on the first day of a new term of court, and that Petitioner entered his plea one-half hour after court convened, again raises a question as to whether Petitioner had counsel when he entered his plea. Again this is not conclusive, in light of the record and the testimony as to the policy and practice of the trial court.
The newspaper account of Petitioner’s sentencing2 which quotes statements by the trial judge that Petitioner was mentally defective indicates Petitioner [369]*369may have had a defense to the charge. However, such statements do not prove Petitioner had a legally sufficient defense and had no counsel. While such statements do raise a question about the presence of an attorney, they also indicate the trial judge was informed about Petitioner’s case and that he carefully considered it.
It is the opinion of this Court that the record of the orders entered at the time Petitioner entered his plea and was sentenced, corroborated by the testimony as to the practice and policy of the trial court regarding the appointment of counsel for persons charged with serious offenses, weigh in favor of finding Petitioner was represented by counsel and was accorded due process and equal protection of the law.
In addition to the principal determination and discussion of this case is the fact that Petitioner did not make his initial inquiry as to the identity of his counsel until he wrote to the Clerk of the Courts of Cabell County to ask the name of his counsel in December, 1958. His second inquiry, to the State Auditor’s office, was not made until June, 1964. He did not petition this court originally until 1965, and that petition was dismissed. It is within the bounds of fairness to find that the motive for such a long delay in alleging a violation of his constitutional rights was to wait until positive proof of the existence of an attorney would be impossible to find. For this reason the actual records must be given verity in this case. Otherwise, unsupported suppositions would be controlling.
The fact that Petitioner was a juvenile at the time of the offense in 1937 does not make the proceedings in the Common Pleas Court improper. In 1937 rape was a capital offense (West Virginia Code, Chapter 61, Article 2, Section 15) and the juvenile court was without jurisdiction (West Virginia Code, Chapter 49, Article 5, Section 3). The Common Pleas Court was the proper court to try Petitioner.
For the reasons set out above, Petitioner’s claimed deprivations are determined not to raise or fairly suggest questions of constitutional proportions. An order will be entered denying relief and dismissing the petition.
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Cite This Page — Counsel Stack
287 F. Supp. 367, 1968 U.S. Dist. LEXIS 9492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clonch-v-boles-wvnd-1968.