Floyd v. Superintendent, Virginia State Penitentiary

383 F. Supp. 1103, 1974 U.S. Dist. LEXIS 6206
CourtDistrict Court, W.D. Virginia
DecidedOctober 21, 1974
DocketCiv. A. No. 74-C-4-H
StatusPublished

This text of 383 F. Supp. 1103 (Floyd v. Superintendent, Virginia State Penitentiary) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Floyd v. Superintendent, Virginia State Penitentiary, 383 F. Supp. 1103, 1974 U.S. Dist. LEXIS 6206 (W.D. Va. 1974).

Opinion

OPINION AND JUDGMENT

DALTON, District Judge.

Louis Ellis Floyd, petitioner, has filed for a writ of habeas corpus challenging his detention pursuant to a judgment entered April 5, 1972 by the Page County Circuit Court. He was convicted in that court of unlawful wounding and sentenced to a term of five years in the Virginia State Penitentiary. He appealed his conviction to the Virginia Supreme Court, which by order dated October 6, 1972 refused his writ of error. Petitioner then filed for a writ of habeas corpus in the Page County Circuit Court, which by order dated July 27, 1973 denied and dismissed his petition without a hearing. This order was appealed to the Virginia Supreme Court which refused his writ by order dated August 27,1973.

Petitioner now attacks his detention on the following grounds:

(1) Denial of court-appointed counsel-to assist him in the preparation and prosecution of his petition for a writ of habeas corpus in the state court and of his appeal from the denial of his petition to the Virginia Supreme Court.
(2) Denial of “effective assistance of counsel, both at trial and on appeal, in that appointed counsel repeatedly, but unsuccessfully sought to withdraw from the case, that minimal efforts to locate a key witness were not made, that the key witness was not even interviewed by counsel, that effective representation of this client was not made as evidenced by inadequate advocacy, and that the counsel displayed prejudice against or disinterest in his client by repeatedly referring to him as ‘this person.’ ”
(3) Denial of a fair trial by the absence of a non-party eyewitness.
(4) Denial of fair trial by improperly admitted evidence, including expert testimony regarding ballistics elicited from laymen.
(5) Denial of fair trial in that the transcript of trial failed to record parts of the trial due to a malfunction in the transcribing equipment. Petitioner contends that this incomplete transcript denied him his right to appeal.
(6) Denial of fair trial because of the judge’s instruction to the jury urging them to agree upon a verdict.

Jurisdiction vests in this court pursuant to 28 U.S.C. § 2254(a).

Petitioner has previously raised allegations (2) through (6) in his state habeas corpus petition and has therefore exhausted his available state remedies as required by 28 U.S.C. § 2254(b). The propriety of considering petitioner’s first allegation is discussed below.

I

Petitioner’s first allegation is that he was denied the assistance of counsel in the preparation and prosecution of his petition for a writ of habeas corpus filed in the state circuit court and on appeal to the Virginia Supreme Court. Petitioner has never presented this question to the state courts. Yet, because this contention does not attack petitioner’s custody, there is a serious question whether this type of claim is [1105]*1105cognizable in a writ for habeas corpus. However, this court need not resolve these questions as it is well settled that because the proceeding is a civil one a person has no constitutional right to court-appointed counsel in a habeas corpus proceeding, either in the trial court or in an appellate court. Anderson v. Heinze, 258 F.2d 479 (9th Cir. 1958). This court wishes to note, however, that after petitioner had filed his petition in this court, this court appointed counsel to assist him in the prosecution of his writ.

II

Petitioner next asserts that he was denied effective assistance of counsel at his state court trial. Denial of the constitutional right to assistance of counsel occurs “only in those extreme circumstances where the representation is so transparently inadequate as to make a farce of the trial.” Root v. Cunningham, 344 F.2d 1, 3 (4th Cir. 1965). This court has examined the trial transcript and is satisfied that the performance of petitioner’s counsel at trial was that of a reasonably competent attorney and was not so inadequate as to constitute a constitutional violation. Petitioner’s counsel moved for the reduction of bail, conducted extensive cross-examination of the Commonwealth’s witnesses, examined petitioner on the witness stand, called for other defense witnesses, and presented five instructions, all of which were granted by the trial judge. Petitioner emphasizes the fact that an eye-witness was not called to testify by defense counsel. The record indicates, however, that this witness had given a sworn statement prior to trial very damaging to petitioner. (Tr. 147-148) Defense counsel therefore justifiably concluded after discussion with petitioner that petitioner’s best interests would be served by not calling this witness.1 In any event, judgment of counsel and questions regarding the propriety of trial tactics do not constitute ineffective counsel. Brewer v. Peyton, 302 F.Supp. 740 (W.D.Va.1969).

III

In addition to defense counsel’s failure to call an eyewitness, petitioner alleges that he was denied a fair trial due to improperly admitted evidence. In response to this contention, this court quotes the language of Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir. 1960):

Even if we were to disagree [with the state court’s resolution of the issues raised], we could not intervene by habeas corpus, when the alleged errors are of a character that cannot reasonably be said to involve a deprivation of constitutional rights. Normally, the admissibility of evidence, the sufficiency of evidence, and instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. The role of a federal habeas corpus petition is not to serve as an additional appeal.

Accord, Kearney v. Peyton, 360 F.2d 589 (4th Cir. 1966); Faust v. North Carolina, 307 F.2d 869 (4th Cir. 1962); Clark v. Peyton, 280 F.Supp. 205 (W.D.Va. 1968). Examination of the record clear[1106]*1106ly indicates that petitioner’s trial did not impugn fundamental fairness.

IV

Petitioner’s fifth allegation concerns the incompleteness of the trial transcript due to the malfunctioning of the recording device used at trial. Part of the testimony of the victim, Hubert Jefferies Burrell, on direct examination (Tr. 16) and the Allen-type charge to the jury was not recorded. Defense and Commonwealth counsel stipulated however to the content of the judge’s instruction.2

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Related

Draper v. Washington
372 U.S. 487 (Supreme Court, 1963)
Mellott Faust v. State of North Carolina
307 F.2d 869 (Fourth Circuit, 1962)
United States v. Donald Davis
481 F.2d 425 (Fourth Circuit, 1973)
United States v. Ersel Stollings
501 F.2d 954 (Fourth Circuit, 1974)
Clark v. Peyton
280 F. Supp. 205 (W.D. Virginia, 1968)
Brewer v. Peyton
302 F. Supp. 740 (W.D. Virginia, 1969)

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Bluebook (online)
383 F. Supp. 1103, 1974 U.S. Dist. LEXIS 6206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floyd-v-superintendent-virginia-state-penitentiary-vawd-1974.