Robert L. Hunt (Alias Donald Adams) v. State of Georgia, S. Lamont Smith, Warden, Georgia State Prison

445 F.2d 1228

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 18, 1971
• Docket: 29992_1
• Status: Published

Opinions

PER CURIAM:

Robert L. Hunt is serving a life sentence in a Georgia prison for the offense of robbery, for which, upon conviction, he might have been sentenced to death.¹ The Georgia State Courts, after a hearing, denied habeas corpus. On the basis of the state court record, the United States District Court likewise denied relief. We affirm.

The petition in the District Court alleged that although he requested it, Hunt “at no time had counsel” when he entered his plea of guilty and was sentenced, that he “never saw nor had any knowledge of Mr. John S. Warchak [counsel]”. For a second ground, it was alleged that Negroes had been systematically excluded from the grand jury which indicted him. There was no allegation whatever, aside from the lack of counsel, that Hunt’s plea had not been voluntarily entered.

We have before us an official transcript of the habeas corpus hearings held for Hunt in the Superior Court at Tattnall County, Georgia. At a hearing which began on May 7, 1969 the State announced its intention of using the deposition of Attorney John S. Warchak, who, it was said, represented Hunt when he entered his plea of guilty in Bibb Circuit Court. The petitioner, Hunt, complained that he had caused a subpoena to issue for the appearance of Mr. Warchak as his witness but that he had not heard from it. The Court explained to Hunt that since he had no funds to pay the travel expenses of his proposed witness to the scene of the hearing he could propound written questions by way of cross interrogatories. Hunt asked for a continuance for that purpose. This was granted but Hunt filed no questions for Warchak to answer.

On November 26, 1969, a new hearing began, with Hunt present. Hunt took the witness stand and testified that although he requested counsel in the trial court, “he did at no time have counsel”. He further testified that he had learned from hearsay that the grand jurors which returned the indictment against him lived in a “white area,” although he knew none of them nor their race. He was asked, “You deny that you had a lawyer at all”? He answered, “That’s right.”

The State introduced the deposition of Attorney Warchak, to which Hunt had not filed cross interrogatories. This lengthy and detailed deposition, if believed, leaves no doubt that this attorney actively, energetically, and efficiently, by court appointment, represented the petitioner with such competence and skill that Hunt avoided trial for the capital penalty, was allowed to enter a plea of guilty to one count of a two count indictment, and received a life sentence. Mr. Warchak stated that at the time Hunt was well pleased with this result.

In an unpublished memorandum opinion dated May 13, 1970, Judge Bootle found and held that there was “no doubt that applicant was adequately and capably represented at every step of the Bibb County proceedings”. He further held that the testimony of the petitioner was “insufficient to show any discrimination in the selection or composition of the grand jury”.

The finding as to representation is, as above set out, abundantly supported by the record. See Rule 52(a) Federal Rules of Civil Procedure and the numerous ha-beas corpus appeals decided under that Rule, such as Washington v. Smith, 5 Cir., 1969, 417 F.2d 301, which is squarely in point.

Since Hunt was represented by counsel and since there is no attack upon the otherwise voluntary character of his plea of guilty, the contentions with reference to the composition of the grand jury are squarely controlled by the decision of this Court in Colson v. Smith, 5 Cir., 1971, 438 F.2d 1075 [slip opinion dated January 21, 1971]. It was there stated, citing cases:

“At the outset we advert to the settled rule in this Circuit that a voluntary plea of guilty waives all non jurisdictional defects, including the right to challenge the construction of the grand jury.” ²

We note, also, the following language in that opinion:

“We subscribe fully to the principle that guilty pleas are meant to be, and should be, final.”

Nor do we have any doubt about the fairness of the hearing in the state court. Hunt was present. He was allowed a continuance at his own request, which he failed to utilize. At the hearing he quoted and cited federal and state court decisions with a facility rarely encountered from those not formally trained in the law. See Williams v. Smith, 5 Cir., 1970, 434 F.2d 592.

On the record now before us the petitioner has failed to demonstrate the denial of any right guaranteed by the United States Constitution. There is thus no justification for our interference with a plea of guilty entered in the state court.

The judgment of the District Court is Affirmed.

1 . The record indicates that the robbery, committed upon a female, was accompanied by severe personal harm.

2 . If consideration of tlie systematic exclusion argument were not foreclosed, we would have no hesitancy in holding that Hunt failed to make out a case on that point. See Swain v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, wherein it was held that purposeful discrimination may not be assumed or merely asserted but must be proven according to federal standards.