Hess, Lester Clay, Jr.

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Volume 67 | Issue 3 Article 9April 1965Constitutional Law--The Widening Scope of StateHabeas Corpus ReliefLester Clay Hess Jr.West Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Constitutional Law CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationLester C. Hess Jr., Constitutional Law--The Widening Scope of State Habeas Corpus Relief, 67 W. Va. L. Rev. (1965).Available at: https://researchrepository.wvu.edu/wvlr/vol67/iss3/9WEST VIRGINIA LAW REVIEWConstitutional Law-The Widening Scope ofState Habeas Corpus ReliefD, an indigent, pleaded guilty to a charge of grand larceny inthe Circuit Court of Logan County. At no time during theproceeding did he have assistance of counsel, nor did the court inany manner inform him of his right to counsel. While confined tothe penitentiary, he filed with the West Virginia Supreme Court ofAppeals a petition for a writ of habeas corpus on the ground thathe was denied assistance of counsel. Held, writ granted. Theright of an accused to assistance of counsel is a fundamental right,essential to a fair trial. This safeguard, provided by the sixthamendment to the Constitution, is made obligatory upon the statesunder the due process clause of the fourteenth amendment. Waiverof this right must be made intelligently and understandingly. Itcannot be presumed from a failure to request counsel, a recordsilent as to a request for counsel, or the entry of a guilty plea.State ex. rel. May v. Boles, 139 S.E.2d 177 (W. Va. 1964).Prisoners and prosecutors alike have become vitally con-cerned with the possibility of a wider latitude of habeas corpusrelief now available in the Supreme Court of Appeals of WestVirginia. Although this post-conviction remedy is available on boththe state and federal levels, the federal writ has been significantlywider in scope. The petitioner, under the exhaustion doctrine, mustfirst seek relief in the state courts. In West Virginia habeas corpustraditionally has been the proper remedy when the judgment of theconvicting court is void, as when the court does not have juris-diction over the subject matter or the person. Habeas corpus reliefin the federal courts, on the other hand, has been extended to covercases in which, though the court had jurisdiction, the convictionoccurred in disregard of the constitutional rights of the accused.In 1950, the West Virginia court held that a proceeding may bereversed for either irregularity or illegality, but that only the latterdefect gave authority to discharge on habeas corpus. The courtpointed out that it would be irregular to sentence a person to im-prisonment in his absence, where the absence was occasioned by theorder of the court pronouncing the sentence. It would be illegal,the court stated, to sentence him to imprisonment for a crimepunishable by pecuniary fine only. Dye v. Skeen, 135 W. Va. 90,62 S.E.2d 681 (1950).[Vol. 671Hess: Constitutional Law--The Widening Scope of State Habeas Corpus RelPublished by The Research Repository @ WVU, 1965CASE COMMENTSBecause many state courts will grant habeas corpus only fordefects in the original trial and not for claims of unconstitutionalactions, the Supreme Court of the United States, in its review ofstate decisions, has had to determine whether the states are obligedto protect the federal rights guaranteed by the fourteenth amend-ment. While insisting that there is a constitutional duty on thestates to provide post-conviction remedies for all due processobjections, the Court has refrained from holding that a state courtmust entertain such post-conviction claims. Instead, it usuallyrecommends that petitioners seek relief by way of collateral federalremedies. Note, 53 COLUm. L. Rlv. 1143 (1953).In the principal case, however, the West Virginia Court expresslyrelied on the due process clause of the fourteenth amendment ingranting the petitioner a writ of habeas corpus. In so doing, thecourt held that its unanimous decision was controlled by the decisionin Gideon v. Wainwright, 372 U.S. 335 (1963). In that case theSupreme Court held that the due process clause requires thatcounsel be appointed to represent an indigent defendant in a stateprosecution. The rationale in Gideon-as well as in the West Vir-ginia case-is founded on the moving words of Mr. Justice Suther-land in Powell v. Alabama, 287 U.S. 45 (1932): "The right to beheard would be, in many cases, of little avail if it did not compre-hend the right to be heard by counsel." In deciding Gideon, theCourt expressly overruled Betts v. Brady, 316 U.S. 455 (1942),which stood for the somewhat ambiguous rule that the right tocounsel in state courts was not a "fundamental" right unless thedefendant for some reason could not prepare and present his owndefense. It is interesting to note that West Virginia was one oftwenty-two states which filed briefs as Friends of the Court,urging the overruling of Betts v. Brady, supra, 65 W. VA. L. Rv.297 (1963).The instant case, however, does not fall completely within theambit of Gideon. Both defendants were indigents, but Gideon askedthe court for counsel and May did not. Further, the West VirginiaConstitution, unlike the Florida Constitution, provides that "In allsuch trials [crimes and misdemeanors], the accused... shall havethe assistance of counsel. .. ." W. VA. CONST. art. III, § 14. In hold-ing that the right to counsel is absolute, the Court in Gideon does notsay that every criminal conviction is void because the accused hasnot been represented by counsel. To the contrary, it has been con-1965]2West Virginia Law Review, Vol. 67, Iss. 3 [1965], Art. 9https://researchrepository.wvu.edu/wvlr/vol67/iss3/9WEST VIRGINIA LAW REVIEWsistently held that the right to counsel may be waived. A waiver ofthis right in West Virginia, as in federal jurisdictions, has to bemade intelligently and understandingly. Prior to the May case,however, the general rule was that waiver of this right waspresumed by failure of an accused to request counsel, by his entryof a guilty plea or by reason of a record silent on the matter ofcounsel. Wade v. Skeen, 140 W. Va. 565, 85 S.E.2d 845 (1955);State v. Briggs, 58 W. Va. 291, 52 S.E. 218 (1905); State v. Kellison,56 W. Va. 690, 47 S.E. 166 (1904).The petitioner in the instant case, without the assistance ofcounsel, entered a plea of guilty. The court records were silenton the matter of counsel. Relying on Carnley v. Cochran, 369 U.S.506 (1962), the court held that the due process clause will notpermit a presumption of waiver under such circumstances. Thecourt in the principal case did not mention Fay v. Nola, 372 U.S.391 (1963), where the Supreme Court decided that federal habeascorpus relief was not to be denied on grounds that a federal con-stitutional right had not been demanded and preserved in priorstate proceedings. Under the rule in Fay v. Noia, supra, only aknowing and intentional waiver in the state court of a federal con-stitional right would bar raising this right in a federal habeascorpus proceeding. The Fay case pertained to constitutional rightsgenerally, Carnley to right to counsel specifically.Fay was relied on in State ex. rel. Banach v. Boles, 131 S.E.2d722 (W. Va. 1963), which apparently marked the first time theWest Virginia court awarded habeas corpus relief on the basisof the due process clause of the fourteenth amendment. In thiscase, the petitioner had been denied his constitutional right toa free transcript. Time for appeal had expired but the court,expressly relying on the Fay case, held that the failure to appealdid not exhaust state remedies still open to the petitioner at thetime he filed his application for habeas corpus in the federal court.The principal case establishes that the right to counsel in statecriminal proceedings is a right which will not be presumed to bewaived by a silent record or a guilty plea. What is to be the directeffect of the May case and its four companion cases in WestVirginia? In a "two or three month" period immediately precedingthe May decision, eighty-eight petitions for habeas corpus reliefbased on the rule in the Gideon case were mailed to the West Vir-ginia Supreme Court. Charleston Gazette-Mail, Dec. 20, 1964,[Vol. 673Hess: Constitutional Law--The Widening Scope of State Habeas Corpus RelPublished by The Research Repository @ WVU, 1965CASE COMMENTSp. ID, col. 3. Whether the May decision will trigger an even greaternumber of petitions remains to be seen. Further, prosecutorsattempting to convict writ holders subjected to retrial will un-doubtedly find it difficult to ferret out evidence and witnessesused perhaps scores of years ago to obtain the prior conviction.The current practice appears to rely heavily on affadavits obtainedfrom persons involved in the prior proceedings in cases where therecord is silent as to the matter of counsel.The problems raised in West Virginia by the direct effect of Mayand related cases are only overshadowed in import by the possibleindirect effect of these landmark decisions. Are the May andBanach cases opening wedges which will broaden the relief avail-able under state habeas corpus to situations other than denial ofcounsel and the right to a free transcript? Ultimately the questionbecomes whether state habeas corpus should be expanded to permitany issue which could be raised in federal habeas corpus pro-ceedings. And, as a corollary, should it cover denial of state con-stitutional rights which extend beyond or are not covered by federalconstitutional rights?The Supreme Court of the United States held in 1961 that evi-dence obtained through illegal search and seizure is not admissiblein state courts because of the due process clause of the fourteenthamendment. Mapp v. Ohio, 367 U.S. 643 (1961). However, theeffect of Mapp in West Virginia remains to be determined eventhough the state constitution already prohibits unreasonable search-es and seizures. W. VA. CONST. art. III, § 6. The West Virginiacourt has held that since this provision is substantially the same aspertinent provisions of the federal constitution, it should be givena construction in harmony with construction of the general pro-visions in the federal constitution. State v. Brunet, 143 W. Va. 755,105 S.E.2d 140 (1958). Moreover, the Supreme Court of theUnited States has ruled that the states are bound by the federaldoctrine of "reasonableness" in regard to searches and seizures.Ker v. California, 374 U.S. 23 (1963). Thus, if the standard ofreasonableness in West Virginia fails to meet the federal standard,this gap conceivably could be a constitutional ground for habeascorpus relief. One commentator notes, however, that the Gideondecision creates a greater susceptibility to post-conviction collateralattack than the Mapp decision because in right-to-counsel caseswaiver of the right will not be presumed by a silent record; while196514West Virginia Law Review, Vol. 67, Iss. 3 [1965], Art. 9https://researchrepository.wvu.edu/wvlr/vol67/iss3/9WEST VIRGINIA LAW REVIEWin cases involving the exclusion of unlawfully obtained evidence,some indication of an unreasonable search and seizure must bepresent in the record. Note, 18 Sw. L. J. 284, 290 (1964).Although state habeas corpus may someday be applied on thebasis of the exclusionary rule as set out in Mapp, perhaps a morelikely avenue of approach for prisoners seeking state habeas corpusrelief lies in the federal constitutional requirements regardingconfessions. In Jackson v. Denno, 378 U.S. 368 (1964), the SupremeCourt held that state hearings on the voluntariness of a confessionmay be conducted by the trial judge, another judge, or an inde-pendently convened jury, but not by the trial jury. The Courtstated that permitting a jury to determine both voluntariness andguilt is unfair and unreliable, thus depriving the accused of hisrights without due process of law.The practice in West Virginia, when an objection to a confessionis interposed, is to hold a preliminary hearing out of the presenceof the jury at which the trial judge fully determines the coercionissue. This procedure was attacked by the United States SupremeCourt in Boles v. Stevenson, 85 Sup. Ct. 174 (1964). The Courtheld that such procedure was a denial of due process in that it wasnot fully adequate to insure a reliable determination of the volun-tariness of the confession, since the record failed to show if thetrial judge decided whether the confession was involuntary, or, ifvoluntary, what standards he used. The prisoner was to be affordedeither a hearing on the voluntariness or a new trial; in the event ofneither, he should be released. Whether the May rule will beextended to cover these federal constitutional safeguards in a statehabeas corpus proceeding remains to be seen, even though theystem from the familiar due process clause.The voluntariness standard now appears to be so sensitive thatpolice refusal of any reasonable request constitutes coercion. InEscobedo v. Illinois, 84 Sup. Ct. 1758 (1964), the defendant, duringa police investigation before he was formally indicted, was denieda request to consult with his attorney. Mr. Justice Goldberg, ex-pressing the view of five members of the Court, stated that theinvestigation had focused on the accused as a suspect and had lostthe quality of a general investigation. Hence, the refusal to honorthe accused's request constituted a denial of his right to theassistance of counsel under the sixth and fourteenth amendments.[Vol. 675Hess: Constitutional Law--The Widening Scope of State Habeas Corpus RelPublished by The Research Repository @ WVU, 1965CASE COMMENTSMr. Justice Stewart dissented on the grounds that the right toassistance of counsel should not attach until the formal institutionof proceedings by indictment, information or arraignment. Hereasoned that the majority's holding could have an unfortunateimpact on the fair administration of criminal justice. It may beargued that if the requirement to provide counsel is extended tothe moment of detention, extra-judicial confessions might cate-gorically be held inadmissible. Note, 63 Miclr. L. RBv. 381 (1964).The West Virginia court has awarded habeas corpus relief onthe basis of two federal constitutional grounds-the right to counseland the right to a free transcript. This provided a significantbroadening of the rather limited reach of the traditional state habeascorpus remedy. There appears to be nothing to prevent the courtfrom awarding state habeas corpus relief on the basis of a violationof constitutional rights laid out in the Jackson, Stevenson andEscobedo cases. If May and Banach actually represent a crackin the door, as they appear to, state habeas corpus relief conceivablycould be opened to all constitutional objections which may nowbe advanced in federal courts.Lester Clay Hess, Jr.Criminal Law-Confessions Before ArraignmentPetitioner, a state prisoner, sought habeas corpus relief in thefederal court. Petitioner claimed that his state court convictionviolated his constitutional rights because it was based on aninadmissible confession. The confession was obtained after he hadbeen arrested without a warrant and questioned about a fire whichhad resulted in a death. No formal charges were lodged againstpetitioner until after the confession had been signed. The writ ofhabeas corpus was denied and petitioner appealed. Held, affirmed.The use of a confession freely given does not deny due process,even though the confession was obtained during a period of un-lawful detention. The test is whether the confession was voluntaryor coerced. Allen v. Bannan, 332 F.2d 399 (6th Cir. 1964).State concern with admissibility of evidence obtained betweenarrest and arraignment has become more intense since the estab-lishment of the McNabb-Mallory rule in the federal courts. Thisrule excludes from federal prosecutions all incriminating statements1965]6West Virginia Law Review, Vol. 67, Iss. 3 [1965], Art. 9https://researchrepository.wvu.edu/wvlr/vol67/iss3/9

Constitutional Law--The Widening Scope of State Habeas Corpus Relief

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Constitutional Law--The Widening Scope of State Habeas Corpus Relief

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