# Clyde Pannell v. W. K. Cunningham, Jr., Superintendent of the Virginia State Penitentiary

> Court of Appeals for the Fourth Circuit · April 28, 1962 · 302 F.2d 633

URL: https://www.frixlaw.com/law-library/cases/9448518

## Case

- **Full name:** Clyde PANNELL, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** April 28, 1962
- **Citations:** 302 F.2d 633; 1962 U.S. App. LEXIS 5243
- **Precedential status:** Published
- **Opinion:** Concurrence by Bryan
- **Judges:** Sobeloff, Boreman, Bryan
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448518

## Opinion text

ALBERT V. BRYAN, Circuit Judge
(concurring specially).
In my view the hearing of this case in the District Court need have gone no further than an examination of the petition to the District Court, the State court orders in the criminal case, the petition for habeas corpus in the Supreme Court of Appeals of Virginia and the petition for certiorari in the United States Supreme Court, all of which were pleaded by the petitioner.
The orders in the criminal case conclusively establish that the accused’s plea of guilty was not accepted by the trial judge until he had meticulously inquired as to the defendant’s understanding of it. Inquiry and explanation were addressed not only to his attorneys but personally to Pannell. The plea admitted the factual predicate to jurisdiction—that the offense occurred in Virginia. See Berg v. United States, 176 F.2d 122 (9 Cir. 1949); Knewel v. Egan, 268 U.S. 442, 446 , 45 S.Ct. 522 , 69 L.Ed. 1036 (1925). This is altogether different from the question of jurisdiction based on a pure question of law which Seymour v. Schneckloth, 368 U.S. 351, 353 , 82 S.Ct. 424 , 7 L.Ed.2d 346 (1962) held not waived by the plea.
In the petition in the District Court Pannell affirmatively asserts “the ability of his attorneys, as attorneys at law, is well known.” There is nothing to sustain petitioner’s concomitant allegations that these attorneys were ineffective in his behalf. The point he now makes with regard to the conflict of interest on the part of one of his attorneys, not so much as mentioned in the petition to the District Court, was not alleged in the Virginia Supreme Court of Appeals or United States Supreme Court. Therefore, since he had not exhausted State remedies on this head, the District Court was without power to entertain this question. 28 U.S.C. § 2254 .
The State orders show beyond contradiction that petitioner’s mental condition was the subject of cautious investigation by the State court before trial and that he was found competent and sound. This fully satisfied Federal requirements. Brown v. Allen, 344 U.S. 443, 458 , 73 S.Ct. 397 , 97 L.Ed. 469 (1953); United States ex rel. Smith v. Baldi, 344 U.S. 561, 568, 570 , 73 S.Ct. 391 , 97 L.Ed. 549 (1953). More basically still, the petition to the Virginia Supreme Court of Appeals expressly disavows reliance on this ground for relief. Thus it too has never been passed on in State habeas corpus, and was not properly before the Federal courts.
Time, effort and expense would have been saved if the hearing had concluded, as in law the issues were concluded, with the inspection of the State records. The very papers pleaded by the petitioner wholly refuted him. The disposition of the case on the basis of the State court record, whenever possible, is advisable. Brown v. Allen, supra, 344 U.S. at 463 , 464 n. 19, 73 S.Ct. 397 . The aim is to *636 avoid unnecessary visitation of the State courts. Id. at 447 , 451 n. 5, 73 S.Ct. 397 .
The action should be remanded with directions to the District Court to dismiss the petition as failing to state a ease for habeas corpus.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448518. Public record. Not legal advice.