Appendix — Bordenkircher v. Hayes
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JUL 18 1977
APPENDIX '
MICHAEL RODAK, JR., CLERK
SUPREME COURT OF THE UNITED STATES
October Term, 1976
No. 76-1334
DONALD BORDENKIRCHER, Superintendent
Kentucky State Penitentiary
Petitioner
PAUL LEWIS HAYES
Respondent
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
eee
PETITION FOR CERTIORARI FILED MARCH 28, 1977
CERTIORARI GRANTED JUNE 6, 1977
SUPREME COURT OF THE UNITED STATES
October Term, 1975
NO. 76-1334
DONALD BORDENKIRCHER, SUPERINTENDENT
KENTUCKY STATE PENITENTIARY
Petitioner
-V..
PAUL LEWIS HAYES
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
INDEX
Page
Relevant Docket Entries -.........----.------- 1,2
United States District Court for
Eastern District of Kentucky ---......--..-~--- 1,2
United States Court of Appeals for
SP EE GED eecceececerecccccocccccece 3, 4
ii
INDEX (Continued)
Page
Index to Transcript of Record in
Fayette Circuit Court _._____- a
Transcript of Record,
gk SEES Ee nese 7-36
Transcript of Evidence,
Fayette Circuit Court a
Memorandum Opinion of Court of Appeals of
Kentucky, Affirming (March 1, 1974) _.._____ 53-57
Petition for Writ of Habeas Corpus in United
States District Court for Eastern District
of Kentucky (June 11, 1975) _.._._.______ __58-62
Memorandum in Support of Petition for Writ of
Habeas Corpus, U.S. District Court for
Eastern District of Kentucky _........________ 63-69
Magistrate’s Report and Recommendation
i | § ate arse
Order of U.S. Magistrate granting petitioner
leave to proceed in forma pauperis and the
tendered petition for writ of habeas corpus
be filed (June 11, 1975) _..._..__............ %
INDEX (Continued)
Page
Order by U.S. District Court confirming and
adopting Magistrate’s Report and Recommenda-
tion; denying petitioner's Petition for Writ of
Habeas Corpus; Dismissing cause
(September 9, 1975) __- -- tA OEE,
Petitioner's Notice of Appeal from Order of US.
District Court (October 9, 1975) -....-.-------- 76
Petitioner's Application for Certificate of
Probable Cause (October 9, 1975) - — ~~ 5
Order by U.S. District Court denying appeal
and declining to issue Certificate of Probable
Cause December 19, 1975) _......-.. 79-81
Order by U.S. Court of Appeals for the Sixth
Circuit granting Petitioner’s application for
Certificate of Probable Cause (March 15, 1976) .. 82
Order by U.S. Court of Appeals for the Sixth
Circuit Reversing Dismissal of
Petition (December 30, 1976) _._.._ _.__-._. 83-69
Motion for Stay of Mandate (January 25, 1977) __ 90, 91
Order Staying Mandate (February 2, 1977) ..... 92
RELEVANT DOCKET ENTRIES
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF KENTUCKY
Proceedings
Date
1975
6-11 Order filed and entered; Petitioner granted leave
to proceed in forma pauperis; Petition for Writ of
Habeas Corpus heretofore tendered ordered filed.
Copies as noted.
6-11 Petition for Writ of Habeas Corpus with affidavit
in support thereof filed. (Copies of record on file
with Court of Appeals of Kentucky )
6-11 Magistrate’s Report and Recommendation filed.
Copies as noted.
9 9 Order filed and entered; Magistrate’s Report and
Recommendation heretofore filed be and the
same is adopted, confirmed, approved, allowed and
established as and for the Court’s Findings of Fact
and Conclusions of Law; Petitioner’s Petition for
Writ of Habeas Corpus be and the same is denied;
Cause is hereby dismissed. Copies as noted with
notice of entry given.
10- 9
12-19
2
Petitioner’s Notice of Appeal filed with Application
for Certificate of Probable Cause.
Order filed and entered: Court specifically finds
that the appeal sought herein is frivolous, is not
taken in good faith, and does not present a sub-
Stantial question, and is denied and the Court de-
clines to issue a Certificate of Probable Cause.
Copies as noted.
3
GENERAL DOCKET
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CASE NO. 76-1409
DATE
1976
3-15
47
5-17
5-17
6-14
6-14
10-26
11-18
12-20
12-30
12-30
FILING—PROCEEDINGS
Order granting certificate of probable cause.
Certified Record filed; cause docketed
Brief for Petitioner-Appellant
Proof of Service for Brief for Petitioner-Appellant
Brief for Respondent-Appellee
Proof of Service for Brief for Respondent-Appellee
Notice for oral argument
Cause argued and submitted (Before: Peck,
McCree and Lively, JJ.)
Motion for leave to file supplemental citation of
authority.
Dismissal of petition reversed and case remanded
with instructions to order petitioner’s discharge
except for his confinement under a lawful sentence
imposed solely for the crime of uttering a forged
instrument
Opinion by McCree, J.
1977
1-25
2- 2
3- 1
3- 1
3-25
3-29
4
GENERAL DOCKET
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Motion for stay of mandate
Order staying mandate thirty days
Motion for extension of time for stay of mandate
Opposition to Appellee’s motion for extension of
time for stay of mandate
Notice of filing petition for writ of certiorari
Certified copy of order of Supreme Court granting
certiorari on 3-28-77
5
FAYETTE CIRCUIT COURT
THE COMMONWEALTH OF KENTUCKY
Plaintiff
vs: INDEX No. 73-C-26
and 73-C-29
PAUL LEWIS HAYES
Defendant
Pages
PUES <ccc: cacceee sencccucsesesentenesses ©
La 2
Order: Assigning for pre-trial conference ......_.._ 3
ND concn cscoccocccosece: sentence ©
i Ss, 5
Order: Assigning for pretrial conference .....-._ 6
Pre-trial Order -_.- aia ee
Order: Continuing one dara ineaiciiaiaiiae | al
Order: Assigning for trial .....----.-.----------- 9
Order of attendance of Larry Wayne Frazier __.... 10
6 7
Pages STATE OF KENTUCKY
Trial, Verdict and Judgment: Sanimoty Fayette Circuit Court
SO GRMT GRE ---------------anncnan-n---ecnne Uf THE COMMONWEALTH OF KENTUCKY PLAINTIFF
Instructions to the Jury .. -..-.-..______------ 13 VS. TRANSCRIPT OF RECORD No. 73-C-26
. and 73-C-29
Order: Defendant is guilty and shall be confined in
the State Penitentiary for and during the PAUL LEWIS HAYES. _ . DEFENDANT
period of the remainder of his natural life ___—s-: 116
Notice of Appeal of defendant ale ae 18 fall ltl
Order: Assigning for hearing on bail pending a 19
sning 8 - 8 appeal Proceedings of the Fayette Circuit Court (Twenty-
Second Judicial District ) of Kentucky in the Circuit Court
Room of the Fayette County Court House in the City
Order: Extending time for filing record on appeal __ 21 of Lexington.
Honorable James Park, Jr. sitting as Circuit Judge,
of Division No. 1.
Order: Bail set at $10,000.00 a a
Motion of defendant to suspend further execution
of sentence cal a
Be it remembered that heretofore, to-wit:
Memorandum in Support of foregoing motion ______ 23
On the 8th day of January, 1973, the Grand Jury of
Order: Overruling defendant’s motion to suspend Fayette County returned into Court an indictment against
further execution of sentence <akeiieienie ae Paul Lewis Hayes and Larry Wayne Frazier, endorsed
in words and figures as follows, to-wit:
Order: Allowing defendant to prosecute appeal
without prepayment of fees and costs ______ 25
erk’s Certificate ..................-.......... @& a
THE COMMONWEALTH OF KENTUCKY
Fayette Circuit Court
DIVISION NO. 1
JANUARY 8, 1973
JAN. TERM, 1973
Indictment No. 373s
73-C-26
THE COMMONWEALTH OF
KENTUCKY Indictment for: Uttering
VS.
PAUL LEWIS HAYES KRS 434.130
LARRY WAYNE FRAZIER |
The Grand Jury charges:
On or about the 20th day of November, 1972. in
Fayette County, Kentucky, the above named defendants
uttered a forged instrument, a check drawn on the ac-
count of Brown Machine Works in the amount of $88.30.
against the peace and dignity of the Commonwealth of
Kentucky.
9
FAYETTE CIRCUIT COURT
.iRST DIVISION
January 19, 1973
COMMONWEALTH OF KENTUCKY, . PLAINTIFF
VS: INDICTMENT NO. Sse
(ARRAIGNMENT) 73-C-26
PAUL LEWIS HAYES DEFENDANT
* * ? o o
The Commonwealth came by Attorney; defendant
appeared and being represented by counsel, Hon. A.
Norrie Wake; and defendant, with advice of counsel,
waived formal arraignment and entered a plea of NOT
guilty to the indictment.
It is ordered by the Court that this cause be as-
signed a pre-trial conference on Wednesday, January 24,
1973 at 9:30 a.m.
/s’ James Park, Jr.
——— ed
Judge, Fayette Circuit Court
10
FAYETTE CIRCUIT COURT
DIVISION 1
COMMONWEALTH OF KENTUCKY -._ PLAINTIFF
V8: PRE-TRIAL ORDER INDICTMENT
NO. S738
73-C-28
PAUL LEWIS HAYES .. .......... DEFENDANT
e t t « e
This matter having been assigned for a pre-trial
conference; the attorneys having indicated to the Court
that the pre-trial conference was held on January 24,
1973; and the Court being sufficiently advised,
IT IS HEREBY ORDERED, as checked below:
The Defendant’s motion is assigned for hearing be-
fore the Court at _.._._.. A.M./P.M. on
the day of . , 197—.
This matter is assigned for trial by jury at 9:00 A.M.
on Wednesday, the 14th day of February, 1973.
The Defendant’s Petition to Enter Plea of Guilty
is assigned for hearing before the Court at
A.M./P.M. on. _-___ _, the ______ day of
197—.
This matter is set for a further pre-trial conference
at 3:30 P.M. on Friday, January 26th, 1973. Anthony
11
Todd is substituted as attorney of record in place
of A. Norrie Wake.
/s James Park, Jr.
JUDGE
TO BE ENTERED:
SERVICE AND NOTICE OF ENTRY WAIVED:
/s/ Glen S. Bagby
Attorney For Commonwealth
ATTORNEY(S) FOR DEFENDANT(S):
/s/ A. Norrie Wake
A. Norrie Wake
/s/ Anthony Todd
Anthony Todd
12
THE COMMONWEALTH OF KENTUCKY
Fayette Circuit Court
DIVISION NO. 2
JANUARY 29, 1973
January Term, 1975
NO. 73-C-28
THE COMMONWEALTH OF COUNT NO. 1:
KENTUCKY Indictment for: Uttering
a Forged Instrument
VS. KRS 434.130
PAUL LEWIS HAYES COUNT NO. 2
Indictment for - Habitual
Criminal KRS 431.190
The Grand Jury charges:
COUNT NO. 1:
On or about the 20th day of November, 1972. in
Fayette County, Kentucky. the above named defendant
uttered a forged instrument. a check, drawn on the ac-
count of Brown Machine Works against the peace and
dignity of the Commonwealth of Kentucky.
COUNT NO. 2:
Prior to the commission of the offense set forth in -
Count No. 1 above, the defendant committed and was
convicted of the following felonies:
(1) Detaining a Female Against Her Will For the
Purpose of Having Carnal Knowledge of Her;
13
committed on July 19, 1961; convicted by the
Fayette Circuit Court on April 26, 1962 and
sentenced to seven years in the penetentiary
(sic); and
(2) Robbery; committed on January 2, 1970; con
victed by the Fayette Circuit Court on January
18, 1971 and sentenced to five years in the
penetentiary (sic)
against the peace and dignity of the Commonwealth of
Kentucky.
A TRUE BILL
7 3.
14
FAYETTE CIRCUIT COURT
FIRST DIVISION
February 2, 1973
COMMONWEALTH OF KENTUCKY, .. PLAINTIFF
VS: INDICTMENT NO. 73-C-28
(ARRAIGNMENT)
PAUL LEWIS HAYES __ DEFENDANT
e * « * .
The Commonwealth came by Attorney; defendant
appeared and being represented by counsel, Hon. An-
thony Todd; and defendant, with advice of counsel,
waived formal arraignment and entered a plea of NOT
guilty to Ct. 1 of this indictment, and upon formal ar-
raignment to Ct. 2 of this indictment, entered a plea of
NOT guilty.
It is ordered by the Court that this cause be assigned
a pre-trial conference this day and a trial date of Feb
ruary 14, 1973.
/s/ James Park, Jr.
Judge, Fayette Circuit Court
15
FAYETTE CIRCUIT COURT
DIVISION 1
FEBRUARY 2, 1973
COMMONWEALTH OF KENTUCKY PLAINTIFF
VS: PRE-TRIAL ORDER INDICTMENT
NO. 73-C-29
PAUL LEWIS HAYES _. DEFENDANT
. * * . *
This matter having been assigned for a pre-trial
conference; the attorneys having indicated to the Court
that the pre-trial conference was held on February 2nd,
1973: and the Court being sufficiently advised,
IT IS HEREBY ORDERED, as checked below:
The Defendant's motion is assigned for hearing be-
fore the Court at ___. A.M./P.M. on
the _____ day of ~~ =
This matter is assigned for trial by jury at 9:00
A.M. on Wednesday. the 14th day of February,
1873.
The Defendant's Petition to Enter Plea of Guilty is
assigned for hearing before the Court at
A.M./P.M. on the
, 197.
day of
16
/s/ James Park, Jr.
JUDGE
TO BE ENTERED:
SERVICE AND NOTICE OF ENTRY WAIVED.
/s, Glen S. Bagby
ATTORNEY FOR COMMONWEALTH
/s/ WA. Todd
ATTORNEY(S) FOR DEFENDANT(S):
17
FAYETTE CIRCUIT COURT
FIRST DIVISION
February 14, 1973
THE COMMONWEALTH OF ORDER; Continued
KENTUCKY, | Plaintiff |Indictment No. 73-C-29
& 73-C-26
Charge: Ct. 1-Uttering a
PAUL LEWIS HAYES, Forged Instrument; Ce
Defendant | 2-Habitual Crim.
It is ORDERED by the COURT that the above styled
case be continued until further ordered by the Court,
due to the defense attorney’s illness.
/s/ James Park, Jr.
Judge, Fayette Circuit Court
18
FAYETTE CIRCUIT COURT
Criminal Branch
FIRST DIVISION
March 28, 1973
COMMONWEALTH OF KENTUCKY PLAINTIFF
VS: ORDER NO. 73-C-29
ASSIGNING FOR TRIAL
PAUL HAYES DEFENDANT
Upon Motion of the Commonwealth and the Court
being advised,
IT IS HEREBY ORDERED AND ADJUDGED that
the above styled cause will come on for trial on April
19, 1973 in the Fayette County Court House.
Dated this 28th day of March, 1973.
/s/ James Park, Jr.
Judge
19
March 28 1973
FAYETTE CIRCUIT COURT
CRIMINAL BRANCH
Division No. 1
COMMONWEALTH OF KENTUCKY Plaintiff
vs. ORDER OF ATTENDANCE No. 73-C-29
PAUL LEWIS HAYES Defendant
7 * * 7 7
Upon motion of Attorney for the Commonwealth to
the effect that the personal atiendance of LARRY
WAYNE FRAZIER at the trial of the above action on
APRIL 19, 1973, at 9:00 A M. in the Courtroom on the 3rd
floor of the Fayette County Courthouse, is necessary, and
the Court being advised, it is hereby;
ORDERED that LARRY WAYNE FRAZIER now con-
fined in KENTUCKY STATE REFORMATORY in LA
GRANGE, Kentucky, personally appear in this Court on
APRIL 19, 1973 at 9:00 A.M., in the Circuit Courtroom,
3rd floor, Fayette County Courthouse, at Lexington, Ken-
tucky for the trial of the above styled action and not to
depart without leave of Court »»d 't is FURTHER OR-
DERED that the appropriate officers having custody of
said defendant make the necessary provisions to super-
vise in transit the custody of said defendant and to pro-
duce said defendant in this Court at the time above stated.
If for any reason the presence of said defendant is nec-
20
essary for longer than one day, the officer having custody
of him may deliver him to the Fayette County Jailer, who
is directed to keep him in the custody of the Fayette
County Jail until his presence has been excused, where-
upon said defendant shall be returned to LA GRANGE,
Kentucky by the SHERIFF of Fayette County.
/s/ James Park, Jr.
Judge, Fayette Circuit Court
21
FAYETTE CIRCUIT COURT
FIRST DIVISION
April 19, 1973
COMMONWEALTH OF KENTUCKY TRIAL, VERDICT &
Plaintiff JUDGMENT
vs. Indictment No. 73-C-29
Charge: Ct. 1—Uttering a
PAUL LEWIS HAYES, Defendant Forged Instrument
” a 7 * *
This 19 day of April, 1973, the defendant, PAUL
LEWIS HAYES having appeared in open court with his
attorney Hon. Anthony Todd, and the Commonwealth
came by Attorney, Hon. Glen 5S. Bagby
Thereupon came the following jury, to-wit:
Cnarles E. Elkins, Esther ». Carrea, Elsie Noel, Kenneth
W. Roberts, Nancy Rust, Carrie B. Jackson, Melvin Cobb,
Mary Lee Davis, Shirley Driver, William K. Clark, James
E. Gay, Ola Jean Bottom who were duly empaneled and
sworn to hear the case.
Mrs. Peggy Hood, the Official Stenographic Reporter
of this Court was directed to record the testimony and
proceedings of this trial.
Motions and rulings made during the trial are as
shown in the official transcript
The trial progressed and being concluded the jury
retired and returned into Court the following verdict,
viz:- -
22
“We, the jury, find the defendant guilty as charged
in the indictment.
Charles Elkins, Foreman”
By agreement of all parties the jury was allowed to
separate under admonition of the Court until Monday,
April 23, 1973 at 9:00, to complete further hearing of the
case.
/s/ James Park, Jr.
-_ ——— -
ee
Judge, Fayette Circuit Court
23
COMMONWEALTH OF KENTU
- INSTRUCTIONS TO THE
JURY
PAUL LEWIS HAYES
l. If the jury shail believe from all the evidence
beyond a reasonabie douot that:
(a) On April 26, 1962, ine detendant, raul Lewis
Hayes, was convicted in the Fayette Circuit Court of the
crime of detaining a female against her wili fer the pur-
pose of having carnal knowledge of her, a felony; and
that
(b) on January 18, 1971, the defendant, Poul Lewis
Hayes, was convicted in the Fayette Circuit Court of the
crime of robbery, a felony, and that said crime of robbery
was committed after April 26, 1962; and that
(c) the offense of uttering a forged instrument for
which you have found the defendant guilty in this case
was committed after January 18, 1971, then you shall fix
the defendant's punishment at imprisonment in the pen-
itentiary during his Life.
2. If the jury shail have a reasonable doubt from all
the evidence that the defendant, Paul Lewis Hayes, was
convicted in the Fayette Circuit Court on April 26, 1962,
of the crime of detaining a female against her will for the
purpose of having carnal knowledge of her, but if the jury
shall believe from all the evidence beyond a reasonable
doubt that the defendant, Paul Lewis Hayes, was convict-
ed in the Fayette Circuit Court on January 18, 1971, of
the crime of robbery and that he received a sentence of
five (5) years for such offense, and that the offense of
uttering a forged instrument for which you have found
24
the defendant guilty in this case was committed after
January 18, 1971, then you shall fix the defendant's
punishment at confinement in the state penitentiary for
a period of ten (10) years.
3. If the jury shall have a reasonable doubt from all
the evidence that the defendant, Paul Lewis Hayes, was
convicted in the Fayette Circuit Court on January 18,
1971, of the crime of robbery, but if the jury shall believe
from the evidence beyond a reasonable doubt that the de-
fendant, Paul Lewis Hayes, was convicted in the Fayette
Circuit Court on April 26, 1962, of the crime of detaining
a female against her will for the purpose of having carnal
knowledge of her and that he receivd a sentence of seven
(7) years for such offense, and that the offense of utter-
ing a forged instrument for which you have found the
defendant guilty in this case was committed after April
26, 1962, then you shall fix the defendant’s punishment
at confinement in the state penitentiary for a period of
fourteen (14) years.
4. If the jury shall have a reasonable doubt that the
defendant has been convicted of any prior felony men-
tioned in Instruction No. 1 above, then you shall fix the
defendant’s punishment at confinement in the state pen-
itentiary for not less than two nor more than ten years,
in your discretion.
5. Your verdict must be unanimous, one of your num-
ber signing as foreman.
We, the jury fix the denfendant’s punishment at im-
prisonment in the state penitentiary for life.
CHARLES E. ELKINS, Foreman
FAYETTE CIRCUIT COURT
FIRST DIVISION
April 23, 1973
COMMONWEALTH OF KENTUCKY Plaintiff
Vs. No. 73C26 & 73C29
PAUL LEWIS HAYES Defendant
The Commonwealth came by Attorney; defendant
appeared and being represented by counsel, Hon. Anthony
Todd, and the jury empaneled herein met pursuant to
adjournment.
The trial progressed and being concluded the jury
retired and returned into Court the following verdict,
viz: —
“We, the jury fix the defendant’s punishment at im-
prisonment in the state penitentiary for life.
CHARLES E. ELKINS, Foreman”
The Court inquired of the defendant and his counsel
whether they had any legal cause to show why judgment
should not be pronounced, and afforded defendant and
his counsel an opportunity to make statements in the de-
fendant’s behalf and to present any information in mitiga-
tion of punishment, and no sufficient cause was shown
why judgment should not be pronounced, and it is there-
fore by the Court;
ADJUDGED that the defendant is guilty of the crume
of Ct. 2—Habitual Criminal and he shall be confined in
the State Penitentiary for and during the period of the
remainder of his natural life; and this sentence is to run
concurrently with prior conviction on Indictment No. 8610.
fendant that he has a right to appeal to the Court of Ap-
peals of Kentucky with the assistance of counsel, that if
he is financially unable to afford an appeal, a record will
be prepared for him at public expense and counsel will
be appointed to represent him, that an appeal must be
taken within ten (10) days of the date of this judgment
and that the clerk of the Court will prepare and file a
notice of appeal in his behalf within that time if he so
requests. The clerk was directed to file a notice of appeal
in forma pauperis for defendant. Pending appeal defend-
ant is to be held without bail.
JAMES PARK JR.
Judge, Fayette Circuit Court
27
‘
FAYET!E CIRCUIT COURT
FIRST DIVISION
CRIMINAL BRANCH
APRIL 26, 1973
COMMONWEALTH OF KENTUCKY Plaintiff
vs. Notice Of Appeal No. 73C26 & 73C29
PAUL LEWIS HAYES Defendant
Notice is hereby given that PAUL LEWIS HAYES,
Defendant, hereby appeals to the Court of Appeals from
the Judgment entered against him on April 23, 1973.
KATHERINE M. LADEN, CF.C.C.
~ By: Judy Johnson, D.C.
ATTESTED COPIES TO:
Hon. Patrick Molloy
Commonwealth Attorney
Legal Aid
Scott Baesler
Attorney-at-Law
This: 26th day of April, 1973.
28
FAYETTE CIRCUIT COURT
FIRST DIVISION
MAY 16, 1973
COMMONWEALTH OF KENTUCKY, Plaintiff
vs: ORDER No. 73C29
PAUL LEWIS HAYES, Defendant
* * 7 . .
The defendant having requested the Court to set bail
pending an appeal to the Court of Appeals and the Court
being advised, it is
ORDERED that this case be assigned for a hearing
before Judge James Park, Jr. on Friday, June 1, 1973 at
1:30 p.m.
/s/ L. T. GRANT
~ Judge, Fayette Circuit Court
(Pursuant to RFCC 5 (c)
Attested copy to:
William Anthony Todd
Hon. James Odell
Mailed 5/16/73
R. True, D. C.
29
FAYETTE CIRCUIT COURT
FIRST DIVISION
June 1, 1973
COMMONWEALTH OF KENTUCKY, Plaintiff
vs. No. 73C29
PAUL LEWIS HAYES, Defendant
. * * * *
On motion of the defendant to set bail on an appeal
to the Court of Appeals and the Court being advised it is
ORDERED that bail be set at $10,000.00.
/s/ JAMES PARK JR.
Judge, Fayette Circuit Court
30
FAYETTE CIRCUIT COURT
CRIMINAL BRANCH
FIRST DIVISION
JUNE 25, 1973
COMMONWEALTH OF KENTUCKY, Plaintiff
v. ORDER No. 73-C-26
PAUL LEWIS HAYES, Defendant
-es+ et * &
Upon motion of Defendant pursuant to R.Cr. 12.58,
and the Court being advised it is ORDERED AND AD-
JUDGED that the time for filing the record on appeal
herein is hereby extended by sixty days making a total of
one hundred twenty days to file the record on appeal.
This 25th day of June, 1973.
/s/ JAMES PARK JR.
Judge, Fayette Circuit Court
COPIES TO: HON. GLEN BAGBY
Ass’t Commonwealth’s Attorney
WILLIAM ANTHONY TODD
Attorney For Defendant
31
IN THE FAYETTE CIRCUIT COURT
LEXINGTON, KENTUCKY
No. 73C29
JULY 10, 1973
COMMONWEALTH OF KENTUCKY, Plaintiff
v. MOTION TO SUSPEND FURTHER
EXECUTION OF SENTENCE
PAUL HAYES Defendant
* * . ” *
Comes the defendant, Paui Hayes, who is without the
services of an attorney, and acting as an attorney in his
own behalf, respectfully moves this Court for an Order
suspending further execution of the sentence of Life im-
posed upon him by this Court on or about the 23rd day
of April, 1973, for the crime of Forgery-Habitual Criminal
in violation of KRKS 431.190 - 434.130.
This motion is made under the provisions of KRS
439.265 and is filed after more than thirty days, but less
than sixty days, since the date of his delivery to the keeper
of the institution to which he has been sentenced.
The defendant submits this motion before this Honor-
able Court for reasons which defendant feels justifiable
as set forth in the attached Memorandum In Support.
WHEREFORE this defendant respectfully moves this
Court to suspend further execution of the sentence im-
posed upon him in this case and to place defendant on
probation upon such terms as the Court determines, not-
32
withstanding expiration of the term of Court during which
this defendant was sentenced.
Rspectfully submitted,
/s/ PAUL L. HAYES
Defendant, In His Own Behalf
This 9th day of July, 1973
33
MEMORANDUM IN SUPPORT
The Defendant Paul Hayes moves this Court to sus-
pend execution of his Sentence, and to place him on pro-
bation under the provisions of K.R.S. 439.265, and as rea-
sons why this Motion should be sustained, the following
is most respectfully submitted.
The Defendant is a Negro Male, 29 years of age, who
prior to the judgment and sentence being imposed, re
sided at 532 Charlotte Court, Lexington, Kentucky, with
his Mother, 2 sisters, and two brothers. Defendant con-
tributed to the basic welfare of his family, who also are
currently drawing public assistance from the local welfare
department.
Should the Court see fit to entertain this application,
defendant agrees to abide by the rules and regulations,
and to noi further violate the laws.
Defendant is a Horse worker and has been assured
by his former employer that despite the conviction herein,
Defendant can return to work in the same status, as ex-
isted, prior to the conviction by this Court.
The Defendant prays that this Court will entertain
this application, and suspend further execution of the
Sentence, and place him on probation.
So it is ever prayed.
Respectfully Submitted
/s’ PAUL L. HAYES
Defendant
34
FAYETTE CIRCUIT COURT
CRIMINAL BRANCH
FIRST DIVISION
JULY 11, 1973
COMMONWEALTH OF KENTUCKY, Plaintiff,
Indictment
vs. ORDER No. 73-C-29
PAUL LEWIS HAYES, Defendant
The defendant having made a motion under KRS
439.265 to suspend further execution of sentence, and
the Court being advised, it is hereby ORDERED and
ADJUDGED that the defendant’s motion should be, and
the same is hereby, overruled.
/s/ JAMES PARK, JR.
Judge
July 11 1973
Copy to:
Mr. Paul Lewis Hayes
c/o Eddyville Penitentiary
Eddyville, Kentucky
35
FAYETTE CIRCUIT COURT
CRIMINAL BRANCH
FIRST DIVISION
COMMONWEALTH OF KENTUCKY, Plaintiff
vs. ORDER No. 73-C-26
73-C-29
PAUL LEWIS HAYES, Defendant
Upon motion of the defendant to appeal in forma
pauperis and the Court having considered same,
IT IS HEREBY ORDERED AND ADJUDGE that the
defendant, Paul Lewis Hayes, may prosecute his appeal
without prepayment of fees and costs, and that the Fay-
ette Fiscal Court shall pay to the court reporter her fee
for preparation of the transcript of evidence.
This 21st day of August, 1973.
JAMES PARK JR.
Judge, Fayette Circuit Court
STATE OF KENTUCKY
SCT.
COUNTY OF FAYETTE.
I, Katherine M. Laden, Clerk of the Fayette Circuit
Court, in and for the County and State aforesaid, do here-
by certify that the foregoing 25 pages, together with of-
ficial Stenographer’s Transcript of Evidence, in Vols. I
and II, contain a full, true and correct copy, ordered cop-
ied as per Designation of Contents of Record on Appeal
herein, of the record and proceedings in the cases wherein
THE COMMONWEALTH OF KENTUCKY is Plaintiff
and PAUL LEWIS HAYES is Defendant.. Nos. 73-C-26
and 73-C-29, actions lately pending in the aforesaid Court,
as the same appears of record and are now on file in my
said office.
Witness my hand as Clerk aforesaid, this 22nd day
of August, 1973.
KATHERINE M. LADEN, C.F.CC.
By /s/ Brenda Sabel, D.C.
In forma pauperis
37
[183]
FAYETTE CIRCUIT COURT
TRANSCalPT OF EVIDENCE
Mh. BAGBY: Yes, sir.
THE COURT: Mr. Todd, would you like to make a state-
ment at this time?
Mk. TODD: No, Your Honor, but I would like a brief op-
portunity to talk with Mr. Hayes at this time.
THE COURT: Ladies and Gentlemen of the Jury, we
will take a short recess. During this period of time,
you will remember the admonition which | have
given to you previously in this case. It does apply
in full. So, we will take about a ten-minute recess.
EVIDENCE FOR THE DEFENDANT
The defendant, PAUL LEWIS HAYES, resumed the
stand. After being reminded by the Court that he was
still under oath, he was examined and testified as fol-
lows:
DIRECT EXAMINATION BY MR. TODD:
D1 Paul, you have told the jury before, but I will ask
you again, how old are you?
A. Twenty-nine.
D2 You were born in 1944?
A. Yes.
38
D3 This first charge that you were charged with was in
1961. How old were you when you were first charged
with that offense ?
| 184]
A. Seventeen.
D4 Were you tried by a jury or did you plead guilty?
A. I plead guilty.
D5 To the charge of detaining a female?
A. Yes.
D6 Not to the charge of rape?
A. Yes.
D7 How old were you at that time?
A. Eighteen.
D8 You were sent to the penitentiary ?
No.
A.
D9 Where were you sent?
A.
I was sent to the State Reformatory at La Grange,
Kentucky.
D10 Tell the jury, based on your own experience, what
the difference is between a penitentiary and a re-
formatory ”
A. The penitentiary has a wall, maximum security, and
the State Reformatory has a fence, you know. That
39
is the difference. See... uh. . . the penitentiary,
yuu spend most of vour time in cells, but at La-
urange it is just like a college, you do ~ just walk
around the campus and things, you know.
D11 How long were you at La Grange, Paul?
A. Five years and three months.
D12 How old were you when you came out?
A ‘Twenty-three.
D13 Five years and three months. What was the year
that
(185)
you came out:
A. | came out in 1967.
Di4 Then, in April of 1970, you were indicted on a
charge of robbery, is that true?
A. Right.
D15 What sentence did vou receive from the jury on
that charge?
A. 1 was sentenced to five years.
D16 Did you serve any of that time?
A. No.
D17 Why not?
A._ I was probated.
D18 Who probated you °
A. The courts.
D19 Do you know what the judge’s name was that pro-
bated you?
A. Mitchell Meade.
D20 What is probation, Paul?
A. Probation is that you have to report to your proba-
tion officer every month, but you don’t get any tume,
you just serve it out in the street, you know, you
don't -- but, on the five years, I did not go to the
institution, they probated me and put it on the shelf
_. on the time. It is still on the self, the five years
is up right now _. . shelf time.
D21 And, you were still on probation when you were
arrested
| 186]
for this offense?
A. Yes, this offense.
D22 Were you able to get out of jail before your trial
on this case?
A. No, I was not.
D23 Why not?
A. See, my probation officer, he say that I wasn’t - he
say he didn’t like the way that I was making money,
you know. I said, “Man, | cannot work for this kind
of money for $75.00 a week.” I say, “It takes a lot
41
for a man to live on in these times, you know.” He
say, “Well, man, you don’t have no kind of working
record, man.” I say, “Man, my job is flying. I fly
horses from California to San Juan, Puerto Rico, you
know,” and, he say, “Well, I just have to take that
job away from you, you know,” and, then, | asked
him if there was any way | could post bail. you know,
and at that time my bond was a thousand dollars.
He said, “I am going to keep you here in jail,” and
I have never made bond since November 20. | have
been in jail ever since on that day.
124 So, what have you done in preparation for your own
defense in this case’
A. Explain yourself?
D25 What have you been able to help me do in preparing
your defense in this case, having been in jail?
[187]
WITNESS: I don’t understand what you are talking
about.
D26 Were you able to do anything more than talk to
me -
A. I suppose that was the only thing I could do, that’s
all.
D27 Did you go out and talk to and look for witnesses °
A. No, I couldn't; I couldn’t do that.
MR. BAGBY: I will have to object to this line of ques-
tioning as being irrelevant.
42
THE COURT: All right, I think I am going to give the
defense a fairly free rein at this point. So, go ahead,
Mr. Todd.
D28 You have seen Mr. Bagby prior to Thursday, had you
not?
A. Yes.
D29 You, |, and Mr. Bagby have discussed this charge?
A. Yes.
D30 Tell the jury in your own words what you were ori-
ginally indicted for and came to be indicted as a ha-
bitual criminal ?
A. Well, | was indicted on uttering a forged instrument
and the prosecutor told me, he say, well, uh... . “
got five years for you this morning.” I say, “No,
man, I can’t handle the five. you know.” I say that
| want a jury trial, you know. He say, “if you don’t
take the five years, | am going to indict you on the
habitual criminal.” I say, “Man, that is your job.
There is nothing at this time that I can do nothing
about it, but
| 188}
except a jury trial you know.” Then, he calls
me back over here the following week and
they write out an indictment on me for habitual crr
minal, you know. I told him, “Look, man, you know,
I have been in the State Reformatory one time and
had one number on my back, you know,” and, I said,
“there’s guys who have had six and seven numbers
43
on their back and they never was tried on the ha-
bitual criminal that came out of this court and all
across the world, you know. Why do you want to
put pressure on me to cop-out before a trial of
something that I didn’t do.” He say, “Well, man,
I am going to charge you with - I am going to in-
dict you on the ‘hibitch, man,” and that is what he
has done, he indicted me on the habitual criminal,
you know, and... then .. . I am facing another
charge as a habitual criminal, you know. That’s all
I know.
D31 Do you know what the penalty would have been for
the charge of uttering a forged instrument?
A. No, he didn’t tell me that; he told me to cop-out for
five years and, then, but the charge carries from two
to ten... on uttering a forged instrument, you know.
D32 Is there --
A. I told him, “Man, how come you don’t give me a
break,” and he said, “I am giving you a break with
five years.” “I take a jury trial on it, man,” I said,
and that is what I am doing.... April 19, I took a
jury trial.
(189)
D33 Is there any matter, Paul, that you would like for
the jury to consider as they consider what sentence
should be imposed for these trials?
A. I would like for them to ..uh... uh... See,
they don’t know - I don’t think they know what a
44
habitual criminal is, you know I don’t thinks the
jury knows what a habitual criminal is.
D34 Well, the Court will instruct the jury as to the law
on the charge of the habitual criminal. Is there any-
thing that you want the jury to know about you per-
sonally and your situation ?
A. Yes.
D35 Tell them?
A. Ladies and Gentlemen of the Jury, I am speaking in
my behalf at this time, that I was charged in 1962
on a charge of rape and I was involved with three
guys. One is doing life now, and during that time,
I was young. I was seventeen years old and just
passing through this place and they involved me
in it, you know. I siayed in jail at that time for
leven months on that same charge during that time
and I waited and I... waited and the two guys
that indicated me in the crime at that time talked
in my behalf the - and the prosecutor, Paul Mans-
field, he said, “Paul, we are going to give you a
plea and if you cop-out for seven years, that will be
a good deal for you.” I say, “Seven years is a long
time
[190]
out of a man’s life for something that he didn’t
do.” I was young and I didn” understand the law
then like I know today and I went on and accepted
the seven years and went on down to the State Re-
cre
<m
45
formatory and done my five years and three months
as a serve-out and came out in 1967.
D36 Tell the jury what you mean by a serve-out?
A. A serve-out on a seven-year sentence - I done it all;
I done five years and three months .. . out of the
seven, you know. -
D37 Are you given any time off for good behavior ’
A. Yes, I got three months -- I got ninety days off each
year.
D38 Three months out of each twelve?
A. Yes.
D39 So, that the five years and three months added up
to seven years?
A. Yes.
D40 And there was no parole?
A. No, there was no kind of people reporting to or noth-
ing, you know.
MR. TODD: All right, go ahead.
A. (Cont’d) And, during that time, I was talking to
this prosecutor . . . on this charge here . . . why that
he wanted to indict me on the “hibitch.” I explained
it to him and we had a little argument as we chat
a little bit
[191]
in there, you know, and... and I kept talking
convicted on armed robbery and all kinds of crimes.”
I say, “Them guys have come through these courts
and they never was tried on a habitual criminal.”
I say, “I have had only one number on my back and
you want to put me away for the rest of my life,”
and, | say, “But, I am not going to cop-out for the
five years, you know, I am going to let the jury
try me.” He say, “Well, if that is what you got to
do.” I said, “I am going to take my odds with the
jury, you know,” and, that is the reason | am sitting
here today. That is it, that is all I know.
MR. TODD: That is all.
CROSS EXAMINATION BY MR. BAGBY:
X1 Mr. Hayes, then, it is your testimony that you were
convicted in this Court for detaining a female in
1962 and given seven years?
A. Right.
X2 Thereafter, you committed the crime of robbery for
which you served .- for which you were convicted of
in 1970 in this Court and given five years, is that
correct ?
A. Probated.
x > eR PR >
X9
1192]
Yes.
By a jury?
Yes.
You had a lawyer trying your case for you, did you
not?
Yes.
And, then, on November 20, 1972, when you were ar-
rested at the Pic-Pac market and charged with utter-
ing this forged instrument, which the Court and
jury has already found you guilty of, in the pre
sence of Larry Wayne Frazier and taken to court,
isn’t it a fact that again you were appointed an at-
torney :
Yes.
And, this attorney was present when you came to
cop-out court, wasn't he?
Yes.
Will you tell the jury what cop-out court is?
No, you tell them, I don’t know .. . You tell them.
Isn't it a fact that you were aware that cop-out court
is the time when the prosecutor, the defense lawyer,
the defendant, and the Clerk - like Mr. True - meet
together not in the Judge’s presence and before any
jury is called and before any witnesses are sub-
poenaed, and the prosecutor makes a recommenda-
42
tion to the defendant, what he will recommend if
the defendant intends to plead guilty to save the
jury's time, the witnesses’ time, and the court’s time
in coming to trial, isn’t that right?
1193}
A. No.
X10 All right, what is cop-out court, if that is not right?
A. Copout to me is that...uh... you offered me a
five-year plea and you told me if I didn’t take five
years that you would indict me on the habitual cri-
minal. That is what you done.
X11 All right, was the Judge there?
A. No.
X12 Was the jury there’
A. No.
X13 Was your lawyer there’
A. That’s right, yes.
X14 And, I was there?
A Yes.
X15 And, | made these statements to you all both in the
presence of both of you, didn’t I?
A No.
X16 I didn’t talk to you privately, did I?
A. No.
ne
ET SS A
49
X17 Your lawyer, Mr. Wake, was there during the en-
tire time, wasn’t he?
A. That's right.
X18 And, then, I left you and Mr. Wake alone to discuss
it by yourself - by yourselves in a room by your-
selves ?
A. No, no, no.
X19 You and Mr. Wake did not discuss this matter by
yourselves
| 194}
in a room and | left and, then, later | came back
and asked what you wanted to do?
A. No, you walked out of the room and you threatened
me with the habitual criminal, you know, and -
X20 And, then I walked out of the room, didn’t I?
A. You walked out of the room.
X21 And, | told you that the law was that there was a
habitual criminal act that I had to place against
you?
A. No, you did not tell me that; you told me that you
was indicting me on the “hibitch” if I didn’t take the
five-year plea. That is what you told me.
X22 Isn't it a fact that I told you at that time if you did
not intend to plea guilty to five years for this charge
and that they had caught you inside and that your
accomplice had made a statement against you - isn’t
50
it a fact that I told you at that time that if you did
not intend to save the court the inconvenience and
necessity of a trial and taking up this time that I in-
tended to return to the grand jury and ask them to
indict you based upon these prior felony convictions ?
A. No.
X23! did not tel) you that I was going to return to the
grand jury’
A. No.
X24 | told you out of my own -
A. You told me that you was going to indict me - you
told
|195|
me you was going to indict me on the habitual
criminal and you called me back over here the fol-
lowing week on a Friday and! .. . answered the in-
dictment on the habitual criminal. That was it. That
was all that you told me.
X25 You were arraigned on that charge that the grand
jury had brought against you, weren't you?
A. On the “hibitch.”
X26 And, you were asked how you pled to the charge,
weren't you:
A. Yes.
5!
X27 And, at that time, you had a lawyer present too, didn’t
you:
A. Y@s.
X28 In fact, you have had a lawyer throughout these pro-
ceedings, haven't you ’
A. Sure, yeh.
X29 Now, when you first went to the Reformatory in
1962, you were eighteen years old, is that right?
A. Right.
X30 And, at that time, did you learn what the habitual
criminal was?
A. Yeh, I learned that, yeh.
X31 What is the name that the people have at the peni-
tentiary for the habitual criminal ’
A. The “hibitch.”
| 196}
X32 The “hibitch,” is that right’
A. Yes, the “hibitch.”
X33 So, you knew in 1962 what the effects of the habitual
criminal were
A. No.
X34 But, you -
A (Cont'd) Them guys coming in there with six and
52
seven times. No, I did not know what - I did not
know that three convictions was a habitual criminal.
X35 But, some were coming in that had been convicted
of a habitual criminal, wasn’t there?
A. Yeh, six times... six-time losers.
436 Some of them had been coming in there, hadn't there ?
A. No, no, they was convicted on a six-time loser .. .
in 1962.
X37 \ ou have been aware that there is such a charge since
1962, haven’t you?
A. Habitual criminal, yes.
X38 And, that was before the robbery and before the
forgery, wasn't it’
A. That was ~ that was...uh... before the - you
said before the robhery and after-?
X39 And before the forgery ’
A. No.
MR. BAGBY: That's all.
THE COURT: Anything further, Mr. Todd?
MR. TODD: I have nothing further.
53
RENDERED: MARCH 1, 1974
COURT OF APPEALS OF KENTUCKY
FILE NO. 73-766
PAUL LEWIS HAYES Appellant
Vv. APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES PARK, JR., JUDGE
Indictment NOS. 73-C-26, 73-C-29
COMMONWEALTH OF KENTUCKY Appellee
MEMORANDUM OPINION OF THE COURT BY
JUSTICE JONES
AFFIRMING
(Not be be cited as authority)
Paul Lewis Hayes was convicted in the Fayette Cir-
cuit Court on a two-count indictment, charging him in
Count No. 1 with the principal offense of uttering a
forged instrument, under KRS 434.130, and in Count No.
2 of having been convicted of two prior felonies, under
KRS 431.190. The trial court first tried Hayes on the
principal offense of uttering a forgery, and then he was
tried under the habitual criminal statute. The Jury found
him guilty on both counts and fixed his punishment at
confinement in the state penitentiary for life. Upon this
appeal, Hayes contends: (1) the trial court erred in fail-
ing to direct a verdict in his behalf, he contending that the
evidence was insufficient to support the conviction; (2)
the trial court erred in failing to instruct the jury as to
54
the requirement of corroboration of the testimony of an
accomplice; (3) he was denied due process and equal pro-
tection of the law by the habitual criminal conviction
because the mandatory life sentence required by the sta-
tute is cruel and unusual punishment.
We have examined the evidence, and we are con-
vineed that it establishes that appellant participated in
the crimes with which he is charged. The Commonwealth
proved that appellant presented a check to the Pic Pac
grocery: that the check presented was stolen from Brown
Machine Works; and that the check did not bear an au-
thorized signature. Thus there was an inference that
Hayes either had forged the unauthorized signature or
knew it to have been forged It was incumbent on him
to satisfactorily explain the uttering or the forgery.
In Smith v. Commonweaalth, Ky., 307 S.W.2d 201,
(1957), we stated:
“When the evidence shows the name attached to
the instrument has been forged. the inference
arises that the person who uttered it as genuine
either forged the instrument or knew it to be
forged, and unless the uttering or forgery is ex-
plained satisfactorily, the presumption becomes
conclusive.” Smith v. Commonwealth, supra, 203.
Appellant's next contention, that the trial court
should have given an instruction as to the requirement of
corroboration of an accomplice’s testimony, is wholly
without merit. Appellant failed to object to the instruc-
tions in the trial court The failure constituted a valid
waiver so as to preclude Hayes from securing a reversal
of his conviction upon the basis of any alleged error
35
therein. RCr 9.54: 2); Johnson v. Commonwealth, Ky., 477
S.W.2d 159 (1972); Alsip v. Commonwealth, Ky., 482
S.W.2d 571 (1972).
Hayes next argues that his constitutional rights were
abrided by the habitual criminal charge and by his sub-
sequent conviction thereunder He complains of the lev-
erage available to the Commonwealth's Attorney in de-
ciding whether or not to have an accused indicted under
the Habitual Criminal Act, KRS 431.190.
In a pre-trial conference in this case, the Common-
wealth’s Attorney offered to recommend a five-year sen-
tence if Hayes would plead guilty to the charge of uttering
a forgery. This he refused to do although he was advised
by the prosecutor that the case would be resubmitted to
the grand jury for a new indictment under the Habitual
Criminal! Act. Based upon our holding in Cunningham v.
Commonwealth, Ky., 447 S.W.2d 18 (1969), we conclude
that it was not error for the Commonwealth's Attorney
to resubmit the case to the grand jury. We save said:
“Assuming, however, that the Commonwealth s
Attorney was still in a position, in the event Cun-
ningham had then chosen to plead not guilty, to
resubmit the cases to the grand jury and ask for
new indictments under the Habitual Criminal Act,
we are of the opinion nevertheless that this is not
the kind of pressure that could be held to affect
the voluntariness of a guilty plea. A person
charged with a criminal offense always is under
the pressure of risking » maximum sentence at
the hands of the jury or the court if he does not
accede to what the Commonwealth is willing to
56
recommend. The more serious the offense, the
greater is the pressure, and it is even more so
when the Commonwealth has a strong case. To
say that the attorney for the Commonwealth could
not use these advantages in discussing the terms
and prospects of settlement on the basis of a
guilty plea would mean simply that there could
be no such settlements. We are unwilling to ac-
cept that result.” Cunningham v. Commonwealth,
supra, 83.
Here Hayes risked the maximum sentence of life
imprisonment for a sentence of five years. He cannot
now complain of his bad bargain.
Finally Hayes argues that a mandatory life sentence
under the Habitual Criminal! Act in his case is too severe
a penalty, constituting cruel and unusual punishment. In
light of the previous felomes of which he had been con-
victed, viz., detaining a female against her will (a lesser
offense of rape), and robbery, we think the punishment
is not too harsh. We have held the Habitual Criminal Act,
KRS 431.190, to be constitutional. Barber v. Thomas,
Ky., 355 S.W.2d 682 (1962).
The punishment authorized by the statute was not
wrongly or disproportionately applied to the appellant.
Accordingly the judgment is affirmed.
All concur,
57
ATTORNEYS FOR APPELLANT:
Anthony M. Wilhoit
Paul F. Isaacs
Office of Public Defender
625 Leawood Drive
Frankfort, Kentucky 40601
ATTORNEYS FOR APPELLEE:
Ed W. Hancock
Attorney General
Robert L. Chenoweth
Assistant Attorney General
Capitol Building
Frankfort, Kentucky 40601
FILED JUNE 11, 1975
UNITED STATES DISTRICT COURT
EASTERN DISTRICT
LEXINGTON
PAUL LEWIS HAYES Petitioner
vs. Case No. 75-61
HENRY COWAN, WARDEN
KENTUCKY STATE PENITENTIARY Respondent
PETITION FOR WRIT OF HABEAS CORPUS
Comes the Petitioner, with Counsel, and pursuant to
Sec. 2254 of Title 28, United States Code petitions this
Court tor a Writ of Habeas Corpus, and as grounds states
the following:
i. That he is presently incarcerated in the Kentucky
State Penitentiary at Eddyville, Kentucky, on a life sen-
tence imposed by Circuit Judge James Park of the Fayette
County Circuit Court, Lexington, Kentucky, on the of-
fense of being an habitual offender under KRS 431.190,
Indictment Numbers 73-C-26, 73-C-29. This sentence was
imposed on April 23, 1973.
2. That the Petitioner was found guilty by a jury
after a trial pursuant to his not guilty plea.
3. That the Petitoner appealed the conviction to the
Kentucky Court of Appeals, who affirmed the conviction
in an opinion issued on March 1, 1974 which was not re-
ported but a copy is attached to this Petition as Appen-
dix I.
59
4. That the Petitioner was denied due process of law
and equal protection of the law in that: a) the mandatory
life sentence under Kentucky's Habitual Criminal Sta-
tute, KRS 431.190 is not uniformly applied and constitutes
cruel and unusual punishment; b) the indictment and
conviction under the Habitual Criminal Statute was vin-
dictively sought by the Commonwealth of Kentucky in
this case; and c) a life sentence in Petitioner's case is so
disportionate that it constitutes cruel and unusual punish-
ment.
5. That the facts which support the above grounds
are as follows: a) The Petitioner at his own trial testified
that he personally knew of inmates with six or seven fel-
onies who had never been tried as a habitual criminal.
His co-defendant in this case, testified about two previous
felonies or which he had heen convicted and yet he was
not charged with being a habitual criminal The Ken-
tucky Court of Appeals took note of the fact that not —
everyone with two felony convictions had habitual crim-
inal indictments sought against them (See Byrd v. Com-
monwealth, Ky., 463 S.W.2d 333 (1971):b) The Petitioner
was indicted by the Fayette County Grand Jury on Jan-
uary 8, 1973 on the charge of uttering a forged instrument
and was arraigned on that charge on January 19, 1973
at which time a pre-trial conference was set for Wednes-
day, January 24, 1973. A further pre-tria! conference was
sot for January 26, 1973 at the January 24th pre-trial con-
ference and another attorney was assigned to the Peti-
tioner. On January 29 1973 a new indictment was re-
turned against the Petitioner charging him again with
the Habitual Criminal Statute.
The Trial Court at the beginning of the trial an-
60
nounced that the trial would be bifurcated as to the prin-
cipal charge and the charge under the Recidivism Statute.
At the beginning of the second phase of the trial, the Pe-
titioner, himself, made known to the Trial Court his ob-
jection to the manner he was indicted on the habitual
criminal charge. He stated that the Commonwealth offer
ed him five years to plead guilty on the principal charge
and further said that if he didn’t take the five years, he
would be indicted as a habitual criminal, which was never
refuted by the Commonwealth. The petitioner in his tes-
timony testified that his refusal to plead guilty was why
he had been indicted under the habitual criminal statute,
again not refuted by the Commonwealth. In fact, the As-
sistant Commonwealth Attorney, Hon. Glen S. Bagby,
in his questioning supported Petitioner's contention by
asking the following question:
Isn't it a fact that I told you at that time if you
did not intend to plead guilty to five years for this
charge and that they had caught you inside and that
your accomplice had made a statement against you
— isn’t it a fact that I told you at that time that if
you did not intend to save the court the inconveni-
ence and necessity of a trial and taking up this time
that I intended to return to the grand jury and
ask them to indict you based upon these prior felony
convictions ?
All of these uncontroverted facts establish that the
Petitioner was indicted under Kentucky's Habitual Crim-
inal Statute as a vindictive action by the Commonwealth
because he refused to plead guilty; c) Petitioner is now
twenty-nine years old and when the charge on the first
felon was brought against him he was a seventeen year
61
old minor. He plead guilty to the charge and served five
years and three months at the Kentucky State Reform-
atory at La Grange, Kentucky. His next charge was that
of robbery for which a jury gave him a sentence of five
years. However, he was probated for that charge. The
prior criminal record of the Petitioner is not one which
Suggests that it is necessary to confine him in a penal
institution for the rest of his life in order to prevent him
from further commission of crime. His first offense, cer-
tainly the most serious, was committed while he was a
minor; the second was such that a judge granted him
probation, and for the third offense, the least serious, he
receives a mandatory life sentence.
6. That Petitioner has not filed any Motions pursuant
to RCr 11.42 in Kentucky's Court, nor other Petition for
Writ of Habeas Corpus in State or Federal Court, or any
Petitions for Writ of Certiorari in the United States Su-
preme Court. A Notice of Appeal to the Kentucky Court
of Appeals and outlined in paragraph 3.
7. That all the grounds set forth in paragraph 4 and
the facts set forth in paragraph 5 were raised in Petition-
er’s appeal to the Kentucky Court of Appeals and were
discussed in their Opinion.
8. That he was represented at arraignment by both
A. Norrie Wake, 101 N. Limestone Street, Lexington,
Kentucky 40507 and William A. Todd, 145 Market St.,
Lexington, Kentucky 40507; that Mr. Todd also represent-
ed Petitioner at trial. That the Petitioner was represented
on appeal and in this action by Paul F. Isaacs, 625 Lea-
wood Drive, Frankfort, Kentucky 40601.
That based on the allegations set out above, the Pe-
62
titioner respectfully prays that this Court issue a Writ
of Habeas Corpus in this action.
‘s' PAUL LEWIS HAYES
— —— — —_—_ — -—-—
Petiti
Paul Lewis Hayes, being first sworn under oath, presents
that he has subscribed to the foregoing petition and does
state that the infformation therein is true and correct to
the best of his knowledge and belief.
‘s PAUL LEWIS HAYES, Affiant
Subscribed and sworn to before me this 29 day of
Jan., 1975.
s/ H. R. PATTERSON
Notary Public
My Commission Expires: 12-22-78.
/s/ PAUL F. ISAACS
Assistant Public Defender
625 Leawood Drive
Frankfort, Kentucky 40601
Counsel for Petitioner
63
UNITED STATES DISTRICT COURT
EASTERN DISTRICT
PAUL LEWIS HAYES Petitioner
vs. Case No .
HENRY COWAN, Warden
KENTUCKY STATE PENITENTIARY Respondent
MEMORANDUM IN SUPPORT OF PETITION
FOR WRIT OF HABEAS CORPUS
L.
THE MANDATORY LIFE SENTENCE REQUIRED BY
THE HABITUAL CRIMINAL STATUTE CONSTITUTES
CRUEL AND UNUSUAL PUNISHMENT AS NOT UNI-
FORMLY APPLIED.
It should be noted that since the death penalty was
struck down in Furman v. Georgia, 408 US 238, 92 S. Ct.
2726, 33 LEd 2d 346 (1973), and at the time of Petition-
er’s conviction, Kentucky had only two other crimes with
mandatory life sentences — Murder, KRS 435.010, and
Rape of a Child under Twelve, KRS 435.080. In all other
crimes, the jury is given discretion in determining the
degree of the sentence in terms of years or life. Also, un-
der Kentucky's Habitual Criminal Statute, KRS 431.190,
the nature of the previous felonies is not taken into con-
sideration. Three nonviolent felonies can result in a life
sentence the same as three violent crimes. The Furman,
supra, case established as one of the criteria for prohibit-
64
ing the death penalty that the sentence was not uniformly
applied to all those subject to that penalty. As Mr. Justice
Stewart said:
These death sentences are cruel and unusual in the
same way that being struck by lightning is cruel and
unusual. For, of all the people convicted of rapes
and murders in 1967 and 1968,"" many just as rep
rehensible as these, the petitioners are among a Ca-
priciously selected random handful upon whom the
sentence of death has in fact been imposed.” * * * * *
I simply conclude that the Eighth and Fourteenth
Amendments cannot tolerate the infliction of a sen-
tence of death under legal systems that permit this
unique penalty to be so wantonly and so freakishly
imposed. Id. at pp. 309, 310.
The imposition of the mandatory life sentence under
the Habitual Criminal Statute is also randomly applied
in Kentucky, as the facts set forth in the Petition for a
Writ of Habeas Corpus establish.
Since the Habitual Criminal Statute is used randomly
by Prosecutors without any guidelines or standards, it
constitutes cruel and unusual punishment. One of the
Furman, supra tests is the fairness and uniformity by
which the punishment is applied. The procedures pre-
valent in Kentucky and followed in this case of arbitrarily
seeking indictments for being a habitual criminal against
some defendants and not for others constitute cruel and
unusual punishment. The Eighth Amendment prohibi-
tion against cruel and unusua! punishment incorporates
the equal protection clause of the Fourteenth Amendment
and requires that punishment be administered uniformly.
65
The life sentence given the Appellant in this case cer-
tainly violate the Furman, supra standards and should be
set aside.
11
THE COMMONWEALH VINDICTIVELY SOUGHT AN
INDICTMENT UNDER THE HABITUAL CRIMINAL
STATUTE BECAUSE THE APPELLANT REFUSED TO
PLEAD GUILTY.
This case illustrates the sordid affair plea bargaining
can become if courts refuse to exercise any control over
the heavy-handed tactics of prosecutors. The Petitioner
merely maintained his innocence during the plea bargain-
ing session and insisted on his right to a jury trial and
because he chose to exercise his constitutional rights, the
Commonwealth sought an indictment under Kentucky's
recidivism statute.
The procedures employed in this case are so blatantly
vindictive as to violate due process as set forth in Pearce
v. North Carolina, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed.
2d 656 (1969). The threat of prosecution for being a
habitual criminal should not be allowed to exist as a
cudgel to coerce a man who maintains his innocence to
enter a plea of guilty. Pearce v. North Carolina, supra,
clearly sets forth the principle that vindictiveness by a
court against a defendant exercising, in that case not a
constitutional right but a statutory right, his right to ap-
peal denies that defendant due process of law and this
same principle was applied to county attorneys in
Sefcheck v. Brewer, 302 F. Supp. 793 (1969). Surely due
process of law prohibits a Commonwealth Attorney from
seeking an indictment against the Petitioner because he
06
demands a jury trial in which the maximum penalty for
the present indictment was ten years and by adding the
habitual criminal count increased the penalty to mate
datory life imprisonment. The Petitioner submits that
the concept of due process minimumly prohibits prosecu-
tors from taking undue advantage over a defendant ac-
cused of a crime who maintains his innocence. There
should be no place in our system for vindictive prosecu-
tions based solely on the defendant's insistence on his
constitutional right to a jury trial.
THE MANDATORY LIFE SENTENCE REQUIRED BY
THE HABITUAL CRIMINAL STATUTE IS CRUEL AND
UNUSUAL PUNISHMENT IN THIS CASE.
In Hari v. Coiner, 483 F. 2d 136, (4th Cir. 1973), cert.
denied March 18, 1974, the Fourth Circuit set forth four
standards for evaluation: a) Nature of the Offense; b)
legisiative purpose; c) comparison of penalty with other
states: and d) comparison of penalty with other offenses
with the same penalty. In that case, the Fourth Circuit
held:
The doctrine that an excessive sentence may be in-
valid solely because of disproportionality is not a
new one. Mr. Justice Field suggested in 1892 that
the eighth amendment’s prohibition is directed not
only against torture or barbarism, “but (also) against
all punishments which by their excessive length or
severity are greatly disproportioned to the offenses
charged.” O’Neil v. Vermont, 144 US 323, 339 (1892)
(Field, J., dissenting).
67
in Weems v. United States, 217 US 349, 367 (1910),
the Court adopted Mr. Justice Field's view of the
eighth amendment when it stated that it is now “a
precept of justice that punishment for crime should
be graduated and proportioned to offense.” In
Weems, the Court noticed, with apparent approval,
that the highest state court of Massachusetts had
previously conceded the possibility that “punishment
in the state prison for a long term of years might
be so disproportionate to the offense as to constitute
a cruel and unusual punishment.” Weems, supra,
at 368; accord, Ralph v. Warden, 438 F. 2d 786 ( 4th
Cir. 1970).
in his concurring opinion in Furman, Mr. Justice
Douglas finds the idea of disproportionality as old
as the Magna Carta: “A free man shall not be
amerced for a trivial offence, except in accordance
with the degree of the offence; and for a serious of-
fence he shall be amerced according to its gravity
_..” Furman, supra, at 243.
While it seems settled that punishment must be pro-
portioned to the offense committed, application of
this principle to a particular fact situation is not
without difficulty. That the proportionality concept
is not static, but is a “progressive” one which “must
draw its meaning from the evolving standards of de-
cency that mark the progress of a iucturing society,”
enhances the difficulty. Trop v. Dulles, 356 US 86,
101 (1958).
Although the standard applicable under the eighth
amendment is one “not susceptible to precise defini-
68
tion,” there are several obective factors which are
usful in determining whether the sentence in this
case is const‘tutionally disproportionate. The test
to be used is a cumulative one focusing on an anlysis
of the combined factors. Furman, supra, at 282
(Brennan, J., concurring). (Jd. at pp. 139-140)
The Hart, supra, case then went on to analyse Dewey
Hart's conviction in light of the four standards.
The Petitioner was indicted and convicted of utter-
ing a forgery which has a maximum penalty of ten years.
K.iS 434.130. He was also indicted under Kentucky's Re-
cidivism Statute which carries a mandatory life imprison-
ment penalty. KRS 431.190. The two previous felonies
the Petitioner had been convicted of were Detaining a
Female Against Her Will in 1962 and Robbery in 1971.
The nature of the principal offense and the prior offenses
is one of the most important considerations in determ-
ining whether the mandatory life sentence is cruel and
unusual in Petitioner's case. An analysis of Petitioner's
convictions reveal that the most serious offense, the first
one, was committed while he was a minor. It is inter-
esting to note that under Kentucky's newly adopted Penal
Code. the conviction of Petitioner while he was a juvenile
could not be considered toward a habitual criminal. KRS
532.080:b) Under that statute the Petitioner would not
be a persistent felony offender Even if the Petitioner's
first felony were taken into consideration, the most the
Petitioner would receive under the new Penal Code would
be twenty years. The very state which is now incarcrat-
ing Petitioner for life has now rejected the mandatory
provisions of their previous recidivism statute.
The prior criminal record of the Petitioner is not one
which suggests that it is necessary to confine him in a
penal institution for the rest of his life in order to pre-
vent him from further commiss.o ©! crime His first
offense, certainly the most serious, was committed while
he was a minor; the second was such that a judge granted
him probation, and now the third offense, the least seri-
ous, for which he receives a mandatory life sentence.
The life sentence is so harsh and unjustifiable on any
rehabilative or humane principai of treatment of criminal
offenders as to constitute cruel and unusual punishment.
For the reasons stated above, the Petitioner respect-
fully requests that a Writ of Habeas Corpus be issued.
PAUL F. ISAACS
ASSISTANT PUBLIC DEFENDER
625 Leawood Drive
Frankfort, Kentucky 40601
/s/ Paul F. Isaacs
COUNSEL FOR PETITIONER
FILED JUNE 11, 1975
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
PAUL LEWIS HAYES ._..- PETITIONER
VS MAGISTRATE’S REPORT
AND RECOMMENDATION
HENKY COWAN, Warden, Etc. ...... RESPONDENT
The petitioner, alleging that he is incarcerated in
the State Penitentiary at Eddyville, has tendered for fil-
ing a petition for writ of habeas corpus. He has filed
therewith a motion for leave to proceed in forma pauperis,
which motion is supported by an affidavit of poverty. In
accordance with 28 U.S.C. §636(b), and pursuant to a
General Order of this Court, the aforesaid documents
have been referred to the undersigned Magistrate for
himi way
In his tendered pleading the petitioner alleges that
his confinement is the result of his convictions, following
a bifurcated trial, of the offenses of forgery and of being
a habitual criminal. He contends that his conviction as a
habitual criminal violates his constitutional rights in that
the mandatory sentence of life imprisonment imposed
upon such conviction amounts to cruel and unusual
71
punishment; in that the selective application of Ken-
tucky’s habitual criminal statute causes said life sentence
to amount to cruei and unusual punishment; and in that
the “vindictive” application of the habitual criminal sta-
tute to the petitioner violates his right to due process of
law. A copy of an opinion of the Kentucky Court of Ap-
peals attached to the tendered petition demonstrates that
the petitioner has presented substantially identical con-
tentions to the Kentucky courts by direct appeal.
In the opinion of the Magistrate, the tendered peti-
tion is patently without merit. As held in Oyler v. Boles,
368 U.S. 448, 451 (1962), “the constitutionality of the
practice of inflicting severer criminal penalties upon ha-
bitual offenders is no longer open to serious challenge”.
Moreover, only in the deliberate presence of such fac-
tors as race, religion or other arbitrary classification wil
the courts review the exercise of prosecutorial selection
and discretion, even when the exercise of such discretion
results in different treatment of co-defendants originally
charged with the same offenses in the same case. Oyler
v. Bols, supra at page 456; United States v. Bland, 472 F.
2d 1329, 1336 (D.C. Cir. 1972), cert. denied 412 U.S. 909.
There is authority for the proposition that any sen-
tence, including a mandatory sentence of life imprison-
ment upon conviction of being a habitual criminal, may
amount to cruel and unusual punishment, if wholly dispro-
portionate to the nature of the underlying offense and un-
necessary to the achievement of any legitimate legislative
purpose. Weems v. United States, 217 U.S. 349 (1910);
Hart vy. Coiner, 483 F. 2d 136, 143 (4th Cir. 1973), cert.
denied 415 U.S. 938. However, as noted by the Kentucky
72
Court of Appeals in the instant case, the convictions un-
derlying the petitioner’s habitual criminal conviction were
detaining a female (a lesser included offense of the charge
of rape), robbery and forgery. As conceded by the peti-
tioner, the subject felonies occurred during a 12 year
period beginning when the petitioner was 17 years old.
One convicted of violating Kentucky’s habitual criminal
siatute is not thereby rendered ineligible for parole, and,
in the opinion of the Magistrate, it cannot be said that it
is shocking, disproportionate or unnecessary to a legiti-
mate legislative purpose to require one with a record such
as that admitted by the petitioner to serve a substantial
period of actual incarceration and to be subject to parole
supervision for the rest of his life.
The petitioner's remaining complaints derive from
the fact that not all Kentucky defendants having prior
felony convictions are prosecuted under the state’s habi-
tual criminal statute and that the petitioner was so pro
secuted only upon his refusal to plead gui!ty to the sub-
stantive offense of forgery, in return for a five year sen-
tence. It is well settled that there is nothing unconstitu-
tional, per se, in the concept of plea bargaining and that
a defendant's constitutional rights are not violated by
forcing him to choose between a lesser penalty, in return
for the entry of a plea of guilty, as opposed to exposing
himself to the risk of a greater penalty if he elects to be
tried upon a plea of not guilty. Santobello v. New York,
404 U.S. 257 (1971); North Carolina y. Alford, 400 U.S.
25 (1970). If prosecutors were precluded from seeking
conviction of more serious offenses following the rejec-
tion by defendants of the opportunity to plead guilty to
lesser offenses, the entire concept of plea bargaining
73
would be effectively destroyed, and, as noted previously
herein, in the absence of some claim of invidious discrimi-
nation, a defendant's rights are not violated simply be-
cause a prosecutor may elect to use the leverage of an
applicable habitual criminal statute against him, while
not use the same leverage against other defendants.
In summary, it would appear that the petitioner's
position was well stated by the Kentucky Court of Ap-
peals in the opinion appended to the tendered petition.
As noted by that Court, the petitioner risked the maxi-
mum sentence of life imprisonment for a sentence of five
years. He cannot now complain of his bad bargain.
The Magistrate will this day enter an Order grant-
ing the petitioner leave to proceed in forma pauperis and
directing that the petition for writ of habeas corpus here-
tofore tendered by the petitioner be filled herein. How-
ever, for those reasons discussed above, it is the Magis-
trate’s recommendation that said petition be denied and
that this action be dismissed.
This 11th day of June, 1975.
DAVID R. IRVIN
em ee ee
David R. Irvin, U.S. Magistrate
74
FILED JUNE 11, 1975
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
PAUL LEWIS HAYES , _.... PETITIONER
VS ORDER NO. 75-61
HENRY COWAN, Warden, Etc RESPONDENT
*e. © * *
The petitioner having heretofore tendered for fil-
img a petition for writ of habeas corpus and having filed
therewith a motion for leave to proceed in forma pauperis,
which motion is supported by an affidavit of poverty, it
is now therefore ORDERED that the petitioner be granted
leave to proceed in forma pauperis and that the petition
for writ of habeas corpus heretofore tendered for filing
by the petitioner be filed herein.
This 11th day of June, 1975.
DAVID R. IRVIN
David R. Irvin, U.S. Magistrate
75
FILED SEPTEMBER 9, 1975
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
PAUL LEWIS HAYES PETITIONER
VS ORDER CIVIL NO. 75-61
HENRY COWAN, Warden, Etc. _. RESPONDENT
7-2. * ©
The Court having considered the entire record here-
in, including the Magistrate’s Report and Recommenda-
tion heretofore filed herein on June 11, 1975, and being
sufficiently advised;
IT IS NOW THEREFORE ORDERED AND AD.-
JUDGED HEREIN AS FOLLOWS:
(1) That the Magistrate’s Report and Recommen-
dation heretofore filed herein be and the same is hereby
adopted, confirmed, approved, allowed and established as
and for the Court’s Findings of Fact and Conclusions of
Law herein.
(2) That the petitioner's Petition for Writ of Habeas
Corpus be and the same is hereby denied.
(3) That this cause be and the same is hereby dis-
missed.
This the 9th day of September, 1975.
BERNARD T. MOYNAHAN, JR.
Bernard T. Moynahan, Jr., Judge
76
FILED OCTOBER 9, 1975
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AT LEXINGTON
PAUL LEWIS HAYES
Petitioner
V. CIVIL NO. 75-461
Superintendent, Kentucky
State Penitentiary,
}
)
)
HENRY COWAN, )
)
Respondent
NOTICE OF APPEAL
Notice is hereby given that the Petitioner appeals
from the order in the above styled action entered on
September 9, 1975 dismissing the above styled action.
Respectfully submitted,
PAUL F. ISAACS
ASSISTANT PUBLIC DEFENDER
625 Leawood Drive
Frankfort, Kentucky 40601
COUNSEL FOR PETITIONER
4é
FILED OCTOBER 9, 1975
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AT LEXINGTON
PAUL LEWIS HAYES )
Petitioner )
V.
}
HENRY COWAN, )
Superintendent, Kentucky, )
State Penitentiary, )
Respondent
CIVIL NO. 75-61
APPLICATION FOR CERTIFICATE
OF PROBABLE CAUSE
Pursuant to 28 U.S.C. §2253, the above-named Peti-
tioner requests that he be granted a Certificate of Prob-
able Cause for the appeal in the above-captioned action.
Respectfully submitted,
PAUL F. ISAACS
ASSISTANT PUBLIC DEFENDER
625 Leawood Drive
Frankfort, Kentucky 40601
COUNSEL FOR PETITIONER
78
NOTICE
Please take notice that the foregoing Motion will be
filed on the 9th day of October, 1975 with the Clerk of
the United States District Court for the Eastern District
of Kentucky at Lexington.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion
has been mailed, postage prepaid to Hon. Ed W. Han-
cock, Attorney General, Capitol Building, Frankfort, Ken-
tucky 40601, this 9th day of October, 1975.
79
FILED DECEMBER 19, 1975
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
LEXINGTON
PAUL LEWIS HAYES ........---. PETITIONER
VS. ORDER CIVIL 75-61
HENRY COWAN, Superintendent
This petition for a Writ of Habeas Corpus is grounded
- on the claim of petitioner that his conviction as a habi-
tual criminal violates his constitutional rights in that:
the mandatory sentence of life imprisonment imposed
upon such conviction equates to cruel and unusual punish-
ment; the selective application of Kentucky's habitual
criminal statute causes said life sentence to amount to
cruel and unusual punishment; and the allegedly “vin-
dictive” application of the habitual criminal statute to
the petitioner violates his due process of law.
The claim that the mandatory life imprisonment sen-
tence imposed upon one convicted of the Kentucky habi-
tual criminal statute equates to cruel and unusual punish-
ment is clearly without merit. As was well stated in
Oyler v. Boles, 368 U.S. 448, 451 (1962):
“ _. the constitutionality of the practice of inflict-
U
ing severe criminal penalties upon habitual offenders
is no longer open to serious challenge”.
Moreover, absent some arbitrary classification, the
courts will abjure the review of prosecutorial discretion,
albeit the exercise of such discretion may result in differ-
ent treatment of co-defendants originally charged with
identical offenses in the same case. Olyer v. Boles, supra
at page 456.
The Court observes that the convictions underlying
the petitioner’s habitual criminal conviction were crimes
of a most serious nature and thereby concludes that the
sentence received upon conviction of being a habitual cri-
minal was not disproportionate to the nature of the un-
derlying offenses, and that the mandatory sentence im-
posed was necessary to the achievement of a legitimate
legislative purpose.
Petitioner's remaining claims emanate from the fact
that not all Kentucky defendants having the requisite
number of prior felony convictions are prosecuted under
the state’s habitual criminal statute and that petitioner
was so prosecuted only upon his refusal to plead guilty
to the substantive offense of forgery in return for a five
(5) vear sentence.
It being well established that the concept of plea
bargaining, per se, is not unconstitutional. Santobollo v.
New York, 404 U.S. 257 (1970). It is apparent from a
re\ ew of the record in that no encroachment was made
upon petitioner’s constitutional rights, that the petitioner
chose to risk the maximum sentence of life imprisonment
under the Kentucky habitual criminal statute by electing
to proceed to trial, rather than accepting a sentence of
five (5) years in return for a plea of guilty to the forgery
charge then lodged against him.
The petitioner, therefore, has no cause for complaint
merely because his “choice” resulted in a substantially
greater sentence than would have otherwise been im-
posed had he accepted to proffered “bargain”.
The Court specifically finds that the appeal sought
herein is frivolous, is not taken in good faith, and does
not present a substantial question, and same is therefore
denied and the Court declines to issue a Certificate of
Probable Cause herein.
This the 19th day of December, 1975.
BERNARD T. MOYNAHAN, JR.
Bernard T. Moynahan, Jr., Judge
82
NO. 76-8006
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PAUL LEWIS HAYES,
Petitioner-Appellant
v. ORDER
The court treating the notice of appeal filed by the
petitioner as an application for certificate of probable
cause, an application having been previously made to the
district court and having been denied, upon considera-
tion.
IT IS ORDERED that said application be and it is
hereby granted.
/3/ Albert J. Engel,
Albert J. Engel,
Circuit Judge
R3
NO. 76-1409
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PAUL LEWIS HAYES.
Petitioner-Appellant, APPEAL from the
7 United States District
Court for the Eastern
HENRY COWAN, Warden. ! District of Kentucky.
Respondent-Appellee
Decided and Filed December 30, 1976.
Before: PECK, McCREE, and LIVELY, Circuit
Judges.
McCREE, Circuit Judge. This is an appeal from the
denial of a petition for habeas corpus challenging con-
finement based on Hayes’ conviction of being an habitual
criminal under Kentucky’s recidivist statute, K R.S. $431.
190.' The district court referred the petition to a magis-
‘At the time of appellant's conviction the statute provided
Conviction of felony; punishment on second and third
offenses. Any person convicted a second time of felony
shall be confined in the penitentiary not less than double
the tume of the sentence under the first conviction; if con-
victed a third time of felony, he shall be confined in the
penitentiary during his life. Judgment in such cases shall
trate to determine whether leave to proceed in forma pau-
pris should be granted pursuant to 28 U.S.C. §1915(a).
determined that petitioner's claims were not so frivolous
that im forma pauperis leave should not be granted, never-
theless, he concluded that the contentions made were
“patently without merit” and recommended that the peti-
trate’s conclusions and, instead of issuing an order to
the respondent to show cause as provided in 28 U.S.C.
§2243, it dismissed the petition on the grounds that the
mandatory life sentence imposed for the habitual cri-
minal conviction did not constitute cruel and unusual
punishment, that petitioner had not been arbitrarily
selected for prosecution as an habitual criminal, and
that the state prosecutor's decision to seek an habitual
criminal indictment when petitioner refused to plead
guilty to the charge of forgery in return for a recom-
not be given for the increased penalty unless the jury finds,
from the record and other competent evidence, the fact
of former convictions for felony committed by the prisoner,
in or out of this state.
It has since been repealed. According to §532080, which now
regulates “ persistent felony offender sentencing,” the special
sentence may be imposed only if, for each of two previous
felony convictions, the sentence was at least one year; de-
fendant was¢imprisoned under each such sentence before com-
mission of the instant felony; and the offender was over
eighteen years of age at the time he committed each offense.
Petitioner would not have been subjected to enhanced sentenc-
ing under $532.080, because none of these conditions were
satisfied
85
mendation of a five-year sentence was not an unconsti-
tutional implementation of plea bargaining.
We issued a certificate of probable cause to permit
an appeal when the district court, determining that an
appeal would be frivolous and not taken in good faith,
declined to do so. Because we conclude that petitioner
was denied the due process of law by the prosecutor's
tactics, we reverse.
The facts which led to petitioner’s conviction and
incarceration are not disputed* On January 8, 1973, he
was indicted for forgery of a check in the amount of
$88.30 by a Fayette County, Kentucky grand jury. After
arraignment, a pretrial conference was held with the
state prosecutor. During this conference, the prosecutor
offered to recommend a five-year sentence if Hayes would
plead guilty. Petitioner was warned that if he did not
plead guilty, he would be charged under the habitual cri-
minal statute. He refused to plead guilty, but insisted
on receiving a full trial. The prosecutor thereupon re-
turned to the grand jury. and. on January 29, 1973, ob
tained a new indictment charging petitioner under the
habitual criminal statute based upon the forgery as a
third offense. Petitioner was convicted by a jury, and
*These facts were admitted by the prosecutor during his
cross-examination of appellant at the sentencing trial:
.. . isn’t it a fact that I told you if you did not intend to
save the court the inconvenience and necessity of a trial
and taking up this time that I intended to return to
the grand jury and ask them to indict you based upon
these prior felony convictions’
86
on the instructions of the judge, the mandatory life sen-
tence for a third offense habitual criminal was imposed.’
We recognize that plea bargaining now plays an im-
portant role in our criminal justice system. In United
States v. Brady, 397 U.S. 742, 752 (1970), the Supreme
Court approved the practice, and stated that plea bar-
gaining helps to conserve judicial and prosecutorial re-
sources in cases in which there is no substantial issue
about the defendant’s guilt. The Court has recognized,
however, that there are limits to the tactics that a pro-
secutor may use in bargaining with defendants. See
Santobelio v. New York, 404 U.S. 257 (1971). The Court
has not yet had an opportunity to explore fully these
limits, particularly in cases such as this, “where the
prosecutor .. . deliberately employ|ed his| charging...
‘We expressed our disapprovai of such practices in Cunning-
ham v. Wingo, 443 F. 2d 19%, 198 n.1 (1971). In that case we
noted the findings of the President’s Commission of Law En-
forcement and Administration of Justice in The Challenge of
Crime in a Free Society (1967):
“At the same time the negotiated plea of guilty can be
subject to serious abuses. In hard-pressed courts, where
judge and prosecutors are unable to deal effectively with
all cases presented to them, dangerous offenders may be
able to manipulate the system to obtain unjustifiably
lenient treatment. There are also real dangers that ex-
cessive rewards will be offered to induce pleas or that
will threaten to seek a harsh sentence if the
87
powers to induce a particular defendant to tender a plea
of guilty.” Brady, supra, at 751 n.8. But it is clear that
the legitimate purposes of plea bargaining are not served
if a prosecutor abuses his powers in order to coerce an.
renee defendant into foregoing his constitutional right
) '
The Supreme Court has held that defendants who
assert procedural! rights must be treated in a way that
avoids any suggestion of vindictive or retaliatory motive.
In North Carolina v. Pearce, 395 U.S. 711 (1969), the
Court held that a defendant may not be subjected to a
more severe penalty on retrial after a successful col-
lateral attack against a conviction. The Court reasoned
that due process requires that a defendant be free from
fear of retaliatory action when he asserts procedural
rights. Therefore a defendant may not be dealt with more
harshiy on retrial unless the permissible reasons therefor
affirmativly appear.
In Blackledge v. Perry, 417 U.S. 21 ( 1974), the Court
applied the rule expressed in Pearce to protect defen-
dants from the vindictive exercise of a prosecutor's dis-
cretion. In that case, a defendant in 4 misdemeanor
prosecution had asserted his right to a trial de novo on
appeal. Before the new trial, the prosecutor obtained a
felony indictment against the defendant. The Court held
that this tactic, if allowed, would deter defendants from
asserting their procedural rights. The Court emphasized
that the prosecution should not be allowed to behave in
a manner that even suggests a retaliatory motive.
The concerns expressed in Blackledge have per-
suaded several lower courts to limit the prosecutor’s dis-
&8
cretion in related situations. In United States v. Jamison,
505 F. 2d 407 (D.C. Cir. 1974), the court reversed a con-
viction of first degree murder obtained after the defen-
dants had been granted a mistrial during an earlier trial
based on an indictment for second degree murder. In
United States v. DeMarco, 401 F. Supp. 505 (C.D. Cal.
1975), the court refused to allow prosecution of an in-
dictment obtained after a defendant had asserted his
right to a change of venue of a trial on an indictment
charging less serious offenses. In United States v. Ruesga-
Martinez, 534 F. 2d 1367 (9th Cir. 1976), the court held
that a defendant cannot be tried on a felony indictment
after he has refused to plead guilty to a misdemeanor,
if no justification of the increase in severity of the
charges is offered. See also United States v. Gerard, 491
F 2d 1300 (9th Cir. 1974); United States v. Butler, 515 F.
Supp. 394 (D. Conn. 1976); Sefchek v. Brewer, 301 F.
Supp. 793 (D. Iowa 1969).
We hold that a similar potential for impermissible
vindictiveness exists when a prosecutor is allowed to
bring an habitual offender indictment against a defendant
who has refused to plead guilty to an indictment for the
same unenhanced substantive offense. In this case the
prosecutor does not assert that any event occurred be-
tween the issuance of the first indictment and the issu-
ance of the second to influence his decision except peti-
tioner’s insistence upon his right to trial. There is no
indication that the prosecutor, had he thought such an
indictment proper, could not have included the habitual
criminal charges in the original indictment.
The Commonwealth urges that the entire concept of
plea bargaining will be destroyed if prosecutors are not
allowed to seek convictions on more serious charges if
defendants refuse to plead guilty. We do not agree. Al-
though a prosecutor may in the course of plea negotia-
tions offer a defendant concessions relating to prosecution
under an existing indictment, see United States ex rel.
William v. McMann, 436 F. 2d 103 2d Cir. 1970), cert.
denied, 402 U.S. 914 (1971), he may not threaten a de-
fendant with the consequence that more severe charges
may be brought if he insists on going to trial When a
prosecutor obtains an indictment less severe than the
facts known to him at the time might permit, he makes
a discretionary determination that the interests of the
state are served by not seeking more serious charges. Cf.
United States v. Johnson, 537 F. 2d 1170 (4th Cir. 1976).
Accordingly, if after plea negotiations fail, he then pro-
cures an indictment charging a more serious crime, a
strong inference is created that the only reason for the
more serious charges is vindictiveness. Under these cir-
cumstances, the prosecutor should be required to justify
his action. In this case, a vindictive motive need not be
inferred. The prosecutor has admitted it.
Therefore we hold that due process has been of-
fended by placing petitioner in fear of retaliatory action
for insisting upon his constitutional! right to stand trial.
Accordingly, the dismissal of the petition is reversed and
the case is remanded with instructions to order petition-
er’s discharge except for his confinement under a lawful
sentence imposed solely for the crime of uttering a forged
instrument.
90
UNITE DSTATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NO. 76-1409
PAUL LEWIS HAYES
PETITIONER-APPELLANT
V. MOTION FOR STAY OF MANDATE
HENRY COWAN, Warden
RESPONDENT-APPELLEE
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF KENTUCKY AT LEXINGTON
Respondent-Appellee, by counsel, respectfully pre-
sents this application for, and moves the Court to enter,
an order staying the issuance of the mandate in this case
pursuant to Rule 41(b) of the Federal Rules of Appellate
Procedure for thirty (30) days because it is the intention
of Respondent-Appellee to make proper and timely ap
plication to the Supreme Court of the United States for
91
writ of certiorari to review the decision of the Sixth Cir-
cuit in the above-styled action.
Respectfully submitted,
ROBERT F. STEPHENS
ATTORNEY GENERAL
By: ROBERT L. CHENOWETH
Assistant Attorney General
Frankfort, Kentucky 40601
COUNSEL FOR
RESPONDENT-APPELLEE
NOTICE
Please take notice that the foregoing Motion will be
filed with the Clerk of the United States Court of Ap
peals for the Sixth Circuit by mailing an original and
three copies thereof this 25th day of January 1977, to be
considered at the convenience of the Court.
Assistant Attorney General
CERTIFICATE OF SERVICE
I certify that two copies of the foregoing Motion were
mailed, postage prepaid, to Honorable J. Vincent Aprile,
Assistant Public Defender, 625 Leawood Drive, Frankfort,
Kentucky 40601 on January 25, 1977.
Assistant Attorney General
92
FILED FEBRUARY 2, 1977
FOR THE SIXTH CIRCUIT
NO. 76-1409
PAUL LEWIS HAYES
Petitioner-Appellant
V.
HENRY COWAN, WARDEN
Respondent-Appellee
BEFORE: PECK, McCREE and LIVELY, Circuit Judges
ORDER STAYING MANDATE
ORDERED, That motion to stay mandate herein
pending application to the Supreme Court for writ of
certiorari is hereby granted and the mandate is stayed
for thirty days from this date; provided that, if within
such thirty days, the applicant shall file with the Clerk
of this Court the certificate of the Clerk of the Supreme
Court that the certiorari petition, record, and brief have
been filed, the stay shall continue until the final disposi-
tion of the case by the Supreme Court. Unless this con-
dition is complied with within such thirty days or any
extension thereof made by the Court or any judge thereof,
or if the condition is complied with, then upon the filing
of copy of an order denying the writ applied for, the
mandate shall issue.
ENTERED BY ORDER OF THE COURT
/s/ John P. Hehman
Clerk
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