Petition — DURKIN WOODRUFF v. HARRY L. ALLSBRook (No. 80-6508)

IN THE UNITED STATES SUPREME COURT

RECEIVED

APR 14 19x)

OFFICE OF THE CLERK

SUPREME COURT, U.S,

SPRING TERM 1981

wn: 90-6508

DURKIN WOODRUFF

Petitioner—tppellant

Ve

HARRY Le ALLSBROOK,

Respondent—Appellee

PETITION FOR WRIT OF CERTIORARI TO

THE FOURTH CIRCUIT COURT OF

APPEALS AT

RICHMOND, VIRGINIA

” ai

/s/ y 24s LiL, .

Route 1, Box 36

Jackson, North Carolina 27845

ha

IN THE UNITED STATES SUPREME COURT

SPRING TERM 1981

NOs

DURKIN WOODRUFF

Petitioner-Appellant

Ve

HARRY Le ALLSBROOK

Respondent~Appellee

PETITION FOR WRIT OF CERTIORARI

TO THE FOURTH CIRCUIT COURT

OF APPEALS AT

RICHMOND, VIRGINIA

The petitioner, Durkin Woodruff, respectfully prays that the

Court issue a writ of Certiorari to review the judgment of the United States

Court Of Appeals for the Fourth Circuit which whs rendered on below dates and

the affirming of the district court's orders

OPINION'S FROM COURT'S BELOW

le (Appendix-A) Exhibit (A)

UNITED STATES DISTRICT COURT

October 2h, 1980

2. (Appendix-B) Exhibit (B)

UNITED STATES COURT OF APPEALS

February 20, 1961

34 (Appendix-C) Exhibit (C)

March 17, 1981

JURISDICTION OF THE COURT

A. The decisions of the United States Court Of Appeals for the

Fourth Circuit entered in this cause was in error on both occasions when entered

on the 20th, February 1981, and the 17th, March 1981.

Be The jurisdiction of the Court is invoked pursuant to 28 U.S.C.

1257 (3), and any other appropriate United States Code that is applicable for the

filing of this cause and/or rule of the Supreme Court. Rule 19, 20, 21 and h6.

Ce This court should also note that this petition for writ of

certiorari to the United States Supreme Court has been filed in apt times

I. ARE CRIMINAL DEFENDANT'S NOT DEPRIVED OF A FAIR

TRIAL, AND DENIED DUE PROCESS OF LAW, WHEN BEING

REPRESENTED BY AN ATTORNEY, THAT ENTERS A PLEA

DEAL ALLEGEDLY WITH THE GOVERNMENT, WHEN THE

DEFENSE ATTORNEY HAS FALSELY, RELATED FACTS TO

THE CRIMINAL DEFENDANT TO MATTERS SURROUNDING

THE PLEA? COULD SUCH PLEA BE ACCEPTED AS HAVING

BEEN VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY

ENTERED BY DEFENDANT? HAS DEFENDANT NOT BEEN

DEPRIVED, DENIED OF COMPETENT, EFFECTIVE

ASSISTANCE OF COUNSEL?

CONSTITUTIONAL PROVISIONS INVOLVED

The provisions involved in this matter are the Fourth, Fifth, Sixth and

Fourteenth Amendments of the United States Constitutions

ARE CRIMINAL DEFENDANT'S NOT DEPRIVED OF A FAIR TRIAL,

AND DENIED DUE PROCESS OF LAW, WHEN BEING REPRESENTED

BY AN ATTORNEY, THAT ENTERS A PLEA DEAL ALLEGEDLY WITH

THE GOVERNMENT, WHEN THE DEFENSE ATTORNEY HAS FALSELY,

RELATED FACTS TO THE CRIMINAL DEFENDANT TO MATTERS

SURROUNDING THE PLEA? COULD SUCH PLEA BE ACCEPTED AS

HAVING BEEN VOLUNTARILY, KNOWINGLY, AND INTELLIGENTLY

ENTERED BY DEFENDANT? HAS DEFENDANT NOT BEEN DEPRIVED

DENIED OF COMPETENT, EFFECTIVE ASSISTANCE OF COUNSEL?

The Sixth Amendment right to counsel bas been made applicable to the

states through the Fourteenth Amendments GIDEON V. WAINWRIGHT, 372 U.Ss 335, She Ede

2a 799, 83 S. Cte 792 (1963). This Court has held that, "No person may be

imprisoned for any offense, absent a knowing and intelligent waiver, unless he was

represented by counsel at his trial.” ARGENSINGER V. HAMLIN, 07 U.S. 25, 32 Le Ede

24 530, 92 S. Cte 2006 (1972), the North “arolina Supreme Court has stated that,

" The right to counsel applies at the taking of a guilty plea.” STATE V. DETTER,

298 N.C. 604 (1979) at 619. It is believed that a criminal defendant is denied due

process of law, and the right to the assistence of counsel, for his defense, when

an attorney wilfully, intentionally and knowingly mistate facts surrounding an

alleged plea that has been worked out with the government, especially, when such

plea or arrangement has not been fully or accurately related to the criminal

defendant. Any such guilty or nolo contendere plea that is entered to cause a

conviction under such circumstances cannot be called one that was voluntarily, or

freely entered. In the instant case, the attorney had informed petitioner that

he'd receive a sentence of twelve (12) to fifteen (15) years for the entrance of his

Seat The instant case initially started as a jury trial, after which the defense

attorney began talks about the entering of a ag: The court should be made aware

that it was the defence attorney that selected the jury for the trial, and was him

that asked for a recess of the trial and began talks about a pleas

le

This contention was raised in the habeas petition, and page's 2,3, of the traverse

replye And also page 5 of the objection of the magistrates Also pages 3-6 of the

briefs to the Fourth Circuite

26

The attorney made remarks to petitioner about, " You don&t have a chance, if you

go through a jury triale” " They go convict you, it don't look good, they go

convict yous" " In order to get the DA and the judge to give you a lesser

sentence of 12 to 15. years, you'll have to answer all questions, and sign

paperse"

STATEMENT OF THE FACTS

The petitioner, was brought to trial in the lth, October 1977, term of

criminal sessions court for the 6ounty of Forsyth, in 4 prosecution for Armed

Robberys The petitioner's trial initially began as a jury trial, which however

was terminated by the attorney and ended in a plea bargain trial. The petitioner

had been promised by the defense attorney who had made statements that he had

worked out @ deal with the prosecution for the petitioner to receive a sentence

of twelve to fifteen years, nevertheless, petitioner was sentenced to a term of

natural lifes Petitioner was then given an evidentiary hearing in the Superior

Court on the issues. The issues were not resolved in state courts. The North

Carolina Supreme Court denied relief as well as the district court as well as

the United States Court Of Appeals.

The district court accepted the findings and recommendation of the magistrate,

and the magistrate adopted the findings of the state court post-conviction

hearinge The district court was required to hold it's own evidentiary hearings,

&s all the facts were not fully or adequately developed at the state court

hearinge FOUNTS Ve POGUE, 532 Fe 2d 1232 (CA 9 1976), 26 U.S. 925, 96 Se Cte

2635, 9 L. Ed 2d 379 (1977)« As was evidenced in the magistrate's recommendation

there was a clear showing of ieeatiic” A hearing in federal court would have

allowed the court to make it's own findings in regards to the broken plea and

misrepresentation of counsele See, esge, LEWIS V. HENDERSON, 520 F. 2d 896

(2nd Cire 1975), certe dens 423 UsS. 998, 96 Se Cte 429, 6 Le Ede 373 (1975)

UNITED STATES Exe Rele KIRBY V. STURGES, 510 Fe 2d 397 (7the Cire 1975), certe

dene 21 U.S. 1016, 95 S. Cte 2h2h, hl Le Ed 2d 685 (1975). Whether an evidentiary

hearing is required in habeas corpus proceeding is a question of federal law,

while erroneous denial of a state post-conviction evidentiary hearing may be

relevant to determination of federal question, it is not dispositive. TOLER V.

WYRICK, 563 Fe 2d 372 (8the Cire 1977) It is further understood that federal

court must apply federal constitutional law in habeas corpus proceedings, although

it may apply that law to reliably found state facts. SANTOS V. LAURIE, 433 Fe

Suppe 195 (D.C. RI. 1977)e The federal courts are not bound by decision of state

court on federal constitutional questionse LOCKETT V. BLACKBURN, 571 Fe 2d 309

(Sth Cire 1978)» In arriving at a decision in the instant case, the court must

consider several factors, one; was the plea entered Amvoluntarily entered upon

misguided advice of the defense attorney, twos was the plea entered by believing

attorney was relating facts, three; did attorney falsely relate facts to petitioner

in exchange for plea and four; did the attorney ewer in his giving false information

not deprive and deny petitioner of due process ami the sixth amendment right to

competent effective assistance of counsele The magistrate in his recommendation

Je

As the magistrate stated on page 1 ami 2 of his recommendations " At the state

post-conviction hearings, petitioner, his sister, his mother, and his former

counsel testified. While petitioner testified that he was promised a 15-year

sentence, his counsel presented a radically different pictures"

stated attorney competent, same cannot be accepted as Cae Considering that

petitioner answered all questions as was told to him by the defense attorney,

who specifically had told him to deny plea had been made, when same had been

discussed. This does not bar relief on the claim because the transcript of plea

shows it was entered freely. The Fifth Circuit Court Of Appeals has recently

ruled on this particular issue, when it held that, " Defendant's recitals on record

at time of entering guilty plea do not foreclose proof at later time that those

were thenselves involuntary." FLORES V. ESTELLE, 578 Fe 2d 80 (Sth Cir. 1978)«

The petitioner was following the advice and guidance of the defense attorney and was

not aware that the attorney was playing deceitful acts on him or giving wrong

information to induce a please See, Cegey EDWARDS V. GARRISON, 529 Fe 2d 137k

(th Cire 1975)« A Plea of guilty induced by promises or made without full

understanding of the consequences will not sustain a convictione CONEY V. WYRICK,

532 Fe 2d 94 (8th Cir. 1976). The wluntariness of a counseled plea of guilty

depends on whether the attorney's advite was within the range of competency

demanded of attorney's in criminal casese HUFFMAN V. MISSOURI, 527 Fe 2d 899 ©

(8th Cire 1976), certe dene L29 U.S. B7iy 95 Se Cte 136, U2 Le Ed 2d 11h (197k)

A defendant is entitled to effective assistance of counsel in determining how to

plead and making his pleas BURCHETT V. CARDWELL, 493 Fe2d 492 (9th Cir. 1974)»

corte dene li26 U.S. 92h, 96 Se Cte 263k, 49 Le Ed 24 379 (197700 COLSON Ve

SMITH, 438 Fe 2d 1075 (Sth Cire 1971)» It is beliewd that the petitioner has

established and met the burden required to be granted reliefs The Fifth Circuit

Court Of Appeals has also held that, " If a criminal defeniant is represented at

trial hy an attorney, either appointed or retained who labors under an actual,

and not merely a potential, conflict of interest, defendant has been denied

effective assistance of counsel as matter of law and, unless he has knowingly

and intelligently waived his sixth amendment right to conflict free representation

reversal is automatic and no prejudice need be showne"” UNITED STATES V. MARTINEZ,

630 Fe 2d 361 (Sth Cire 1980). This court has held that, " Eventhough defendant

has no substantive right to particular sentence within range authorized by

statute, sentencing is critical stage of criminal proceeding at which he is

entitled to effective assistance of counsels" GARDNER V. FLORIDA, U.S. ,

97 S. Cte 1197 (1977), it is accepted that pursuant to North Carolina law, life

was the maximum that could have been imposed upon conviction, nevertheless, |

petitioner had been told he'd receive a 12 to 15 year sentences The petitioner

was entitled to a fair trials ESTEELE V. WILLIAMS, U.S. » 9% Se Cte 1691

(1976), such could not have been received where an attorney m‘rlead, misstated,

misguided, and misadvised petitioner on his plea, arrangement or sentences VOYLES

Ve WATKINS, 489 Fs Suppe 901 (N.D. Misse 1980) MCQUEEN Ve SWENSON, 560 Fe 2d 959

(8th Cire 1977)» CASTILLO Ve ESTELLE, 50) Fe 2d 123 (Sth Cire 1974). Pursuant to

the holdings of the Fourth Circuit Court Of Appeals in Margullo Vs Maryland, the

petitioner would be entitled to reliefs MARZULLO V. MARYLAND, 561 Fe 2d S40 (Lith

Cire 1977), the petitioner should be granted a new trials See also, SPRINGER Ve

COLLINS, 586 Fe 24 329 (lth Cire 1978) at 3326

he

The magistrate at page 2 and 3 stated; "Therefore, counsel told petitioner

that if he changed his plea the judge might take that fact into consideration

if order to give him something less than a life term. The transcript of the

plea and the verbatim record of the plea both disclose that petitioner

unddr cath assured the court that no pkea promises had been made to hime"

Se

See attached herewith and marked respectfully as Exhibits (D), which is

traverse to district courte Exhibit (E), which is the magistrates recommendations

Exhibit (F), which is the objection to magistrate recomnendatione Exhibit (G),

which is the brief to the fourth circuit court of appealse Exhibit (H), which

is the petition for rehearing in fourth circuit court of appealse

REASON FOR THE GRANTING OF THE WRIT

It is believed that justice would be best served with this Court fully

Clearifying as to just what extent an attorney is allowed to deprive a criminal

defendant of his constitutional rights to mistate and misguide him in his

representation to cause the entrance of a plea of guilfy or nolo contendere on

false informatione It is believed that the court should set some formal guideline

as to just what standards are actually to be held to come within bounds for an

attorney to be considered as having rendered services that were of a nature that

were of a level of competence to assure the criminal defendant the constitutional

right to competent effective assistance of counsele And also the Court should make

@ ruling on Just what is the definition and standards to determine such competences

The Circuit Courts are all in a dissaray as to just standards are used to be

determined as competent effective assistancee This Court should also set such stanards

as to also apply to these criminal cases that are in the state courts, as each state

has it's own standards which as in North Carolina fall short of that required in

MARZULLO Ve MARYLAND, 561 Fe 2d 50 (lth Cire 1977),which was affirmed by this

Courte

cin Wood

Route 1, Box 36

Jackson, North Carolina 27845

S.iCRN TO AND SUBSCRIBED BEFORE ME

THs THE G2” vay oF WIR A 198/

Late Te Mace

Notary Public

MY COMMISSION EXPIRES_/,2 —LP- WALT

EKHtBtl

(A

IN THE UNITED STATES DISTRICT COURT {

FOR THE MIDDLE DISTRICT OF NORTH CAROLIp

GREENSBORO DIVISION .

DURKIN WOODRUFF,

Petitioner

Vv. C-80-286-G

HARRY L. ALLSBROOK, et al,

Respondents

JUDGMENT

On October 7, 1980, the United States Magistrate's

Findings and Recommendation was filed and notice was served

on the parties pursuant to 28 U.S.C. § 636. Thereafter, the

Court received petitioner's objections to the Magistrate's

Findings and Recommendation.

The Court has appropriately reviewed petitioner's ob-

jections and finds that they do not change the substance of

the Magistrate's rulings which are affirmed.

; NOW, THEREFORE, pursuant to the Magistrate's Findings

and Recommendation, it is ORDERED AND ADJUDGED that the peti-

tion is denied and this action be, and the same hereby is

dismissed.

October 24, 1980

4 irus “Copy

Cane. Hoye,

ep tr Ciec>d

EXHLBI7

i

Se

S

oS wr

Pg Durkin Woodruff,

Appellant,

Vv.

Harry L. Allsbrook;

Attorney General of the

State of North Carolina,

Appellees.

Appeal from the United States District Court for the Middle Cis-

trict of North Carolina, at Greensboro. Eugene A. Gordon,

District Judge.

Submitted: January 27, 1981 Decided: February 20, 1981

(Durkin Woodruff, Appellant Pro Se. Barry J. McNeill, Associate

Attorney General, for the Appellees.)

EXHIBIT

(‘2

PER CURIAM:

A review of the record and the district court's opin-

ion accepting the magistrate's recommendation discloses that an

appeal from its order refusing habeas corpus relief pursuant to

28 U.S.C. § 2254 would be without merit. Because the dispositive

issues recently have been decided authoritatively, we deny a cer-

tificate of probable cause to appeal, dispense with oral argument,

and dismiss the appeal on the reasoning of the district court.

Woodruff v. Allsbrook, C/A No. C-80-280-G (M.D.N.C., Oct. 24,

1980).

DISMISSED.

o =

Lb (©

UNITED STATES COURT OF APPEALS

FILED

MAR 1:7 1981

FOR THE FOURTH CIRCUIT

WILLIAM K. SLATE, if

No. 80-8324 CLERK

Durkin Woodruff,

Appellant,

versus

Harry L. Allsbrook;

Attorney General of the

State of North Carolina,

; Appellees. F

ORDER

Upon consideration of appellant's pro se petition for

rehearing,

IT IS ORDERED that the petition for rehearing

is DENIED.

Entered at the direction of Judge Winter for a

panel consisting of Judge Winter, Judge Butzner, and

Judge Russell.

For the Court,

/s/ William K, Slate, IL

CLERK

: — AUG - 1 1980

yhl TH TMK UNITED STATES DISTRICT COURT

Col FERK, U. §. DiSiFOR OMA MIDDLE DISTRICT OF NORTH CAROLINA

GREENSBORO, N.C. GREENSBORO DIVISION

__ CIVIL NOs C~80-280-0

im THIS OFFICE

Ciork, U, &. Dist latrict Coal

Greenaboroy Me Qe

—

DURKIN WOODRUFF

‘ Petitioner '

Ve RESPONDENT'S ANSWER TO PETITION

AND MOTION TO DISMISS

HARRY L.ALLSBROOK

Respondent

LS OOS OSES

)

TOs THE HONORABLE JUDGS OF THE UNITED STATES DISTRICT COURT PRESIDING OVER

THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF

NORTH CAROLINA---GREENSBORGR—-DIVISION

Durkin Woodruff,A State Court Prisoner Housed at the North Carolina

Departaent of Corrections Oiom Correctional Institute at Jackson,North Carolinne

Brought this cause of action ty ey of a Petition for Writ of Habeas Corpuse

In Regards to. Content Sn (4), The Attorney was ineffective assistance of

Counsele As He failed to ate. represent Petitioner ,also He failed to Perform

Proper Investigations on the facts that surronded the cases He did Mislead the

Petitionerin the plea arrangement that he had madesKnew That ho had mode false

Claims when he claimed that he had made an arrangement for a plea to a certain

Sentence when He stopped the Trial That was in process,with the trial being a

Jury trials He also Knew That he failed to Otain any sort of Line up for the

Petitioner to be Identified slong with Others of his make and Build, Knew that

He had a solemn duty to go through with a jury trial if the defendant had so

desired to do 80» Knowing That it was not his duty and or proper conduct of any

sort to Mislead Petitioner in Order to achieve a guilty plea,also he knew that

he was not 0 0. defendant with a Larger Sentence because he desired to

Utilise his right to « trial by Jurys The Sixth Amendment right to counsel has

beon made applicable to the States through the Fourthenth Amendment ,GIDEON Ve

WAINARIGHT,372 U+S0335,9% LeEde 2d 799,83 SeCto792 (1963)eNo Person May be

inprisoned for any offense,absent a knowing end intelligent waiver, unisss he was

represented by counsdl. at hie trialesRGEASINGR VsHAMLINLO7 U.5.25,32 Lekde 24

530,92 $eCt.2006 (1972),The right to Counsel applies at the taking of « guilty

pleasSTATE VeDETTER,298 N.Co60h (1979) at619.In the Present Case before the

Court The Attorney Made renarks of," You don't have a Chance,if Tou go through

a jury triale" It is Clear That to Have an Attorney That is working agéinst a

Criminal déGendant instead of in his behalf at a Trial is of little avail md

(2)

@ Criminal defendant would come out better with no attorney and leaving it

up to the mercy of the Court to be lienients It is understood That Plea

bargaining when properly conducted and fairly negoitiated, serves useful

purposes for soolety prisoner ond quality of justice in those cases which

mist be trie! LASSIZER VoTURNER 123 F.2d 897 (ith Cir,1970).Yevertheless,

The Attorney knew That for the Plea to be Voluntarily and Understgndingly

made, Plea of guilty mst be solely the produwt of the accused's informed

free will, and guilty plea is net Voluntary and must be stricken if that free

will is Overborne by Prosecutor or socused'd counselsEDWARDS VoGARRISQN,529

Fo2d 137 (ith Cir.3975)eTherefore epplyitg to the instant case Sub Judice

The District Court is not free to disregard allegations in a Habeas Corpus

Petition simply because they seem unbelievable,STREETS V.WAINARIGIT 1,02 Fe

24 87 (Sth Cir.1968),.The Attorney Promised a Term Of 12 to 15 Yoars,It is

not his duty to Mis-Quote,Mis-State or Mislead @ Criminal defendant in a Legal

matter. This Petitioner Never did Freely willfully or intentionally accent

a Life Sentence for his Flea because He could have went to trial by jury and

have been found Guilty and sentenced to such by the Trial Court,But He Followed

the advice of the attorney to enter such plea and get a 12 to 15 year sentence

and ended up with Still a Life Sentence which was not the cmseat upon plea

deal, The Court Can make a Liberal determination and it will see that The

Counsel's representation raises questions as to his suffitiently being

competent and effective and did he properly represent defendant in the cases

ROOT V.CUNNINGHAM, 344 Fe24 1 (hth Cire1965)eWithout any doubts it can be seen

That the Attorney did not come up to the Standards set by the Court In the case

of HARZULLO VeMARYLAND,561 Fe2d 540 (lth Cir.1977)e This Petitioner 1s entitled

to relief, ee : .

In regents to Contention ( B ), The Petitioner Herein,Had been Threaten

with Life Sentences by the Attorney. after having been informed by Petitioner that

he did not actually desire to enter a Plea of Guilty, The attomey Stated;

They Go Convict You,It don't Look Good, They Go Convict You. reluctantly Petitioner

entered a Plea after the attorney had informed him that he would receive a

sentence of 12 to 15 yearse Life Sentence for the Plea had never been agreed upone

In the Instant case The Attorney that represented Petitioner had never even advised

hia of his constitutional right to a trial by jury even though the trial had so

Started as sucheLOCKEIT V.HENDERSON,1,64 F.2d 62 (Sth Cirsl973). Howewr, Tho Plea

G)

Could not be considered Voluntary or intalligmtly entered,evonthough such was

catered by Petitioner dus to the fact of the involuntariness.BOYKIN V»ALABAMA,

395 U.8.238,09 8.Cts1709 (1968).Based on the factors of this case,the Conviction

"that was obtainad by the State was through @ Flea that was Anvoluntary.

HENDERSOH Ve MORGAN 1:26 0.8.637,96 B.0t.2253 (1976). The U.8.Suprene Court's

holding 4n NORTH CAROLINA V.ALFORD,100 U.S.25,91 S.Ct.160 (1970). Provided,

that, "(1) White most pleas of guilty consist of both a waiver of trial and

an express atateston of guilt,the latter elenent 4s not « constitutional

requisite to the imposition of criminal Penalty. (2) Where defentmt pleads

guilty while cimiltaneoudly — hig innocence,plea may be accopted where

it represents intelligent conclusion on port of defendant, that his interests

require entry of guilty Verdict ead where seoord before the Erte Judge

contains strong evidence of actual guilt." However,The Court must realize that

this Petitioner hed not waived trial by Jury,it was the ‘ttorney who had stgppod

4t end entered the ploa.Nevertheless,The defense attornay had told defentant

that he'd get @ sentence of 12 to 15 Years. The defendant did not know the

consequences of the Plea.KELSEY V.UNITED STATES,L6h F.2d 1198 (3rd Cir.1973)0

The defendant herein never yas read the Flea form and never hed the chance to

hear same read, as the attornay,was the one filling out the forn,after he'd

left the bench from talking with the Judge and District Attorng, telling defetdant

upon his return to the defense table, " In order to get the DA and the Judge to

give You a lesser smtence of 12 to 15 years,you'll have to ansver all questions,

amt sign Papers." However,after signning defendant was told to Stand up by the

Trial Juige, after the attornay had given the Judge the Plea fesngiite no questions

acked,or there being any conversation defendant was smtenced to Natural Life,

This Court Could Not deny the fact that the act was dme through a delibcrate

nis-guidance by the attornay,with his knowing,that the trial Judge and District

Attorney hed no intemtions of keeping the promised 12 to 15 Years.It has long boen

the lew that a Criminal defendant is entitled to a fair trial,but not a perfect

OnesMGM VeUNITED STATES,121 U.S.223,36 LoEd.2d 208,93 S.Ct.1565 (1973) Such

cannot be had where the Attorney and the Other Judicial Officials use tacks to

obtain a Guilty Plea and then don't stand by the Plea, Although,Petitionar was

Given a Hearing Pursuant to N.C.0.S-15A-LU0L Et.Soqe,the facts wore not proparly

brought forward to make a determination on the morits of the clains.This Court

Should conduct it's own hearing.sSIRETS V.WAINIRIGIT 02 F.24 87 (Sth. 17.1958),

Pleadings should not be oorutinined with ouch techiitcel ntcsty that a neriterlous

elein should be defeated,end even if claim 1s insuffiofent in substance,it may bo

enendod to achieve justico.G@DN V.LESKE,57) Fe2d 1147 (th Cir.1978), The foct is

(h)

further made clear end it is fact and If it is apparent to District Court

that Pro se Litigant has colorable claim but lacks capacity to present it,

District Coubt should appoint Counsel to acsist hin,GORDH VoLBEKESupray

The Trial Judge did not honod the agreed upon plea of 12 to 15 Yearse

ELKSNIS V.GILLIGAN,256 F.Suppo2hks (1966) The Trial Judge and the District Attorney

er the Defense Attorney Should be allowed to Play tricks upon a defendant,by the

pronising Of (ne Sentence,Knowing No the has Intentionse~6 of honoring such but

defendent,then sentencing him to larger sentence UNITED STATES VeBATTLE ,Li7 Fe

24 950 (Sth Circl971)» The law is clear that a defendant must understand what

he is pleading tosHARNED V.HENDERSON,588 F.2d 12 (2nd Cirel978)» The trial

Judge ir the present case also did not make a specific inquiry of defendant,

his counsdl prosecutor as to whether a plea bargain had been discussed or

entered, This defendant is entitled to relief.

In regard to Contention (C),Vory contrary to the Testimony of Mrefary

Walker,He made the promises,that Petitioner herein has stated. The Court should

also know that the Attorney could not be expected to take the Stand and admit

that he made various promises to Petitioner,to obtain a Plea of Guilty. the

Transcript of Plea form was £11108 out by MrWalker,and definitely it could

not be expected that he'd admit he did wronge The transcript of plea form

used by the State was the sane as that used in recent case of STATE V.DICKENS,

299 N.C.76 (1980). The Plea was broken that was promised,Nevertheless,the law

is everso clear that it is the right of an accused in a criminal trial to due

process is,in essence,the right to a fair opportunity to defend against the

State's accusations CHAMBERS V.MISSISSIFPI,10 U+5+28h,93 SeCto1036,35 LeEd

24 297 (1973)sThis Defendant did not frecly,voluntarily,vaive his rights to

& jury trial and the plea was not intelligently entered,Whetther State Prisoner

waived his constitutional rights vas not . question of fact, but an issue of

federal law, HREXER VeWILLIAMS 1130 U.S.387,51 LeEde2d 124,97 8.Ct.1232 (1977),

The Petitioner in this cause of action is entitled to relief as he has been

denied and deprived of receiving Constitutional Rights that are guaranteed

to hine

@ «*®d

(5)

FINALLY, This Court should make it's own finding of fact to determine if

the Plea Pargain was Broken or if there was @ Plea Bargain in the Senses.

The North Carolina Courts Thenselves have set a principle that,When the

evidence is insufficient to support a finding of fact,the case mst be renanded

for a new hearingeSTATE V.ROBINSON,24,8 N.C.282,103 8.E.2d 376 (1958),STATE Ve

SAULTS,299 N.Co319 (1979) at 32h.

WHEREFORE ,Tt 48 prayed that the Court will enter order granting reliefs

This The27* Vey ot ety 1970 _»

Respectfully Submitted,

bef dealers Lek)

Jackson yN eC +2785

CERTIFICATE OF SEXVICE

I,DURKIN WOODRUFF Hereby Certify That I have sent a Cipy of this

Traverse reply to the Attorney General Of North Carolina by sending it

Postage Prepaid to hiss addressy —

Mr.Rufus Edmisten

N.CeATTORNEY GENERAL

P.0.Box 629

Ruffin-Justice Bldge,

Raleigh,NeC.27602

pi Lue are A

SWORN TO AND SUBSCRIBED BEFORE ME

é&

mts tHe <?pay or Ju 1996

MY COMMISSION EXPIRES /2 ~/9-/°F9 2_

—— e a

GREENSBORO DIVISION

Durkin Woodruff,

° . Petitioner,

v. C-80-280-G

Harry L. Allsbrook, et al,

ee eee ee ee ee

Respondents.

Attached to this Notice are Findings and Recomnendations in

the referenced action. They have been entered on the records of

this court pursuant to Local Rule 5), Jurisdiction and Duties of

Full-Time United States Magistrates and 23 U.S.C. § 636 (»).

Sub-paracraph (C) of the referenceé statute provides:

"(C) the magistrate shall file his proposed fincings

and recomnendations under subparagraph (B) with the

‘ court and a copy shall forthwith be mailed to all

parties.

Within ten Gays efter being served with a copy, any

pacty inay serve and file written objections to such

proposed findings anc recommendations as proyided

by rules of court. A judge of the court shall make

a Ge novo cetermination of those portions of the

report or specified proposed findings or recomen~

dations to which objection is made. A judge of

the court may accept, reject, or modify, in whole

or in part, the findings or recomnendations made

by the magistrate. The judge may also receive

further evidence or recomnit the matter to the

magistrate with instructions."

You ere hereby notified that unless written objections to

the Findings and Recommendations are filed as provided in the

statute, an appropriate order or Judgment will be entered on

the Findings end Reconnencations.

ee ee =

I hereby certify that on the 7th day of _ October

—— a ee ee eee

198, I deposited in the United States mail one tyue copy of

this notios with copy of Magistrate's Findings and Recommendations

attached, enclosed in a United States Government franked envelope,

addressed to the attorneys listed below at the last known ad-

dresses, as follows:

Mr. Durkin Woodruff

Route 1, Box 36

Jackson, N. C. 27845

Mr. Richard N. League (2)

Special Deputy Atty. Gen.

Post Office Box 629

Raleigh, N. C. 27602

Carmon J. Stuart, Clerk

By: Qe Wap on

Deputy Clerk ‘

©

sd

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GREENSBORO DIVISION

FILED

OCT = 71980 »

ead oan

DURKIN WOODRUFF,

Petitioner

Wusuuume

Vv. C-80-280-G

HARRY L. ALLSBROOK, et al,

Respondents

MAGISTRATE'S FINDINGS ANDO RECOMMENDATION

Petitioner challenges the voluntariness of his s*ate court

guilty plea pursuant to 28 U.S.C. § 2254. Most of th2 matters

raised here were the subject of a state court post-ccnviction

hearing. [ Because the state court determination fully and

adequately explored this entire matter, this Court may accept

those findings as presumptively ecienead 28 U.S.C. § 2254(d),

Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 1..Fd. 2a 776

(1963).

Here, as in the state court, petitioner claims that he is

a victim of a broken plea bargair by his attorney. Ee claims

that his attorney promised him that he would only receive a

sentence of 12 - 15 years if he pled guilty rather than a

sentence of life imprisonment. Petitioner claims he did not

want to plead guilty but was threatened by his attorrey with

receiving a life sentence if he did not. Furthermore, petitioner

claims his attorney was ineffective because he failecé to present

certain evidence which would have shown petitioner's innocence.

At the state post-conviction hearing, petitioner, his

sister, his mother, and his former counsel testified. While

——-. ———

petitioner testified that he was promised a 15-year sentence,

his counsel presented a radically different picture. Counsel

testified'to the following facts. [After a jury had been

oma" selected, the state put on evidence from the proprietor of

the store which had been robbed and also that from an accomplice

who was already serving time on the charge. Prior to that

time, petitioner had been of the belief that his fellow

accomplices would not testify against him. After it became

apparent that both accomplices were willing to so testify,

counsel called a recess and explored a plea bargain with

petitioner. Counsel was of the opinion that petitioner had

no defense to the charge and likely would receive a life

imprisonment term if he proceeded with the jury trial. He

discussed this matter with petitioner. He explained to

petitioner that, while no assurances could be made, if

petitioner pled guilty he might stand a better chance of

receiving less than a life sentence. [Counsel also was

reluctant to let petitioner take the witness stand himself

because of petitioner's prior record which included a manslaughter

conviction/ > i \

Petitioner's counsel could not obtain any plea bargain

assurances from either the judge or the district attorney.

Petitioner was informed of this fact. Petitioner was

specifically told that there would be no guarantee of his

receiving a 15-year sentence such as the one received by one

of petitioner's accomplices. (The other accomplice received

a 40- to 60-year sentence.)| Therefore, counsel told petitioner

that if he changed his plea the judge might take that fact

into consideration in order to give him something less than

a life term. The transcript of the plea and the verbatim

record of the plea both disclose that petitioner under oath

assured the court that no promises had been made to nim, ¥

The judge reviewed these facts and further noted that peti-

tioner had previously been through the plea bargaining

process wherein he had been charged with armed robbery and

murder and the charge was reduced to manslaughter. The

Court found the credible evidence did not support petitioner's

claim.

A review of the record and the state court judge's

findings of fact show that no plea bargain had been made to

plaintiff and that he voluntarily and intelligently pled

guilty. While petitioner's counsel felt that pleading

guilty might save petitioner from receiving a life sentence,

the fact that it did not does vitiate the guilty plea. The

advice an attorney gives his client which is a prediction of

the sentence, even though erroneous, does not normally

affect an otherwise valid guilty plea. Vanater v. Boles,

377 F.2d 898 (4th Cir. 1967); Seiller v. United States, 544

F.2d 554 (2d Cir. 1975). In this case, pleading guilty did

not save petitioner from receiving a life sentence. —.Never-

theless, it is clear that no promises were made to petitioner,

and the attorney's prediction, even though it did not

subsequently come true, has no effect on the guilty plea.

The advice given by the attorney was reasonable under the

circumstances. It is of no consequence that, perhaps as a

result of petitioner's prior record or for some other reason,

the court failed to give petitioner less than a life sentence.

‘What he did obtain was a reasonable chance to obtain more

lenient treatment, which is all petitioner had a reason to

expect.

Petitioner's further contention that he received

ineffective assistance of counsel because his attorney

failed to present evidence at the trial establishing his

innocence is without merit. Therefore, even though petitioner

has failed to exhaust his state court remedies in that

regard, the contention may be dismissed. In this case,

petitioner has not even indicated what evidence should have

been presented. In any event, it was petitioner who prevented

this course of action from taking place since he aborted his

jury trial and elected to plead guilty. As a result, this

ground is no longer open to vetitioner. Tollett v. Henderson,

411 U.S. 258, 93 S.Ct. 1601, 36 L.Ed.2a 235 (1973).

It 1s THEREFORE RECOMMENDED that the petition be denied

and this action be dismissed.

tas

$e apt AK hoe

October 7 , 1980

A True Copy

Tostet

Corwon J- stuart, Clerk

Byt

Cy acl Arye ;

N,| Ge. bY de

Lwputy Clerk

SS 80-6508

Ti THE UNITED STATES DISTRICT COURT

FOR TUB MIDOLE DISTRICT OF NOITH CAROLINA

GiB QNSBONO DIVISION

C-80~280-0

)

DURKIN MOOR ten }

or -

PETITIONERS RESPONSE AND

) CQJECTIONS TO THE

Ve

MAQISTRATES RECOMMENDATIONS

,

)

HARRY Le ALLSBROOK )

Respondent ;

Durkin Woodruff, a State Court prisoner that is presently

confined to the North Carolina Department Of Corrections, Oloa Prison

Unit at Jackeon, Korth Caralina instituted this action pursumt te

28 UsS.Co 225he The Petitioner Objects to the magistrates fintings

and recomendations, because the findings and recommentations ere

based upon a set of findings held in a State Court that did not

in fact ehow the actual wluntarinoss of the plea that wes entored,

or to the extent of pressure that was applied on the defendant to

cause him to enter such pleas of which he vas convicted and sentenced,

1 the State Court hearing that was held via a Motion for

eppropriate relief did not present all the facts that would havo in

fect shown that the plea was involuntary. The Findings of the State

Court in fact failed to show that the State Court Judge had the

uthority to Vacate the sentence and grant « new trial had he eo

desired, but for reasons of his own knowledge he failed to do WH»

novertheless that does not cure the fact that the defaxiant did not

receiv a fair trial in the Court at the Tine of the Trial gand the

hearing that was held vie way of a motion for appropriate relief.

Tt aloo does not cure the fact that the attorney that reprosunted the

defendant nede promises that he was unsble:to keop or that dofendant

had been pronised a sentence and the sentence was not givens

Alboit, this court mst reslize that this defendnt ie filing hie

Pleadings to the court Pro Se and don't expect the Court to beliove

his clains as face value over that of the attorng,that clained he

never nade promises, However,It is wall understood that ellogations

(2)

of pro se comilaint of prisoner are hald to less stringent standings

than formal pleadings drafted by Lawyerse!!EIAND V.CONNRS LM Fe2d

539 (Sth Cir.197h)» The defendant vas dopending on the service of

the attorney to properly reprosent him md did not wpect the attomng

to nidlead nisguide ntaquate facts of the plea to hin, When The attomey

informed defermiant that he vould get a sentence of Twelwe to Fifteen

years that was what he was expecting to receive and not a life sentence

that he received, It is clear that guilty plea cannot be considered

intdlligently and voluntary unless it be show that the accused was

avare of the implications and possible consequmoes of his plea, with |

its conconitent waiver ef fundanentel conatitutionsl rights,DULIN YW

HENDIRSOM, U8 F, 24 1238 (Sth Cirel971), thie deferient was not aware

of the consequences of the plea, that he wes going to got a natural life

sentence, and did not just waive hie constitution rights to receive

a jury trial end definitely did not waive his rights to receive counsel

that wae computent and effective and was not out to just make a farce out

of hio representation of defendant. The fect is clear that the record of ‘

State Court proceedings would not support findings that petitdonep's

guilty plea vas intelligently ant wilunterilty enterod,DULIN V.HENDEXSON,

Suprag the court should take into ousideration thet the defendant's

sister, rothar and counsel are not conviotdd and in prisons Neither did

his canes) hawe to uis-state the facts in orier to obtain a plea that

he did revoive. The defer! ent's Mother, Sister were present and knew that

from a lnynan's point of view the repreomtation done by Counsel was not

olequate und up to the proper standings of « competent attorneys

Eventhough, defentant's fextly nonbers testified in the hearing held, the

fect atill renaine that the ettorna did nisleai,niestate facts that

caused defendant to mter the plea that was entoreds The dofendent did not

in fact understand the full facts of the plea or the consequences in which

ho was facing. The matter is everso clear that if defentant has not

understood nature of charge and consequences of guilty plea, plea is not

Valid, UNITED STATES ¥. BRONSON, LLY PF. 2d. 302 (LOrh Cir.1971)s

Regardless of the evidence that was presented by the State after a jury was

sdlected, that still does not cure this court of jurisdiction to review the

State Court's denial for now trialSavTKR V.MILLAXEY, 510 Fe2d1220 (Let Cir,

1975), ne the dofendant prenonted his claine to the Court pursuant to Morth

G)

Carolina General Statutes 15A-1101 BteSeqes and was challenging the

dental of various constitutional rights. Liberal Construction mot be

accoried Pro Se habeas petitions, HAGGARD V. ALADAMA, L9l Fe 24 1167

' (Sth Chrel97h)s This defendant was depending on the attorney to properly

represent detentans and it was his duty to continue with a jury triel,

despite his own personal beliefs of defendmt had no defense to the

charge and itkely would receive a life inprisonnent tera if ho proceeded

with the jury trial. It was defendant's constitutional right to havve

a Jury trials If defendant would have received @ jury trinl md been

found guilty by the triers of fact ( Tho Jury), he always could have

appealed the assignnent of errors and would not have lost his rights

to appeal with ea forfeiture that was in fact a waiwr that was inwluntary

due to a plea that was entered through a plea deal that was involuntary.

A right to counsel mst find ite constitutional basis in either the

connands of the sixth gendnent or the goneral guarantee of funtanental

due proosss guarantesd by the fourteenth amendacnt. FHROUSON V.OATHRIGHT,

485 F.24 SOh (Lith c1r.3973), The attorney hod a duty to perform to the

defendant and he failed to do that expected duty and did cause the defendant

to enter a plea that any sensible persong Would not have token, any one

that is of sane mind will not just frooly and voluntarily accept a plea of

guilty to a life sentence,knowing that thay'd have to do Nwnoty Years for

Parole and Bight Years for Honor Grades To even believe that this defendant

would just wluntarily do such is oud ragious,D{sloyulty or conflict of

interest of attorng mat substantial and proven,result in donial of

effective assistence of counsel in contravention of the sixth anendment,

UNITED STATES Ve MoCORD, 509 Fe2d 334 (D.C. Cir.197h)s The attorney had

a duty to proporly Anwatigate and prepare for the trisl,and knev that it

vas defendant's right to testify at his ow trial in his own behelf,regardless

of his prior record as dofenimt was not being tried on his prior effense as

he had been punished and/or tried for that and was then presently being tried

for a different mattor. Effective assistance of counsel refers not only

to forensio skills but to painstaking investigation in preparation for

trial. WOLFS V.MW@TTN, 509 F.2d 304 (6th Cir.197S)s The defendant was the

victim of « broken plea bargainyand is not responsible for the attorney

having making @ plea in which he Was unatile to keop,newrtholess the

attorney was the one that tald defendant about a plea that he get for a

(h)

tuelve to fifteen years. Very contuery to the attorngy's ctating

it,he did promise defentant « plea of twelve to fiftecn ysarse

The Court should hold a hearing to rake it's om determination as to

, the plea being broken HILLIARD VeALABAMA, Ll ¥.24 35 (Sth Cir.197h)e

Tho Transcript eo sles in which wae signed ty the defendant fails to

show eaything of facts worl for word as to exactly vhat the plea was or

the promises made thereto. There is no question that there are ome

disputes in regards to the natters presented by the defendant andthe

attorney andthe States Where fects are in dlepute,federel court in

habeas corpus must hold evidentiary hearing if applicant did not

receive a full and fair evidentiary hearing in state ocurt,etther

at the time of trial or in a collateral seeknsitinat tetiands ovidentizy

hoaring ie required unless state court trier of fact after a full bearing

has reliably found relevent fectaf U.S. ox rel KIRBY VeS7URGES S20 F. 24

397 (7th Cirs1975)« It f9 clear that where the metorial facts with

respect to scope of plea bargain were not adequately developed at

State Court hearing,clsin for habeas corpus relief ty state prisoner

who vas not awarded an evidentiary hearing, basel on assorted failure

of State to live uw to a plea bargain would be remanded for further

evidentiary procesdingsSHANS(M VsESIKLLE 192 F.2d 115 (Sth Cire 197s

Therefore, it is clear that this court has the jurisdiction to make its

own independent finding of fects ani make @ ruling thereof after hearing

die held in the courts If guilty plea was induced ty plea bargain that

vas subsequently broken,petitioner secking to sot aside sentence was

entitled to relief.BAYAN V.UNITED STATES, 401 F.2d 272 (Sth Cirel973)e

Vetere, Courte are not bemé ty State decisions ta o habeas corpus

proceedingsBELL V.HONGISTO, 501 Fe 24 346 (oun Cir<197l)» Fotoral

district court may conduct post conviction evidentiary hearing,if

nocessary to determine if guilty plea by state defendant was wluntarily

end intelligently nate, WILKINS V.ERICKSON, SOS Fe2d 761 (9th Cirel97h)e

The United States Court Of Appeals for the Fourth Circuit has held that,

Pleadings should not bo scrutinized with such technical nicety that o

meritorious Claim chould be defeated,arm! even if cleia is inmufficient

4A substance, it may be anended to achieve justice.GORDON V.LE:XE,S7h

F.24 1047 (hth cir.1978), The fact is clear tho. attorney's actions have

caused deferient to be confined to prison due to the denial of effective

(5)

competent assistance of counsele The attornay'’s represantation did not

cone up to the standards est ty the court in the recent case of, KARZULLO

Ve MARYLAND, 541 Fe2d S40 (ith Cirel977).North Carolina Court's thensal ws

‘has etatod that, "The rule is well settled in this State that findings of fact

nae by the trial judge, and conclusions drawn therefrom on the wir dire

examination, are binding on the appellate courts if supported by evidences

STATE Ve PHILLIPS, 37 R.Ce Apps 202 (1978) at 20h. There te a lack of

such @ finding having been ado by the defendant herein to show that he

wluntarily md intelligently entered the plea that was emtcred or that

the defense attorney did not in fect inforn deofendmt of the plea of

vhich he could enter and receive a sentence of not more then Twelvw (32)

to Fifteen 05) Years. The Court should also note that the defendant has

exhausted each aml every remedy that is avnilalile to exhaust in the State

ites it is just en error on the part of the nyistrate in saying that

the gtbterney~ene-net contention of ineffective assistance of counsel had

not been exhausted or presented for exhaustion via way of state courts as

this matter was raised to the state courts. Also it was not the defendant

that aborted the trial,it was the trial defense attorney that stopped the

trials The fact is clear that State Courts neod not have ruled on the

nerits of an issue before the question can be considered ty the federal

corpus judiciary in » habeas corpus actions It 4s enough that the State

Courts were prescntod the Opportunity to rule on the question raised ty

the petitioner in his federal action, RICE V. WOLFF, 513 F. 2d 1280

(Sth Cir.1975)0 A guilty plea is invalid unless vwolunterily ciwn ty

defendant with a full under stending of the possible consequences of the

Fleas UNITED STATES Ve MAGOIO, Sik FP. 24 60 (Sta o1rs1975)e The attorng

Was suppose to have assured that the defendant did in fact understand

the ples or not anf to make sure that ifthe defextent 414 not desire the

plea that he would continue with the jury trial, instacad of stopping it,

end having deferda,t enter a plea which netted him a life sentence weln

when he had in fect been prézised a sentence that was no whore nesr a

life saitence, The attorney nioerepresented the fects. 500,0eGog

UNITED STATES Ve OWEN, L592 Fe2d 1100 (Sth Cir.197L), which was in fact

trickey played on defendent which showed him to be factually ineffective ani no’

6)

competent assistance of counsel, Federal habeas petitioner en clains

he is detained pursuant to a fine) judgrent of a final judgrent of a

state court in violation of the United States Constitution is mtitied

to have the federal habeas court make its om independent determination

of his federal Clein,vithout being bound by the determination on the

merits resched by the clain in state courte WADMKIOHT V.SYKES, 433 USe

72,53 LeEde 24 59,77 GeCto2L97 (1977)o

WHSREFORE, It 4s prayed that the Court will render relief and

grant habeas corpus and/or hold an evidentiary hearing in the court

on the issues presented.

This The /g—4%rag IS Vd , 19S _ 4

(

def, tof

PévPity Route 1, 36 J -

Jackson, Korth lina 27645

_ CERTIFIC. OF SERVI

I,DURKIN WOOORUFY Hereby certify that I have mailed « copy

of this Document to the North Serolina Attorney Sencral at his

eddross with postege being prepaid.

wD a Lalyp!

8:0RM TO AKD SUBSCRIBED BEFORE M&

TIS me Lehar me _ 29, fe:

HY CawissI@n ExpInss/~ -/°-/25'-2—

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UIITD SPATS COURT OF APYTALS

#02 THE pountd CIRCUI?

CASE HMOs 60-6524

PRTT TO) FOR RUTSARING

Ve Li FOIA PANE us

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.

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TARRY Ly ALISTROOK

Responiart

TOs TIE HOLORARLE JUDGES PaACSIDING OVER THR WiITD STATES COURT OF APPLAIS TUR

TS FOUR'M CINCUITs

*. .

<< Ta

COMES NOW, DURKIN WOODRUFF, the petitioner in this cause of cotion

most respectfully presarzts this petiiion for rehoming wmto tho court, «ni as

oo ack that the entire court hol4 oral armmmts on his appocl to the court

pursuant to the lave act by tho United States Codes aii rules of thie court,

STATS OF

The petitioner in this cause was brougit to trial in the 4th,

October 1977, tery of crimine) sessions court of Forsyth Cointy in a

prosecution for aruod robbary, Petitioncr's triel initially begen as a Jury

triel, which was terminated end then ended on the entrance of a guilty plos,

The petitioner was thon sentenced by the tricl court to a torn of Uctural

life, Petitioner had an evidmtiaky houring that wes held porwnt to H.0.G,S-

154-1401 Et, Soqe, the iscues were not recclved in the State Courts ani the

district court has failed to grant relief ani the Fourth Ciroult Court Of

Appools has affirmed the diczissal pursuant to the authority of the district

court which was in error, Tho petitioner heroby states thst he presents the

following points in support of his potition for ro~heszring,

1, Tho question that was presented te the Court on Appeal wesy

CAN A GUILTY PLEA BS COISIDERED AS HAVING Bes! HITIRED FRESLY,

XNOWIIGLY, VOIMPARILY, AMD INTILIGHTLY.’ MIRE SUCH PLEA WAS

EUR UPC THE ADVICE OF AN ATION Mi) DaLTSTAATILY AND

WOMIEGIY MISSTATED, ITSQUOTID, MISGUIDED THR CRUIIAL

DEFIANT DIO DO: ANTZANCR OF A GUILCY PLUA WITH HIS HAVDIG

PATLED 70 S°UDIFULLY REPRASSIT PACTS TO SiS CRUMUAL Div JIDAT

Gi THE CONSETMINS AND PACTS OF SUCH PLAT

The dooision of this cow’ in the wmypublidhed opinion filed February 20,

1901, waa in error ani the court has failod to consider the quoctions presented

in tho appeals It ie bolicved that the court shovld renier en o,{nfon or hold

evidentiary hearing or oral argunmts to revolve the issues prosontol in the

eppeal, The petitioner has presented as claim in which the cttornay tint was

roproventing hin at trial acted wyrofoscionally in the culdene of a plea

to the courts and obtained petitionar a life amtcce Whcrein potitioncr hod

not boon informed that ho vould got such cane tS eee

Tf : te Inn of the omrtr reve 4a % eA --rdaeeye YY, Beace, 80 ’*

Ln.

afmit that, in reviewing footual detorninction of stzte courts, fodcral

dictrict conts grant habeas rolicf only upon convincing proof of arror.s

SICPSH Ve WALIWALGIP, 601 P, 24 768 (Sth Cir. 1979). This boing fote,

then the court nust alvo etait that on attornay should not be alloved to

wilfully tell a criminal defenicnt thet he vill rocoive a certain sentonce,

‘if he enters a ploa and thon after such plea has becn entcrof will thon

voottle after the petitione: has roocivod a moh greater sentence then that in

vhich he had boon promfsed, As the record vill revesl the mgistrate did not

eddrocs this Lesuo, Tis Court nust aloo etut thet enyone in his rightful

sone mind vould not accept a plea for life sentcace’s, The record must clove

be clearificd that the rocords of ptate courts will at no place show Where

potitioner wilfully, ant/er volumtarily entered a plea or acgreod to eocoyt

@ life eenteswe or that he was not noting on the advice of the attorncy.

Fodcral Court, in deciding vhether there has becn violation of fodaral

constitutionrl rights in state court, my look at viele recom, up to tine

of fotcrnl review, BROW Ve CAIST, 492 Fe Supp. 955 ( Dilione 1920 )o

The petitioner belicves that he hss the constitution:l richt to the richt of

competcnt cffective avaistamce of commscl to properly cuite at represent Lin

in the mtrance of plea, or on any leg) facucs, Dventhouch defendimt hes no

substantive right to particular samtence within range authorized by statute,

sentencing is critical stage of criminal proceoding at which ho is mtitlod

to offective nacistance of comuel, GAUL VY, FLIOLUIDA, U.S. JT Se Che

1197 (1977). It 4s believed that the attomcy's failure to act at the guilt

stage of the petitioner's procoodings constituted ineffective ascistcnce of

comscl, VOILES Ve WATS, 489 FP, Supps 901 (1.D, Ife, 1980), es the attorna

Vas evcre that the life was not the procisod sentence in which he hod infornod

petitioncr hod ect in order to obtain the plea doal, or plea bargin, The

findings of tho magistrate in vhich the district court depended upon ani adopted

were of en erroneous nature elso in thot, there is not a feotuel showing on the

record that petitioner actually knew the consequences of the plea end the fuct

nust be further mie clear that, ignorcwe of thé consequences of cuilty ples

is a foctor that my require its rojoction, LS/ELLYE Y, WALIWRIGHT, 593 Fe 24

15 (Sth Cle 1979).See aloo VILLIT? VY. GIONGIA, 600 P, 24 538 (5th Cire 1979).

There io no mistaken that, if guilty plea is induood by defonne comnel's

nicroprecentation of the proscoutors proaives, the plea should be vacatod

as involuitary, KiIGIT V, UNITED STATGS, 611 P, 24 918 (ict. Cir. 1979), the

district court and this court has failed to aifress this issue that there was

ome nicrepresaitation to petitioner to obtain the plea in which was obtained

that resulted in the conviction, Roquircnent that cuilty plea be voluntary

end intelligent applies to all guilty pleas, not mroly those in which a ploa

bergain has boen struck, HANLEY V_ TeITSD STATIS, 598 ¥, 2a 79 (4th Cir. 1979).

3

CLU STON

The petitioner is of the believing that such acts have not been resolved

in this circuit @m just to what extent a criminal defendant is wkd allowed to

be mislead or risgiiced by a criminal defense attomuy before such act begans

to invade the provinces af rights guaranteed by the Constitutim, If the holdings

of the Fifth Circuit Court of appeals has any bearing then this caurt shld

emsidsr such law in this circuit, that caurt has held that, “If defendant is

mistaxen as to tems of plea bargain, his giilty plea mist be deemed less than

a fully knowledagable wiiver of his rights," UNITSD STATIS V. PRESSLEY, 602

P, 24 709 (5th Cir, 1979). The Third Circuit Court of App-als has held that,

" Nothing can corrode respect for 2 mle of law more than the knowledge that the

government loks beymd the law itself to arbitrary considerations, such as

race, religim, or control over the defendant's rights, as the basis for

determining its applicability, UNITZD STATZS V, BzRMIOS, 01 P, 2d 1207, 1209

(2nd Gir, 1974), UXITD STATES V. TORWATO, 602 F. 24 56h (3rd Chr. 1979).

It is therefore believed that this court ehow-reshorriw should hold re-hearing

on the appeal and do so before the entire court for the following reasmms also;

(1)- To set a standard in this district or in the states of North Carolina,

South Carolina, Virginia, Maryland, and West Virginia, on just just shat Linits

an attomey is allowed to mislead, mispuide a criminal defendant in the acceptance

of @ plea bargain before such plea violates rights guaranteed by the Sixth and

Fourteenth Auendaets,

(2)- To determine wien @ plea that is entered cannct be cansidered me of

having been voluntarily and/or intelligently entered upan advice of attomey,

(3)- To determine 18 a criminal defendant is not denied due process of law,

when he enters @ plea that has been arranged by the defense attomey, who has

knowingly, and wilfully uistated the facts of the sentence that a criminal

defendant will receive wien he in fact knows that such sentence will not be

imposed prior to his having stated same to defendant, shaild the attomey nc

be bound by the representatian to the ceiminal defendant that he'll receive a

certain sentence for his entrance of a guilty or nolo contendere plea,

It is believed that the cairt can resolve the quostias with a full horring

and briefing to determine the matter,

-L=

IT 1S PRAYED THAT THE COURT GFANT RI.

mis the2iny ot Zebawenes 1981

Respectfully sutmitted,

132 De hithngh

Foute 1, Box 36

Jicksan, N.C. 27845

C-*TIFICATE OF S*RVICk

1, WIN wWODTUFF, hereby certify and state that I have served a

copy of this petitia upm the attomey general by mailing to him with

the postage being prepeid to his eddress,

ete adres Lik. .

ME

SWUAI TO AND SUBSCHIBED B:FORE ME

THIS rHEZ. AY OF Lh stace 197.

_ev-ge Fate

bUTARL PUBLIC

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