Petition for Writ of Certiorari — Murray v. Wilson

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

EDWARD MURRAY, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS,

Petitioner,

Vv.

ALBERT L. WILSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

MarY SUE TERRY

Attorney General of Virginia

*FRANK S. FERGUSON

Assistant Attorney General

Supreme Court Building

101 North Eighth Street

Richmond, Virginia 23219

(804) 786-2071

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

g6 i9s¢| Frees

JUN 4 987

No. 86- JOSEPH F. SPANIOL, JR.

a

i

QUESTION PRESENTED

DID THE COURT OF APPEALS ERR IN FINDING

THAT RESPONDENT ASSERTED HIS RIGHT TO

COUNSEL AT AN ARRAIGNMENT-TYPE PRO-

CEEDING AND THAT A SUBSEQUENT INCRIM-

INATING STATEMENT WAS POLICE-INITIATED?

ii

TABLE OF CONTENTS

OPINIONS BELOW ............cccccsceceeesssssrreeeeesssseesees

JURISDICTION .............cccccccoccsssrccsssscccssssssscssececoes

CONSTITUTIONAL PROVISIONS INVOLVED ..

STATEMENT OF THE CASE ...........cccccssseeeeeeeees

ARGUMENT FOR GRANTING CERTIORARI .....

II.

THE COURT OF APPEALS ERRO-

NEOUSLY CONCLUDED THAT MICHI-

GAN v. JACKSON, 475 US. —, 89

L.Ed.2d 631 (1986) REQUIRED SUPPRES-

ae THE INCRIMINATING STATE-

RESPONDENT’S INDICATION THAT HE

WOULD SECURE HIS OWN ATTORNEY

WAS NOT AN ASSERTION OF HIS RIGHT

TO COUIGEE Ls. .ncerscccsersrcescascennscasesseasenivenenes

THE STATEMENT TAKEN FROM THE

RESPONDENT WAS NOT OBTAINED AS

THE RESULT OF POLICE-INITIATED IN-

TERROGATION. ........ccccccscscssssccessescranssnenees

COROT TBIOI coccccccccsccccensssccemnonnes Pb ne Sak jax Rs

aes

whi

fate Db MAb TOR ad AB CRIME Ma ARN, Cb i Hage “—

ili

TABLE OF AUTHORITIES

CASES: Page

Arizona v. Mauro, 55 U.S.L.W. 4601 (May 4, :

NS RREREERIERE 8 TES eS Se ee 10,11,12

Cannady v. State, 427 So.2d 723 (Fla. 1983) _...... 7

Edwards v. Arizona, 451 U.S. 457

a sawenpntineiineelees 5,6,7,9

Michigan v. Jackson, 475 U.S. __ ,. 89 L.Ed.2d 631

REST GT i a 5,6,7,8,9,11,12

Michigan v. Mosley, 423 U.S. 96 (1975)... 9,10

Miranda v. Arizona, 384 U.S. 436 (1966) .......... 3,4,6,9

Oregon v. Bradshaw, 462 U.S. 1039 (1983) _........ 9

People v. Ferro, 92 A.D.2d 298, 460 N.Y.S.2d 585

MINNIE Sells shextAaiehlomebesstharaidcitawrentenerensencacseenensees 9

People v. Krueger, 82 Ill. 2d 305, 412 N.E.2d 537

a cesemanee 7

Rhode Island v. Innis, 446 U.S. 291 (1980) _........ 9,10

United States v. Morrow, 731 F.2d 233 (4th Cir.

Ne inci cask ee Linnnasoneanetinenddvenessasuses 9

OTHER AUTHORITIES:

i acsnansceecees 5

Virginia Code § 19.2-158 ...... En 4,7

erg A: eA “a TOA AP EAA DOV PN LG WRENN FT an BY EE NRE PEP ORNMY ELV CAN WD NEI ge od Denn ee er, a ——

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

No. 86-

EDWARD Murray, DIRECTOR,

VIRGINIA DEPARTMENT OF CORRECTIONS,

Petitioner,

Vv.

ALBERT L. WILSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fourth Circuit from which certiorari is sought

is reported at 806 F.2d 1232 (4th Cir. 1986), and is

included herein as Appendix A. The opinion of the

United States District Court for the Eastern District

of Virginia, Norfolk Division, is unpublished but is

included herein as Appendix B.

JURISDICTION

The opinion of the Court of Appeals was handed

down on December 15, 1986. A Petition for Rehearing

and Suggestion for Rehearing En Banc was denied

on March 11, 1987. The jurisdiction of this Court to

issue the Writ of Certiorari in this case is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

No person shall be held to answer for a cap-

ital, or otherwise infamous crime, unless on

a presentment or indictment of a grand jury,

except in cases arising in the land or naval

forces, or in the militia, when in actual ser-

vice in time of war or public danger; nor shall

any person be subject for the same offense

to be twice put in jeopardy of life or limb,

nor shall be compelled in any criminal case

to be a witness against himself, nor be de-

prived of life, liberty, or property, without

due process of law; nor shall private property

be taken for public use, without just com-

pensation. U.S. Const. amend. V.

In all criminal prosecutions, the accused shall )

enjoy the right to a speedy and public trial, )

by an impartial jury of the state and district

wherein the crime shall have been committed,

which district shall have been previously as-

certained by law, and to be informed of the

nature and cause of the accusation; to be

confronted with the witnesses against him;

to have compulsory process for obtaining wit-

nesses in his favor, and to have the assist-

ance of counsel for his defense. U.S. Const.

amend. VI.

STATEMENT OF THE CASE

In the early morning hours of February 7, 1981,

the Norfolk, Virginia home of two elderly sisters, Ida

3

and Diane Polen, was forcibly entered. During the

breakin, Ida Polen, aged sixty-five, was bound hand

and foot and her eyes, ears, nose and mouth were

taped shut. Her fifty-nine year old sister was injured

extensively on her face and neck. Those injuries, com-

bined with suffocation, led to Diane Polen’s death. A

substantial amount of personal property, including

money, clothing and silver, was taken during the

course of the crimes. A police investigation led to the

arrest of several individuals, including respondent Al-

bert Wilson, for the crimes of murder, robbery, ab-

duction and burglary.

The respondent was initially taken into custody on

February 8, 1981. Detective Hemenway of the Nor-

folk Police Department approached the respondent

and sought to question him concerning the crimes.

Respondent was presented with a legal rights advice

form which he refused to sign. He affirmatively an-

swered each of the first four questions, which indi-

cated that he understood his various rights pursuant

‘to the decision in Miranda v. Arizona, 384 U.S. 436

(1966). However, he refused to write in answers to

the last two questions which were a waiver of his

Miranda rights and a declaration that his statement

was given freely and voluntarily. Respondent indi-

cated that he was willing to talk but that he would

not sign anything. The policeman made a notation to

that effect, and respondent proceeded to disavow any

knowledge of the crime; however, he never 1) refused

to talk to the police, 2) asked to have questioning

halted, or 3) requested counsel.

Within a day or two, respondent appeared in the

General District Court for a routine initial appear-

ance. As required by statute, he was advised at that

4

time of the amount of his bail and his right to counsel.

Virginia Code § 19.2-158.! In response, respondent

advised the Court at that time that he did not wish

the Court to appoint counsel for him; rather, he would

retain his own attorney. In the interim, the police

had arrested a co-defendant named Vernon Lee Ses-

soms. According to Sessoms, respondent would want

to talk to the police once he became aware that Ses-

soms had been arrested and had cooperated. Based

upon this information, the police went back to the

respondent and notified him that they had Sessoms

in custody. Because respondent indicated disbelief, the

officers arranged to have respondent see that Ses-

soms was being detained. Upon seeing Sessoms,

respondent stated, “Hell, you’ve got it all. I'll go

ahead and talk to you.” Respondent was then read-

vised of his Miranda rights and he gave a statement

which was subsequently introduced against him at

trial.

Following trial by jury, verdicts of guilty were re-

turned on the burglary and robbery charges, and

respondent was acquitted of the murder and abduc-

tion charges. On April 12, 1982, adopting the jury’s

recommendation, the trial court imposed a life sen-

tence on the robbery conviction and twenty years in

the penitentiary on the burglary conviction.

’ Virginia Code § 19.2-158 provides, in pertinent part:

“Every person charged with an offense described in § 19.2-

157, who is not free on bail or otherwise, shall be brought

before the judge of a court not of record on the first day

on which such court sits after the person is charged, at

which time the judge shall inform the accused of the amount

of his bail and his right to counsel.”

5

After exhausting state appellate and habeas corpus

remedies, respondent presented a petition for a writ

of habeas corpus to the United States District Court

for the Eastern District of Virginia, Norfolk Division,

pursuant to 28 U.S.C. § 2254. That application, filed

on January 3, 1985, was denied on May 10, 1985.

Respondent’s appeal to the United States Court of

Appeals for the Fourth Circuit was accepted, and the

Court specifically requested briefing and argument on

the following issue: ‘“Whether interrogation after re-

quest for counsel at initial hearing violated defendant’s

right to counsel under Edwards v. Arizona, 451 U.S.

457 (1981).”" In the meantime, this Court issued its

decision in Michigan v. Jackson, 475 U.S. __, 89

L.Ed.2d 631 (1986). Based upon Michigan v. Jackson,

a panel of the Court of Appeals reversed the district

court, concluding that the incriminating statement

made by respondent was inadmissible because it was

taken pursuant to police-initiated interrogation after

respondent had asserted his right to counsel at an

arraignment or similar proceeding. Petitioner’s sub-

sequent petition for rehearing and suggestion for re-

hearing en banc was denied.

ARGUMENT FOR GRANTING CERTIORARI

THE COURT OF APPEALS ERRONEOUSLY CON-

CLUDED THAT MICHIGAN V. JACKSON, 475 U.S.

__., 89 L.ED.2D 631 (1986) REQUIRED SUPPRESSION

OF THE INCRIMINATING STATEMENT.

I. RESPONDENT’S INDICATION THAT HE WOULD

SECURE HIS OWN ATTORNEY WAS NOT AN AS-

SERTION OF HIS RIGHT TO COUNSEL.

In Edwards v. Arizona, 451 U.S. 457 (1981), the

defendant made a request for counsel after initial

questioning. The interrogation then ceased. The fol-

lowing day, police officers went to the jail and asked

to see the defendant who indicated that he did not

wish to speak to anyone. The defendant was told that

he must talk and at that point police renewed ques-

tioning, despite defendant’s objection. He was again

given his Miranda warnings and thereupon made a

statement. The Edwards court held that an accused,

having expressed a desire to deal with police only

through counsel, is not subject to further interroga-

tion by the authorities until an attorney is made avail-

able or unless the accused himself initiates further

exchanges concerning the crime. Jd. at 484-485. Al-

though the statement may have been voluntarily

given, there was no valid waiver of the Fifth Amend-

ment right to have counsel present during the ques-

tioning. Recently, this Court has extended the rule

to apply when the assertion of the right to counsel

is made at an arraignment or similar proceeding. The

right to counsel in those instances is grounded in the

Sixth Amendment. Michigan v. Jackson, 475 U.S. __ ,

89 L.Ed.2d 631, 642 (1986). In Jackson, (consolidated

with Michigan v. Bladel), the defendants were ar-

rested and interrogated. Subsequently, each appeared

at an in-court arraignment and requested the appoint-

ment of counsel, and the request was granted. There-

after, the police reinitiated questioning, the defendants

were advised of their Miranda rights, and incrimi-

nating statements were given. This Jackson Court

held that:

[I]f police initiate interrogation after a

defendant’s assertion, at an arraignment or

similar proceeding, of his right to counsel,

any waiver of the defendant’s right to counsel

for that police initiated interrogation is in-

valid. Michigan v. Jackson, 89 L.Ed.2d at

642.

The petitioner urges that respondent never asserted

his right to counsel, therefore Edwards v. Arizona

and Michigan v. Jackson are inapplicable.

The issue which was presented to the Court of

Appeals was whether a defendant who makes a rou-

tine initial appearance in court for the purpose of bail

and counsel determination asserts his right to counsel

by merely advising the court that he will retain his

own attorney. The Court of Appeals’ decision holding

in the affirmative fails to acknowledge the rationale

underlying the rule of Edwards v. Arizona and, by

extension, Michigan v. Jackson.? Respondent made no

request that counsel be appointed at his initial court

appearance, nor did he indicate a desire to have an

attorney present during either of his meetings with

the police. Not every mention by an accused of his

need for counsel constitutes an assertion of that right

during a confrontation with police. Declarations such

as ‘‘...maybe I need a lawyer...” or “I think I should

call my lawyer,” have been held to fall short of a

request for counsel during interrogation. Cannady v.

State, 427 So.2d 723 (Fla. 1983); People v. Krueger,

2The net effect of the Court of Appeals’ decision below is to

preclude the police from ever again approaching a defendant

regarding an investigation, once he has made the initial statu-

torily-mandated court appearance. Because he must be brought

before the court on the next day the court is sitting and advised

regarding his right to counsel, except in the rare case where a

defendant elects to proceed pro se, whatever response he makes

to the court’s inquiry will, according to the Court of Appeals,

constitute an assertion of the right to counsel. Virginia Code

§ 19.2-158.

8

82 Ill. 2d 305, 412 N.E.2d 537 (1980). Accordingly,

respondent never expressed a desire to deal with the

police only through counsel. Absent a factual showing

that respondent indicated he did not believe he was

sufficiently capable of dealing with his adversary sin-

glehandedly, there is no basis to support the Court

of Appeals’ extension of the Michigan v. Jackson rule

to the facts of the instant case. The Court of Appeals’

finding that Michigan v. Jackson is controlling implies

that they also concluded that their decision did not

represent an extension of the rule in Michigan v.

Jackson. Such a conclusion is ill-founded. In delivering

the decision of the Jackson Court, Justice Stevens

noted at the outset that:

The question presented by these two cases

is whether the same rule applies to a

defendant who has been formally charged

with a crime and who has requested appoint-

ment of counsel at his arraignment. Michigan

v. Jackson, 89 L.Ed.2d at 636. (Emphasis

added.)

Subsequently, the opinion notes that:

...The reasons for prohibiting the interroga-

tion of an uncounseled prisoner who has asked

for the help of a lawyer are even stronger

after he has been formally charged with an

offense than before. Jd. at 639. (Emphasis

added.)

It is apparent then that the decision of the court

below extended the rule established by this Court to

situations which do not require the same protections

to an accused. The respondent did not ask for the

help of an attorney; the law should not presume such

a request. |

9

Il. TRE STATEMENT TAKEN FROM THE

RESPONDENT WAS NOT OBTAINED AS THE

RESULT OF POLICE-INITIATED INTERROGA-

TION.

The prohibitions of Edwards v. Arizona and Mich-

igan v. Jackson apply only when the confession is

obtained as the result of police-initiated interrogation.

Edwards v. Arizona, supra at 485; Michigan v. Jack-

son, supra, 89 L.Ed.2d at 642. Not every contact by

the police with a person in custody is impermissible,

even if such contact tends to prompt a statement.

See Rhode Island v. Innis, 446 U.S. 291 (1980). Many

interactions between an accused and the police are

not “interrogations” within the Miranda-Edwards

sense. See Oregon v. Bradshaw, 462 U.S. 1039, 1045

(1983); United States v. Morrow, 731 F.2d 233, 237

(4th Cir. 1984).? It may be to an accused’s benefit,

and he may wish to know, if there is a particularly

strong case against him, or that his immediate co-

operation will benefit him in the form of a reduced

charge. Indeed, there are a number of kinds of in-

formation which the police might possess which an

accused would wish to know. Michigan v. Mosley, 423

U.S. 96, 109, n. 1 (1975) (White, J. concurring).

Merely showing petitioner his co-defendant was not

an interrogation. See People v. Ferro, 92 A.D.2d 298,

460 N.Y.2d 585 (1983). The Court of Appeals ex-

pressed some concern that Detective Hemenway

*For example, encouraging an accused to cooperate is not

questioning, United States v. Guido, 704 F.2d 674 (2d Cir. 1983),

nor is making him aware of the existence of physical or testi-

monial evidence which may be used against him. People v. Ferro,

92 A.D.2d 298, 460 N.Y.S.2d 585 (1983).

10

hoped to obtain an incriminating statement when he

advised respondent that Sessoms was in custody. This

Court has recently held that an officer’s mere hope

that an accused will incriminate himself does not el-

evate the police conduct to a level where it may be

deemed interrogation. Arizona v. Mauro, 55 U.S.L.W.

4601 (May 4, 1987). The Mauro decision also made

it clear that unless the police subject an accused to

compelling influences, psychological ploys or direct

questioning, the police actions are not the functional

equivalent of interrogation. Jd. at 3083-3084. Clearly,

no direct questioning occurred until after the

petitioner initiated an interrogation by volunteering

to give a statement. Nor did the simple act of ad-

vising respondent that a co-defendant was in custody

compel the respondent to respond to questioning. Li-

kewise, that act can scarcely be termed a psycholog-

ical ploy when, as Justice White has said, such

information may be valuable to an accused when he

is assessing his alternatives. Michigan v. Mosley, su-

pra. In judging whether the police conduct was im-

proper, it is necessary to determine whether their

words or actions were “‘...reasonably likely to elicit

an incriminating response from the suspect.’’ Rhode

Island v. Innis, 446 U.S. at 301. This determination

focuses upon the perceptions of the suspect rather

than the intent of the police. Arizona v. Mauro, 55

U.S.L.W. at 4603-4604. There is no evidence in the

record,‘ nor do the circumstances suggest, that the

‘ Indeed, respondent maintained throughout that his confession

was the result of threats and abusive tactics. The police denied

this and the trial court accepted the police testimony. Accord-

ingly, the decision at the suppression hearing focused on vol-

untariness.

1]

respondent felt manipulated or coerced into confess-

ing simply because the police demonstrated that a co-

defendant was also in custody.

The Court of Appeals’ decision utterly failed to ad-

dress petitioner’s assertion that the incriminating

statement was not given as a result of police-initiated

interrogation. Petitioner believes that this fact alone

justifies remand to the court below. However, since

this case was decided below, this Court has issued its

opinion in Arizona v. Mauro, which petitioner asserts

compels the conclusion that the police conduct was

not an interrogation. No interrogation occurred until

petitioner made his unsolicited declaration that he

wished to talk. Manifestly, the ‘‘police-initiated inter-

rogation” rule has two components—one, police ini-

tiation and two, questioning of an accused about an

investigation after he has asserted his right to counsel.

Because the actions of the police at the initial contact

with the accused did not constitute an interrogation,

those components are not present in the instant case.

CONCLUSION

In reversing the decision of the District Court, the

Court of Appeals has relied upon the rule it has

gleaned from Michigan v. Jackson. As petitioner has

demonstrated, the Court of Appeals has misread the

mandate of that case and extended that rule without

a rational basis. Moreover, putting aside the assist-

ance of counsel issue and assuming, arguendo, that

respondent’s conduct at his initial court appearance

was an assertion of his right to counsel, the Court

of Appeals failed to address the threshold inquiry

whether the statement was taken as the result of

police-initiated interrogation. This error by the court

12

below has become particularly clear since this Court

decided Arizona v. Mauro. Accordingly, the need for

clarification of the Michigan v. Jackson rule and the

need for correction of the Court of Appeals’ error

mandates that certiorari be granted and the judgment

of the Court of Appeals be reversed. In the alter-

native, certiorari should be granted and the case re-

manded to the United States Court of Appeals for

the Fourth Circuit for review in light of this Court’s

decision in Arizona v. Mauro.

Respectfully submitted,

MARY SUE TERRY

Attorney General

FRANK S. FERGUSON

Assistant Attorney General

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 85-6462

ALBERT L. WILSON,

Appellant,

versus

EDWARD MURRAY, DIRECTOR OF THE

VIRGINIA DePARIMENT OF CORRECTIONS,

Appellee.

Appeal from the United States District Court for the East-

ern District of Virginia, at Norfolk, Robert G. Doumar,

District Judge. (CA 85-11-N)

Argued: July 18, 1986 Decided: December 15, 1986

Before WINTER, Chief Judge, and MURNAGHAN and

ERVIN, Circuit Judges.

Martin J. Barrington (Donald J. Creach, Hunton & Wil-

liams on brief) for Appellant; Frank S. Ferguson, Assistant

Attorney General (Mary Sue Terry, Attorney General of

Virginia on brief) for Appellee.

2a

MURNAGHAN, Circuit Judge:

Albert L. Wilson appeals from dismissal of his petition

for habeas corpus under 28 U.S.C. § 2254. In his petition,

Wilson challenged the admission in his state criminal trial

of a statement elicited by the police from him after he

had requested a lawyer at an arraignment proceeding. Wil-

son argues that the police initiated further discussions after

his request for an attorney, in violation of his Fifth

Amendment and Sixth Amendment rights to counsel, and

that the statement should have been suppressed. The gov-

ernment, in addition to contesting the merits, argues that

the appeal is untimely. We reverse the decision of the

district court and grant the writ.

Sought for participation in a burglary that resulted in

the death of one of two elderly sisters, Wilson was ar-

rested pursuant to a warrant charging robbery, burglary,

murder and abduction. After Wilson’s arrest, the police

attempted to interrogate him. When provided with a legal

rights form, Wilson indicated that he understood his rights,

including his right to refuse to answer questions and his

right to an attorney, but declined to waive any of these

rights.

The next day, Wilson was taken to General District

Court for arraignment. At the arraignment, Wilson indi-

cated his intention to obtain counsel of his choice. After

arraignment, Wilson was returned to jail.

On the day following his arraignment, but before Wilson

had made arrangements for representation, the police

sought out Wilson in his cell for further discussion. It is

undisputed that Wilson did not request the contact and

that the police initiated it. Wilson was brought from his

cell and confronted with a co-defendant, Vernon Sessoms,

and was told that Sessoms had given a statement. Ap-

pellant claims that Detective Hemenway, the officer in

charge, admitted to arranging the confrontation in order

to prompt a confession, though the transcript of Hemen-

3a

way’s testimony on the point is not so unequivocal. In any

event, Wilson gave a statement in which he admitted to

recovering goods from the house.

At trial, Wilson pleaded not guilty. His confession was

introduced at trial, after a hearing on his motion to sup-

press. The trial judge found that Wilson did not request

an attorney during either of his interrogation sessions with

the police. He found further that the second interrogation

was initiated by the police, but that the statement was

voluntarily given. Wilson testified at the suppression hear-

ing that he had requested counsel during his arraignment

and the Commonwealth did not dispute this. The trial judge

did not make a determination regarding Wilson’s request

for counsel at arraignment.

In addition to the confession, testimony from a co-

defendant linked Wilson with the crimes. The jury found

him guilty on robbery and burglary charges, but acquitted

him on charges of murder and abduction. Wilson was sen-

tenced to imprisonment for life plus twenty years.

After exhausting his state appellate remedies, Wilson

filed a petition for habeas corpus in the United States

District- Court for the Eastern District of Virginia. The

district court referred the petition to a magistrate; in ac-

cordance with the magistrate’s report, the claim was dis-

missed.

Turning to the merits of petitioners’ appeal, as a thresh-

old matter we must consider the Commonwealth’s conten-

tion that Wilson filed his notice of appeal late, divesting

this court of jurisdiction over the case. A notice of appeal

must be filed within thirty days of entry of judgment. Fed.

R. App. Proc. 4(aX1). Entry of judgment consists of two

steps: creation of a document setting out the judgment

and a notation of the document on the docket sheet. Fed.

R. Civ. Proc. 58, 79a). The thirty day period does not

begin to run until after the document is entered on the

docket sheet. Berman v. Schweiker, 713 F.2d 1290, 1293

4a

n.8 (7th Cir. 1983). Though the point is not beyond debate,

the record on appeal shows that the appeal was timely.

The district court’s judgment was dated May 10, 1985. A

stamp on the face of the judgment reads “FILED MAY

13, 1985.’’ The docket sheet records filing of the order

and judgment on May 13, 1985, though the judgment itself

is dated May 10, 1985 in the docket notation. Wilson filed

his notice of appeal on June 12, 1985. We conclude that

the docket sheet date indicates that entry of judgment

was completed on May 13, and that the appeal, filed on

June 12, was timely. We therefore exercise jurisdiction

over the appeal.

Turning to the substance of the appeal, this case pre-

sents an instance in which the police returned to inter-

rogate a defendant after he had requested counsel at his

arraignment. The Commonwealth does not deny that Wil-

son stated that he wanted to obtain his own attorney

during his initial court appearance. It argues that Wilson’s

statements at the arraignment did not constitute an as-

sertion of the right to counsel. The Commonwealth sug-

gests that the defendant’s statement indicating a desire

to select his own counsel is somehow different than an

assertion of the right to counsel. This rather strained ar-

gument cannot be reconciled with the Supreme Court’s

decision in Michigan v. Jackson, 106 S.Ct. 1405 (1986),

where the Court rejected a similar argument and indicated

that defendants’ requests for counsel should be construed

broadly. We agree that an uncounseled prisoner, untutored

in law, cannot be stripped of his constitutional rights be-

cause of such technicalities. A defendant’s statement the

he intends to arrange representation is equivalent to a

request for an attorney. Thus, Wilson’s asking for an op-

portunity to arrange representation at arraignment must

be understood as a demand to speak through an attorney

at all subsequent stages of the prosecution.

In passing on Wilson’s petition for habeas corpus, the

district court addressed only the issue of whether Wilson’s

5a

statement was voluntary. The district court relied on the

state court’s finding of voluntariness, and the limited range

of federal review of such findings in a habeas proceeding,

28 U.S.C. § 22454(d), to find that the state court’s deter-

mination of voluntariness was presumptively correct. See

Sumner v. Mata, 455 U.S. 591 (1982). The district court

did not consider whether the interrogation of Wilson after

his request for counsel at arraignment violated his con-

stitutional right to counsel.

The voluntariness of the statement is not the only issue

in a Fifth Amendment right to counsel case. As the

Supreme Court instructed in Edwards v. Arizona, 451 U.S.

477 (1981), ‘“‘the voluntariness of a consent or an admission

on the one hand, and a knowing and intelligent waiver on

the other, are discrete inquiries.” 451 U.S. at 484. Re-

cently, in Moran v. Burbine, 54 U.S.L.W. 4265 (March 10,

1986), the Court reiterated its view that the absence of

coercion is a distinct issue from an understanding and

intelligent waiver of constitutional rights. Wilson’s state-

ment may very well have been voluntary (that is, un-

coerced) and yet given without a knowing and intelligent

waiver of his Fifth and Sixth Amendment rights to counsel.

It is clear that the trial court did issue a determination

with respect to one dimension of petitioner’s decision to

confess, in ruling that the confession was voluntary. But

it is uncertain from the record before us, what, if any,

findings of fact the court made regarding waiver, and

whether the correct constitutional standard was applied.

If the only question presented for this Court’s review was

whether the trial court had applied the correct constitu-

tional standard in evaluating petitioner’s understanding of

his decision to confess, that issue alone would be a suf-

ficient basis to remand the case to the district court or

reverse. See Smith v. Estelle, 711 F.2d 677 (5th Cir. 1983),

cert. denied, 466 U.S. 906 (1984); Fuller v. Luther, 575

F.2d 1098 (4th Cir. 1978); Pierce v. Caldwell, 572 F.2d

1339 (9th Cir. 1978).

6a

But far more significant to this appeal is that the trial

judge never ruled upon, and did not acknowledge the im-

port of, the undisputed evidence indicating that the

petitioner requested an attorney at his arraignment. The

request for an attorney goes to the question of whether

defendant subsequently waived his right to counsel, an

investigation which the trial court did not embark upon in

determining that Wilson was not coerced to confess. Com-

pounding this omission is the rule that the existence of a

waiver of the right to counsel after a request for counsel

has been made according to a far more rigorous test than

other waivers. Because the record clearly indicates that

petitioner did make a request for counsel,’ we must con-

sider the legal implications of that fact.’

' Petitioner testified during the suppression hearing that he had re-

quested an attorney at his arraignment and this was uncontradicted.

Indeed, in the course of the suppression hearing, the prosecution con-

ceded that the request had been made. JA-86. In addition, the prose-

cution appears to concede this fact in their brief to this court, apparently

trying to distinguish it from an assertion of the right to counsel. Brief

of Appellee 4, 9. It is evident from the trial court’s remarks in ruling

on the motion to suppress that the court did not focus on the fact that

the defendant had invoked his right to counsel at arraignment. Instead,

in reaching its decision the court apparently relied on its finding that

defendant did not assert his right to counsel in the course of either

of the two police interrogations. Thus, the court neither fully considered

the significance of petitioner's arraignment request, nor ruled on it. In

addition, if the trial Court had found that Wilson did not request counsel

at arraignment that ruling would not have been fairly supported by

the record in view of petitioner's testimony and the Commonwealth's

concessions. See 28 U.S.C. § 2254 (d) (8).

* Because the merits of the factual disputes of significance in this

habeas corpus proceeding were not resolved in the state hearing, we

are not overstepping the boundaries of deference which Federal Courts

must observe in reviewing, in the context of habeas corpus proceedings,

the factual findings of state trial courts. See 28 U.S.C. § 2254(d); Sum-

ner v. Mata, 455 U.S. 591 (1982).

The distinction between waiver and voluntariness does raise the ques-

tion of whether the waiver issue was litigated in state court and thus

7a

The decision in Miranda v. Arizona, 384 U.S. 436, 445

(1966), makes clear that an accused has a right, grounded

in the Fifth Amendment and applied to the states by the

Fourteenth Amendment, to have counsel present during

custodial interrogation. See also Solem v. Stumes, 465 U.S.

638, 641 (1984). Of course, once an accused has asked for

counsel, he can thereafter waive the right at a later point

and submit to interrogation. North Carolina v. Butler, 441

U.s. 369, 372-76 (1979).

The right to counsel at post-arraignment, custodial in-

terrogation has another source, the Sixth Amendment.

Michigan v. Jackson, 106 S.Ct. 1404, 1402 (1986). The

Sixth Amendment provides a separate guarantee of as-

sistance of counsel after arraignment, since arraignment

“signals the initiation of adversary judicial proceedings.”’

United States v. Gouveia, 467 U.S. 180, 187 (1984). Any

effort by the government to elicit information from the

whether it is properly before us. Wilson raised the waiver issue in his

objections to the magistrate’s report, though the issue of waiver was

not specifically addressed by the state courts and the order of the

district court dismissing the petition focused on the voluntariness issue.

However, in Edwards, the Supreme Court corrected a state court de-

cision which considered only voluntariness and did not address waiver.

451 U.S. at 483-84. On review of a petition for habeas corpus, the

federal courts may not apply the plain error rule in Fed. R. Crim. Pro.

52(b), but are bound to the stricter standard of “cause and actual

prejudice.” Wainwright v. Sykes, 433 U.S. 72, 89 (1977). The instant

case falls somewhere between Wainwright and the average habeas case.

Wilson objected at trial to introduction of the confession, and a suppres-

sion hearing was held. The issue of voluntariness predominated; even

though voluntariness and waiver are formally discrete inquiries, they

are sufficiently related to warrant our considering Wilson’s appeal. In

any event, the state’s conduct in the instant case so blatantly violated

the rule laid down in Edwards that it satisfies the cause and actual

prejudice standard of Wainwright. See Engle v. Isaac, 456 U.S. 107,

135 (1982) (“{A] plain error standard is unnecessary to correct mis-

carriages of justice. The terms ‘cause’ and ‘actual prejudice’ are not

rigid concepts; they take their meaning from the principles of comity

and finality. . . . In appropriate cases, those principles must yield to the

imperative of correcting a fundamentally unjust incarceration.”’).

8a

accused, after the judicial machinery has been invoked,

constitutes a “critical stage” of the criminal process, in

which the accused has a right to counsel. United States v.

Henry, 447 U.S. 264 (1980); Brewer v. Williams, 430 U.S.

387 (1977); Massiah v. United States, 377 U.S. 201 (1964).

If anything, interrogation of a defendant once counsel has

been requested at an arraignment is subject to even stricter

constitutional constraints than simple custodial interroga-

tion. Jackson, 106 S.Ct. at 1408; United States v. Clements,

713 F.2d 1030, 1034 (4th Cir. 1983).

The Supreme Court has made it quite clear that, absent

a knowing, intelligent and voluntary waiver of the right

to counsel, an accused, once he has requested counsel,

must be left alone by the police until he had had the

opportunity to consult with counsel. In Edwards v. Ari-

zona, 451 U.S. 477 (1981), the Supreme Court constructed

a prophylactic rule of considerable impermeability:

We now hold that when an accused has invoked

his right to have counsel present during custodial

interrogation, a valid waiver of that right cannot

be established by showing only that he responded

to further police-initiated custodial interrogation

even if he has been advised of his right... . [A]n

accused, -such as Edwards, having expressed his

desire to deal with the police only through

counsel, is not subject to further interrogation by

the authorities until counsel has made available

to him, unless the accused himself initiates fur-

ther communication, exchanges, or conversation

with police.

451 U.S. at 485.° See also Rhode Island v. Innis, 446 U.S.

291, 298 (1980). The Court wen. Jn to describe the test

* Edwards is a case rather close on the facts to the present case.

Edwards was arrested and charged with, among other things, first

degree murder. On the first day of incarceration the police read hirn

9a

for determining when a waiver has occurred. Waiver oc-

curs when an individual makes a knowing and intelligent

relinquishment or abandonment of a known right or priv-

ilege. Edwards, 451 U.S. at 482. Whether waiver has oc-

curred is to be determined on a case-by-case basis,

considering the “particular facts and circumstances sur-

rounding [each] case, including the background, experience

and conduct of the accused.” Johnson v. Zerbst, 304 U.S.

458, 464 (1938).

Recently, the Supreme Court has created an even

stricter rule in addressing the issue of waiver of the right

to counsel when counsel is requested after the defendant

is formally charged with an offense. In Michigan v. Jack-

son, 106 S.Ct. 1404, 1411 (1986), the Court held that if

the police initiate interrogation after a defendant’s asser-

tion of his right to counsel at an arraignment, ‘‘any waiver

of the defendant’s right of counsel for that police-initiated

interrogation is invalid.’ Based on both the Fifth and Sixth

Amendment, the rule creates a binding presumption, in

effect displacing the case-by-case analysis set out in Ed-

wards for determining whether a waiver has, in fact, oc-

curred. Cf. Edwards, 451 U.S. at 485 n.9 (waiver must be

knowing and intelligent, when considered under the to-

tality of circumstances).

This case falls squarely within the rule of Michigan v.

Jackson. Petitioner asserted his right to counsel at ar-

raignment, but before he could consult with his attorney,

police initiated an interrogation and obtained a statement

his rights and he agreed to submit to questioning. He made a statement

denying culpability. Later he stated that he wanted to “make a deal,”’

but that he would not do so until he could talk to a lawyer. Questioning

ceased at that point. The next day, however, police returned to question

Edwards, who declined to see the officers. The officers saw him anyway,

and talked to him about a statement by a co-defendant. Edwards agreed

to give a statement, and inculpated himself. Later, he attempted to sup-

press the statement at trial, and was rebuffed. The Supreme Court, on

writ of certiorari, reversed the conviction. 451 U.S. at 477.

10a

from him. Even if his statement was voluntary, in the

sense that word is normally used, it was obtained in con-

travention of the bright line rule of Michigan v. Jackson:

Once the right to counsel is invoked at arraignment, sub-

sequent waiver is invalid.

The district court found, and the Commonwealth argues

on appeal, that the error, if any, was harmless, because

of the weight of other evidence in the case. Under Chap-

man v. California, 386 U.S. 18 (1967), the government

bears the burden of proving beyond a reasonable doubt

that evidence admitted under constitutional error was

harmless. Apart from his confession, the Commonwealth’s

primary evidence against Wilson was testimony by a co-

defendant which identified Wilson as one of five who broke

into the house, and later split the proceeds. Also, the sur-

viving victim identified Wilson as someone she recognized

from the neighborhood. On the whole, Wilson was tried

with several co-defendants, and the evidence regarding the

brutality and extent of the crime was apparently graphic

and complete. The evidence tying Wilson to the crime,

however, was not overwhelming and the confession un-

doubtedly had a substantial effect on his conviction. Cf.

Jackson v. Denno, 378 U.s. 368 (1964) (admission of confes-

sion taken in violation of defendant’s due process rights

held reversible error despite other substantial evidence of

guilt); Arthur v. Bordenkircher, 715 F.2d 118 (4th Cir.

1983) (““Examples of error that cannot be harmless include

the admission of a coerced confession, denial of counsel

or lack of an impartial judge, or appeal to racial preju-

dice.’’). The error in admitting the confession could hardly

be characterized as harmless.

To conclude, we hold that the appeal was timely and

that the Commonwealth violated Wilson’s Fifth Amend-

ment right to counsel during interrogation, and Sixth

Amendment right to counsel at a “critical stage’’ of the

prosecution, by reinitiating discussions with Wilson after

he had requested at arraignment the opportunity to consult

lla

with an attorney. Admission of the resultant statement

was prejudicial and the writ of habeas corpus should issue,

though Wilson is subject to re-trial by the Commonwealth

within a reasonable time.

REVERSED.

12a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

CIVIL ACTION NO. 85-11-N

ALBERT L. WILSON,

Petitioner(s),

VS.

R.N. LANDON, DIRECTOR OF VIRGINIA DEPARTMENT

OF CORRECTIONS,

Respondent(s).

FILED

MAY 13 1985

JUDGMENT

This action came on for consideration by the Court, and

the issues having been duly considered and a decision hav-

ing been duly rendered,

It is ADJUDGED and ORDERED that this action be

dismissed.

W. FARLEY POWERS, JR., CLERK

/s/ BETH T. WINGROVE

Deputy

Date: May 10, 1985

18a

a

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

CIVIL ACTION NO. 85-11-N

ALBERT L. WILSON, #128339,

Petitioner,

Wu

ALLYN R. SIELAFF, DIRECTOR OF THE _ VIRGINIA

DEPARTMENT OF CORRECTIONS,

Respondent.

FILED

MAY 10 1985

FINAL ORDER

This matter was initiated by petition for a writ of habeas

corpus under 28 U.S.C. § 2254.

The petition alleges violation of federal rights pertaining

to petitioner’s convictions on April 12, 1982 in the Circuit

Court of the City of Norfolk for robbery and burglary, as

a result of which he was sentenced to serve life and 20

years, respectively, in the Virginia penal system.

The matter was referred to a United States Magistrate

pursuant to the provisions of 28 U.S.C. § 636(bX1\B) and

(C) and Rule 29AX1) and (N\X8\f) of the Rules of the

United States District Court for the Eastern District of

Virginia for report and recommendation. Report of the

magistrate was filed on April 9, 1985 recommending dis-

missal of the petition. By copy of the report, each party

was advised of his right to file written objections to the

findings and recommendations made -by the magistrate.

l4a

The court received objections to said magistrate’s report

from petitioner on April 25, 1985.

The court, having examined the objections filed by the

petitioner to the magistrate’s report and having made de

novo findings with respect to the portions objected to, does

hereby adopt and approve the findings and recommenda-

_ tions set forth in the report of the United States Magis-

trate filed April 9, 1985 and it is, therefore, ORDERED

that the petition be DENIED and DISMISSED on its mer-

its and that judgment be entered in favor of the

respondent.

Petitioner may appeal from the judgment entered pur-

suant to this final order by filing a written notice of appeal

with the Clerk of this court, 307 United States Courthouse,

Norfolk, Virginia 23510, within 30 days from the date of

entry of such judgment. For the reasons stated in said

report, the court, pursuant to Rule 22(b) of the Federal

Rules of Appellate Procedure, declines to issue a certificate

of probable cause for appeal.

The Clerk shall mail a copy of this order to the petitioner

and to counsel of record for respondent.

/s/ RoBERT G. DoUMAR

United States District Judge

Norfolk, Virginia

May 10th, 1985

15a

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

NORFOLK DIVISION

CIVIL ACTION NO. 85-11-N

ALBERT L. WILSON, #128339,

Petitioner,

Vv.

ALLYN R. SEILAFF, DIRECTOR OF THE VIRGINIA

DEPARTMENT OF CORRECTIONS,

Respondent.

MAGISTRATE’S REPORT AND RECOMMENDATION

This matter was initiated by petition for a writ of habeas

corpus under 28 U.S.C.§ 2254. Petitioner is a prisoner in

the Virginia penal system. The matter was referred to the

undersigned United States Magistrate pursuant to the pro-

visions of 28 U.S.C. § 636(BX 1B) and (C) and Rule 2%A\1)

and (NX3\Xf) of the Rules of the United States District

Court for the Eastern District of Virginia.

A. STATEMENT OF THE CASE

1. Background

Petitioner was convicted of robbery and burglary on

April 12, 1982 in the Circuit Court of the City of Norfolk.

He was sentenced to imprisonment in the Virginia penal

system for life and twenty years, respectively, and is cur-

rently serving those sentences. Petitioner attempted a di-

rect appeal of his convictions to the Supreme Court of

Virginia; the appeal was dismissed by order of December

9, 1982. Petitioner filed an application for a writ of habeas

corpus in the Circuit Court of the City of Norfolk which

16a

was dismissed by order of July 20, 1983. Petitioner then

filed applications for writs of habeas corpus in the Supreme

Court of Virginia which were dismissed by orders of Sep-

tember 24, 1984 and September 25, 1984.

2. Grounds Alleged

Petitioner alleges the following grounds for relief:

1. That the trial court erred in not suppressing

petitioner’s statement.

2. That the trial- court erred in imposing a sentence

which amounted to cruel and unusual punishment.

3. That the evidence was insufficient to support

petitioner’s convictions.

4. That petitioner was denied his right to a speedy trial.

5. That the trial court had no jurisdiction to try

petitioner because statutory speedy trial requirements had

not been met.

6. That he was denied the effective assistance of counsel

because (a) his attorney failed to protect his right to a

speedy trial and (b) his attorney failed to investigate the

Fourth Amendment violation which occurred during

petitioner’s custodial interrogation.

B. FINDINGS OF ACT AND CONCLUSIONS OF

LAW

Ground 1

Petitioner complains in Ground 1 that the court erred

in not suppressing his statement. Petitioner gave his state-

ment concerning his involvement in the robbery and bur-

glary to law enforcement officials while in pre-trial custody.

Petitioner contends that the trial court incorrectly deter-

mined that his statement was voluntarily given because

the evidence showed that he had refused to answer any

Mee GMOS maP amen

-

17a

question, had informed the court that he was seeking an

attorney, and had been subjected to threats by police of-

ficers. A hearing was held during the course of petitioner’s

state criminal trial concerning the voluntariness of his

statement (T. 76-106)! The trial judge denied petitioner’s

motion to suppress his statement and specifically found

that petitioner was advised of his Miranda rights and then

gave his statement voluntarily (T. 105).

Title 28 U.S.C. § 2254(d) provides, in part, as follow:

In any proceeding instituted in a Federal court

by an application for a writ of habeas corpus by

a person in custody pursuant to the judgment of

a State court, a determination after a hearing on

the merits of a factual issue, made by a State

court of competent jurisdiction in a proceeding

to which the applicant for the writ and the State

or an officer or agent thereof were parties, evi-

denced by a written finding, written opinion, or

other reliable and adequate written indicia, shall

be presumed to be correct ....

The statute then provides that a federal court shall not

be required to presume the correctness of such state de-

terminations if ‘‘the applicant shall establish or it shall

otherwise appear, or the respondent shal] admit’ any of

eight specific factors affecting fairness of the hearing or

determinations. Petitioner has not alleged the existence of

any of these conditions. It is plain from the state court

trial transcript that none of these conditions existed and

consequently none could be established by petitioner.

The United States Supreme Court has emphasized sev-

eral times in recent years that the quoted provisions of

28 U.S.C.§ 2254(d) mean precisely what they say. See

Sumner v. Mata, 455 U.S. 591 (1982) (Sumner IT); Sumner

1 References in this form are to the transcript of petitioner’s criminal

trial on February 22, 1982, in the Circuit Court of the City of Norfolk.

18a

v. Mata, 449 U.S. 539 (1981) (Sumner J). See also Rushen

v. Spain, __ U.S. __ , 52 U.S.L.W. 3452, 3453 (Dec. 12,

1983); Marhshall v. Lonberger, 459 U.S. 422 (1983). In

Sumner, a state court had determined, after hearing, that

a pretrial photographic identification employed by the po-

lice did not violate a petitioner’s Fourteenth Amendment

due process rights. A federal circuit court rejected the

state court’s determination and made findings of fact which

were “‘considerably at odds’ with the findings made by

the state court. Reversing the federal circuit court’s re-

jection of the state court’s findings, the Supreme Court

held that 28 U.S.C. § 2254(d) precluded a contrary deter-

mination by a federal court absent any of the factors enum-

erated in the statute. The Court reasoned that “‘[tJhis

interest in federalism recognized by Congress in enacting

§ 2254(d) requires deference by federal courts to factual

determinations of all state courts.’”’ Sumner I, 449 USS.

547. ‘This requirement could not be plainer.’’ Sumner II,

455 U.S. at 592.

Based on the foregoing and in accordance with 28 U.S.C.

§ 2254(d), it is concluded that the determination of the

state trial court adverse to petitioner on the question of

the voluntariness of his statement is presumed to be cor-

rect.

Further, the admission into evidence of illegally obtained

admissions or confessions will not require reversal where

such admission constitutes harmless error. Milton v. Wain-

wright, 407 U.S. 371 (1972); see Chapman v. California,

386 U.S. 18 (1968). Assuming, arguendo, that the chal-

lenged statement was inadmissible, the record still contains

the testimony of a co-defendant regarding petitioner’s role

in the crimes (T. 122-127). The evidence at trial, even

without the challenged statement, established petitioner’s

guilt beyond a reasonable doubt. Harrison v. Owen, 682

F.2d 138, 141-42 (7th Cir. 1982).

19a

It is concluded that there is no merit to Ground 1 of

the petition.

Ground 2

Petitioner complains in Ground 2 that the trial court

erred in imposing a sentence which amounted to cruel and

unusual punishment.

It is not contested, and it is plainly true, that the sen-

tences imposed do not exceed the maximum permitted by

the statutes which made the conduct criminal.? A sentence

not exceeding that which may be lawfully imposed under

state law for violation of a criminal statute does not con-

stitute cruel and unusual punishment. Hutto v. Davis, 454

U.S. 370 (1982), reh’d denied, 455 U.S. 1038 (1982); Estelle

v. Rummell, 455 U.S. 263 (1980). See Sneed v. Smith, 670

F.2d 1848 (4th Cir. 1982).

It is concluded that petitioner’s claim in Ground 2 is

meritless.

Ground 3

Petitioner complains in Ground 3 that the evidence was

insufficient to support his convictions.

The current standard for assessing sufficiency of the

evidence to withstand due process scrutiny is set forth in

Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson, the

United States Supreme Court established the rule that to

withstand constitutional scrutiny, a state court conviction

must be based on evidence sufficient to justify a rational

trier of fact in finding guilt beyond a reasonable doubt.

The Court stated that “the relevant question is whether,

after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

2See Va. Code §§ 18.2-58 and 18.2-89.

20a

doubt.”” (Emphasis in original.) 443-U-S. at 319. An ap-

plicant is entitled to relief on the ground of insufficient

evidence to convict only if it is found that “‘upon the record

evidence adduced at trial no rational trier of fact could

have found proof of guilt beyond a reasonable doubt.” 433

U.S. at 324.

The trial transcript readily supports a finding that on

February 7, 1981 at 12:30 a.m., a group of men forced

their way into the house of Ida and Diane Polen (T. 32,

123). Ida Polen was assaulted, bound, and gagged and then

the men took money and several items of personal prop-

erty from her house (T. 32-34, 40). Some eighteen hours

later, Ida Polen was discovered, still bound and gagged

(T. 63). Her sister, Diane, was found in the upstairs portion

of the house, but she was dead as a result of the assault

upon her person (T. 30).

Prior to the actual commission of the crimes, it is clear

that petitioner and his co-defendants got together and

planned the crimes (T. 123). They gathered tools to assist

them in their venture and went to the Polen house to-

gether (T. 113). Lookouts, one of whom was petitioner,

were placed on the street while the telephone wires were

cut and the actual entry was accomplished (T. 113, 123).

Petitioner was present throughout the commission of the

crime and a co-defendant testified that petitioner entered

the house to help remove the money and property (T. 123,

130). Petitioner’s confession further establishes his intent

to commit the crimes, his actual presence, and his sharing

in the stolen property (T. 112-118).

The evidence, when viewed in the light most favorable

to the prosecution, was sufficient to permit a rational trier

of fact to find beyond a reasonable doubt that petitioner

committed all the elements of robbery* and burglary.‘ Un-

’See Va. Code § 18.2-50 under which petitioner was charged and

convicted of the subject robbery.

«See Va. Code § 18.2-89 under which petitioner was charged and

2la

der Jackson v. Virginia, supra, there is no burden on the

Commonwealth to disprove every conceivable hypothesis

offered by a defendant, but only to prove its own theory

of the case beyond a reasonable doubt.

It is concluded that petitioner’s claim in Ground 3 is

meritless.

Ground 4

Petitioner complains in Ground 4 that he was denied his

right to a speedy trial.

Petitioner alleges violations of state law and federal con-

stitutional rights. To the extent petitioner’s claim is based

upon a violation of state law, such claim is not reviewable

in this federal proceeding. A claim presented in an appli-

cation for writ of habeas corpus is cognizable only if a

violation of a federal constitutional provision, law or treaty

is alleged. Rose v. Hodges, 423 U.S. 19 (1975); Chance v.

Garrison, 537 F.2d 1212 (4th Cir. 1976).

Petitioner also complains that the approximately nine

month delay in bringing petitioner to trial violates his fed-

eral constitutional rights. There is no set limit for a speedy

trial; rather, the court must balance the factors involved

in the circumstances of each case. Barker v. Wingo, 407

U.S. 514 (1971). It is clear in this case that petitioner’s

right to a speedy trial was not violated. Three motions

for a continuance were granted by the trial court and of

these three, two were upon motion of petitioner and the

third was with his concurrence.’ Further, the petitioner

has failed to show or assert any prejudice resulting from

the nine month delay.

*See Va. Code § 18.2-89 under which petitioner was charged and

convicted of the subject burglary.

* See Exhibits II, II] and IV attached to Respondent’s Brief in Sup-

port of Motion to Dismiss.

22a

It is concluded that petitioner’s claim in Ground 4 is

without merit.

Ground 5

Petitioner complains in Ground 5 that the trial court

had no jurisdiction to try petitioner because statutory

speedy trial requirements had not been met.*®

Petitioner’s claim is cognizable in federal habeas corpus

proceedings if, and only if, the failure to comply with the

requirements of the Virginia statute means that the sent-

encing court had no jurisdiction to sentence the appellant

to jail. Hailey v. Dorsey, 580 F.2d 112 (4th Cir. 1978),

cert. denied, 440 U.S. 937 (1978); Pollard v. Riddle, 482

F.Supp. 260 (E.D.Va. 1979). The record before this court

clearly indicates that there was full compliance with the

statute in question and, as stated in Ground 4 above, there

is no fundamental defect present which would inherently

result in a complete miscarriage of justice. See 580 F.2d

at 115.

It is concluded that petitioner’s claim in Ground 5 is

not cognizable in this habeas corpus proceeding and that,

furthermore, there is no merit to petitioner’s claim.

Ground 6

Petitioner complains in Ground 6 that he was denied

the effective assistance of counsel because (a) his attorney

failed to protect his right to a speedy trial and (b) his

attorney failed to investigate the Fourth Amendment vi-

olation which occurred during petitioner’s custodial inter-

rogation. ;

The current standard for measuring the effectiveness of

counsel in criminal cases is ‘“‘whether counsel’s conduct so

undermined the proper functioning of the adversarial proc-

® See Va. Code § 19.2-243.

23a

ess that the trial cannot be relied upon as having produced

a just result.’”’ Strickland v. Washington, __ U.S. __, 104

S.Ct. 2052, 2064 (1984). The court in Washington stated

that a claim of ineffective assistance of counse] has two

components. The defendant must first show that counsel’s

performance was deficient. Second, the defendant must

show that the deficient performance of counsel was so

prejudicial that the defendant was deprived of a fair trial.

Id. at 2064.

The proper standard to be applied in an assessment of

counsel’s performance is that of reasonably effective as-

sistance. Jd. The defendant must show that counsel’s per-

formance fell below an_ objective standard of

reasonableness. A court’s examination of counsel’s per-

formance must be highly deferential and it must indulge

a strcng presumption that- counsel’s conduct does fall

within the wide range of reasonable professional assist-

ance. Jd. at 2066. Every effort should be made ‘“‘to elim-

inate the distorting effects of hindsight’’ and counsel’s

performance should be evaluated from the perspective

counsel would have had at the time. Jd.

An error by counsel, even if professionally unreasonable,

will not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.

“The defendant must show that there is a reasonable prob-

ability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Jd.

at 2068.

The court in Washington emphasized that these stand-

ards are not mechanical rules and that the ultimate focus

of inquiry must be the fundamental fairness of the pro-

ceeding whose result is being challenged. A practical ap-

plication of these standards does not require an

examination of both components of the claim. If it is more

efficient to address an ineffectiveness claim on the ground

24a

of lack of sufficient prejudice, then that course should be

followed. Id. at 2070.

Petitioner first complains that his attorney failed to pro-

tect his right to a speedy trial. As discussed in Grounds

4 and 5 above, it is clear that petitioner was not denied

his right to a speedy trial and that, in fact, the nine month

delay occurred because of motions for continuances which

were made in two instances at the request of petitioner,

and in the third instance with his concurrence. There is

no evidence of an error by counsel in this regard and

petitioner has failed to show sufficient prejudice to merit

relief.

Petitioner also complains that his attorney failed to in-

vestigate a Fourth Amendment violation which occurred

during his custodial interrogation. A review of the trial

transcript reveals that petitioner’s counsel was intimately

familiar with the details of petitioner’s custodial interro-

gation and a motion was made by counsel to suppress the

statement resulting from that interrogation (T. 101). A

hearing was held during the course of the trial as a result

of petitioner’s motion and the circumstances of the inter-

rogation were fully developed and ably argued by counsel

(T. 76-106).

It is concluded that there is no merit to petitioner’s

claims in Ground 6 of the petition.

C. RECOMMENDATION

It is recommended the petition be DENIED and DIS-

MISSED on its merits.

It is further recommended that the court decline to issue

any certificate of probable cause for appeal required by

Rule 22(b) of the Federal Rules of Appellate Procedure.

D. REVIEW PROCEDURE

By copy of this Report and Recommendation, the parties

are notified that pursuant to 28 U.S.C. § 636(b\1\C):

25a

1. Any party may serve upon the foregoing party and

file with the Clerk written objections to the foregoing find-

ings and recommendations within 13 days from the date

of mailing of this report to the objecting party (10 days

allowed by 28 U.S.C. § 636(bX1XC) and three days per-

mitted by Rule 6(e) of the Federal Rules of Civil Proce-

dure).

2. A district judge shall make a de novo determination

of those portions of this report or specified findings or

recommendations to which objection is made.

The parties are further notified that failure to file timely

objections to the findings and recommendations set forth

above will result in waiver of right to appeal from a judg-

ment of this court based on such findings and recommen-

dations. Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984); United

States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

Respectfully submitted,

/s/ JAMES T. TURNER

James T. Turner

United States Magistrate

Norfolk, Virginia

April 9, 1985

Clerk’s Mailing Certificate

A copy of the foregoing Report was mailed this date

to each of the following:

Albert L. Wilson #128339, pro se

Frank S. Ferguson, Esquire

Assistant Attorney General of Virginia, p.d.

W. Farley Powers,Jr., Clerk

26a

By /s/

Deputy Clerk

April __, 1985