# Petition for Writ of Certiorari — Murray v. Wilson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 870

## Text

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 “—

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0332%3A1. Public record. Not legal advice.