Petition for Writ of Certiorari — Boles v. Sheftic

re

‘st IPREME COURT, U. Se

IN THE

Supreme Court of The United ! Stale

' October Term, 1967

—. OTTO C. BOLES, Warden of the

West Virginia State ac

. _ Petitioner

vs. *

STANLEY SHEFTIC, and .

_ JOHN HOWARD- RUNYON, JR...

wy Respondents.

PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS FOR THE

' FourtH Circuit

- C. DONALD ROBERTSON.

At General

State of West Virginia —

Room 26, State Ca itol |

Charleston, West Virginia

Morton I. TABER |

_ Assistant Attorney General

State of West Virginia . , .

Room .26, State Capitol

Charleston, West irginia—

—_ sistant Atieiny General

ssistan

State of West Virginia

Room 26, State Ca ppitol.

Charleston, West Virginia

. Attorneys for Petitioner

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: ee Office. Sujrone Caotae :

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PETITION FOR CERTIORARI _ Ra :

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| SUBJECT INDEX °

z Citation of Opinions Below

| J urisdiction

Question Prevented

Constitutional Provision and Statutes Involved.

Statement of Casb

Reasons for Going Writ - ——

ie Conelusion .

_ AUTHORITIES CITED

Miller V. Boles. Warden, 248 F. Supp. 49 elke

(N: D. W. Va., 1965) | 2-3-7

Runyon v. Boles, V Warden, 377, F, 2d 423

(4th Cir., 1967).

Sheftic v. Boles, Warden 377 F. 2d. 423

(4th Cir., 1967)

Fay Vv. Noia, 372 U. S. 391, 88 S. Ct. 822,

9 L. Ed. 2d 887 (1968) ‘

Townsend V. Sain, 372 U.S. 298, 83 S. Ct. 745,

9 L. Ed. 2d 770 (1963) 2:

Case v. Nebraska, 381 U. S. 836, 85'S. Ct: 1486, :

14.L. Ed. 2d 422 (1965) . i Sn

APPENDIX

“Opinion by Hororghle Robert E. Maxwell,

3 Judge of United States District Court |

for-the Northern District of West Virginia —

(Miller v. Moles, Warden) — —

District-Court Order dismissing peien :

_-— ~~ of Stanley Sheftic

District Court Order dismissing petition:

of John Howard Runyon, Jr.

3 __. Memorandum by Honorable Robert E. Maxwell,

oF Judge of United States District Court

(Runyon v. Boles, Warden)

Opinion by Honorable Herbert S. Boreman,

- Judge of the United States Court of

Appeals or the Fourth Circuit

7 Order Denying Rehearing En Bane : |

By the United States Court of Appeals. none

Title 28 U.S.C.A. Section ee |

) Title 28 US.C. A. Section 2254

West Virginia Code, Chapter 51, Article 1,

_ Section 3, as amended

West Virginia Code, Chapter 51, Article 2,

Section 2, as amended -.........

West Virginia Code, Chapter ‘58, Article 4,

section 1, as amended -.

. ' West Virginia Code, Chapter 58, Article 4A,

| : Section-1, as amended -,-_-

The Official Code of West Virginia of 1931,

Chapter 62, Article 8, Section 4 -.._. sais

ii.

a - : ony ae

Supreme Court of The United States

_-9

: October Term, 1967

9

‘ - OTTO C. BOLES, Warden of the

West Virginia State Penitentiary, .

Priel a Petitioner |

VS.

STANLEY SHEFTIC, and_ ne

JOHN HOWARD RUNYON, JR. ti;

: - Respondents. ;

_ PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

oa FouRTH CIRCUIT ~ .

The Petitioner, Otto C. Boles, Warden of the West

Virginia Penitentiary, prays that a writ of certiorari

issue to review the Judgment of the United States

Court of Appeals for*the Fourth Circuit, entered in

~ the above entitled case on May 4, 1967. A timely peti- —

tion for rehearing was denied on June 19, 1967.

apt _ JURISDICTION peat

The judgment of the United States Court of Appeals

_ for the Fourth Circuit was entered on May 4, 1967.

” A timely petition for rehearing was denied on June

19, 1967. The jurisdiction of this Court is invoked

under 28 U. S. C., 8 1254 (1).

QUESTION PRESENTED

' Where a State provides a post conviction review

procedure by which a State prisoner is afforded a full °

and fair evidentiary hearing and appeal ‘therefrom, ©

- should the federal courts permit a State prisoner to .

' deliberately by-pass this procedure and allow him to

use the federal court as the initial fact-finding forum. ,

CITATION OF OPINIONS BELOW :—

"Stanley Sheftie: | ee

- An application to the United States District Court

for the Northern District of West Virginia for a Writ

of Habeas Corpus was summarily dismissed, with no

memorandum having been filed, but as set forth in the ~

Order dated January 12, 1966, “* * * for reasons.

set forth in a written Memorandum filed in the case

of Jack M. Miller vs. Otto C. Boles, Warden, Civil

Action File No. 468-E, dated November 23, 1965 -

“"* *”, reported in 248 F. Supp. 49 (see Appendix:

hereto»P. A-1). The opinion of the. United States

Court of Appeals for the Fourth Circuit, reversing

_the judgment of the District Court, is reported in 377

F, 2d 423. A petition to the. United States Court of

Appeals for the Fourth Circuit for a rehearing en

f>

banc was summarily denied on June 19, 1967 (see .

. Appendix hereto P. A-25, :A-33).

John Howard. Runyon, Jr.: | : :

Ani application to the United States. District Court

for thé Northern District of West Virginia for a Writ |

___of Habeas Corpus was summarily dismissed, with no

memorandum having at the time been filed, but as set:

forth in the Order dated January 12, 1966, “* *.*

3 e?

for reasons set forth.in a written Memorandum filed

_ + in the éase of Jack M. Miller vs. Otto C.“Boles, Warden,

_ Civil Action File No. 468-E, dated November 23, 1965

" * * *”, reported in 248 F. Supp. 49 {see Appendix

hereto P..A-1). The District Court then filed a writ-

ten Memorandum dated February 16, 1966 (see Ap-.

' pendix hereto P. A-24): The opinion of the United’

States Court of Appeals for the Fourth Circuit, re- | -

versing the judgment of the District Court, dated |

May 4, 1967, is reported i in 377 F.2d 423A petition

to the United States Court of “Appeals for the Fourth

Circuit for a rehearing en banc was summarily denied

on ‘June 19, 1967 _ Appendix hereto P. A-33).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Constitution of the United States:

Amendments 6 and 14. _

Constitution of West —

Article I, Section 2.

Article TI, Sections 10 and 14.

Article VIII, Sections 3 and 12.

28 US. C. A. § 2254, as amended. |

West Virginia Code, Chapter 51, Article 1, Section 3,

_- asamended' .,

West Virginia Code, Chapter 51, Article 2, Section 2,

as amended -

West Virginia Code, Chapter 53, Article 4, Section lp

as amended —

West Virginia Code, Chapter 53, Article 4A, Sections

1 and 3,asamended.

- The Official.Code of West Virginia of 1981, Chapter

: 62, Article 8, Section 4. :

6 .

4.

ae STATEMENT _ |

For clarity, the parties will be hereafter referred to

by name or as petitioner and respondent as they appear |

in this application. —

®

Respondent, Stanley Sheftic, pleaded guilty to two

charges of breaking and entering and was sentenced

~ to confinement in the State Penitentiary at Mounds-

- _ Ville, Marshall County, West Virginia. Subsequent -

_ thereto, the Warden of the prison instituted proceed-

ings urider the West Virginia Habitual Criminal

Statute [West Virginia Code, Chapter 62, Article 8,

Section 4 (1931)], charging four previous felony con-

victions.. The sole issue involved was Sheftic’s identity.

As was his right, a jury was impaneled to determine

the issue. Sheftic was found to be the same person

- identified in the information filed by the Warden of ©

having been convicted of at least two prior felony

offenses and was sentenced to life imprisonment.

Respondent Sheftic has filed various petitions for

_ writs of habeas corpus in. the Supreme Court of Ap-

peals of West-Virginia. In the last petition filed: in

the West Virginia Court, Sheftic alleged that his

guilty plea to the principal offense for which he was

then serving a sentence had been coerced. The petition

was denied without a hearing on November 23, 1964.

The allegation of this factual issue had never been pre-

. semited to the Circuit Court of Marshall County, West

_ Virginia, or any other Circuit Court in the State of

. West Virginia, where a full-and fair evidentiary hear-

ing could have been held to resolve it.

The respondent, after having been denied the relief

sought by the Supreme Court of Appeals of West Vir-

paramere panne "toe

5

ginia, petitioned the United States District Court for .

the Northern District of West Virginia pursuant to

28 U.S.C. § 2241. The District Court dismissed

_ Sheftic’s petition pursuant to 28 U.S.C. § 2254; hold-

ing that he had not exhausted the remedies available

_in the Courts of the State of West Virginia.

. Respondent, John Howard Runyon, Jr., represented

by Court-appointed counsel, changed his plea from not |

guilty to guilty to the felony offense of breaking and

_ entering and was sentenced to the West Virginia State

Penitentiary at Moundsville, Marshall County, West

Virginia, for a term of one to ten years. Runyon filed

a petition for a writ of habeas corpus in the Supreme

_ Court of Appeals of West Virginia, alleging that he |

- had been denied the right to the effective assistance -

of counsel. The petition was denied without a hearing |

on October 18, 1965. Respondent had never attempted

to resolve the factual issue presented to the Supreme

Court of Appeals of West Virginia by presenting it

to the Circuit Court of Marshall County, West Vir-

ginia, or any other Circuit Court in the State of West

Virginia. ,

Subsequently, Runyon petitioned the United States

District Court for the Northern District of West Vir-

ginia for a writ of habeas corpus, raising the same

factual issue as he had before. The District Court

dismissed Runyon’s petition pursuant to 28 U.S.C...

§ 2254, holding that he ‘had not exhausted the remedies

available in the Courts of the State of West Virginia.

Both Stanley Sheftic and John Howard Runyon, Jr.,

appealed the rulings of the District Court to the United

States Court of Appeals for the Fourth Circuit. The

5

‘Court of Appeals réversed the judgment of the District

Court by order dated May 4, 1967. Sheftic v. Boles

and Runyon Vv. Boles, 377 F. 2d 423 (1967).

The petitioner petitioned the Court of Appeals for

- . 8 rehearing en banc, which rehearing was summarily

denied on June 19, 1967. The Court of Appeals sub-

- sequently, upon timely application, stayed the issuance

of certified copies of the judgments in lieu of mandates

pending a timely application by the petitioner to the

Supreme Court of the United States for a watt of

certiorari.

The District Court i, the . petitions | of the ©

respondents for two paramount reasons. One being

- that, in each of the cases, the issues raised were factual

in nature, the resolution of which necessitated a’

plenary hearing. Neither of the petitioners had ever

sought a forum where the. facts could have been de-

veloped but, to the contrary, sought relief in the Su-

preme Court of Appeals of West Virginia, where the

procedures do not provide for evidentiary hearings.

The second reason was that the District Court believed

_ that the State should have the first opportunity to re-

solve such issues. } .

REASONS FOR lise THE WRIT

» (1) The decision of the Court of Appeals, as is

now becoming more evident, prevents the State of West

Virginia from having the first opportunity to deter-

mine the claims and to correct any federal constitu-

tional deprivations which may exist. The decision

frustrates the attempts of the State of West Virginia

to assure those ‘persons who are accused of criminal

ee

: offenses. that their constitutionally given es ‘both

federal and state, will be observed and that no person

will-be denied due process or the equal wes of

the law.

_ The decision has the effect of and has contributed

to a growing frequency of petitions being filed directly

in the Supreme Court of Appeals of West Virginia,

where, due to the relatively limited. evidentiary pro-.

cedures and the unavailability of formal hearings, the

Supreme Court is compelled to resolve factual issues

on the basis of the pleadings, affidavits, exhibits, etc.,

and the writ is often times refused as a ‘result of the

petitioner’s failure to adequatély develop the facts. |

The decision has made it possible for those persons —

seeking post-conviction. review to avoid the adequate

procedures provided by the State of West Virginia‘and .

thus circumvent both the obvious intent of the State to

‘safeguard the constitutional rights of individuals and

the desite of the federal courts to leave to the states .

the opportunity to do so.

(2) The Memorandum by the Honorable Robert E.

Maxwell, Judge of. the United States District Court

for the Northern District of West Virginia, filed in

_ the case of Miller v. Boles, 248 F. Supp. 49, is a com-

prehensive and exhaustive study of the law as applied.

to exhaustion of available state remedies required by

28 U.S.C. § 2254. The conclusions of the District-Judge

are sound and well reasoned. The rule announced

thereby should be affirmed and adopted by this Court

as the pronouncement of what constitutes the exhaus-

tion of available state remedies insofar as 28 U.S.C.

§ 2254 requires. We urge that this Court give most

careful‘consideration to the reasoning and conclusions

8

of Judge Maxwell and adopt the view expressed in his

- Memorandum as the rule of this Court. 3

(3) This Court has long taken the position that it.

is advisable to permit the State courts to. manage their

own affairs as to court: procedures, especially with

reference to criminal law. -This apparently stems from

the desire to limit federalism: in State courts, an evil .

the Federal courst apparently are desirous of avoid-

ing. However, since the 1963 cases of Fay v. Noia,

372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d-837, and

Townsend V. Sain, 372 U.S.298, 83 S. Ct. 745, 9 L. Ed.

2d 770, habeas corpus petitions have more frequently

been filed in both State and Federal courts primarily —

because of the more careful approach in determining

whether there has been a knowing and intelligent

waiver of a Federal constitutional right. In this keep-

ing, and this court’s efforts to establish realistic guide-_ .

lines for State courts to follow:in order to reduce the ©

instances requiring Federal court intervention, Mr.

Justice Brennan, ‘in his concurring opinion in Case v.-

Nebraska, 381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d

422 (1965), in setting forth the guidelines for develop-

ing a desirable procedure for post-conviction review,

said at page 347 of 381 U.S., supra the. procedure:

“xxx should be swift and *simple and easily invoked. It

should be sufficiently comprehensive to embrace all

federal constitutional claims. In light of Fay v. Noia,

supra, it should eschew rigid and technical doctrines of

forfeiture, waiver, or default. See Douglas v..Alabama,

380 U.S. 415, 422-423, 13 L. ed 2d 934, 938, 939, 85

—§. Ct. 1074;. Henry v. Mississippi, supra. It should -

provide. for. full fact hearings to resolve disputed fac-

tual issues, and for compilation of a record to enable

federal courts to Getermaine the sufficiency of those

SS eee

9 .

hearings. Townsend Vv. Sain, supra. It should provide

for decisions supported by opinions, or fact findings

and conclusions of law, which disclose the grounds of :

decision and the resolution of disputed facts.” Pro-

vision for counsel to represent prisoners, as in § 4 of

the Nebraska Act. would enhance the probability of

effective ipresentation and a proper disposition of

prisoners’ claims. The West Virginia Post-Conviction

Review statute adequately provides for these proce-

dures. | ;

(4) The meer Appeals appears

to be based upon the following four grounds: :

-(a) Thatit would be futile to expect a circuit court

to grant a hearing after the Supreme @urt of Appeals

had ‘denied the prisoner rélief ‘on the identical claim .

he would. urge before the circuit court.

(b) That the scope of habeas corpus in West Vir-

ginia is not akin to federal habeas corpus.

(c}.' That the West Virginia circuit: courts do not

grant full and fair evidentiary hearings. |

(d) That it would be unfair to the respondents |

to require that they now avail themselves to state

_ remedies before petitioning the federal court.

Ground (a), as does ground (c), presupposes that

there had been a constitutional deprivation. However,

the small percentage of cases arising out of West Vir- |

ginia for which relief is granted by the federal courts .

is evidence to the contrary. It is becoming more evi-

dent, particularly since the passage of Chapter 53, .

Article 4A, of the West Virginia Code, the West Vir--

ginia. Post-Conviction Review Statute, enacted | and

10.

effective since January 25, 1967, that the circuit courts

_ of this State are not reluctant to grant a hearing on

a petition for a writ of habeas corpus where a petition ©

alleging the same grounds and raising the same issues

has been previously filed in the Supreme Court of

Appeals of West Virginia, and there deniéd. It is also

* becoming increasingly evident that a large percentage

of those petitioners who are granted relief by the fed-- |

eral courts are those who did not first attempt to obtain

a hearing under the state post-conviction review

statute. The overall effect is to defeat the intent and

frustrate the efforts of the State of West Virginia to —

protect the individual’s constitutional rights.

_ Ground (b) is completely erroneous. The Constitu- .

_ tion of West Virginia is patterned after the Consti- -

- tution of the United States, and it guarantees the same

rights and safeguards to individuals as does the latter.

If there has ever been any serious question along this

line, it has certainly been resolved by the enactment of

Chapter 53, Article 4A, of the West Virginia Code, ‘

| supra:

Ground (c): is as-erroneous as ground (b). How-

ever, it should be pointed out that the enactment of

West Virginia Code, Chapter 53, Article 4A, supra,

which became effective just thirteen days after the

District Court, denied relief to. the respondents, ex-

tended original jurisdiction of habeas corpus matters ©

‘to all circuit courts and to certain courts of limited

jurisdiction. ‘It requires that a record of all proceedings

be made. It has long been the policy of the State of

West Virginia to appoint counsel for indigent peti-

tioners. To say that West Virginia circuit courts do

not grant full and fair evidentiary hearings is to reflect

| 11.

adversely upon the honorable judges of the circuit

- “eourts and thé members Of the State Bar Association |

who have willingly.and freely given of their time and

~~ energies to assure that constitutional rights have not

been and will not be denied, and further infers that -

an attitude of indifference exists among those who

are dedicated to the preservation of constitutional

rights. ee: ,

Whether or not requiring the respondents to present

their claims to a circuit court before re-submitting the _

same to the district court would deny them a real -

- “benefit overlooks the fact that the respondents could -

have availed themselves of the State remedies well

over a year ago. Had relief then been denied by the

- State courts, the respondents could have petitioned

the United States District-Court and by this time have

had its decision. is :

‘The theory of “unfairness” also presupposes that —

the claims of the respondents will be resolved .in their

favor. If so, the State of West Virginia is entitled to.

the first opportunity through its very adequate proce- .

dures to correct whatever miscarriage there may have

been.

(5) This court should take notice of the tre-

mendous* adverse impact of a pronouncement that

petitioners for writs of habeas corpus need not seek

a full and fair evidentiary hearing in West Virginia -

prior to. seeking post-conviction review in a federal

court. This court should also take note of the increased

burden which will fall upon both the Supreme Court

of Appeals of West Virginia and the United States

District Courts having jurisdiction in the State of West

PCy ee ee

2 PEM Cae, he Re res

fe .

12 ..

wo **

Virginia if the judgment of the Court of Appeals is ra

permhitted to stand. : re

(6) ‘In addition to the foregoing, it is submitted

that the issues presented herein should and must be

determined and settled by the highest court of the land

in order to give a solution to a problem which perplexes

_ many district-courts and thus give’stability and con-

sistency throughout the states and provide guidelines

which can be followed by all of the jurisdictions. —

It is contended that, even though the Constitution -

of West Virginia andthe West Virginia statutes do

create alternative methods by which post-convietion

review might be had, it is necessary and of paramount —

importance that when the claim upon which the prayer

for relief is grounded gives rise to a factual dispute,

the State be entitled to the right and reasonable

opportunity to determine the issués. Until the State.

has had such an opportunity, a petitioner should not

be permitted to plead that he has exhausted the avail-

able State remedies.. Federal permission to circumvent, —

avoid and frustrate the procedures and efforts of the.

_ States should not be given. .

‘We, therefore, ‘petition for redress in the most

humble terms and solemnly cali upon this court by

- sour common desires, beliefs and dedications to disavow |

this usurpation of state judicial process. |

e - CONCLUSION

For the foregoing reasons, we conclude as follows:

1. That this court should grant certiorari and

reverse the judgment entered by the Court of Appeals

a. ;

for the Fourth Circuit on May 4, 1967, and then decide

‘the question as to whether or not the respondents had

exhausted the. State remedies available to them as

required by 28 U.S. C. A. 2254, or,

2. That this court should grant certiorari and

reverse the judgment entered by the Court of Appeals

herein on June 21, 1967, and remand this case. to the

Court of Appeals with the direction to grant a rehear-

_ ing en banc on the sole issue here presented.

Respectfully submitted,

C. DONALD ROBERTSON |

Attorney General

State of West Virginia —

- Room 26, State Capitol

Charleston, West Virginia

Morton I. TABER

Assistant Attorney General

\.. State of West Virginia

\\Room 26, State Capitol .

- Charleston, West Virginia.

LEO CATSONIS

_ Assistant Attorney General

State of West. Virginia

Room 26, State Capitol

Charleston, West Virginia

_ Attorneys for Petitioner