# Boyd v. Dutton/Dissent Powell

* Court Documents
* Case Syllabus
* Per Curiam Opinion of the Court
* Concurring Opinion Blackmun
* Dissenting Opinions White Powell
[p5] MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.
The per curiam opinion of the Court finds that the facts in this case were "inadequately developed" with respect to the controlling issue whether petitioner knowingly and voluntarily waived his constitutional right to counsel before entering the guilty plea in the state trial court. Relying on Townsend v. Sain, 372 U.S. 293 (1963), the majority remands the case to the District Court.
As it seems to me that the facts on this issue were adequately developed in the state post-conviction evidentiary hearing, I dissent from the majority holding. At that hearing Deputy Sheriff Dunnaway, who was present at the time petitioner waived counsel, testified as follows:
   "Q. What prompted you to get him out of jail? Had he indicated he wanted to enter a plea or what?
   "A. He stated he wanted to go before the Judge and enter a plea of guilty.
   "Q. And is Saturday the regular day that the Judge takes pleas there?
   "A. Yes, sir. He takes 'em in Colquitt, his home town.
   "Q. And you took him yourself to the Courtroom from the jail?
   "A. Yes, sir.
   "Q. Would you tell the Court briefly what happened whenever you got him to the Courtroom?
   "A. He was carried to the Courtroom, and, uh, the Solicitor drawed up the accusations against him, and after he drawed up the accusation against him, and I signed the accusation, we called Jack Boyd and Clinton Henderson, another boy that was with him, into the Courtroom, and Mr. Ray advised each [p6] of 'em what the charges against 'em was and asked 'em did they have legal counsel, and which both of 'em stated they did not have legal counsel. Mr. Ray advised both of 'em that they were entitled to legal counsel, and if they could not afford it, the Court would appoint 'em legal counsel, and asked... also, he advised 'em if they wanted to go to trial by jury, that the Court would appoint 'em an attorney to represent 'em in trial. and this defendant and Clinton Henderson both stated to Mr. Ray, in my presence, that they both knew they was guilty and and they didn't want a trial, and they both signed the accusation that they was guilty, and I witnessed the signature of both 'em.
   "Q. I believe you said you had known Jack Boyd for a good many years. Did he appear to understand from his demeanor what was going on and what he was charged with?
   "A. Yes, sir.
   "Q. Is he possessed of average intelligence at least?
   "A. Yes, sir.
   "Q. Did he appear to understand Mr. Ray when he told him that he had the right to have an attorney?
   "A. Mr. Ray asked him did he understand what he had stated to him. He said that he did.
   "Q. In your opinion, from your familiarity with him, your acquaintance with him, and from your observation of him at that time, did he knowingly and intelligently enter his plea of guilty?
   "A. Yes, sir.
   "Q. Did he knowingly and intelligently... this is your opinion also I'm asking about, waive his right to any counsel, legal counsel?
   "A. Yes, sir."
[p7] Petitioner was present when Dunnaway testified and did not contradict the foregoing testimony that he waived counsel. This undisputed testimony seems adequate, as the courts below found, to warrant the conclusions that petitioner knowingly and voluntarily waived his right to counsel, and that no further evidentiary hearing was required.
It is true that petitioner is uneducated, and that the sentence imposed seems disproportionate to the crime. It is also true that the state court hearing could have been more exhaustive. Additional witnesses might have been called, as suggested by the majority opinion, although there is no indication in the record that they would have contradicted the testimony with respect to waiving counsel which petitioner himself failed to dispute. But the ultimate test with respect to the holding of an evidentiary hearing by a federal district court is whether there was "a full and fair fact hearing" in the state proceedings. Townsend, supra, at 313. Where the material facts bearing upon the relatively narrow issue of waiving counsel are undisputed, except inferentially, and show that waiver was made "knowingly and intelligently," I believe that this test has been met.
There is little likelihood that a new hearing now, eight years after the 1964 conviction, will be conductive to [p8] dependable factfinding or will enlarge upon the evidence already considered. This case already has received the attention of four courts. Remanding it may further the repetitive judicial re-examination which has become so commonplace. The current flood of petitions for post-conviction relief already threatens—because of sheer volume—to submerge meritorious claims and even to produce a judicial insensitivity to habeas corpus petitioners.

## Notes

* ↑ Petitioner, having served some eight years, may well merit consideration for parole or executive clemency.
* ↑ The trial judge would have been well advised to have appointed a lawyer, although that is not constitutionally required. See Johnson v. Avery, 393 U.S. 483, 488 (1969) (dictum); Developments in the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1197 (1970).
* ↑ In Townsend v. Sain, 372 U.S. 293, 319 (1963), the Court recognized that it must rely largely on district judges, who have the "paramount responsibility in this area," to implement the prescribed standards.
* ↑ Petitioner demonstrated in the state court proceeding the infirmity of his memory by initially denying that he had ever been in court prior to the forgery charge, when in fact he had been convicted previously of receiving stolen goods and had served a sentence for that crime.
* ↑ See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963).