Chewning v. Cunningham

RESPONDENT: Cunningham
LOCATION: Florida General Assembly

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: State appellate court

CITATION: 368 US 443 (1962)
ARGUED: Dec 04, 1961 / Dec 05, 1961
DECIDED: Feb 19, 1962

Facts of the case


Media for Chewning v. Cunningham

Audio Transcription for Oral Argument - December 05, 1961 in Chewning v. Cunningham

Audio Transcription for Oral Argument - December 04, 1961 in Chewning v. Cunningham

Earl Warren:

Number 63, Morgan C. Chewning, Petitioner, versus W. K. Cunningham, Jr., Superintendent of Virginia State Penitentiary.

Mr. Meador.

Daniel J. Meador:

Mr. Chief Justice, may it please the Court.

This is a habeas corpus case, here on certiorari to the Supreme Court of Appeals of Virginia.

The petitioner is confined in the Virginia Penitentiary under a 10-year sentence imposed upon him under the State's recidivist law which is Section 53-296 of the Code.

That Section provides for a separate, independent judicial hearing on the recidivist charge.

It empowers a trial judge on finding three valid trial penitentiary sentences to make a decision whether any further imprisonment is called for, if so, what is the appropriate sentence for any number of years up to life imprisonment.

The question here in this case is whether under the Fourteenth Amendment a prisoner, an indigent prisoner without a lawyer, has a right to the assistance of court-appointed counsel at this recidivist trial.

The case here was commenced below by tuning in the Law and Equity Court of the City of Richmond by the filing of a habeas corpus petition.

This petitioner has been denied all the way up in the Virginia courts without a response, without any hearing, so we take the facts here set out in the petition and in the attached exhibits as true.

Those facts show that the following occurred.

In June 1958, the petitioner was confined in the Virginia Penitentiary under a sentence for some prior offense which is not revealed in the record.

On June 25th, 1958, he was brought before the Circuit Court for the City of Richmond along with an unknown number of other defendants.

At that time, and on that date, the Commonwealth's attorney filed an information against the petitioner under the recidivist statute.

That information alleged that the petitioner had been three times convicted and sentenced to confinement under the laws of Virginia and it averted that certified copies of those three previous convictions were being shown to the court.

The convictions were not enumerated or described in any way in this information.

At that point, the petitioner requested that the Court provide him with the assistance of counsel, but the court denied that request and proceeded to sentence the petitioner along with the other defendants to 10 years in the penitentiary.

This is a sentence that the petitioner is now serving and it is the sentence which he attacks in this proceeding.

He averts in his habeas corpus petition that the court there was without authority and jurisdiction to sentence him without the assistance of counsel and hence he is now being held illegally by the respondent.

The judge in the Law and Equity Court dismissed his petition, as I stated, without calling for response and without any hearing.

He delivered an opinion, accompanying a dismissal, in which he held that under the law of Virginia there was no right to court-appointed counsel at a recidivist trial and he further expressly held that under the Fourteenth Amendment there was no right to court-appointed counsel at this type of proceeding, citing this Court's decision in Gryger against Burke and Chandler against Fretag.

Following that dismissal of his petition, the petitioner took appropriate and reasonable steps to appeal the case to the Supreme Court of Appeals of Virginia.

In his petition for writ of error, he expressly set out several times that he was invoking a right to counsel under the Fourteenth Amendment and he cited, he discussed relevant decisions of this Court.

On the basis of that petition, within the record from the Law and Equity Court, the Supreme Court of Appeals denied the writ of error and entered an order, affirming the judgment below on the ground that it was plainly right.

This Court then granted a petition for writ of certiorari and appointed counsel to represent the petitioner.

We thus have here before us a final decision of the highest court of Virginia in a proceeding in which the federal constitutional right to counsel was claimed in this decision of the state court as necessarily decided that claim against the petitioner.

Hence, it seems clear that this Court has jurisdiction to review the Virginia judgment.

Now, petitioner here is contending that the failure of the Circuit Court of Richmond to provide him with counsel at his recidivist trial denied -- violating both the Due Process and Equal Protection Clause of the Fourteenth Amendment.

If it please the Court, I shall leave the equal protection argument to the brief and focus here on due process problem.

Under the Due Process Clause, there are two grounds, two propositions on which this case could be decided for petitioner, indeed should be decided on one of the other grounds.