Bass v. State Petition for Writ of Error Coram Nobis and/or Motion for Relief from Judgment

    IN THE CIRCUIT COURT FOR ?HE
TENTH JIJDTCIAI CTRCUIT

.rEFFERSoti cotrrry, AT.ABAI,u\
?j

CARL BASS,

. Petitioner,

-vs-
STATE OF ALAEAIUA,

Respondent.

CASE NO.

PETITION FOR WRIT-OT ERROR CORAM NOBTS

Petitioner, by the undersigned counsel, resPectfully

petitions this Court for an order setting aside the judgment

entered against him by this Court. In support, petitioner

submits the following:

1. Petitioner was convicted of first degree murder and

sentenced to life imprisonment before this Court on February 2l-22,

L97 4.

2. petitioner appealed from the judgment of conviction to

the Alabama Court of Criminal APPeaIs., The Court affirmed the

conviction on l,lay 6, Lg75. gass v. Stite, 313 So.2d 2OB (1975).

3. Subsequent to the affirmance of petitioner's conviction,

petitioner'S court-appointed counsel, Anthony Fai-etta, was

suspend.ed from the practice of Iaw. Petitioner was neither

informed of the affirmance of his conviction nor the suspension

of his lawyer. Accordingly, Do further appeals $/ere taken upon

the affirmance of petitioner's conviction.

4. On July 22, 1980, petitioner, who at the time was

subject to a warrant of extradition from the State of Michigan,

filed an Application for Writ of Habeas Corpus and Complaint

for Declaratory and Injunctive Relief in the United States

District Court for the East.ern District of Michigan, Northern

Division. On August 20, 1980, the Honorable Stewart Newblatt

transferred the case to the United States District Court for

the Uiddle District of A1abama. Shortly thereafter petitioner



was extradited to Alabama and, on September 22r 1980r dn Amended

Petition for Writ of Habeas Corpus by a Prisoner-in State Custody

was filed. On October 2,1980, the Court dismissed the
Petition for llrit of Habeas Corpus for failure to exhaust state
remedies.

Respects in Which Petitionerts
Rights Were Violated

5. Petitioner asserts that he is innocent of the cfime

for which he stands convicted.

6. Petitioner is currently confined at Kilby Correctional
Institution. His confinement is in violation of the Constitu-
tions of the United States and the State of Alabama, and in
violation of Alabama law. Petitioner bases this contention

upon the following ground.s:

A. Ground One: The Staters use for impeachment

purposes of petitioner's silence, at the time of arrest and after
he received Miranda warnings, violated Article l, S 6 of the

Alabama Constitution and the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. Doyle v. Ohio,

426 u.s. 510 (1976).

Supporting facts: Petitioner testified at his trial.
During the course of cross-examination, the prosecution impeacheC

petitioner by bringing out the fact that he made no statement to

thepolice officers who arrested him and gave him }liranda

warnings.

B. Ground two: Petitioner vras denied the effective

assistance of counsel at trial and on appeal, in violation of

Article l, S 5 of the Alabama Constitution and the Sixth and

Fourteenth Amendments to the Unites States Constitution. Davis v.

Alabama, 596 F.2d L24 (5th Cir. L979)i Gomez v. Beto, 462 F.2d

595 (5ttr Cir. L972) i Chalk v. Beto, 429 F.2d 225 (5th Cir. 1970) .

Supporting facts: Due to his indigency, petitioner

was provided court-appointed counsel, Anthony Falleta.

a//%:,7"1furo

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Petitioner was incarcerated from April, L973 through

February 22, L974 awaiting trial. During this entire period,

his counsel conferred with him for not more than a total of

twenty minutes. Counsel also waived petitioner's preliminary

hearing, without consulting petitioner on the matter.

Counsel f iled no pret,rial rnotions. The State introduced

evidence obtained during a questionable search and seizure of

the petitioner. Petitioner's counsel d,id not interview the

witnesses involved in these transactions and filed no motions

challenging the introduction of the evidence. He also filed

no discovery motions. Had he filed a Brady motion for discovery

of evidence favorable to the petitioner, he would have discovered

that the chief prosecution witness who testified. against peti-

tioner had been promised favorable treatment by the State in

return for his testimony.

Prior to trialr'counsel failed to investigate the case.

He did not interview the Prosecution's key witnesses. He did

not attempt to locate an important d,efense witness. He did not

ask petitioner whether there were anlz character witnesses who

could attest to petitioner's reputation for truth and veracity

in order to determine whether character witnesses should have

been caIIed.

During petitioner's trial, counsel himself elicited

testimony damaging to petitioner's defense. E'or example, when

he cross-examined one of the staters accomplice witnesses, who

stated that he did not know wfrJ fiftea the victim, defense

counsel asked the witness whether he had asked another alleged

accomplice whether he knew who committed the murd'er. The

witness answered affirmatively, and uPon further questioning

by petitioner's counsel, testified that the other alleged

accomplice told him petitioner had killed the victim. Had the

State attempted to introduce such blatant and prejudicial

hearsay testimony, it would not have been permitted to do so.

petitioner's counsel, however, brought in this evidence himself!

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Counsel also failed to effectively cross-examine the State's

key witnesses. These witnesses were allegedly petitioner's

three companions at the time of the murder. Although each of

them testified against petitioner, and necessarily admitted

their presence at the murder scene, petitioner's counsel never

questioned them about their interest in the case. That is,

although counsel could have disclosed the bias of these

witnesses to the jury, he never asked, them any questions

calculated to demonstrate this bias. Finally, when the State

improperly impeached the petitioner with his failure to give

a statement after he'was arrested and given Miranda warnings,

counsel did not even interpose an objection.

After petitioner's trial, counsel never again met or

communicated with the petitioner. Unbeknowst to petitioner,

his case was appealed and submitted, on briefs on April 15, 1975,

and his conviction was affirmed on May 6, L975. The only issue

raised on appeal was the sufficiency of the evidence. Shortly

after petitioner's conviction was affirmed by the Court of

Criminal Appeals, counsel was suspended from the practice of

Iaw by the State of Alabama for the commission of a felony.

Petitioner was neither informed of the results of his appeal

nor the disbarment of his court-appointed lawyer.

C- Ground three: Petitioner was denied a fair trial,

the right to confrontation, and due process of 1aw in violation

of Article I, S 5 of the Alabama Constitution and the Sixth and

Fourteenth Amendments to the United States Constitution when

exculpatory evidence was not dilclosed to defense counsel or

the jury. Giqlio v. United States, 405 U-S. 150 (L972) i

Williams v Brown, 609 F.2d 2L6 (5th Cir. 1980) .

Supporting facts: Prior to petitionerts trial, the

prosecution entered into agreements with one cr more of its

three key witnesses, all of whom were implicated as accomplices,

through which each witness was promised leniency for his testi-

mony. No agreement was disclosed to petitioner's counsel prior

to trial. As a result, counsel never inquired into these

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agreements, or the probability of their existence, during his

cross-examination of these witnesses at trial. Thus, the jury

never was informed of the bias of the prosecution's key witnesses.

Conclusion

7. Petitioner's conviction is invalid because it resulted

from a trial at which he was not accorded his state and federal

constitutional rights.
8. Witnesses are available to support the foregoing

allegations and to testify to facts that are inconsistent with

ttre jury verdict.
9. Unless prevented by order of this Court, or by some

other lawful court, petitioner will be required to serve an

invalid sentence of life imprisonment.

Re1ief Requested

10. Wherefore, petitioner resPectfully requests:

A. That respondent be required to appear and

answer the allegations of this petition-

B. That petitioner be accorded an evidentiary

hearing.

That, after a full hearing of his contentions,

petitioner be relieved of his unconstitutional

conviction of February 21, L974.

That petitioner be allowed such other relief

as may seem just, equitable and proper.

That petitioner be hllowed to file this

petition without prepayment of costs and to

proceed in forma PauPeris.

Respectfully submitted,

JOHN L. CARROLL
1001 South Hull Street
Montgomery, AL 36104

ATTORNEYS FOR PETITIONER

c.

D.

E.

5-



STATE OF ALABA],IA

COUNTY OF MONTGO}IERY

Dennis N. Ba1ske, being by me first duly sworn, deposes

aDd says that he represents the petitioner, that he has read

the petition, and that the facts therein alreged are true and

correct to the best of his knowledge, information and belief.

Sworn to and Subscribed before me

at Montgomery, Alabama.

CERSIFICATE OF SERVICE

f hereby certify that a copy of the foregoing has been

served upon Attorney General Charles Graddick and Assistant

Attorney General, Jean Brown by U.S. prepaid mail this %.
day of October, 1980.

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My Commission Expires

torney

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