Marion Mason v. Charles Balcom, Superintendent, Montgomery Correctional Institution,respondent-Appellant

COLEMAN, Circuit Judge

(specially concurring).

My concurrence in this case has not been quickly or enthusiastically given. My reluctance was based upon the fact that the Supreme Court of Georgia reviewed this habeas corpus case, on appeal from the Superior Court, and “concluded that the evidence authorized [the] findings” that “the petitioner knowingly and voluntarily entered the pleas of guilty, that he had competent counsel, [and] that none of his rights were violated”, 199 S.E.2d at 314.

The views of the state court of last resort are entitled to great respect and are not lightly to be contradicted.

Nevertheless, it is a fact that the Supreme Court held only that Mason had competent counsel; it did not address itself to the issue of effective assistance of counsel.

I believe in adhering to the requirements of 28 U.S.C.A., § 2254(d) that the findings of a state habeas corpus court are to be given a presumption of correctness. Even so, this presumption, like all presumptions, must yield to the actual facts. It seems to me, however, that the inadequacy of the *726state court record justified an independent hearing by the federal district court. The product of this hearing is set forth in the opinion authored by Chief Judge Brown.

I must emphasize that portion of the opinion which states that specific historical facts found by a state habeas corpus court must be given the presumption of correctness when adequately and fairly supported by the record. A federal district judge has no right to re-try factual issues heard and determined on an adequate record in state habeas corpus proceedings, Shuler and Chatman v. Wainwright, 5 Cir., 1974, 491 F.2d 1213.

In essence, therefore, I concur in affirming the judgment of the District Court because, on the undisputed facts, the representation given Mason was simply too perfunctory to pass muster.

As one who, in former years, had extensive trial experience in criminal cases, both for the prosecution and for the defense, I cannot close my eyes to what effective representation could have accomplished for Mason when one considers what happened to his co-defendant when counsel put that case to trial. The co-defendant, a man with a long criminal record, got off with a suspended sentence and a $400 fine. With no hand raised in his defense, Mason was sentenced to fifteen years and has served more than five. In the absence of facts to contradict the inference, something was sadly lacking.