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423 F2d 721 Windom v. Cook

423 F.2d 721

Alfred WINDOM, Petitioner-Appellee,
v.
Thomas COOK, Superintendent of the Mississippi State Penitentiary, Respondent-Appellant.

No. 28116.

United States Court of Appeals, Fifth Circuit.

February 25, 1970.

A. F. Summer, Atty. Gen. of Mississippi, Guy N. Rogers, Asst. Atty. Gen., Jackson, Miss., for respondent-appellant.

James A. Lewis, Armand Derfner, Jackson, Miss., for petitioner-appellee.

Before AINSWORTH, DYER and SIMPSON, Circuit Judges.

PER CURIAM:

1

Windom, a state prisoner, pleaded guilty to charges of burglary and assault with intent to commit rape. He filed a habeas corpus petition in the District Court alleging involuntariness of the plea by virtue of the ineffectiveness of the assistance of his counsel. The District Court granted the writ. We affirm.

2

Windom's court appointed counsel testified that his only conference with Windom, which came just prior to the arraignment proceeding at which the guilty plea was entered, lasted for a period of between fifteen and thirty minutes. He did not discuss the elements of the crimes charged with Windom and he did not make an effort to find out the facts of the case either by asking Windom what had happened or by speaking with the alleged victims or the prosecuting attorney.

3

On this basis alone, the record reflects the ineffectiveness of counsel. "Effective counsel includes familiarity of counsel with the case and an opportunity to investigate it if necessary in order meaningfully to advise the accused of his options." (Citations omitted) Calloway v. Powell, 5 Cir. 1968, 393 F.2d 886, 888. Counsel was not in a position to advise Windom prior to allowing him to plead guilty because he was unfamiliar with the case. Furthermore, counsel allowed Windom to plead guilty without advising him of the fact that he could attack the composition of the grand jury which indicted him when everyone, including counsel, knew that Negroes had been systematically excluded therefrom.

4

The order of the District Court granting the writ of habeas corpus is Affirmed.