447 F2d 488 Hayes v. S Smith

447 F.2d 488

Arthur Lee HAYES, Petitioner-Appellant,
v.
S. Lamont SMITH, Warden, Georgia State Prison, Reidsville,
Georgia, Respondent-Appellee.

No. 71-1284.

United States Court of Appeals, Fifth Circuit.

Aug. 16, 1971.

Arthur Lee Hayes, pro se.

Arthur K. Bolton, Atty. Gen. of Georgia, Mathew Robins, Atlanta, Ga., for et al., 5th Cir. 1970, 431 F.2d 409, Part

Before JOHN R. BROWN, Chief Judge, INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

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1

This appeal is taken from an order of the district court dismissing the petition of a Georgia state prisoner for the writ of habeas corpus. We affirm.1

2

Appellant, represented by court-appointed counsel, pled guilty to three charges of robbery by force and was sentenced to consecutive terms of imprisonment of 12 years, 10 years, and 10 years. After exhausting state remedies, appellant filed his habeas petition in the court below alleging that he was (1) illegally arrest; (2) held incommunicado for a month following his arrest, was denied counsel, and was subjected to inhuman treatment; (3) denied a preliminary hearing; (4) not advised of his constitutional rights upon his arrest; (5) denied effective counsel; (6) coerced into pleading guilty be threats of the death penalth and promises of concurrent sentences; and (7) not advised by counsel or the court of the nature of the charges against him and the consequences of his pleas.

3

The district court denied relief based upon the record, which includes a copy of the evidentiary hearing held by the state court. The court below found that appellant, in his own testimony, refuted his allegations; that appellant signed a waiver of counsel form following his arrest and was given a preliminary hearing; that he was advised by counsel of his constitutional rights, the charges against him and the possible punishment for each; that he stated in open court that his pleas were voluntary; and that appellant admitted his guilt at the evidentiary hearing.

4

Appellant's own testimony at his evidentiary hearing clearly shows that his guilty plea was made voluntarily and after he was advised of the nature of the charges against him and the possible consequences of the plea. The testimony of appellant's trial counsel and the prosecuting attorney was to the same effect. A guilty plea made knowingly and voluntarily is an effective waiver of all prior non-jurisdictional defects, including those alleged by appellant. North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Jenkins v. Beto, 5th Cir. 1971, 442 F.2d 655 (1971); Stephen v. Smith, 5th Cir. 1971, 438 F.2d 979; Askew v. Alabama, 5th Cir. 1968, 398 F.2d 825. Perceiving neither clear error in the findings of the district court, nor error in its application of the law, we affirm the judgment below.

1

It is appropriate to dispose of this prose case summarily, pursuant to this Court's local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981