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Cox v. Burke

May 25, 1966

GRADY ASBON COX, PETITIONER-APPELLANT,
v.
JOHN C. BURKE, WARDEN, WISCONSIN STATE PRISON, RESPONDENT-APPELLEE



Hastings, Chief Judge, and Duffy and Schnackenberg, Circuit Judges.

Author: Hastings

HASTINGS, Chief Judge.

This is an appeal from the denial by the district court of the petition of Grady Asbon Cox for a writ of habeas corpus.

Cox is presently in custody in Wisconsin pursuant to a judgment of conviction entered by a Wisconsin state court on his plea of guilty to the charge of rape. After an examination and a finding that Cox was in need of specialized treatment, he was committed on September 11, 1958 to the sex deviate facility of the State Department of Public Welfare at the Wisconsin State Prison, Waupun, Wisconsin, under section 959.15(6), Wis.Stats.

In 1964, Cox made application to the Supreme Court of Wisconsin for a writ of habeas corpus. A hearing by a referee was held at which Cox was present and represented by counsel. Findings adverse to Cox's contentions were made by the referee. The Wisconsin Supreme Court confirmed the findings, denied and dismissed Cox's petition without opinion.

Cox then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. The court, without a hearing, but after considering the record in the case, together with Cox's petition and the state's return thereto, rendered an opinion and entered an order denying Cox's petition.

After receiving certification that probable cause for appeal existed, this appeal followed.

Cox was arrested in Kenosha, Wisconsin, July 8, 1958, on the complaint of a seventy-seven year old woman, his landlady, that he had raped her. At arraignment in the Wisconsin state court, the information was read to Cox. The court inquired whether Cox understood the charge and whether he understood that it was serious. Cox indicated that he did understand. The court advised him that he had a right to be represented by counsel. Cox waived counsel and entered a plea of guilty.

At the state post-conviction evidentiary hearing on Cox's petition for a writ of habeas corpus, the following relevant findings of fact were made.

Cox was 37 years old at the time of the hearing. His intelligence quotient was low, between 70 and 80, and he had been educated only to the fourth grade.

In 1952, Cox was convicted of burglary after having waived counsel and having pleaded guilty to the charge. He was sentenced to a term of one year to 15 months.

In 1954, Cox was charged with the crime of murder in the second degree, to which he pleaded not guilty. During the course of the trial, at which Cox was represented by counsel, the charge was reduced to manslaughter. Cox entered a plea of guilty to this charge, and was sentenced to a term of one to two years.

In 1956, Cox was charged with driving a vehicle after revocation of his license. He was represented by counsel, entered a plea of guilty, and was fined.

At the criminal proceedings in 1954 and 1956, at which Cox was represented by counsel, the court did not inform Cox ...


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