Kelly v. Ragen
| Citation | 129 F.2d 811 |
| Decision Date | 15 July 1942 |
| Docket Number | No. 7907.,7907. |
| Parties | KELLY v. RAGEN, Warden Illinois State Penitentiary. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Euclid L. Taylor, of Chicago, Ill., for appellant.
Geo. F. Barrett, Atty. Gen., and Albert E. Hallett, Jr., Asst. Atty. Gen., for appellee.
Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
Appellant appeals from an order of the District Court dismissing his petition for writ of habeas corpus and remanding him to the custody of the Warden of the State Penitentiary where he had been incarcerated under sentence of fifteen years imprisonment upon his conviction of murder.
We are informed by the brief of appellant filed in support of the appeal and by report published in People v. Kelly, 366 Ill. 326, 8 N.E.2d 635, that the following proceedings took place before the filing of the petition here involved, the denial of which constitutes the basis for appeal. September 7, 1934, appellant was found guilty of murder by a jury in the Criminal Court of Cook County, and after the overruling of various pleas, he was sentenced to fifteen years imprisonment. In April, 1937, on writ of error, the Supreme Court affirmed the judgment. He was represented by counsel throughout his trial but not in the proceedings before the Supreme Court. In its published opinion (People v. Kelly, 366 Ill. 326, 8 N.E.2d 635, 636), the Court stated that the matter was presented to it without proper bill of exceptions, hence questions which appellant sought to raise could not be considered. It further stated, Although it held that questions had not been properly presented, the Court did consider the evidence quite fully and in fact passed on the questions sought to be presented, stating, "The errors complained of are not such as to require a reversal of the judgment."
Petition for rehearing was filed, and denied by the Supreme Court in June, 1937. At these proceedings appellant proceeded pro se, and the matter was decided on briefs, without oral argument, although appellant petitioned for appointment of counsel to represent him at the expense of the State, which motion the Supreme Court denied, stating that it was without power to furnish counsel.
After denial of the petition for rehearing, appellant filed petition in the Criminal Court of Cook County for a writ of habeas corpus which he states was based on certain state and federal constitutional questions. He says that this petition was returned to him in June, 1938, by the Public Defender with a note, "Hire a lawyer." He then filed motion for a writ of habeas corpus in the federal District Court. After a hearing in which appellant was represented by counsel appointed by the court, the motion was denied on the ground that appellant's remedy lay in a motion for writ of habeas corpus to the Supreme Court of Illinois. He then filed his application with the Supreme Court, supported by certain affidavits alleged to support his contention of newly discovered evidence. This was denied without hearing or representation by counsel. It appears to be this same petition, denied by the Supreme Court without hearing or representation by counsel, which appellant then filed with the District Court, and from the denial of which this appeal was taken.
The newly discovered evidence on which appellant bases his claim to relief consists of several affidavits, three of which are intended to prove that one of the eyewitnesses to the shooting who stated on trial that she was a sister of the deceased was in fact no relation to him, and a fourth was to the effect that the affiant who lived in the immediate vicinity of the shooting saw and heard more than one person shooting at the time of the accident "in the direction of the deceased at the same instant for which Clarence Kelly stands convicted and in the fact." These appear to be the only new matters introduced in the proceedings after affirmance of the judgment by the Supreme Court. Appellant does refer in his petition and brief to prejudicial questions asked by the court on trial, but these were also complained of in the review by the Supreme Court, and of course such matters as this must be availed of on appeal and do not constitute newly discovered evidence. The opinion of the Supreme Court indicates that the questions were presented to it, even though not properly raised by bill of exceptions. We therefore need not discuss this question beyond stating that the record presented contains nothing to substantiate the allegation of unfairness or bias.
We are convinced that this appeal must fail for many reasons. The order from which the appeal was taken recites that appellant was present in court, and that the Court heard the evidence adduced and arguments of counsel (appointed by the court), whereupon he dismissed the petition. Appellant does not contend that he was not granted full hearing. The record presented to us does not contain any transcript of the evidence heard. Hence, even if the petition asserted facts which disposed us to reverse the action of the court below, we would be unable to do so on this record.
The facts upon which appellant relies in his attempt to obtain freedom by discharge by a federal court on writ of habeas corpus from sentence imposed by a state court as to whose jurisdiction no question has ever been raised, appear to us to be wholly without merit. It must be remembered that he was tried by a jury at which trial he was represented by counsel of his own choosing. There followed appeal to the Supreme Court. It is true that that Court refused to appoint counsel to represent him and it may be that the absence of counsel was responsible for his failure to present a properly signed and settled bill of exceptions. However, appellant does not, and we think he cannot contend that failure of that Court to appoint counsel at the expense of the State because of its stated lack of power to do so, constitutes a violation of his Constitutional rights, and in view of the study of appellant's cause indicated by the published opinion, we cannot say that appellant was seriously prejudiced by the absence of counsel in the review of his case.
The alleged newly discovered evidence upon which appellant relies seems to us wholly inadequate to support a collateral attack upon the judgment of a court of competent jurisdiction. We doubt that habeas...
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