Lindsey v. Leavy, 10875.

• Citation: 149 F.2d 899
• Decision Date: 01 June 1945
• Docket Number: No. 10875.,10875.
• Parties: LINDSEY v. LEAVY et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

149 F.2d 899 (1945)

LINDSEY v. LEAVY et al.

No. 10875.

Circuit Court of Appeals, Ninth Circuit.

June 1, 1945.

E. R. Lindsey, of Bremerton, Wash., in pro. per.

Smith Troy, Atty. Gen., Fred E. Lewis and Hugh A. Dressel, Assts. Atty. Gen., and E. P. Donnelly, of Seattle, Wash., for appellees Simpson and others.

David J. Williams, of Seattle, Wash., for appellee Langlie.

Alan G. Paine, of Spokane, Wash., and Harold Shefelman, of Seattle, Wash., for appellees Leavy and others.

MacBride & Williams and T. J. Hanify, all of Seattle, Wash., for appellee Schwellenbach.

J. Charles Dennis, U. S. Atty., and G. D. Hile, Asst. U. S. Atty., both of Seattle, Wash., for appellee Black.

Thomas A. E. Lally, of Spokane, Wash., for appellees Lally and others.

Witherspoon, Witherspoon & Kelley, of Spokane, Wash., and Johnson & Dafoe, of Seattle, Wash., for appellee McCluskey.

Before GARRECHT, HEALY and BONE, Circuit Judges.

BONE, Circuit Judge.

The issues raised by the allegations of appellant's complaint and presented in the numerous affidavits and documents filed in this action, have been before the courts upon many occasions.¹ Upon three occasions appellant was convicted before juries in the Superior Court of the State of Washington of the crimes of grand larceny and forgery. The first conviction and sentence was in 1935. The other two convictions and sentences were in 1937. Pursuant to judgment, sentence and commitment on these convictions, appellant was delivered to the State Penitentiary in Washington where he was confined from April 20, 1938 to May 29, 1941 when he was released on parole. He has not been imprisoned since that date. In Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182, the Supreme Court (review on cert.) held that a state statute making more onerous the standard of punishment is ex post facto and void as applied to a crime committed before its enactment, and because appellant had been wrongly sentenced, remanded the case for further proceedings by the state court. Subsequently, and pursuant to this mandate, the former sentence was set aside and appellant was properly sentenced under the law in effect at the time of the commission of the offense. See State v. Lindsey, 194 Wash. 129, 77 P.2d 596, 597. The decision of the Supreme Court, 301 U.S. 397, 57 S. Ct. 797, 81 L.Ed. 1182, followed by the decision of the Supreme Court of the State of Washington, 194 Wash. 129, 77 P.2d 596, are decisive of the legal issues raised in this case. The state court had jurisdiction to resentence appellant under the authority of these cases and we so hold. Despite this posture of the case, appellant stoutly insists here, as he did below, that by reason of the decision of the Supreme Court in 301 U.S. 397, 57 S.Ct. 797, 81 L. Ed. 1182, holding in his case that the application of an ex post facto law was improper, the state courts thereby lost all jurisdiction to resentence him. This is the burden of his complaint. This position is untenable and his arguments, based on this contention, are unsound and void of merit. His attempts to secure a review of this question in the Supreme Court have failed. See Ex parte Lindsey, 303 U.S. 617, 58 S. Ct. 520, 82 L.Ed. 1083; Lindsey v. State, 303 U.S. 654, 58 S.Ct. 761, 82 L.Ed. 1114; Id., 303 U.S. 669, 58 S.Ct. 830, 82 L.Ed. 1135; Id., 304 U.S. 559, 58 S.Ct. 947, 82 L. Ed. 1526; Id., 305 U.S. 637, 59 S.Ct. 108, 83 L.Ed. 409. See also, 194 Wash. 129, 77 P.2d 596, supra. Failing to secure such a review in the Supreme Court, appellant, in 1940 and again in 1941, sought writs of habeas corpus in the United States District Court for the Eastern District of Washington. In each case, the court denied relief and dismissed the petitions for lack of merit.

On or about February 14, 1944, the appellant began this action in the district court against forty-five defendants, appellees herein, to recover $250,000 damages claimed to have been suffered by him by reason of an alleged conspiracy of defendants to deprive him of "the right to the free exercise and enjoyment of freedom from involuntary servitude and slavery" secured to him by the 13th Amendment and by the laws of the United States.² Of the appellees, some were and are judges of the Supreme Court of the State of Washington who sat as judges in various of appellant's appeals to that court, although one judge named had never had any association with the case. Other appellees are two former governors of the state who passed upon applications of appellant for executive clemency; several appellees served as judges of the Superior Court of the State of Washington for Spokane County, and as such, either sat as trial judges or heard motions or petitions for writs of habeas corpus in cases where appellant was a party, and of these, one was joined only because he had received a letter from appellant in which appellant asserted that his sentences were all void. Certain appellees were joined as defendants in the action because of their connection with the State Game Commission which operated a game farm near the state prison where appellant worked at his own request while in prison; others because of their official connection with the office of County Clerk which handled records of appellant's case; others because they were connected with the offices of prosecuting attorney, sheriff, Board of Prison Terms and Paroles, and as employees of the state prison. Two were police officers who arrested appellant. One was an employee of a Spokane, Washington, hotel who on request of police officers identified appellant in connection with the passing of spurious commercial paper. Three appellees are federal district judges. Two were joined by reason of having heard and denied petitions for writs of habeas corpus. The third because he had at one time presided as judge of the Superior Court of the State of Washington for Spokane County in a proceeding in which appellant was a party and which grew out of the convictions noted. Apparently only one of the appellees named in the complaint is not a public officer or official.

All appellees filed motions for summary judgment in the court below on the ground that there was no genuine issue as to any material fact and that they were entitled to a judgment as a matter of law. The motions were granted. Appellees supported these motions by extensive affidavits setting forth their connection and relationship with all matters pertaining to appellant and his claims in the instant case. To these were attached court records, duly certified, which covered the pertinent parts of all the various criminal proceedings herein referred to, in which appellant was a party. This record included court opinions, judgments, jury verdicts, sentences and parole proceedings. In response to this record, appellant did not adduce facts which contradicted the essential and vitally material facts appearing in appellees' affidavits and exhibits.

The record fails to sustain appellant's charge of conspiracy amongst the appellees, or any of them, and no facts were disclosed from which an inference of conspiracy against appellant can arise. The record respecting appellees who were public officers and officials plainly shows that, aside from acting in their official capacities...