United States v. Ragen

• Decision Date: 04 January 1947
• Docket Number: No. 9110.,9110.
• Citation: 158 F.2d 346
• Parties: UNITED STATES ex rel. ROONEY v. RAGEN, Warden.
• Court: U.S. Court of Appeals — Seventh Circuit

158 F.2d 346 (1946)

UNITED STATES ex rel. ROONEY v. RAGEN, Warden.

No. 9110.

Circuit Court of Appeals, Seventh Circuit.

November 20, 1946.

Rehearing Denied January 4, 1947.

Albert E. Jenner, Jr., of Chicago, Ill., and John H. Rooney, of Joliet, Ill., for appellant.

George F. Barrett, Atty. Gen., and William C. Wines, Asst. Atty. Gen., for appellee.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This appeal is from an order of the District Court, entered March 8, 1946, dismissing appellant's petition for a writ of habeas corpus. The court certified probable cause for an appeal. Appellant, John H. Rooney (referred to as petitioner), Henry P. Berry, and Rosalie Rizzo, were jointly tried and convicted of the crime of murder in the Superior Court of Cook County, Illinois. As a result, Rooney and Berry were sentenced to the penitentiary for life and Rizzo for a term of twenty years. This conviction was affirmed by the Supreme Court of Illinois, wherein a detailed statement of the facts may be found. People v. Rooney, 355 Ill. 613, 190 N.E. 85. Rooney has since been confined in the Illinois State Penitentiary at Joliet, Illinois.

The petition filed May 26, 1944, insofar as the record discloses, was prepared by Rooney without the aid of counsel. He was permitted to file it in forma pauperis. On June 13, 1944, a rule was entered directing the appellee (respondent) to show cause why the writ should not issue. On July 7, 1944, a motion to dismiss the petition and to deny the issuance of the writ was filed by respondent. The petition and the motion to dismiss were the only pleadings filed in the cause. Thus it becomes material to examine the allegations of the petition for the purpose of ascertaining whether a cause of action was stated of which a federal court could take cognizance.

The petitioner in substance alleges that on June 13, 1933 (ten days after the murder), he was placed under arrest by Chicago officers at Eagle River, Wisconsin, without a warrant or process of extradition, was handcuffed, placed in the back seat of an automobile and forced to accompany them into Illinois. At that time no criminal charge had been placed against him and he "was not even a fugitive from justice." While at Eagle River, Wisconsin, so it is alleged, the police officers from Chicago, after raiding the premises of petitioner without a warrant and arresting him, searched the said premises, a cottage, without a warrant and illegally seized a pair of field glasses which were the personal property of petitioner. He alleges that the field glasses obtained by illegal search and seizure were used against him at his trial, even though the court had suppressed the evidence because of such illegal seizure.

It is also alleged that a search was made of the premises of Rizzo (a co-defendant) without a warrant and without her consent, and certain seized property was introduced in evidence at the trial although its suppression had been ordered by the court be cause of its illegal seizure. The petition quotes from the opinion of the Supreme Court (355 Ill. 613, 624, 190 N.E. 85, 89) as follows:

"The introduction of this copy of the receipt was not only contrary to the statement of the State's attorney that it would not be used, but the original having been obtained by an unlawful search and seizure the People were not entitled to have a copy in evidence. * * * It was error to admit this exhibit in evidence. * * * While this court condemns the conduct of the State's attorney in that behalf and such conduct would in a close case work a reversal of the judgment, yet in this case the exhibit tended only to show the relationship between Rizzo and Rooney, and its admission did not amount to prejudicial error."

Petitioner alleges that his conviction could not have been obtained without the testimony of one Alex Davidson. At this point we digress to observe that a reading of the opinion of the Supreme Court affirming Rooney's conviction lends support to this statement. Furthermore, respondent in his brief filed in this court states:

"It appears that the conviction rested at least in part (and perhaps entirely) upon the testimony of a man named Alex Davison or Alex Davidson (both spellings appear in the record), whose testimony at the trial implicated petitioner. It further appears that Davidson was an accomplice in the killing and that he has received consideration in the form of leniency and employment on public payrolls for his testimony against petitioner."

As to this witness, the petition alleges:

"Petitioner has no desire to pass judgment on this State witness. Instead he wishes to offer as part of this petition, marked Exhibit `C', a sworn affidavit made by the said Alex Davidson on the 17th day of December A. D. 1936, in which this witness confesses that he is a perjurer, that he lied at petitioner's trial, and that he testified for the State so that he would not be prosecuted for the crime and because the State's Attorney promised him employment. He states specifically:

"`This affiant further states that his testimony in the said case in which he testified that Henry Berry, alias Hogan Berry, said, "You ought to see the way we let him have it," meaning John Rooney, was not and is not true.'

"There seems to be no doubt that the Assistant State's Attorneys who prosecuted the case were aware that their principal witness was an untruthful individual and highly incompetent. Nevertheless, they used this confessed perjurer, and neither they nor the trial Judge would permit Defense Counsel Stewart to establish that this witness had a police record."

Following this allegation petitioner cites and quotes from certain cases to the effect that a prisoner is entitled to discharge upon a writ of habeas corpus where it is made to appear that officials connected with the trial in a state court knowingly procured false testimony or knowingly perpetrated a fraud upon the court or the defendant, and where such conviction has been obtained upon perjured testimony, whether by the active conduct or the connivance of the prosecution. The petition, in connection with a subsequent amendment thereto, states in considerable detail the efforts made by petitioner to secure his release by proceedings in various courts. Inasmuch as one of the important questions of the case is whether petitioner had exhausted his state court remedies, we shall subsequently discuss this phase of the case.

The petition alleges that petitioner "was deprived of due process, and that he has been restrained of his liberty and is being restrained of his liberty contrary to the provisions of the Illinois Statutes, the Illinois Constitution, the 4th and 5th Amendments of the Bill of Rights, and Article 4 and the 14th Amendment of the United States Constitution."

Certain exhibits are attached to and made a part of the petition, including extracts from the evidence introduced at the trial. There is also attached a copy of an affidavit subscribed and sworn to by Alex Davidson which appears to have been filed in a proceeding before the Illinois Board of Pardons and Paroles in re Henry Berry. While this affidavit is primarily concerned with the affiant's testimony as to Berry, it has a direct bearing in the case against Rooney. The facts related in the opinion of the Illinois Supreme Court make it plain that the conviction of both Rooney and Berry was obtained in a large measure upon the testimony of Davidson. Respondent in his brief makes no contention that Davidson's affidavit is not equally applicable to Rooney, but bases his argument on the premise that Davidson's false testimony was not given with the knowledge of the State's Attorney. The brief states:

"It will be noted that although it does indeed appear from this affidavit that Davidson changed his story to the police, first refusing to implicate and later implicating petitioner, it does not appear that the State's Attorney's office knew which of Davidson's two stories was true or that Davidson's testimony at the trial was suborned by the State's Attorney's office or any other public officials."

Davidson in his affidavit stated, in addition to what we have heretofore quoted from the petition:

"* * * that from the time of his second arrest and during the time and before and also the time during the trial of the said defendants in this matter, he was maintained by the State's Attorney of Cook County, in the Palmer House, a hotel located in the City of Chicago, County of Cook, and State of Illinois, and also in the Clayton Hotel, another hotel in the City of Chicago, County of Cook, and State of Illinois, and that all food, cigars, cigarettes and entertainment, such as being taken by Officers of the State's Attorney's Office, of the County of Cook, and State of Illinois, to baseball games, theatres and other places of amusement, and expenses were paid by the State's Attorney's Office of the County of Cook, and State of Illinois. That the State's Attorney's Office of the County of Cook and State of Illinois, did obtain employment for this affiant in the Street Department of the City of Chicago and State of Illinois."

There is also attached to the petition an exhibit which discloses that Davidson at the trial was asked, "Have you been indicted in this case?" and that he answered, "Never. Nobody talked to me about the possibility of my being indicted. Nobody ever suggested that I might be. It occurred to me that I might be. When it occurred to me I did not talk to anybody about it in these interviews. I never asked the State's Attorney what he might do with me. Nothing like that had come up in the conversations. I do not know what will happen to me, I have no idea. I am getting some money — $12; $10 a week my wife gets and $2.00 a week I get for cigarettes and so forth. In addition to that my keep is being paid for over there at the Palmer House, by the State's Attorney. I eat well. I order anything that...