United States v. Dowd, 9909.

• Citation: 180 F.2d 212
• Decision Date: 07 February 1950
• Docket Number: No. 9909.,9909.
• Parties: UNITED STATES ex rel. COOK v. DOWD, Warden.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

180 F.2d 212 (1950)

UNITED STATES ex rel. COOK v. DOWD, Warden.

No. 9909.

United States Court of Appeals Seventh Circuit.

February 7, 1950.

J. Emmett McManamon, Attorney General of Indiana, Merl M. Wall, Charles F. O'Connor, Deputy Attorney General, for appellant.

William S. Isham, Fowler, Ind., for appellee.

Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.

DUFFY, Circuit Judge.

Petitioner Cook filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Indiana. Respondent filed a motion to dismiss which was granted June 24, 1948. Thereafter petitioner was granted leave to file an amended petition for a writ of habeas corpus. Respondent again filed a motion to dismiss, but this motion was denied. After respondent filed his return and answer a hearing was held, and on February 28, 1949, the court rendered its decision and ordered the petitioner discharged from custody.

Petitioner was convicted of murder in the Jennings Circuit Court of Indiana on July 23, 1931, and was sentenced to life imprisonment. At his trial he was represented by qualified attorneys of his own choice. The day following his conviction he was taken to the Indiana State Prison. Petitioner's attorneys filed a timely statutory motion for a new trial, which was denied. Under the law of Indiana as it existed at that time, petitioner had six months in which to perfect an appeal of his case to the Supreme Court of Indiana. The district court found that within such six months period, with the aid of other prisoners, Cook prepared certain appeal papers, including a notice of appeal, a praecipe for a transcript of the record, an assignment of errors, a motion to appeal in forma pauperis, and a request that the trial court appoint counsel to assist him on the appeal. He also prepared a "memory transcript" of the proceedings at his trial. Cook attempted to send these papers to the Jennings Circuit Court but was told by prison authorities that sending out such papers from the prison was against a prison rule. As a result the six months period expired and the papers thus prepared did not reach the court. Although the district court did not make a finding of the point, it was established by the evidence that after Warden Kunkle took charge in June, 1933, sending out legal papers from the prison was no longer restricted.

In October, 1937, petitioner filed a petition in the Jennings Circuit Court for a writ of coram nobis. After considerable complication, involving the sitting of at least three special judges, the petition was denied. During the course of these proceedings the matter reached the Indiana Supreme Court twice. Cook v. State of Indiana, 1941, 219 Ind. 234, 37 N.E.2d 63; State ex rel. Cook v. Wickens, 1944, 222 Ind. 383, 53 N.E.2d 630. In April, 1945, the petitioner filed a petition for habeas corpus in the Circuit Court of LaPorte County and in June of 1945 he filed a similar petition in the United States District Court for the Northern District of Indiana. Both petitions were denied. On appeal the ruling of the State court was affirmed by the Supreme Court of Indiana. State ex rel. Cook v. Howard, 1945, 223 Ind. 694, 64 N.E.2d 25, certiorari denied, Cook v. Howard, 1946, 327 U.S. 808, 66 S. Ct. 960, 90 L.Ed. 1032. In its opinion the Indiana Supreme Court stated, 223 Ind. at page 699, 64 N.E.2d at page 27: "If appellant has been denied the privilege of appealing his case, by the warden and employees of the prison where he is serving, until the time allowed by statute for an appeal has expired, that fact would not nullify the judgment lawfully rendered against him by the Jennings Circuit Court. It would merely extend the time for appeal during the period of such disability. In aid of its appellate powers and functions this court has both inherent and statutory power to entertain and determine a petition to appeal after the time allowed by statute therefor has expired, under the conditions set forth in paragraph one of appellant's complaint. * * *"

Thereafter petitioner filed a petition in the Indiana Supreme Court for a delayed appeal in his case; this petition was denied and certiorari to the United States Supreme Court was again sought but denied.

When Cook sought to appeal to the Indiana Supreme Court in response to the invitation to do so, he attempted to support his allegations by filing various affidavits. No oral testimony was taken. The State Attorney General filed affidavits in opposition, and one of the petitioner's trial attorneys filed an affidavit that neither he nor his co-counsel had refused to perfect an appeal because petitioner was unable to pay for the attorney fees involved. In denying Cook's petition for appeal, the Indiana Supreme Court said, "The court having examined and considered said petition, the answer thereto, and petitioner's reply and all of said affidavits and being duly advised in the premises, finds that the basic allegation of said petition to wit: that petitioner's counsel refused, without pay, to take an appeal is not true; and that petitioner is entitled to no relief herein."

In a petition for rehearing Cook endeavored to stress the point that he had been denied the right to present his appeal papers by the prison authorities within the six months period, but the petition for rehearing was denied without further comment.

In a memorandum opinion accompanying its order of June 24, 1948, dismissing the petition for a writ of habeas corpus, the district court stressed the point that petitioner had not made a sufficient showing that the errors complained of were of a substantial character and that there was probable cause to believe a reversal would be obtained upon an appeal. However, on October 22, 1948, the district court permitted the filing of an amended petition for a writ of habeas corpus. A motion for dismissal was denied and the writ was issued, and shortly thereafter a hearing was held. In an opinion accompanying the order discharging the petitioner from custody, the court stated that on further reflection it was convinced that the probability of the petitioner's prosecuting a successful appeal is not a proper consideration in determining whether a writ should issue, and whether a discharge should be granted. We are in accord with this view.

Petitioner claims he was deprived of his liberty in violation of the equal protection clause of the XIV Amendment to the United States Constitution. He claims that the State of Indiana through its prison officials denied him the equal right afforded to all persons convicted of crime in Indiana to prosecute an appeal.

In the district court and in his statement of points on this appeal, respondent insisted that the district court had no jurisdiction of the cause of action. However, in his brief in this court respondent admits that the court had jurisdiction but argues that the issuing of the writ and the consideration of the case on the merits was an abuse of discretion by the trial court.

Respondent lays much emphasis on his claim that the Supreme Court of Indiana has passed on the merits of the present controversy, by denying the petition to permit a delayed appeal. Respondent insists that such denial is res judicata as to the present issues and obtains great comfort from the fact the United States Supreme Court refused to grant certiorari. He states, "The United States Supreme Court, by denying certiorari when this identical point was plainly set forth and reiterated, likewise decided against the Petitioner-Appellee."

The question raised as to res judicata, and the effect of the denial of the petition for certiorari, requires little discussion. The question before the Indiana Supreme Court, presented by affidavits, as to whether as a matter of grace it would permit the prosecution of a delayed appeal, is entirely different than the issues before the district court. We hold the principle of res judicata does not apply. Waley v. Johnston, 316 U.S. 101, 105, 62 S.Ct. 964, 86 L.Ed. 1302.

As to the effect of the denial of the petition for a writ of certiorari, the Supreme Court has emphasized time and time again that the merits of a case are not decided upon the denial of such petitions. Wade v. Mayo, 334 U.S. 672, 680, 68 S.Ct. 1270, 92 L.Ed. 1647. As was stated by Justice Frankfurter in State of Maryland v. Baltimore Radio Show, Inc., 1950, 70 S.Ct. 252, 255, the denial of certiorari in a case might be for the reason "the decision may be supportable as a matter of State law, not subject to review by this Court, even though the State court also passed on issues of federal law." Surely the right of a State to open or close the doors of its Supreme Court for an appeal after the expiration of the statutory period is a non-federal matter. We hold there is no significance whatever as to the issues here before us in the denial by the Supreme Court of the petition for certiorari.

Respondent insists the rule is that federal courts interfere with the...