192 F.2d 763 (4th Cir. 1951), 6330, Daniels v. Allen

Docket Nº:6330.
Citation:192 F.2d 763
Party Name:DANIELS et al. v. ALLEN, Warden, Central Prison of the State of North Carolina.
Case Date:November 05, 1951
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 763

192 F.2d 763 (4th Cir. 1951)

DANIELS et al.

v.

ALLEN, Warden, Central Prison of the State of North Carolina.

No. 6330.

United States Court of Appeals, Fourth Circuit.

November 5, 1951

Argued Oct. 12, 1951.

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O. John Rogge, New York City (Rogge, Fabricant, Gordon & Goldman, New York City, Herman L. Taylor, Raleigh, N.C., and Murray A. Gordon, New York City, on brief), for appellant.

Ralph Moody, Asst. Atty. Gen., of North Carolina (Harry McMullan, Atty. Gen., of North Carolina, on brief), for appellee.

Before PARKER, Chief Judge and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal from an order vacating a writ of habeas corpus and dismissing the petition for the writ. Appellants were indicted in a North Carolina state court for the crime of murder and were convicted by a jury of murder in the first degree. The jury did not recommend mercy in the case and petitioners were sentenced to death. They appealed to the state Supreme Court, which affirmed the conviction, and then applied to the Supreme Court of the United States for a writ of certiorari, which was denied. Two applications for leave to file petitions for writs of error coram nobis were filed before the Supreme Court of North Carolina and were denied by that court. After all these proceedings were had, a petition for habeas corpus was filed in the court below on grounds which had been raised before the state court in the trial of the case. A full hearing was given appellants by the District Judge, who after finding the facts held that there was no merit in the grounds urged by appellants and also that they had not shown themselves entitled to the writ in view of the procedural history of the case. The last ground is the only one that we need consider.

This is not a case where facts alleged to invalidate action of a state court were discovered after trial, or where the defendants were without counsel to protect their rights during trial. They were represented on the trial by counsel of their own choosing, who took the place of counsel who had been earlier appointed by the court to represent them; and these counsel of their choice raised, offered evidence to support and had the trial court pass upon the very points urged in the petition for habeas corpus, viz. that Negroes were discriminated against in the selection of the grand and petit juries by which appellants had been indicted and tried and that confessions offered in evidence against appellants were not voluntary. The trial court, after a full hearing, decided these questions against appellants, exceptions to the rulings

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were noted, and after conviction and sentence an appeal to the Supreme Court of the state was duly taken and counsel obtained from the trial judge an extension allowing 60 days for serving case on appeal. The case on appeal was not served within the 60 days allowed, but counsel attempted to serve it one day after the expiration of that period. The trial judge struck it from the record because not served within time, and appellants attempted to bring it up as a part of the record by applying to the Supreme Court of the state for a writ of certiorari, which that court denied, State v. Daniels, 231 N.C. 17, 56 S.E.2d 2. In denying the writ, the Supreme Court pointed out that appellants could apply to that court for permission to file in the trial court a petition for writ of error coram nobis to raise matters extraneous to the record; and application was made for such permission, which was denied on the ground that it did 'not make a prima facie showing of substance'. State v. Daniels, 231 N.C. 341, 56 S.E.2d 646, 647.

After the Supreme Court of North Carolina had denied appellants' petition for certiorari and for permission to apply for the writ of error coram nobis, it affirmed the judgment and sentence of the trial court and dismissed the appeal. State v. Daniels, 231 N.C. 509, 57 S.E.2d 653. 1 Application was thereupon made to the Supreme Court of the United States to review the action of the state court, petitioners attaching to their application a full report of the proceedings of the trial court and complaining because of the selection of the jury and the admission of the confessions as well as because the case on appeal had been stricken from the record. These questions were thoroughly discussed in the briefs filed in support of the petition for certiorari; but the Supreme Court denied the writ, calling attention in its memorandum order, not only to the decision of the Supreme Court of North Carolina affirming the judgment, but also to the decisions of that court denying the petition for certiorari to bring up the case on appeal and denying permission to file petition for writ of error coram nobis. Daniels v. North Carolina, 339 U.S. 954, 70 S.Ct. 837, 94 L.Ed. 1366.

After denial of certiorari by the Supreme Court of the United States, appellants again applied to the Supreme Court of North Carolina for permission to file a petition for writ of error coram nobis in the trial court; but this was denied on the ground that the only matter presented by the petition had been passed upon by the trial court and had been presented to the Supreme Court of the United States in the application to that court for certiorari. The Court said:

'The petitioners now again petition this Court for leave to file a petition in the Superior Court of Pitt County for a writ of error coram nobis; and incorporate in that petition substantially matters that were presented to the Supreme Court of the United States in their petition to that Court for certiorari. On the face of the petition it appears that these are matters fully presented to the Court upon their trial and there passed upon.

'The function and limitations of the writ of error coram nobis were called to the attention of counsel for the petitioners when the petition for certiorari to bring up the case on appeal was dismissed in this Court. State v. Daniels, 231 N.C. 17, 56 S.E.2d 2, supra; and again in the subsequent decision dismissing the petition for leave to file a petition for such writ in the trial court. * *

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'The writ of error coram nobis is not a substitute for appeal. Under our practice permission to petition the Superior Court in which the petitioning defendant was tried is given only when the matter on which the petition is based is 'extraneous to the record.' * * *

'We understand that the petition for certiorari presented to the Supreme Court of the United States comprehended all matters which might be pleaded in that Court in the premises, and upon which the petitioners may now rely.' State v. Daniels, 232 N.C. 196, 59 S.E.2d 430, 431-432.

No application for certiorari was made to the Supreme Court of the United States to review this decision.

On these facts we think that the District Judge was clearly correct in holding that appellants were not entitled to the writ of habeas corpus. The question involved is not one of exhausting state remedies as a prerequisite to the writ, 2 nor of the rights of one who through lack of counsel has failed to raise constitutional questions in the trial court, but of permitting persons who have been represented by counsel and who have had the trial court pass on the identical questions that they wish to raise by habeas corpus to use that writ in lieu of an appeal to review the action of the trial court on those questions. To permit this to be done would be, not only to permit the writ of habeas corpus to be used in lieu of appeal, but to permit one of the lower federal courts to review the decisions of a state court of coordinate jurisdiction, instead of requiring that the orderly process of appeal to the Supreme Court of the state with application to the Supreme Court of the United States for certiorari be followed. It is no answer to this to say that appellants have lost their right to have the questions which they present reviewed by the Supreme Court of the state. The right of review was provided by state practice and was lost by failure to comply with the reasonable rules of the state court, which the federal courts have no power to waive or to nullify.

It is well settled that the writ of habeas corpus may not be used in lieu of an appeal to review the action of a trial court with respect to questions there raised and passed upon. Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009; Glasgow v. Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 56 L.Ed. 1147; Sanderlin v. Smyth, 4 Cir., 138 F.2d 729. And the rule is not different because the appellants or their counsel have allowed the time for serving the case on appeal to elapse and thus lost the right to have the questions reviewed by appeal. Goto v. Lane, supra; Riddle v. Dyche, supra. As said in Goto v. Lane, supra (265 U.S. 393, 44 S.Ct. 527): 'If the questions presented involved the application of constitutional principles, that alone did not alter the rule. Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124. And, if the petitioners permitted the time within which a review on writ of error might be obtained to elapse and thereby lost the opportunity for such a review, that gave no right to resort to habeas corpus as a substitute.'

It is argued that the allegation that constitutional rights of appellants were denied in the ruling of the state trial court is sufficient, of itself, to authorize the issuance of the writ of habeas corpus by the federal district court. The answer is that release under habeas corpus of one convicted by a state court can be had only if the action of the state court may be held void; and it would be absurd to say that the judgment of a court is...

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