United States v. Ragen

• Decision Date: 01 November 1956
• Docket Number: No. 11789.,11789.
• Citation: 237 F.2d 827
• Parties: UNITED STATES of America ex rel. Reinhold LANGER, Appellant, v. Joseph E. RAGEN, Warden, Illinois State Penitentiary, Joliet, Illinois, Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

237 F.2d 827 (1956)

UNITED STATES of America ex rel. Reinhold LANGER, Appellant, v. Joseph E. RAGEN, Warden, Illinois State Penitentiary, Joliet, Illinois, Appellee.

No. 11789.

United States Court of Appeals Seventh Circuit.

November 1, 1956.

Reinhold Langer, Joliet, Ill., for appellant.

Latham Castle, Atty. Gen., William C. Wines, Raymond S. Sarnow, A. Zola Groves, Asst. Attys. Gen., of counsel, for appellee.

Before DUFFY, Chief Judge, and LINDLEY and SCHNACKENBERG, Circuit Judges.

LINDLEY, Circuit Judge.

After being convicted in the Illinois criminal court of an assault with intent to commit murder, petitioner filed a petition for relief from the judgment under the Illinois Post-Conviction Remedies Act, Ill.Rev.Stat.1955, Chap. 38, ¶¶ 826-832. This was denied and the judgment approved on writ of error, by the Supreme Court of Illinois. The Supreme Court of the United States having denied a writ of certiorari, 350 U.S. 864, 76 S.Ct. 107, petitioner filed his application in the district court for a writ of habeas corpus, which, upon motion of the Attorney-General for the State of Illinois, was dismissed. A certificate of probable cause having issued, petitioner appeals.

In his post-conviction petition petitioner contended that his conviction was in violation of his constitutional rights in that he had been arrested without a warrant, physically mistreated, deprived of necessary medical treatment, following his arrest, and unlawfully removed to Illinois and then returned to Indiana; that the trial court had improperly admitted certain evidence and given an improper instruction to the jury; that the state had knowingly used perjured testimony to convict him; that the state's attorney's argument to the jury was improper and prejudicial, and that the trial judge was prejudiced.

The Supreme Court of Illinois held that the averment that the trial judge was prejudiced, was insufficient. Of the remaining charges, the court said, that only the one to the effect that the state had knowingly employed perjured testimony presented any substantial constitutional question; that this averment was based entirely upon the fact that conflicting testimony appeared in the transcript of the proceedings, and that the fact that the testimony was conflicting furnished no support whatever for petitioner's charge that the state had knowingly made use of perjured testimony. Finding no merit in petitioner's petition the writ of error was denied. And, as we have observed, certiorari was denied by the Supreme Court.

It is upon this record that petitioner grounds his claim that he has exhausted all remedies available to him in the State of Illinois and that he is, therefore, entitled to invoke the jurisdiction of the United States District Court in an application for habeas corpus. In his petition, in addition to the grounds enumerated in the one he filed under the Illinois Post-Conviction Act, he avers that he was misrepresented by counsel and that articles were obtained from him by illegal search. From the record before us we find no trace of either of these points mentioned in his petition for relief under the Illinois Act. As to these, then, the petitioner has never before asserted or exhausted his remedies; they are plainly in addition to the matters upon which he has had review; they have never been considered by the state court. In such a situation, the exhaustion of remedies does not extend to new points urged for the first time in the application for habeas corpus. As we said, in United States ex rel. Lilyroth v. Ragen, 7 Cir., 222 F.2d 654, at page 656: "To present one case to the state courts without success, followed by the presentation of another case to the federal courts, does not meet the requirement that he exhaust his remedies in the state courts before seeking release by habeas corpus in the federal district court." Consequently, the trial court, at the most, had jurisdiction to examine and determine only the federal questions as to which petitioner has exhausted his remedies in the state court, namely, those enumerated above as having been reviewed by the Supreme Court of Illinois. Consequently, our determination must be limited to a decision of whether any of the grounds urged in his post-conviction petition were sufficient to justify entertainment of jurisdiction by the district court.

The facts as averred by petitioner and...