281 F.2d 782 (7th Cir. 1960), 12882, Odell v. Burke

Docket Nº:12882.
Citation:281 F.2d 782
Party Name:Fred J. ODELL, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee.
Case Date:July 25, 1960
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 782

281 F.2d 782 (7th Cir. 1960)

Fred J. ODELL, Petitioner-Appellant,


John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee.

No. 12882.

United States Court of Appeals, Seventh Circuit.

July 25, 1960

Page 783

Giles F. Clark, Milwaukee, Wis., for appellant.

William A. Platz, Asst. Atty. Gen., for appellee.

Before SCHNACKENBERG and CASTLE, Circuit Judges, and MERCER, District judge.

MERCER, District Judge.

Petitioner, an inmate at Wisconsin State Prison, appeals from an order of the United States District Court for the Eastern District of Wisconsin, denying, without a hearing, his petition for writ of habeas corpus.

At the outset, we note that petitioner is represented by Mr. Giles F. Clark, court-appointed counsel, who has presented the case for petitioner both in written brief and on oral argument. This court is appreciative of his valuable services.

We must first consider respondent's contention that petitioner has not exhausted his state remedies and cannot, therefore, prosecute a petition for writ of habeas corpus under the provisions of 28 U.S.C.A. § 2254. The court below rejected that contention.

Petitioner was convicted in the Municipal Court of Kenosha, Wisconsin, of the crime of assault and theft, while armed, and was sentenced to a term in prison of

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not more than fifteen years. He did not appeal that conviction as he might have done. Instead, some two years after the date thereof, on December 18, 1958, he filed in the Supreme Court of Wisconsin his petition for habeas corpus in which he alleged the constitutional questions which he now asserts. There is no dispute that that petition was in accordance with established Wisconsin appellate procedures and was timely filed. On February, 4, 1959, the State Supreme Court denied his petition without a hearing. Thereafter, petitioner filed a request for executive clemency, which was denied. Petitioner then, on May 28, 1959, filed in the United States Supreme Court an instrument which he designated as a motion for leave to docket and prosecute a petition for habeas corpus. That petition was denied. Odell v. Burke, 360 U.S. 926, 79 S.Ct. 1465, 3 L.Ed.2d 1541.

Respondent contends that petitioner failed to prosecute a petition for certiorari to review the state court's decision denying his petition for writ of habeas corpus, and that he has, by his failure so to do, failed to exhaust his state remedies. The cornerstone for that contention is the argument that the instrument which petitioner filed in the United States Supreme Court cannot be construed as a petition for certiorari.

We do not agree. Although the papers filed in the United States Supreme Court were entitled as a motion for leave to file a petition for writ of habeas corpus, reference was therein made to the decision of the State Supreme Court. It also appears from a recitation in the papers filed in the United States Supreme Court that a Justice of that Court had extended the time within which petitioner might file a petition for review of the State Court decision to a day subsequent to May 28, 1959. While it is true that the Court did not, expressly, treat petitioner's motion as a petition for certiorari, Odell v. Burke, 360 U.S. 926, 79 S.Ct. 1465, we think that that motion must be so construed, applying the principle that papers drafted by a layman who is unskilled in legal formality will be construed most favorably to his cause. Baker v. Ellis, 5 Cir., 194 F.2d 865. The issues presented to the Wisconsin Supreme Court were presented to the United States Supreme Court by petitioner in his effort to there seek review. We think that effort satisfied the spirit, if not the letter, of the doctrine of exhaustion of state remedies. We, therefore, reject respondent's contention.

The basic issue before us upon the merits of this appeal is the question whether the trial court properly denied the petition for habeas corpus without a hearing. Resolution of that basic issue depends upon a determination whether any of the allegations of fact of the petition are sufficient to allege, prima facie, a denial of due process of law as guaranteed to petitioner by the Fourteenth Amendment to the Constitution of the United States. Wiggins v. Ragen, 7 Cir., 238 F.2d 309, 311.

Petitioner first alleges that he was denied federal due process in that he was not represented by counsel and was not advised of his right of counsel during the preliminary hearing phase of his prosecution.

Petitioner was arrested on March 8, 1956. On March 9, 1956, he appeared before the County Court of Kenosha County and entered a plea of not guilty. His preliminary hearing was adjourned by the court to March 19th. On the latter date...

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