Konigsberg v. Ciccone

Citation285 F. Supp. 585
Decision Date03 May 1968
Docket NumberNo. 16555-4.,16555-4.
PartiesHarold KONIGSBERG, Petitioner, v. Pasquale J. CICCONE, M.D., Director of Medical Center, Springfield, Mo., Myrl E. Alexander, Director, Bureau of Prisons, U. S. Dept. of Justice, Washington, D. C., the Attorney General of the U. S., Washington, D. C., the U. S. Attorney for the Western District of Mo., and any person having the custody or control of the prisoner Harold Konigsberg, Respondents.
CourtUnited States District Courts. 8th Circuit. Western District of Missouri

COPYRIGHT MATERIAL OMITTED

Austin F. Shute, Kansas City, Mo., for petitioner.

Charles French, Asst. U. S. Atty., Kansas City, Mo., for respondents.

ORDER

ELMO B. HUNTER, District Judge.

Petitioner Harold Konigsberg, through his employed attorney, on August 2, 1967, filed in this Court his petition for a writ of habeas corpus. The petitioner alleged that he is presently detained at the United States Medical Center for Federal Prisoners in Springfield, Missouri, as a convicted person pursuant to a judgment of the United States District Court for the District of New Jersey, pronounced on July 16, 1963, committing the petitioner to the custody of the Attorney General of the United States for ten years for violation of Title 18, U.S.C., Section 659. This sentence was imposed following a plea of not guilty by petitioner and by a finding of guilty by a jury upon trial. Petitioner appealed to the United States Court of Appeals for the Third Circuit. That court affirmed the conviction. See 336 F.2d 844. Certiorari was denied by the United States Supreme Court, see 379 U.S. 930, 85 S.Ct. 327, 13 L.Ed.2d 342. Additionally, petitioner was tried by the State of New York on a state charge and was sentenced by that court to a term of 33 to 40 years.

In his present petition for habeas corpus petitioner claims that numerous violations of his constitutional rights have occurred, and that by virtue of those violations, and other illegal treatment, he is entitled, among other things, to have his sentences of conviction set aside, and to his freedom. He also seeks relief of an administrative type.

After earlier settings and continuances granted at the request of petitioner's counsel, the granted evidentiary hearing commenced on Friday, March 1, 1968. The order setting that hearing stated that the Court would hear evidence on the following contentions of petitioner, as well as such other contentions as he desired to present evidence on: (1) Whether petitioner has been subjected to cruel and inhuman punishment in violation of the Eighth Amendment. (2) Whether petitioner was certified, decertified, and sent to New York State for trial, and then recertified under Section 4241 of Title 18, U.S.C., upon his return, and, if so, whether such action violated any of petitioner's rights. (3) Whether petitioner was transferred from the Medical Center at a time when he was certified pursuant to Section 4241 of Title 18 United States Code, and, if so, whether said transfer was in violation of law. (4) Whether petitioner's being removed from the Medical Center in the fall of 1967, allegedly to appear before a grand jury, was in fact for the purpose of circumventing a hearing on the matters raised by petitioner in his petition to this Court. (5) Whether petitioner's mail, including mail to and from his attorney, was being unreasonably interfered with. (6) Whether, as a result of the government's interference with petitioner's mail, and other limitations on his access to counsel, petitioner is being deprived of effective assistance of counsel, in violation of the Sixth Amendment. (7) Whether petitioner is being unreasonably restrained from making telephone calls to his attorney and others. (8) Whether petitioner has ever been transferred incognito, and, if so, whether that was violative of his constitutional rights. (9) Whether the United States government has illegally taken and retained a wristwatch of petitioner's. (10) Whether the United States government has illegally confiscated approximately $1,200 which belongs to the petitioner. (11) Whether petitioner is subjected to religious discrimination in violation of his First Amendment rights. (12) Whether the government in any way acted illegally in regard to petitioner's certification pursuant to Section 4241, Title 18, United States Code, or decertification under the same section. (13) Whether petitioner is being denied adequate food and water. (14) Whether the government has falsified any of petitioner's records. (15) Whether the government has illegally taken petitioner's legal materials or other property of his from him.

Either at the commencement of the trial or during the trial the following additional contentions were made by the petitioner, which the Court deemed to be among those to be decided by the hearing: (1) Whether petitioner, while at the Springfield Medical Center, is being denied any constitutional rights in connection with his right to worship and his right of religion. (2) Whether petitioner is being discriminated against unlawfully because he is Jewish. (3) Whether petitioner is the subject of a conspiracy by the Bureau of Prisons and personnel of the Springfield Medical Center, and others, including the Attorney General of the United States, to deprive him of his access to the courts, his confidential access to his attorneys, his access to his legal materials, and his access to materials helpful to him in the preparation of and presentation of his numerous pending legal actions. (4) Whether the personnel of the Springfield Medical Center conspired to subject him to cruel and inhuman punishment, to harass and confuse him, to degrade him, and to punish him, contrary to law and to the rules of the institution, by, among other things, keeping from him the usual items of the institution, such as a full handled toothbrush, fresh changes of clothes, showers, a razor for his own use, toothpaste, clean blankets and sheets, his art supplies, his diary, handkerchiefs and other items available in the commissary of the institution, either by prohibiting his possession of such items or by wrongfully taking these items from him, or by limiting the number of things that he might possess in such an unreasonable manner as to in effect deny him the possession of these items. This contention includes deprivation of pencils, pens, tablets of paper, carbon paper, daily notes, newspaper articles, newspapers, magazines, and legal material. (5) Petitioner also complains that various of the United States deputy marshals deprived him of food and water, and otherwise mistreated him while he was being transported from the Medical Center to this Court, and from this Court to the Leavenworth Penitentiary, where he was kept overnight each night during the trial. (6) Petitioner finally complains that upon his return to the Springfield Medical Center on March 18, he was beaten and mistreated by some of the personnel of the Medical Center.

Petitioner's attorney for many years has been a New York lawyer, Frank Lopez. Mr. Lopez filed the petition for writ of habeas corpus on behalf of petitioner, filed other matters in connection with the case, and was at all times the attorney of record in the case. However, at all pertinent times petitioner has asserted his right to appear pro se and to represent himself. At the trial Mr. Lopez failed to appear, but apparently did turn over petitioner's file to petitioner's personally selected and employed local counsel, Mr. Austin Shute, a well-known and highly experienced Kansas City attorney. Mr. Lopez remained away from the trial.

Petitioner, after being told by the Court that he could have a continuance if he wished it, repeatedly acknowledged his complete satisfaction with his representation by Mr. Austin Shute, and advised the Court that he wished to proceed, with Mr. Shute present at the counsel table with him; and that he did not wish to request a continuance, or to have a continuance, because of the absence of Mr. Lopez or for any other reason.

Petitioner has represented himself in the past in one or more substantial criminal trials, and professes some knowledge of courtroom procedure. Additionally, during the trial of this case, petitioner had available Mr. Shute, with whom he consulted upon numerous occasions, and who upon occasion participated with the petitioner in the examination of witnesses and the presentation of the case.

At the outset it is helpful to delineate to some extent the proper scope of habeas corpus in this type of case. The "Great Writ" as it is sometimes referred to has such ancient origins as to antedate Magna Carta. It is preserved by the Constitution of the United States. It is basically designed to give a person restrained of his liberty the opportunity and right to test the legality of the restraint and to relief from unlawful imprisonment. Its application has somewhat expanded with the passage of time. Today a permitted use is to reach and prevent certain continuing illegal and unconstitutional treatment of convicted persons in custody where such treatment amounts to cruel and unusual punishment. In some few and unusual instances it is also available to reach extreme acts of official misconduct depriving the prisoner of fundamental rights where such deprivation also results in unlawful administration of sentence. This expanded type of use does not result in vitiating the sentence of confinement so as to free the prisoner but rather results only in an equitable type of restraint to preclude the continuation or resumption of the illegal act or acts involved. Thus, the writ is not available generally where the complaint is simply one of past wrongs, not involving the validity of the confinement, and not of a continuing or probably continuing nature. Nor is the writ a substitute for other available adequate actions or remedies.

The general statements above made must, of course, be applied in the light of the teachings of the appropriate ...

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37 cases
  • Souza v. Travisono
    • United States
    • U.S. District Court — District of Rhode Island
    • December 18, 1973
    ...need of prison security and discipline to the maintenance of such housekeeping rules as lunch schedules. See Konigsberg v. Ciccone, 285 F.Supp. 585, 597 (W.D.Mo.1968), aff'd 417 F.2d 161 (8th Cir. 1969), cert. denied, 397 U.S. 963, 90 S.Ct. 996, 25 L.Ed.2d 255 (1970). These regulations must......
  • Harrah v. Leverette
    • United States
    • West Virginia Supreme Court
    • October 7, 1980
    ...State ex rel. Memmel v. Mundy, 75 Wis.2d 276, 249 N.W.2d 573 (1977); Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944); Konigsberg v. Ciccone, 285 F.Supp. 585 (W.D.Mo.1968). An exhaustive search of habeas corpus cases involving cruel and unusual punishment of prisoners failed to discover any......
  • Wilson v. Beame
    • United States
    • U.S. District Court — Eastern District of New York
    • June 7, 1974
    ...upon attendance by any inmate of the religious services he wishes to participate in should be reexamined"); Konigsberg v. Ciccone, 285 F.Supp. 585, 595-596 (W. D.Mo.1968), cert. denied, 397 U.S. 963, 90 S.Ct. 996, 25 L.Ed.2d 255 Some form of communal worship seems a hallmark of organized re......
  • United States v. Kahane
    • United States
    • U.S. District Court — Eastern District of New York
    • May 7, 1975
    ...escorts and make such services available in view of the high importance the law places on the right to worship. Konigsberg v. Ciccone, 285 F.Supp. 585 (D.C.Mo.1968), aff'd, 417 F.2d 161 (8th Cir.), cert. denied, 397 U.S. 963, 90 S.Ct. 996, 25 L. Ed.2d 255 (1970). See also Wilson v. Beame, 3......
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1 books & journal articles
  • The Implications for Inmate Rights of the Voluntary Provision of Religious Services
    • United States
    • Criminal Justice Policy Review No. 17-2, June 2006
    • June 1, 2006
    ...NewYork:Basic Books.Knight, B. B., & Early, S. T. J. (1986). Prisoners’ rights in America. Chicago: Nelson-Hall.Konigsberg v.Ciccone, 285 F. Supp. 585 (1968).Krantz, S. (1988). The law of corrections and prisoners’rights in a nutshell. St. Paul, MN: West.Lewis, O. F.(1967). The development ......

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