Whitley v. Steiner

• Decision Date: 26 July 1961
• Docket Number: No. 8276.,8276.
• Citation: 293 F.2d 895
• Parties: Joseph Oleif WHITLEY, Appellant, v. Warden William F. STEINER, Maryland House of Correction, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

293 F.2d 895 (1961)

Joseph Oleif WHITLEY, Appellant, v. Warden William F. STEINER, Maryland House of Correction, Appellee.

No. 8276.

United States Court of Appeals Fourth Circuit.

Argued April 7, 1961.

Decided July 26, 1961.

Stephen J. Pollak, Washington, D. C., court-assigned counsel (James C. McKay, Washington, D. C., court-assigned counsel, on the brief), for appellant.

James H. Norris, Jr., Sp. Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen., of Maryland, on the brief), for appellee.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and HARRY E. WATKINS, District Judge.

SOBELOFF, Chief Judge.

We are in this habeas corpus appeal faced with a problem concerning what has been termed the "abortive state proceeding,"¹ i. e., where a state prisoner, claiming a constitutional infirmity in his trial, has failed to present his claim to the state courts under a procedure which was in the past available, and has now lost the opportunity to get state relief. Does this bar him from obtaining relief by writ of habeas corpus in the federal courts?

In 1957 Joseph Oleif Whitley was tried for murder in the Circuit Court for Prince George's County, Maryland. The court, sitting without a jury, gave a verdict of acquittal as to murder in the first degree, but found Whitley guilty of second degree murder and sentenced him to twelve years imprisonment. The defendant failed to appeal from this conviction, and no reasons appear for this failure.

After three unsuccessful petitions in the state courts for habeas corpus relief, Whitley, in 1959, filed in the Circuit Court for Prince George's County an application under the Maryland Post Conviction Procedure Act, Annotated Code of Maryland (1957), Art. 27, § 645A et seq. This was denied without a hearing on the facts, and leave to appeal was refused by the Maryland Court of Appeals, Whitley v. Warden, Maryland House of Correction, 1960, 222 Md. 608, 158 A.2d 905. Certiorari was denied by the Supreme Court of the United States, 364 U.S. 808, 81 S.Ct. 75, 5 L.Ed.2d 42.

Whitley then instituted the present proceeding by filing a petition for a writ of habeas corpus in the United States District Court for the District of Maryland. That court dismissed the petition without a hearing and denied the required certificate of probable cause, but permitted an appeal in forma pauperis. A certificate of probable cause for the appeal was thereafter granted by this court, counsel was appointed for the appellant, and the issues have been vigorously and ably argued.

In the petition submitted to the District Court, Whitley raised two questions that could afford a basis for relief by federal habeas corpus: 1) that he was convicted by perjured testimony knowingly used by the state, and 2) that his confession, introduced against him at the trial, was involuntary. Both of these allegations had been presented to the state courts in his application under the Maryland Post Conviction Procedure Act. As to the perjured testimony issue the petitioner merely makes the bald assertion that perjured testimony was used, without reciting any facts whatsoever. There are no allegations concerning the nature of the testimony, what witness perjured himself, whether there was state complicity, or any other circumstances. In view of the complete lack of essential allegations, there was no error in denying a hearing on this issue.

On the other hand, with respect to the contention that his confession was coerced, substantial detail is asserted.

At one point, Whitley states:

"While illegally² in the custody of officers at 11:30 a. m. on the 14th day of November 1956 in Prince George\'s County, Maryland, that petitioner, at 11:30 p. m. was demanded to go to the District of Columbia for the purpose of being given a lie detector test, without petitioner\'s consent. Petitioner while in the District of Columbia without food, water, and sleep, was questioned by officers for many hours who slapped petitioner many times and cast bright lights in petitioner\'s eyes and made threats that if petitioner did not give a confession and tell the truth that they would see that the judge send the petitioner to the Gas Chamber. Petitioner fearing to do otherwise rendered a confession admitting guilt of said murder."

Elsewhere in his petition, Whitley recites facts concerning the length of his detention and other circumstances surrounding the confession. It is, of course, well settled that the use of an involuntary confession at a state trial violates the Due Process Clause of the Fourteenth Amendment and entitles the defendant to relief by habeas corpus in the federal courts. Chambers v. State of Florida, 1940, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716; Malinski v. People of State of New York, 1945, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Watts v. State of Indiana, 1949, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Rogers v. Richmond, 1961, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Reck v. Pate, 1961, 81 S.Ct. 1541. If there were no procedural bar, we think that Whitley's allegations of fact would be sufficient to require a hearing on this issue.

This brings us to a consideration of the legal issue arising from the "abortive state proceeding."

The Maryland Court of Appeals, in its opinion denying Whitley leave to appeal from the dismissal of his post-conviction petition by the state circuit court, refused to consider the coerced confession issue, stating: "The involuntary character of a confession can also be raised on appeal, but not collaterally." Whitley v. Warden, Maryland House of Correction, 1960, 222 Md. 608, 158 A.2d 905, 907. Since the time for taking a direct appeal has long since expired, and since, under the Maryland procedure, Whitley cannot obtain relief in a collateral proceeding, he has no remedy in the state courts. He had in the past a remedy, i. e., an appeal, but he failed to avail himself of it. Under these circumstances, is he entitled to relief in the federal courts by a writ of habeas corpus? Although some of the cases are not as clear as might be desired, we think that the Supreme Court has decided that federal habeas corpus will not lie under such circumstances. We are, of course, bound by its holding.

The issue in this case has often been discussed and treated under many labels.³ At times, it has been considered a problem of exhausting state remedies under 28 U.S.C.A. § 2254.⁴ Other cases have viewed the problem as one of waiver.⁵ Still others have seemed to hold that where the proper state procedure was not invoked, and there is no presently available state procedure to determine the constitutional questions, federal courts should not interfere, as the state court ruling is based on "adequate state grounds."⁶ Finally, it has at other times been said that by not timely asserting his claim under the appropriate state procedure, in a case where there is no later remedy, the defendant has "forfeited" the claim.⁷

Whatever the theoretical basis, however, the Supreme Court has explicitly held that where a state prisoner, asserting a denial of constitutional rights in connection with his conviction, has a remedy in the state court but fails to avail himself of it, and later finds himself without a state remedy, he may not have redress through federal habeas corpus. This was the precise holding with respect to the petitioner Daniels in Brown v. Allen, 1953, 344 U.S. 443, 482-487, 73 S.Ct. 397. Other cases directly in point, except that the Supreme Court was directly reviewing the action of state courts rather than lower federal courts, are Parker v. State of Illinois, 1948, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886, and Michel v. State of Louisiana, 1955, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83. Under such circumstances the petitioner has, to utilize what is probably the most appropriate legal doctrine, "forfeited" his constitutional claim.

The consequences of the rule may seem strange, for, as Mr. Justice Black succinctly put it in Brown v. Allen, supra, 344 U.S. at page 552, 73 S.Ct. at page 433 (dissenting opinion): "I find it difficult to agree with the soundness of a philosophy which prompts this Court to grant a second review where the state has granted one but to deny any review at all where the state has granted none." On the other hand, there is evidenced in the course of the Court's opinions the strong belief that state convictions should not be upset where the state itself provides a procedure to remedy deprivations of constitutional rights, but the state prisoner has failed to avail himself of such procedure.

Whatever views we may entertain as to the soundness of a rule that operates in this way, the lower federal courts are not free to change it, for the majority of the Supreme Court has thus far indicated an unwillingness to depart from it.⁸

There are, of course, certain exceptions. If a state court will consider the petitioner's federal claims in a habeas corpus or other proceeding, even though the prisoner failed to pursue some previous appropriate state remedy or even if the state court has ruled on the federal claims despite the existence of procedural grounds justifying abstention, then the federal court should consider them. Herndon v. Lowry, 1937, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Brown v. Allen, supra, 344 U.S. at page 486, 73 S.Ct. 397; Irvin v. Dowd, supra.

Another exception is where the alleged constitutional infirmity concerns the lack of counsel, for it is incongruous to speak of forfeiture on account of failure to invoke pro se a particular procedure where no later state procedure is afforded. Williams v. Kaiser, 1945, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Brown v. Allen, supra, 344 U.S. at page 485, 73 S.Ct. 397. The same is perhaps true if the claim is that the conviction was upon perjured testimony knowingly used by state officials, for the defendant may not have discovered this until after the expiration of the time allowed to take the...