United States ex rel. Parsons v. Adams

• Decision Date: 24 June 1971
• Docket Number: Civ. No. 14388.
• Citation: 336 F. Supp. 340
• Parties: UNITED STATES ex rel. Floyd PARSONS v. Frederick E. ADAMS, Warden, Connecticut Correctional Institution.
• Court: U.S. District Court — District of Connecticut

336 F. Supp. 340

UNITED STATES ex rel. Floyd PARSONS v. Frederick E. ADAMS, Warden, Connecticut Correctional Institution.

Civ. No. 14388.

United States District Court, D. Connecticut.

June 24, 1971.

Howard Baron, Ralph E. Sluis, Middletown, Conn., for petitioner.

Vincent Scamporino, Asst. State's Atty., Middletown, Conn., Steven O'Neill, Asst. Atty. Gen., State of Conn., Hartford, Conn., for respondent.

MEMORANDUM OF DECISION ON PETITION FOR A WRIT OF HABEAS CORPUS

BLUMENFELD, Chief Judge.

Petitioner was convicted of manslaughter by a Connecticut Superior Court jury on May 20, 1970. At his trial, pursuant to Conn.Gen.Stats. § 54-88¹ and Connecticut Practice Book § 479,² the state's attorney was permitted to, and did, open and close the final argument to the jury. Parsons is presently in custody at the Connecticut Correctional Institution serving a sentence of four to eight years imprisonment. He maintains by this petition that he is in custody in violation of the United States Constitution because the exercise by the state of its statutory right to open and close final argument at trial violated his rights to counsel under the sixth amendment, and due process under the fourteenth.

I. Jurisdiction and Exhaustion

The respondent has moved to dismiss this petition on the grounds that the court lacks jurisdiction and that petitioner has failed to exhaust his state remedies.

"Federal court jurisdiction to entertain a habeas corpus petition is conferred by the allegation of an unconstitutional restraint . . . ." Fay v. Noia, 372 U.S. 391, 426, 83 S.Ct. 822, 842, 9 L.Ed.2d 837 (1963). See Jackson v. Denno, 378 U.S. 368, 370 n. 1, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This petitioner is in custody in this district, cf. Schlanger v. Seamans, 401 U.S. 487, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971); 28 U.S.C. § 2241(a), and "alleges a deprivation of constitutional rights which would entitle him to be released from state custody." United States ex rel. Holes v. Mancusi, 423 F.2d 1137, 1141 (2d Cir. 1970); see 28 U.S.C. § 2254(a). Jurisdiction is properly laid in this court.

The requirement of exhaustion of state remedies, 28 U.S.C. § 2254(b), resting as it does on principles of comity rather than power, Hammond v. Lenfest, 398 F.2d 705, 714 (2d Cir. 1968), involves different considerations, which must be evaluated in their factual context.

Upon conviction, Parsons applied to the Superior Court for a waiver of the fees and costs associated with an appeal. This application was submitted pursuant to Conn.Prac.Bk. § 603, which authorizes waiver of the fees "if the court is satisfied that the applicant is indigent and that the proposed appeal would not be frivolous." The application included a statement of the grounds for appeal, which were the same as those asserted here. After a hearing and the submission of briefs, the court found Parsons to be indigent, but reserved decision on his application. More than four months later, the application was denied without comment. Petitioner took no further steps to present to the state courts the issues presented by this petition.

The principle of exhaustion precludes consideration of the merits of a habeas corpus petition by a federal court only insofar as the petitioner has failed to exhaust "state remedies still open to him at the time he files his application in federal court." Fay v. Noia, supra, 372 U.S. at 435, 83 S.Ct. at 847 (emphasis added). "The only ground for which relief may be denied in federal habeas corpus for failure to raise a federal constitutional claim in the state courts," Jackson v. Denno, supra, 378 U.S. at 370 n. 1, 84 S.Ct. at 1777, is that the petitioner "deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Fay v. Noia, supra, 372 U.S. at 438, 83 S.Ct. at 849.

Parsons apparently could have appealed to the state Supreme Court from the denial of his application for waiver of fees on appeal. See State v. Hudson, 154 Conn. 631, 228 A.2d 132 (1967), and 155 Conn. 719, 231 A.2d 283 (1967). However, that remedy is no longer open to him, and there is no suggestion that Parsons, exercising a "considered choice," Fay v. Noia, supra, 372 U.S. at 439, 83 S.Ct. at 849, "after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures . . . ." Id.

Respondent does not contend that petitioner has waived his state court remedies. Instead, he contends that there is a state remedy still available; namely, state habeas corpus. Conn.Gen.Stats. § 52-466-470. Petitioner admits that he has not attempted to raise his claims by state habeas corpus, but maintains that the state's rules pertaining to indigents in habeas corpus proceedings excuse his failure to pursue that route.

Under the circumstances of this case, petitioner was not required to attempt to file a habeas corpus petition in the state court as a prerequisite to proceeding here. This court has had prior occasion to canvass Connecticut's intricate scheme for affording indigent habeas corpus petitioners access to its courts without payment of court fees. United States ex rel. Rush v. York, 281 F.Supp. 779 (D.Conn.1967). In sum, the scheme permits a waiver of fees only if the indigent accepts the representation of a public defender, see Conn.Gen.Stats. § 52-259a; State v. Hudson, supra, 154 Conn. at 636, 228 A.2d 132, but habeas corpus proceedings do not fall within the ambit of matters for which public defenders may be appointed. See id.; Conn.Prac.Bk. § 472D. An indigent petitioner with private counsel is not exempted from the fee. State v. Reddick, 139 Conn. 398, 400, 94 A.2d 613 (1953); State v. Clark, 4 Conn.Cir. 570, 572, 237 A.2d 105 (1967). This petitioner has been represented by counsel other than a public defender in all post-conviction proceedings.

The consequence of these nonprovisions for indigent habeas petitioners is that the remedy is simply unavailable if they do not pay the fee, whether they are represented by private counsel or attempt to proceed pro se. Accordingly, this court deems the state habeas remedy for indigent petitioners an exhausted, because unavailable, remedy. United States ex rel. Rush v. York, supra, 281 F.Supp. 779; United States ex rel. Robinson v. York, 281 F.Supp. 8 (D.Conn. 1968).

It does not matter that this petitioner did not in fact tender a petition to the clerk of the Superior Court — he had already been found indigent and there is no indication in Connecticut's statutes, decisions, or court rules that there is any way to avoid application of the scheme described. Nor does the possible existence of an unwritten exception, permitting the filing of in forma pauperis petitions for habeas corpus by indigent prisoners at the state prison, noted in United States ex rel. Rush v. York, supra, 281 F.Supp. at 782, affect the finding of exhaustion. There was no evidence in this case that such a practice exists or that this petitioner knew about it. In any event, considerations of comity would not be so compelling upon this court as to require an indigent, simply because of a state's procedural rule, to pursue a post-conviction remedy pro se, when he has counsel ready and willing to represent him without cost to the state.

Until Connecticut revises its rules to permit indigents reasonable access to its courts for purposes of habeas corpus, cf. Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L.Ed.2d 113 (1971), this court will deem that remedy exhausted, for purposes of 28 U.S.C. § 2254(b), without a showing by an indigent of a rejected attempt to file a petition in the state court. Respondent's motion to dismiss for lack of jurisdiction and failure to exhaust state remedies is denied.

II. Merits

A. Due Process

Petitioner's contention that the state procedure offends due process proceeds from the premise that oral argument is a fundamental element of a criminal proceeding. See Londoner v. Denver, 210 U. S. 373, 386, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). He argues that permitting the state to both open and close the final argument gives the state a "substantial, valuable, and material advantage" at trial, which impinges upon the effective exercise of the defendant's right of oral argument. This advantage, affecting a fundamental element of the trial, is said to be so unfair as to offend traditional notions of fair play and due process.

It is important to note at the outset what is not involved in this case. This is not a case where the right to be heard has been denied altogether. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d 255 (1962). Petitioner's right to argue orally at trial by himself or through counsel, was neither denied nor curtailed. Cf. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). What is at issue then is not a wholesale denial of a fundamental element of a fair trial, but a state rule of criminal procedure which may have an impact on the effectiveness of the defendant's argument to the jury. See Spencer v. Texas, 385 U.S. 554, 563-564, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967).

Whether a state rule of criminal procedure is repugnant to the due process clause of the federal Constitution depends upon whether or not it may be said to offend "the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 (1958), quoted with approval in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). A particular procedure is required by due...