Allen v. Perini

Decision Date07 April 1970
Docket NumberNo. 19692.,19692.
Citation424 F.2d 134
PartiesTheodore R. ALLEN, Petitioner-Appellant, v. E. P. PERINI, Superintendent, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

COPYRIGHT MATERIAL OMITTED

Ronald P. Raitt, Toledo, Ohio, for petitioner-appellant.

Leo J. Conway, Columbus, Ohio, for respondent-appellee; Paul W. Brown, Atty. Gen., Stephen M. Miller, Asst. Atty. Gen., Columbus, Ohio, on the brief.

Before PHILLIPS, Chief Judge, and COMBS and BROOKS, Circuit Judges.

PHILLIPS, Chief Judge.

This is a habeas corpus case in which the petition was filed in the District Court on September 24, 1968. On that same day the District Judge entered a show cause order requiring the Superintendent of the Marion Correctional Institution, Marion, Ohio, to show cause on or before October 14, 1968, why the writ should not be issued. On October 11, 1968, an Assistant State Attorney General of Ohio addressed a request to the District Judge for an extension of time to file a return.

As a basis for the request for extension of time, it was pointed out that the Office of the Attorney General then had 137 habeas corpus cases pending in the United States District Court in the Southern District of Ohio; 52 in the United States District Court for the Northern District of Ohio; 36 in the Supreme Court of the United States; 14 in the United States Court of Appeals for the Sixth Circuit; and numerous cases pending in the State Courts of Ohio.

On October 18, 1968, the District Judge declined to grant any extension of time, holding in a published opinion that he has no authority to do so under 28 U.S.C. § 2243. Allen v. Perini, 291 F.Supp. 144 (N.D. Ohio). The return to the show cause order was filed on October 21, 1968, three days after the decision of the District Judge and seven days after the expiration of the time limit prescribed by the show cause order.

Thereafter, on February 20, 1969, court-appointed counsel moved for judgment on the pleadings or default judgment, on the ground of the tardiness of the office of the Attorney General in filing the return. In the alternative, counsel moved for an evidentiary hearing. On June 5, 1969, although accepting as true the allegations of the petition for habeas corpus, the District Judge on his own motion dismissed the petition for failure to exhaust State remedies.

This appeal presents difficult questions as to the effect of failure of State officials to file a timely return to the petition for writ of habeas corpus and show cause order. We deal with the following questions:

1. Is the prisoner entitled to a default judgment and release without an evidentiary hearing?

2. After default in the return, did the District Judge have the power to dismiss the petition sua sponte for failure to exhaust State remedies?

3. If so, has this prisoner exhausted all State remedies available to him in State courts under the holding of the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, and the decision of this Court in Coley v. Alvis, 381 F.2d 870 (6th Cir.)?

4. Did the District Court err in issuing a show cause order the same day the petition was filed, when the petition contained on its face all the information considered by the District Court in dismissing the petition sua sponte?

5. Was the prisoner entitled to a hearing on the revocation of his parole and refusal to grant parole?

1) No right to release from custody by default judgment

Petitioner-appellant Allen was indicted by the grand jury of Wayne County, Ohio, on a charge of second degree murder. On September 1, 1966, with the assistance of counsel, he entered a plea of guilty to manslaughter, a lesser included offense under § 2901.06, Ohio Revised Code. He received an indeterminate sentence of one to 20 years and presently is confined in the Marion Correctional Institution.

In his petition for writ of habeas corpus Allen avers that he was coerced into signing an incriminating statement during interrogation in the absence of counsel; that the incriminating statement was obtained "without having met the standards enunciated by the Supreme Court;" and that a threat was made if he did not enter a plea of guilty to manslaughter, his statement would be used against him at trial. Allen's pro se petition, when construed liberally, Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356, charges that he was interrogated without being informed of his constitutional right to counsel, and in the absence of counsel was coerced into signing an incriminating statement and into pleading guilty to manslaughter. While the petition does not contain the express words, in effect it charges ineffective assistance of counsel, resulting in an involuntary plea of guilty.

Allen contends that he is entitled to default judgment and immediate release because of the failure of State officials to make a timely return. We reject this contention. 28 U.S.C. § 2241 (c) (3) provides that the writ of habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2243 provides that "The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require." (Emphasis supplied.) In Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770, the Court said:

"State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." (Emphasis supplied.)

In Patterson v. State, 49 N.J.L. 326, 8 A. 305 (Sup.Ct.), aff'd, 50 N.J.L. 421, 14 A. 125 (Ct. Err. & App.), the Court of Errors and Appeals of New Jersey said:

"But the mere failure of such custodian to return a warrant, or the fact that his return is imperfect, does not operate to discharge the prisoner. The recognition of such a rule would place in the hands of negligent or corrupt jailors the power to empty a penitentiary." Id. at 307.

The burden to show that he is in custody in violation of the Constitution of the United States is on the prisoner. Jones v. Russell, 396 F.2d 797 (6th Cir.); Gray v. Johnson, 354 F.2d 986 (6th Cir.). The failure of State officials to file a timely return does not relieve the prisoner of his burden of proof. Default judgments in habeas corpus proceedings are not available as a procedure to empty State prisons without evidentiary hearings. We conclude that the failure of the Office of the Attorney General of Ohio to file a timely return does not afford a basis for instanter relief. Despite the delinquency of the State, the District Court was obligated to decide the case on its merits. McGuffey v. Turner, 267 F.Supp. 136 (D. Utah); cf. Taylor v. United States, 282 F.2d 16, 23-24 (8th Cir.). We conclude that in spite of the untimeliness of the State's return, the District Court would have no power to grant the writ of habeas corpus in the absence of an evidentiary hearing and unless and until the averments of the petition have been proved by competent evidence.

Allen relies upon Rule 55(a), Fed. R. Civ. P. in support of his claim for default judgment. Rule 81(a) (2), Fed. R. Civ. P. provides for only limited application of these rules to habeas corpus proceedings. We hold that Rule 55 (a) has no application in habeas corpus cases and that the return to a petition for habeas corpus is not an answer within the meaning of Rule 12.

2) Dismissal sua sponte

Allen further asserts that the failure of State officials to file a timely return precluded the District Court from dismissing the petition sua sponte for failure to exhaust State remedies. We also reject this contention.

28 U.S.C. § 2254(b), (c) provides:

"(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
"(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

If at any time during the course of a habeas corpus proceeding the District Court finds that the prisoner has not exhausted the remedies available to him in the courts of the State, the petition should be dismissed. We hold that the power of the District Court to dismiss on this ground is not affected by a delay on the part of State officers in filing the return to the petition.

3) Exhaustion of State remedies

Next we come to the question of whether the District Court was correct in holding that Allen has not exhausted remedies available to him in the Courts of Ohio.

It is axiomatic that a petition for writ of habeas corpus will not be granted unless State remedies have been exhausted, as provided by 28 U.S.C. § 2254(b) and (c) quoted above.

In Lucas v. People of the State of Michigan, 420 F.2d 259 (6th Cir., 1970), this Court said:

"However, the exhaustion requirement is not absolute. See Coleman v. Maxwell, 351 F.2d 285 (6th Cir.); Saulsbury v. Green, 347 F.2d 828 (6th Cir.), cert. denied, 382 U.S. 882, 86 S.Ct. 173, 15 L.Ed.2d 122. Where there are circumstances rendering the State corrective process ineffective to protect a prisoner\'s rights, habeas corpus relief may be granted without requiring a futile exhaustion of remedies. Duke v. Wingo, 386 F.2d 304 (6th Cir.). Such circumstances were found to exist where the state court had ruled contrary to the petitioner\'s contentions, when there was no indication that the court was
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