457 F.2d 34 (6th Cir. 1972), 71-1792, Armstrong v. Cardwell

• Docket Nº: 71-1792.
• Citation: 457 F.2d 34
• Party Name: Richard C. ARMSTRONG, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Ohio State Penitentiary, Respondent-Appellee.
• Case Date: March 20, 1972
• Court: United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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457 F.2d 34 (6th Cir. 1972)

Richard C. ARMSTRONG, Petitioner-Appellant,

v.

Harold J. CARDWELL, Warden, Ohio State Penitentiary, Respondent-Appellee.

No. 71-1792.

United States Court of Appeals, Sixth Circuit.

March 20, 1972

Page 35

Richard C. Armstrong, pro se.

William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee on brief.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

Petitioner appeals from denial of a writ of habeas corpus by the United States District Court for the Southern District of Ohio.

Petitioner is currently serving consecutive sentences in the Ohio Penitentiary for armed robbery and prison riot. In two separate petitions, consolidated by the District Court, Armstrong raises four claims which he asserts entitle him to relief. He alleges that: (1) from 1964-1970 prison officials physically destroyed or mutilated his petitions seeking habeas corpus relief on the robbery conviction, and placed him in solitary confinement when he persisted in efforts to file such petitions, thus denying him access to the courts; (2) he was prevented from presenting his self-defense claim to the jury in connection with the riot charges; (3) the Ohio prison riot statute under which he was convicted, § 2921.18 Ohio Revised Code and a related procedural statute, § 2941.40 are unconstitutional because they classify persons in an arbitrary manner in violation of the equal protection clause of the Fourteenth Amendment to the Constitution; (4) Petitioner was denied the right to obtain testimony from witnesses in his behalf at his riot trial.

We believe that the decision of the District Court denying the petitions should be affirmed. We feel it necessary to comment, however, on one statement made in the Court's opinion, which we believe might otherwise prove misleading.

In treating the first ground for relief the District Court suggested that a claim based upon prison treatment is never cognizable in habeas corpus. This is not a correct statement of the law.

A prisoner is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits. Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir., 1944).

The precise limits of habeas corpus review in the area are unclear. It can be said with certitude, however, that some claims relating to prison rules and discipline are cognizable in habeas corpus. ¹ Thus the Supreme Court has

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approved of the issuance of the writ in a situation where prison rules effectively limited access of illiterate inmates to the courts by forbidding their fellow prisoners from serving as jail house lawyers. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Cf. Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941).

Even those circuits which have disapproved of the broad rule set out in Coffin, supra, have acknowledged that habeas lies in "exceptional circumstances"-as when the petitioner's claims suggest that he has been victim of cruel and unusual punishment. See Cates v. Ciccone, 422 F.2d 926, 927 (8th Cir. 1970), cf. Harris v. Settle, 322 F.2d 908, 910 (8th Cir., 1963), cert. den. 377 U.S. 910, 84...