Application of Ortega, 57 C 1433.
| Decision Date | 12 November 1957 |
| Docket Number | No. 57 C 1433.,57 C 1433. |
| Citation | 158 F. Supp. 946 |
| Parties | Application of Joseph ORTEGA, a Fraudulently Imprisoned Man, for a Writ of Habeas Corpus. |
| Court | U.S. District Court — Northern District of Illinois |
Joseph Ortega, pro se.
Joseph Ortega has filed his petition for a writ of habeas corpus, on leave of court, in forma pauperis. His motions for the appointment of counsel and for a "hearing forthwith" on his application are denied. It is clear from the relator's petition, which consists of forty-two typewritten pages, as well as from other legal documents filed in his behalf that he has had the benefit of very resourceful counsel retained by him. Since his case has been previously considered by Judge John P. Barnes of this court (56 C 1880), in which cause the petition was dismissed, and because from the face of the instant petition the relator is not deemed to be entitled to the relief which he seeks, a hearing is also denied.
On July 24, 1950, Joseph Ortega was convicted in the Criminal Court of Cook County of the crime of robbery, and was confined to the Illinois State Penitentiary at Joliet. He now petitions for a writ of habeas corpus on the ground that his constitutional rights were violated in the course of both his trial and his appeal from the conviction.
Under the provisions of 28 U.S.C. § 2243, a court entertaining an application for a writ of habeas corpus must grant the writ or order the respondent to show cause why the writ should not issue "unless it appears from the application that the applicant or person detained is not entitled thereto." Assuming that the allegations of the petition are true, it is evident from the face of the petition that the relator is not entitled to the relief sought, for the reason that he has failed to exhaust available state remedies.
The petitioner seeks to demonstrate that he has exhausted his state remedies by listing a number of proceedings initiated by him in both the state and federal courts. It is not necessary, for purposes of this memorandum, to enumerate the remedies sought; it is sufficient to note that in 1953 the relator filed a petition in the Criminal Court of Cook County for a Post Conviction hearing as afforded by chapter 38, section 826 of the Illinois Revised Statutes of 1955, after he had unsuccessfully appealed his conviction to the Illinois Supreme Court and certiorari was denied by the United States Supreme Court. See People v. Ortega, 1955, 5 Ill.2d 79, 125 N.E.2d 481; Ortega v. State of Illinois, 1955, 349 U.S. 967, 75 S.Ct. 902, 99 L.Ed. 1288. In the Post Conviction proceedings, the Illinois Supreme Court, on March 22, 1956 (as stated in the petition), reversed and remanded the cause to the trial court with directions that a hearing be held on the allegations of the petitioner that his conviction was procured by perjured testimony. The trial judge ruled against the petitioner after a hearing on this question. No appeal from this ruling was taken.
The petitioner seeks to justify his failure to appeal on the ground that the trial judge, as well as the Illinois Supreme Court in a mandamus proceeding, refused to grant the petitioner a transcript which would include certain designated documents. The petitioner alleges that he could not make an appeal without these documents, and that since the time for appeal has lapsed, his state remedies have been exhausted.
The reasons stated in the petition for failing to perfect an appeal from the hearing on the question of the use of perjured testimony are insufficient to justify the relator's omission to appeal. The documents which were denied to the petitioner do not concern the question for which...
To continue reading
Request your trial
-
Beaver v. Hamby
...the application that the constitutional questions therein raised have been ruled upon by the state courts. * * *" Application of Ortega, 158 F.Supp. 946, 9484 (D.C.Ill.1957), cert. den. sub nom. Ortega v. Ragen, Etc., 359 U.S. 928, 79 S.Ct. 612, 3 L.Ed.2d 630 (1959). No such showing is appa......
-
Harvey v. State of South Carolina, Civ.A.No. 70-90
...States ex rel. Stevens v. Ragen (7th Cir. 1957) 244 F.2d 420, cert. den. 355 U.S. 846, 78 S.Ct. 71, 2 L.Ed.2d 55; Applications of Ortega (D.C.Ill.1957), 158 F.Supp. 946; United States ex rel. v. De Frates v. Ragen (7th Cir. 1950) 181 F.2d 1001. See also Plater v. Warden, Md. House of Correc......
-
Horne v. Wilson
...that the constitutional questions he now presents have been ruled upon by the courts of Tennessee. See Application of Ortega, D.C.Ill. (1957), 158 F. Supp. 946, 9484, certiorari denied sub nom. Ortega v. Ragen, etc. (1959), 359 U.S. 928, 79 S.Ct. 612, 3 L.Ed.2d 630. (In addition the petitio......
-
Lawson v. Neil, Civ. A. No. 2415.
...D.C.Tenn. (1969), (unpublished) memorandum and order in civil action no. 2243, this district and division, citing Application of Ortega, D. C.Ill. (1957), 158 F.Supp. 946, 948 4, certiorari denied sub nom. Ortega v. Ragen, etc. (1959), 359 U.S. 928, 79 S.Ct. 612, 3 L.Ed.2d 630. It does not ......