Barber v. Gladden

• Decision Date: 03 December 1958
• Citation: 215 Or. 129,332 P.2d 641
• Parties: George R. BARBER, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.
• Court: Oregon Supreme Court

Page 641

332 P.2d 641

215 Or. 129

George R. BARBER, Appellant, v. Clarence T. GLADDEN, Warden of the Oregon State Penitentiary, Respondent.

Supreme Court of Oregon, In Banc.

Submitted on Briefs Sept. 17, 1958.

Decided Dec. 3, 1958.

George R. Barber, in pro. per.

Robert Y. Thornton, Atty. Gen., for Oregon, and Peter S. Herman, Asst. Atty. Gen., for respondent.

O'CONNELL, Justice.

This is a habeas corpus proceeding initiated by George R. Barber on November 5, 1957 against Clarence T. Gladden, Warden of the Oregon State Penitentiary. The plaintiff appeals from an order of the Circuit Court for Marion County dismissing the action. The plaintiff was sentenced on November 20, 1953 for a term of 25 years in the State Penitentiary after a plea of guilty to a charge of burglary with explosives, in violation of ORS 164.260. He was represented by counsel at that time. No appeal was taken from the judgment of conviction. On December 1955 the plaintiff commenced a habeas corpus proceeding in which he attacked the conviction on five grounds. He appealed from an order dismissing his action in that case. The order of dismissal was affirmed in Barber v. Gladden, 1957, 210 Or. 46, 298 P.2d 986, 309 P.2d 192.

In the action which is now before us the plaintiff contends that his imprisonment was invalid on five grounds enumerated in his replication in the following order:

(1) The committing magistrate acted without legal authority for the reason that ORS 51.220 is void. This section provides as follows:

'A justice of the peace in a justice district abolished by ORS 51.030 shall be the judge of the district court created by ORS 46.020 or 46.025 during the remainder of his elective term, or until his successor is elected and qualified.'

The plaintiff argues that ORS 51.220 violates the Oregon Constitution in that it is 'an unlawful and unauthorized delegation of Legislative power' for the reason that it purports to create a district judgeship without election or appointment. He contends that since the section is void he was not legally committed by a magistrate and that therefore his conviction was void. He also contends that as a result of this alleged illegal procedure he was denied due process of law and equal protection of the laws under the Constitution of the United States.

(2) Oregon Laws 1949, Chapter 258 (which was applicable at the time plaintiff was prosecuted) was unconstitutional because the statute required the county court to prepare a jury list of 'qualified jurors in the county, as far as it may be able to ascertain the same from the latest tax roll and/or registration books of the county' and that this permitted 'the systematic and intentional exclusion of a class of persons' by the county officials. He also charges that the method actually used in selecting the jurors who sat on the grand jury in his case was illegal and therefore he was deprived of his constitutional rights.

(3) The indictment under which he was convicted was fatally defective because it failed to allege the ownership of the building in which the crime was committed.

(4) The plaintiff's plea of guilty was the result of coercion and duress.

(5) The plaintiff was prejudiced by the trial court's action 'in sentencing plaintiff on the basis of his [the judge's] recital that safecrackers once shot at his father.'

The defendant demurred to allegations (1), (2), (3), and (5) contained in the plaintiff's replication on the ground that these allegations failed to set forth facts or grounds sufficient to entitle plaintiff to relief. The demurrer was sustained. Thereafter the defendant filed its answer to the remaining allegation, and after a hearing was held the court found that the plea of guilty was voluntarily made by the plaintiff. The court then entered an order dismissing the proceedings.

This is the second habeas corpus proceeding brought by the plaintiff to test the validity of his incarceration resulting from the judgment of conviction on November 20, 1953. There is nothing in the record to show that the issues presented on this appeal could not have been presented in the first habeas corpus proceeding brought by the plaintiff in December 1955. In fact some of the grounds urged as a basis for the writ in the present case are essentially the same as those presented in the first petition. See Barber v. Gladden, supra.

ORS 34.710 provides, in part, as follows:

'* * * No question once finally determined upon a proceeding by habeas corpus shall be reexamined upon another proceeding of the same kind.'

This statute is a legislative declaration that the principle of res judicata is applicable to habeas corpus proceedings. That principle precludes the relitigation not only of matters actually determined in a prior proceeding but also matters which could properly have been determined in such earlier proceeding. Kelley v. Mallory, 1954, 202 Or. 690, 277 P.2d 767; Yuen Suey v. Fleshman, 1913, 65 Or. 606, 133 P. 803. Frequently res judicata is defined simply in terms of matters previously litigated as distinct from matters which could have been but were not litigated in the prior proceeding. See, for example, Black's Law Dictionary, page 1470. However, this manner of stating the principle is not regarded as a limitation upon the principle so as to exclude its operation in those situations in which the question was not raised in the prior proceeding but could have been raised and determined. And so also where a statute speaks only in terms of questions actually determined it may be construed more broadly to cover the principle of res judicata in its broader meaning. The Florida statute, F.S.A. § 79.10 which is similar to ORS 34.710 was so construed. Referring to the Florida statute, the court in Durley v. Mayo, 351 U.S. 277, 283, 76 S.Ct. 806, 810, 100 L.Ed. 1178, said:

'In its more recent cases, the Supreme Court of Florida has held that, on an original application for habeas corpus, the petitioner may not raise issues that have been raised in prior proceedings whatever those may have been. Also, that unless he can show good reason for his failure to do so, he is precluded from raising issues which he could have raised in any such prior proceedings. Washington v. Mayo, Fla., 77 So.2d 620; Irvin v. Chapman, Fla., 75 So.2d 591; State ex rel. Johnson v. Mayo, Fla., 69 So.2d 307. * * *'

We interpret our own statute, ORS 34.710, to mean that a denial of the writ of habeas corpus is res judicata on a subsequent application for the writ, not only upon grounds which were alleged, but also upon grounds which could have been alleged in the prior habeas corpus proceeding.

At common law the principle of res judicata had no application to habeas corpus proceedings, and the decision on one writ was not a bar to a subsequent proceeding. Ferris, Extraordinary Legal Remedies, Section 55; Huffman v. Alexander, 197 Or. 283, 330, 251 P.2d 87, 253 P.2d 289. The explanation for the rule at common law is well stated in Salinger v. Loisel, 1924, 265 U.S. 224, 230, 44 S.Ct. 519, 521, 68 L.Ed. 989, as follows:

'* * * In early times, when a refusal to discharge was not open to appellate review, courts and judges were accustomed to exercise an independent judgment on each successive application, regardless of the number. But when a right to an appellate review was given, the reason for that practice ceased, and the practice came to be materially changed--just as, when a right to a comprehensive review in criminal cases was given the scope of inquiry deemed admissible on habeas corpus came to be relatively narrowed.'

Probably no court today would accept the common-law rule in its pristine form. Cf. Ex parte Reinhardt, 1930, 88 Mont. 282, 292 P. 582. However, the extent to which the courts have qualified the common-law rule differs in the various jurisdictions. Since the expansion of the writ of habeas corpus resulting from the decision in Johnson v. Zerbst, 1937, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, both the courts and legislatures have sought measures to deal more effectively with the increasing number of petitions for the writ. There has been a noticeable tendency to adopt more stringent rules with respect to the filing of successive applications for the writ. Even prior to the expansion of the writ alluded to above, departures were made from the common-law rule excepting habeas corpus proceedings from the principle of res judicata. Thus in Salinger v. Loisel, supra, after noting the common-law rule, the court said:

'But it does not follow that a refusal to discharge on one application is without bearing and weight when a later application is being considered. * * *

'* * * each application is to be disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought. Among the matters which may be considered, and even given controlling weight, are * * * (b) a prior refusal to discharge on a like application. * * *' 265 U.S. 224 at page 230, 44 S.Ct. 519, at page 521.

A similar position has been taken by a number of state courts. See, e. g., Nicolay v. Kill, 1946, 161 Kan. 667, 170 P.2d 823; State ex rel. Fisher v. Warden of Maryland Penitentiary, 1950, 195 Md. 705, 71 A.2d 871; LaBelle v. Hancock, 1954, 99 N.H. 254, 108 A.2d 545; State v. Ingenito, 1954, 16 N.J. 36, 106 A.2d 3. Some states have applied the rule that only issues actually determined in the prior proceeding are barred thereafter. People ex rel. Gusick v. Eyman, 1956, 81 Ariz. 206, 303 P.2d 531, certiorari denied Gusick v. State of Arizona, 1957, 353 U.S. 913, 77 S.Ct. 670, 1 L.Ed.2d 666; State ex rel. Guy v. Foster, 1930, 160 Tenn. 285, 23 S.W.2d 660, 24 S.W.2d 897; People ex rel. Bravata v. Morhous, 1948, 273 App.Div. 929, 77 N.Y.S.2d 451; State ex rel. Du Fault v. Utecht, 1945, 220 Minn. 431, 19 N.W.2d 706, 161 A.L.R. 1316.

In still other states the principle of res...