Council v. Clemmer, 9535.

• Decision Date: 29 December 1947
• Docket Number: No. 9535.,9535.
• Parties: COUNCIL v. CLEMMER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

83 US App. DC 42, 165 F.2d 249 (1947)

COUNCIL v. CLEMMER.

No. 9535.

United States Court of Appeals District of Columbia.

Argued October 8, 1947.

Decided December 29, 1947.

Mr. John J. Wilson, of Washington, D. C. (appointed by this court), for appellant.

Mr. Sidney S. Sachs, Asst. U. S. Atty., of Washington, D. C., with whom Mr. George Morris Fay, U. S. Atty., of Washington, D. C., was on the brief, for appellee.

Before EDGERTON, CLARK, and WILBUR K. MILLER, Associate Justices.

CLARK, Associate Justice.

This is an appeal from an order of the District Court of the United States for the District of Columbia dismissing appellant's petition for writ of habeas corpus.

Appellant was convicted on a charge of robbery in the lower court and was sentenced in June, 1946, to imprisonment for a term of eight months to three years. No appeal was taken from the judgment imposed. Subsequently, on March 24, 1947, appellant filed the instant petition for writ of habeas corpus, setting forth as grounds for the petition the following alleged defects in the proceedings leading to his imprisonment:

1. That he was given a preliminary hearing but was denied assistance of counsel, which he did not waive.

2. That he was arraigned and pleaded not guilty in the absence of his counsel, although he did not waive the right to counsel.

3. (a) That he did not commit the crime of which he was convicted (b) That he was not identified by the complainant and that the evidence was insufficient to convict him;

(c) That he is informed and believes that the complaining witness and a detective told certain jurors, while the case was being tried, that he had a record.

4. That although he did not take the stand because of previous record of imprisonment, the prosecuting attorney was permitted to tell the jury he had a prison record, and this statement to the jury escaped the attention of his counsel due to the latter's deafness.

5. That he relied on counsel's assurance an appeal would be prosecuted and did not learn of counsel's failure in this respect until the time for appeal had lapsed.

Leave to file the petition was granted, and the petition was then dismissed. Appellant was thereafter granted leave to prosecute this appeal in forma pauperis.

Under the circumstances of a case such as this we are always disposed to allow wide latitude in consideration of the matter presented for our attention. The petitioner (appellant) is an unschooled citizen protesting the validity of the proceedings which resulted in his imprisonment. In preparing his petition he was aided only by a "next friend" whom he has not identified and whose legal qualifications are unknown. Doubt naturally arises as to whether or not petitioner has stated all of the facts helpful to his case in a manner calculated to meet peculiar necessities of the law circumscribing habeas corpus.

Generally speaking, the function of the writ of habeas corpus, which is of ancient origin in the common law and is given high sanction by our Constitution, is to afford a petitioner therefor a speedy and effective method of securing release when illegally restrained of his liberty. When directed to an inquiry into the cause of imprisonment in judicial proceedings, the scope of review extends only to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. It is well established that petition for the writ may not be used as a substitute for an appeal or a writ of error. Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; McNamara v. Henkel, 226 U.S. 520, 33 S.Ct. 146, 57 L.Ed. 330; Kaizo v. Henry, 211 U.S. 146, 29 S.Ct. 41, 53 L.Ed. 125. However, the limitations upon the remedy afforded by habeas corpus should be flexible and readily available to prevent manifest injustice, for, as Mr. Justice Black has expressed it, the principles judicially established for the delimitation of habeas corpus action "must be construed and applied so as to preserve — not destroy — constitutional safeguards of human life and liberty." Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357.

This court appointed a distinguished member of the local Bar to present the case on behalf of appellant. His candid appraisal of the case and his learned discussion provided much beneficial assistance for the court. It was his frank opinion that the petition alone was not clearly sufficient to...