Darr v. Burford

• Decision Date: 31 January 1949
• Docket Number: No. 3722.,3722.
• Citation: 172 F.2d 668
• Parties: DARR v. BURFORD.
• Court: U.S. Court of Appeals — Tenth Circuit

172 F.2d 668 (1949)

DARR v. BURFORD.

No. 3722.

United States Court of Appeals Tenth Circuit.

January 31, 1949.

John J. Carney, of Oklahoma City, Okl., for appellant.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

This is a proceeding in habeas corpus instituted in the United States Court for Eastern Oklahoma by Pete Darr, hereinafter referred to as petitioner, against C. P. Burford, warden of the state penitentiary at McAlester, Oklahoma. The petition for the writ alleged in substance that two informations were filed in the District Court of Lincoln County, Oklahoma, each charging petitioner with the robbery of a bank; that at the time of the filing of the informations, petitioner was serving a term in the state penitentiary; that he did not have funds with which to employ counsel; that a day or two prior to the time the cases were set for trial, the court appointed an attorney to represent petitioner; that petitioner had no opportunity to consult with counsel; that an application was made in each case for a continuance in order to prepare for trial; that the applications were denied; that petitioner made application in each case to have two witnesses subpœnæd from another county; that the subpoenas failed to show that they were served or that any effort was made to serve them in such county; that petitioner was forced into trial of the cases unprepared; that he was found guilty in the first case; that while the jury was deliberating upon its verdict in the second case, he was induced through fear and by coercive methods of the prosecuting attorney to withdraw his plea of not guilty and enter a plea of guilty in that case; and that he was sentenced in each case to imprisonment for a period of forty years, the two sentences to run consecutively. The petition further alleged that the sentences were in violation of the rights of petitioner under the Fifth and Fourteenth Amendments to the Constitution of the United States, and in violation of the laws of Oklahoma; that lack of funds precluded him from perfecting appeals from the judgments and sentences; that he sought a writ of habeas corpus in the Criminal Court of Appeals of Oklahoma; that his petition was denied; and that he thus had exhausted his remedy and means for securing relief in the state courts. By response, the warden pleaded the detention of petitioner for service of the two sentences. Petitioner appeared in open court and testified in his own behalf. Entertaining the view that petitioner had failed to exhaust the remedies available to him, including appellate remedies in the state courts and in the Supreme Court of the United States by appeal or certiorari, the court dismissed the action and petitioner appealed.

Extending over a long period of years, it has been held repeatedly and with emphasis that while a federal court has power to entertain an application for habeas corpus by one detained under a judgment of conviction in a state court for crime alleged to have been obtained in violation of the rights of the accused under the Constitution of the United States, or to grant a writ of habeas corpus for the purpose of inquiring into other cause of restraint of liberty of a person in custody under authority of a state alleged to be in violation of his rights under the Constitution of the United States, only in rare cases where exceptional circumstances of peculiar urgency are shown to exist will the court entertain a proceeding of that kind unless and until all state remedies available to the petitioner have been exhausted, including the remedy of appeal in the state courts and the remedy in the Supreme Court of the United States by appeal, writ of error, or writ of certiorari. Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 18 S.Ct. 805, 43 L.Ed. 91; Reid v. Jones, 187 U.S. 153, 23 S.Ct. 89, 47 L.Ed. 116; Drury v. Lewis, 200 U.S. 1, 26 S.Ct. 229, 50 L.Ed. 343; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; Ex parte Spencer, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. The reason underlying the rule is obvious. It is an exceedingly sensitive and delicate jurisdiction vested in a federal court by which a person convicted in a state court or otherwise detained under authority of the state may be taken from the custody of the officers of the state and finally discharged.

Since the availability of the remedy in habeas corpus in a United States Court to inquire into the detention of one under sentence in a state court alleged to have been obtained in violation of the rights of the accused under the Constitution of the United States turns on the exhaustion of state corrective processes, where there is substantial doubt as to whether a corrective remedy exists under state processes, or where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions raised, either because the state affords no remedy for that purpose, or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, a United States Court should entertain the petition for habeas corpus and make disposition of it on its merits. Ex parte Hawk, supra; White v. Ragen, supra; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270.

The contention that the sentences imposed in the state court were in violation of the rights of petitioner under the Constitution of the United States was open for presentation on appeal to the Criminal Court of Appeals of Oklahoma, and in the event of an adverse outcome there, on presentation to the Supreme Court of the United States by certiorari. But that corrective process was not exhausted. No appeal was taken to the Criminal Court of Appeals, and no effort was made to present the matter to the Supreme Court of the United States on certiorari. Another remedy for the presentation of the contention was available to petitioner under corrective processes of the state. It could have been presented by an original proceeding in habeas corpus in the Criminal Court of Appeals. Ex parte Barnett, 67 Okl.Cr. 300, 94 P.2d 18; Ex parte Meadows, 70 Okl.Cr. 304, 106 P.2d 139; In re Stevens, 81 Okl.Cr. 65, 160 P.2d 415; Ex parte Snow, Okl.Cr.App., 183 P.2d 588; Ex parte Cook, Okl.Cr.App., 183 P.2d 595. And in the event of an adverse determination, the contention could have been presented to the Supreme Court of the United States on petition for certiorari. Realizing that the remedy of presenting the contention to the Criminal Court of Appeals in an original proceeding in habeas corpus was available, petitioner instituted a proceeding of that nature in which he challenged the validity of the sentences imposed upon him in the state court and sought discharge from further detention on substantially the same grounds that he urges here, with one exception to be noted later. The court entertained the proceeding on its merits but denied the writ. Ex parte Darr, Okl.Cr.App., 182 P.2d 523. And no petition for certiorari was presented to the Supreme Court of the United States.

The single exception to which reference has been made is that here the judgment and sentence in the second case in the state court is attacked on the ground that it is void for the reason that petitioner was induced through fear and by coercive methods of the prosecuting attorney to withdraw his plea of not guilty and enter a plea of guilty. The petition for the writ of habeas corpus which petitioner filed in the Criminal Court of Appeals of the state is not before us, but the opinion in the case, Ex parte Darr, supra, fails to indicate that there the judgment and sentence in the second case was attacked on that ground. If the question is presently open to judicial determination, the remedy of attacking the judgment and sentence on that ground is available to petitioner in an original proceeding in habeas corpus in the Criminal Court of Appeals of the State. Ex parte Barnett, supra; Ex parte, Meadow, supra; In re Stevens, supra; Ex parte, Snow, supra; Ex parte Darr, supra. But as we understand the record, petitioner is not presently serving the sentence in that case. He is now serving the sentence in the first case — in which that question is not present. And it is well settled that the validity of a judgment and sentence in a criminal case is not subject to attack in habeas corpus unless the petitioner is presently detained of his liberty under it. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; Kelly v. Aderhold, 10 Cir., 112 F.2d 118; Macomber v. Hudspeth, 10 Cir., 115 F.2d 114, certiorari denied, 313 U.S. 558, 61 S.Ct. 833, 85 L.Ed. 1519; McMahan v. Hunter, 10 Cir., 150 F.2d 498, certiorari denied, 326 U.S. 783, 66 S.Ct. 332, 90 L.Ed. 475.

The judgment is affirmed.

PHILLIPS, Chief Judge (dissenting).

The order discharging the writ was filed in the lower court on April 22, 1948. At that time, it was regarded as settled law that "Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in" the Supreme Court of the United States "by appeal or writ of certiorari, have been exhausted."¹ In other words, certiorari to the Supreme Court of the United States was regarded as a part of the state remedy for the purposes of the doctrine of exhaustion of state remedies.

As I construe the decision of the trial court, it refused to consider Darr's petition for the writ on the merits, and discharged the writ solely because Darr had not sought review of the decision of the state court in Ex parte Darr, Okl.Cr.App., 182 P.2d 523, by petition for a writ of certiorari.

The opinion in Wade v. Mayo, 334 U.S. 672...