Davis v. O'CONNELL

• Decision Date: 14 December 1950
• Docket Number: No. 14190.,14190.
• Citation: 185 F.2d 513
• Parties: DAVIS v. O'CONNELL, Chief of Police et al.
• Court: U.S. Court of Appeals — Eighth Circuit

185 F.2d 513 (1950)

DAVIS v. O'CONNELL, Chief of Police et al.

No. 14190.

United States Court of Appeals, Eighth Circuit.

December 14, 1950.

Frank W. Clegg, St. Louis, Mo., for appellant.

John J. Kelly, Jr., Asst. Circuit Atty., for the City of St. Louis, Missouri, St. Louis, Mo. (James W. Griffin, Circuit Atty. for the City of St. Louis, Missouri, St. Louis, Mo., Eugene Cook, Atty. Gen. of the State of Georgia, and M. H. Blackshear, Jr., Deputy Asst. Atty. Gen. of the State of Georgia, on the brief), for appellees.

Before SANBORN, JOHNSEN and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order of the District Court discharging a writ of habeas corpus. The effect of the order was to remand the petitioner (appellant) to the custody of the Chief of Police of the City of St. Louis, Missouri, for rendition to an agent of the State of Georgia pursuant to an extradition warrant issued by the Governor of Missouri¹ under Section 3182, Title 18 U.S.C.A.²

In his petition for the writ, filed on April 12, 1950, the petitioner alleged: "that he is being illegally and unlawfully restrained of his liberty by the respondents in that he is a citizen of the United States and of African descent and color and is wanted in the State of Georgia for a crime that he did not commit; that he was denied of his rights by the State of Georgia, guaranteed by Article 1, section 1, paragraph 9 of the Constitution of the State of Georgia adopted in 1877 and re-adopted in 1945; that he was denied his Constitutional rights guaranteed by the Constitution of the United States, Amendments Six, Eight and 14; in that he was subjected to cruel and inhuman treatment by the State of Georgia, its agents and prison guards; that he was beaten, slugged and shot by the prison guards unmercifully; that he was made to work while sick, that after the killing of Eight Negroes by guards during the month of July, 1947, the inhuman treatment became a night and day program, that he was often told by the guards that he was going to kill him and did actually shoot him with a shotgun."

The petitioner also alleged: "that he was sentenced by the Court of the County of Fulton, State of Georgia for 68 years and placed on the chain gang at Adell, Georgia, that he served almost three years of said cruel and unusual sentence, that he was tried and sentenced by the Court in violation of the 6th Amendment of the Constitution of the United States; in that, he was refused witnesses in his behalf."

The petitioner further alleged that the State of Georgia has made requisition upon the Governor of the State of Missouri "for the arrest and deportation of your petitioner back to said cruel and inhuman treatment and that he would be in danger of losing his life"; that the Governor of Missouri honored the requisition on April 10, 1950, and that, unless a stay is granted by the court, the extradition warrant "that is void on its face, contrary to law and in violation of every provision of our Federal and State Constitution that protect life and liberty," will result in petitioner's delivery to the officers of the State of Georgia.

The District Court, on April 12, 1950, issued a writ of habeas corpus directed to the respondents, returnable at a later date. The return filed by the Chief of Police of St. Louis on April 18, 1950, asking for a dismissal of the writ, stated: "That the petitioner is in his the Chief of Police's custody and under his control, having been arrested on the 12th day of April, 1950, under the authority and by virtue of a Governor's warrant issued by Forrest Smith, Governor of the State of Missouri, on the 7th day of April, 1950." A copy of the warrant was attached to the return.

The petitioner on April 25, 1950, filed a motion to dismiss the return of the Chief of Police, and to declare the warrant issued by the Governor of Missouri void upon the following grounds:

"1. That the return is based upon a warrant issued by the Governor of the State of Missouri on the 17th day of April, 1950, which is bottomed upon a conviction of petitioner by the Fulton County, Georgia Court in violation of his rights guaranteed by the 6th Amendment of the Constitution of the United States.

"2. That said warrant is further void for the reason that he (the petitioner) was subjected to cruel, inhuman and unusual punishment while a prisoner serving the sentence illegally imposed by the Court of the County of Fulton, Georgia, in violation of his rights guaranteed by the 8th Amendment of the Constitution of the United States and Article 1 section 1, paragraph 9 of the Constitution of the State of Georgia, adopted in the year of 1877 and re-enacted in 1945.

"3. That the warrant is further void for the reason that the petitioner was denied equal protection of the law while a prisoner on the `Chain Gang System' of the State of Georgia as guaranteed to petitioner by the 14th Amendment of the Constitution of the United States."

The State of Georgia, on April 25, 1950, filed a motion for leave to intervene, stating its interest in the proceeding and that it desired to adopt as its response to the writ the return filed by the Chief of Police, and, in addition, to move the dismissal of the writ. Apparently leave to intervene was granted.

The State of Georgia filed a motion for a dismissal of the writ on the ground that the petitioner was seeking to attack collaterally a judgment of a court of that State, that he had not pursued or exhausted the remedies afforded by the laws of Georgia, and that the petition for the writ failed to state a claim upon which relief could be granted.

On May 25, 1950, the case came on for trial. The petitioner, the Chief of Police, and the State of Georgia were each represented by counsel. The only testimony taken was that of the petitioner tending to substantiate his charges that he was denied due process of law and subjected to cruel and unusual punishment by the State of Georgia.

On June 27, 1950, the District Court entered an order reading as follows:

"Applicant has failed to exhaust all the state remedies available before applying to this Court for a writ of habeas corpus.

"The appellate courts have repeatedly held that such remedies must be exhausted before applying to the Federal Courts. Ex parte Hawk, 321 U.S. 114 64 S.Ct. 448, 88 L.Ed. 572; Darr v. Burford, 329 339 U.S. 200 70 S.Ct. 587.

"An order is therefore entered sustaining respondents' motion to dismiss and discharging the writ of habeas corpus heretofore allowed and issued and dismissing the petition herein for want of jurisdiction, but not upon the merits."

This appeal challenges the validity of that order.

The order, in substance, conforms to the order which was entered by the Supreme Court of the United States reversing a decision of the Court of Appeals for the Third Circuit in Johnson v. Dye, 175 F.2d 250, a case which differed in no controlling respect from the instant case. In that case the Court of Appeals, sitting en banc, had, upon grounds similar to those urged here, directed the release of a petitioner, in a habeas corpus proceeding, who was held under an extradition warrant issued by the Governor of Pennsylvania upon a requisition from the Governor of Georgia. The Supreme Court, in 338 U.S. 864, 70 S.Ct. 146, disposed of the Johnson case by the following order:

"Dye, Warden, v. Johnson.

"On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit. Per Curiam: The petition for writ of certiorari is granted and the judgment is reversed. Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572."

The Supreme Court denied a petition for rehearing. 338 U.S. 896, 70 S.Ct. 238.

Since the case of Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, dealt with the necessity of the exhaustion by a state prisoner of his state remedies before applying to a federal court for habeas corpus, it is apparent that the Supreme Court was of the opinion that the petitioner in Johnson v. Dye, supra, was not entitled to a writ because he had not exhausted such remedies. One cannot be certain, however, whether the Supreme Court, in citing Ex parte Hawk as the basis for reversing Johnson v. Dye, meant that one detained under a state extradition warrant could not challenge the validity of his detention under the warrant without exhausting his remedies in the asylum State, or that ...