Dooly v. Mahoney
| Decision Date | 22 January 1942 |
| Docket Number | No. 57.,57. |
| Citation | 42 F. Supp. 890 |
| Court | U.S. District Court — District of Washington |
| Parties | DOOLY v. MAHONEY, Superintendent of Washington State Penitentiary. |
Albert N. Bradford, of Walla Walla, Wash., for petitioner.
Smith Troy, Atty. Gen. of Washington, and Shirley Marsh and Hugh A. Dressel, Asst. Attys. Gen. of Washington, for P. E. Mahoney, Acting Superintendent of Washington State Penitentiary, Walla Walla, Wash.
The judgment and sentence under which petitioner is confined in the State Penitentiary recites that on May 16, 1940, petitioner, having entered a plea of guilty of the crime of "petit larceny by check", was sentenced to the State Penitentiary for a period of not more than twenty years. The State Statute, Rem.Rev.Stats. of Wash. Sec. 2267, provides that any person convicted of a crime of the degree of petit larceny by check shall be punished by imprisonment in the county jail for not more than one year or by a fine of not more than one thousand dollars or by both. Petitioner having served more than one year in the State Penitentiary filed his petition for a writ of habeas corpus. Thereafter, an order to show cause was issued directed to respondent to show cause why such a writ should not be granted. On the return day on the order, respondent appeared with counsel and presented oral argument against the granting of the petition. No evidence was offered by the respondent to contradict the allegations of the petition. There is no dispute but that the judgment and sentence was as I have heretofore recited.
It cannot be doubted that excess of the sentence beyond the jurisdiction of the court which renders it is void as a judgment and the prisoner being held for such excess sentence is entitled to his release by writ of habeas corpus. Ex parte Lange, 18 Wall. 163, 21 L.Ed. 872; Munson v. McClaughry, 8 Cir., 198 F. 72, 42 L.R.A., N.S., 302. This is so even if the court had ample jurisdiction of the subject matter of the case and of the parties. Stoneberg v. Morgan, 8 Cir., 246 F. 98; Caballero v. Hudspeth, D.C., 36 F.Supp. 905.
In his brief, respondent recites as facts that after petitioner had pleaded guilty to the crime of petit larceny by check an information was filed against him under the State Habitual Criminal Statute, Rem.Rev. Stats. of Wash., Sec. 2286, par. 1. It is further stated in the brief that petitioner pleaded guilty to that information and that thereupon the twenty year sentence on the petit larceny charge was imposed. Petitioner, in his reply brief, denies these statements in respondent's brief. On this state of the record, the question as to what disposition should be made of the petition is left to the Court.
In a recent case, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L. Ed. 1461, the Supreme Court of the United States held that a court of the United States might inquire into the truth and substance of the causes of the detention of a prisoner held by the State even though it may become necessary to look behind and beyond the record of his conviction. In that case, the search behind and beyond the record was made at the behest of the prisoner. Whether such a search may be made at the behest of the State, it is not necessary to determine here. The Supreme Court of the State of Washington has repeatedly asserted that it does not lie within the power of a court to judicially notice the records of another court unless such records are pleaded and proved. Large v. Shively, 186 Wash. 490, 498, 58 P.2d 808; Lownsdale v. Grays Harbor Boom Co., 54 Wash. 542, 103 P. 833; Merrick v. Neely, 143 Wash. 588, 255 P. 936. The only record before this court which has been pleaded and proved is the judgment and sentence heretofore referred to which is void upon its face.
Respondent contends that this court is without jurisdiction because petitioner failed to appeal from the judgment and sentence. He relies upon Seattle Electric Co. v. Seattle R. & S. Ry. Co., 9 Cir., 185 F. 365. That was a civil case in which an attempt was made to confer jurisdiction in an action not involving diversity of citizenship on the ground that the cause of action was based upon a claimed violation of the Federal Constitution. All the court there held was that, since the State Constitution had a provision identical with the provision of the Federal Constitution upon which reliance was placed, the action should have been commenced in the state courts subject to the right of protection under the Federal Constitution by an appeal from the State Supreme Court to the United States Supreme Court. None of the cases holding necessary an exhaustion of remedies by a state prisoner in the state courts is bottomed on jurisdictional grounds. The philosophy behind them is, as stated by the Supreme Court of the United States in Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 460, 51 L.Ed. 760: "It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court, and subject to its laws, may, by the...
To continue reading
Request your trial
-
United States v. Walsh, 9635.
...given ample opportunity to deal with the question before the Federal court attempts to exercise its jurisdictional power." Dooly v. Mahoney, D. C., 42 F.Supp. 890, 892. In the Hawk case the Supreme Court recognized that the federal courts may, in "exceptional" cases entertain a habeas corpu......
-
Wilson v. Johnston, 23665-S.
...Price v. Zerbst, supra; Anderson v. Denver, 8 Cir., 265 F. 3; Lee Lim v. Davis, 75 Utah 245, 284 P. 323, 76 A.L.R. 460, 497; Dooly v. Mahoney, D.C., 42 F.Supp. 890. And in conformity with the rule laid down in Re Bonner, Petitioner, 151 U.S. 242, 261, 14 S.Ct. 323, 38 L.Ed. 149, petitioner ......
-
Horner v. Webb, 29092.
... ... Wn.2d 54] The respondent relies upon the cases of In re ... Voight [Voigt], 130 Wash. 140, 226 P. 482, and Voigt ... v. Mahoney, 10 Wash.2d 157, 116 P.2d 300, 303, among ... others, and especially upon the second Voigt case, decided in ... 1941. No copy of the ... circumstances, in the federal courts. McCoy v. McCauley, ... D.C., 20 F.Supp. 200; Dooly v. Mahoney, D.C., ... 42 F.Supp. 890. In considering the case of In re ... Cress, 13 Wash.2d 7, 123 P.2d 767, we found it possible ... ...
-
Ex parte Cress, 28602.
...Judge Schwellenbach, successor to Judge Webster on the Federal bench of the Eastern District of Washington, in the case of Dooly v. Mahoney, 42 F.Supp. 890, recently held, a habeas corpus matter, that the judgment under which the prisoner was held in the Washington state penitentiary 'was v......