Dye v. Sacks

• Citation: 279 F.2d 834
• Parties: Clarence DYE, Petitioner, v. Beryl C. SACKS, Warden, Ohio State Penitentiary, State of Ohio, et al., Respondents.
• Decision Date: 13 June 1960
• Court: U.S. Court of Appeals — Sixth Circuit

279 F.2d 834 (1960)

Clarence DYE, Petitioner, v. Beryl C. SACKS, Warden, Ohio State Penitentiary, State of Ohio, et al., Respondents.

Undocketed.

United States Court of Appeals Sixth Circuit.

June 13, 1960.

Clarence Dye, pro se.

WEICK, Circuit Judge.

The District Court denied the petition for writ of habeas corpus and petitioner's application for a certificate of probable cause. He desires to appeal to this Court.

He has applied to this Court or to a Judge thereof for a certificate of probable cause, the granting of which is a condition precedent to his right of appeal. Title 28 U.S.C. § 2253.

Petitioner was tried and convicted of the offense of armed robbery by a jury on April 25, 1956 in the Court of Common Pleas of Summit County, Ohio. He was sentenced to an indeterminate term of from 10 to 25 years in the Ohio State Penitentiary, where he is now confined.

His conviction was affirmed by the Court of Appeals for the Ninth Judicial District of Ohio on May 16, 1957. The Supreme Court of Ohio denied his motion for leave to appeal. It dismissed his appeal filed as of right on December 18, 1957 on the ground that no debatable constitutional question was involved. State of Ohio v. Dye, 167 Ohio St. 176, 146 N.E.2d 604. Certiorari was denied by the Supreme Court of the United States on October 13, 1958. Dye v. State of Ohio, 358 U.S. 45, 79 S.Ct. 37, 3 L.Ed. 2d 44.

In all of the state court proceedings Dye was represented by counsel of his own choosing. He represented himself in the Supreme Court of the United States.

Thereafter he filed a petition for a writ of habeas corpus in the court of Common Pleas of Franklin County which was denied. He filed another petition for a writ of habeas corpus in the Court of Appeals for the Tenth Judicial District of Ohio which was denied. He filed his third habeas corpus petition as an original action in the Supreme Court of Ohio which was denied on November 25, 1959. In re Dye, 170 Ohio St. 97, 162 N.E.2d 520. His fourth habeas corpus action was filed in the United States District Court for the Southern District of Ohio, Eastern Division, which was denied. He seeks to appeal to this Court from the order of the District Court denying the writ.

In this Court, he has tendered a brief containing 38 typewritten pages. He has also submitted a record which has attached to it, among other things, the briefs filed by him in the Supreme Court of Ohio in the original appeal from his conviction including a portion of the bill of exceptions and opinion of the Court of Appeals, a printed jurisdictional statement filed by him in the Supreme Court of the United States, the records and briefs filed in the habeas corpus case in the Supreme Court of Ohio, indictment and extradition papers, all of which constitutes a rather bulky document.

In his brief, petitioner complains of alleged errors which took place in his trial in the Common Pleas Court. He claims that the verdict of the jury was not supported by sufficient evidence; that the trial court erred in his admission of evidence; that the court erred in his instructions to the jury; that the prosecuting attorney was guilty of misconduct; that the court erred in permitting an amendment to the indictment and that his attorney should not have consented thereto; that R.C. of Ohio §§ 2941.28 and 2941.29 are unconstitutional in violation of Article 1, § 10 of the Constitution of Ohio and the Fifth and Tenth Amendments to the Constitution of the United States.

All of these points except possibly the questions concerning the amendment of the indictment and the constitutionality of the statutes were raised in the criminal trial in the state court and the subsequent appeals and decided adversely to petitioner. They all could have been presented there and no reason has been given why they were not.

The Court of Appeals for the Ninth Judicial District of Ohio analyzed the evidence in its opinion. Judge Hunsicker of that court pointed out that the offense was committed on July 29, 1946 and that Dye was not apprehended until August, 1955 when he was arrested in Milwaukee, Wisconsin. At that time he was using an assumed name and had dyed his hair.

At the time of the offense he was living in a two room apartment in his sister's home with a woman who used the name Mary Dye. Dye was a friend of Orris Gaines, a robber who was shot and killed in another robbery occurring on July 30, 1946. Gaines was identified as one of the two robbers who perpetrated the offense for which Dye was convicted.

Some of the coin wrapped money belonging to the victim and bearing its mark was found in Dye's apartment on July 31st on the second day the apartment was searched by the police. The police had been directed to the Dye apartment by the wife of Gaines. When the police first arrived at the Dye apartment on July 30th, Dye and the woman known as Mary Dye had left saying they were going to Kentucky. Dye went to Parkersburg, West Virginia, to New York, to Baltimore, and to several western states.

Dye testified about seeing a wounded man who was brought to his home in an automobile in the early morning of July 30, 1946, who, Dye said, could have been Gaines. He saw some money fall from the automobile when he opened the...