Ex parte Lamar

• Decision Date: 02 April 1921
• Citation: 274 F. 160
• Parties: Ex parte LAMarch
• Court: U.S. Court of Appeals — Second Circuit

274 F. 160

Ex parte LAMarch

United States Court of Appeals, Second Circuit.

April 2, 1921

Stephen C. Baldwin, of Brooklyn, N.Y., and Elijah N. Zoline, of New York City, for petitioner.

Francis G. Caffey, U.S. Atty., of New York City (George W. Taylor Asst. U.S. Atty., of New York City, of counsel), opposed.

Before MANTON, Circuit Judge.

MANTON Circuit Judge.

The petitioner sues out this writ of habeas corpus, declaring that he is illegally restrained of his liberty. Heretofore and on the 3d of December, 1914, he was tried and convicted of the charge of impersonating a federal officer, an offense under the Criminal Code of the United States (Comp. St. Sec. 10165 et seq.), before Hon. C. W. Sessions, District Judge, and sentenced to two years' imprisonment at the United States penitentiary at Atlanta, Ga. He appealed to the Circuit Court of Appeals, and later to the Supreme Court. Ultimately this conviction was affirmed (240 U.S. 60, 36 Sup.Ct. 255, 60 L.Ed. 526), and the petitioner began the service of the sentence so imposed on December 3, 1914, at the United States penitentiary at Atlanta. While released on bail, and pending his appeal from this conviction, he committed another breach of a section of the United States Criminal Code (Act July 2 1890 (Comp. St. Sec. 8820 et seq.)), to wit, conspiracy in restraint of foreign commerce. He was tried on this charge and convicted, together with two others, Franz Von Rintelen and Henry B. Martin, and on the 21st of May, 1917, he was sentenced to one year on this charge. He appealed from this conviction to the Circuit Court of Appeals of the Second Circuit, where his conviction was affirmed. 260 F. 561, 171 C.C.A. 345. Later he applied for a writ of certiorari to the Supreme Court, and this was denied. 250 U.S. 673, 40 Sup.Ct. 16, 63 L.Ed. 1200. When his trial upon the conspiracy charge was noticed, he was actually serving the prison term for his first offense, that is, the conviction for impersonating a federal officer. The claim now is:

First. That his constitutional rights have been violated in (a) that he was taken from the penitentiary at Atlanta, Ga., without removal proceedings and against his protest, and placed on trial in New York in violation of his constitutional rights to due process of law; that he could not in any event be placed on trial while undergoing sentence on a previous conviction; (b) that the Circuit Court of Appeals denied the right of assistance of counsel as guaranteed to him by the Sixth Amendment of the Constitution of the United States.

Second. That the provision of the Sherman Act as to foreign commerce, which applied to the facts which were proven against the petitioner and which has been held to amount to a crime, was repealed, and that, although indicted by the grand jury for this offense before the repeal of this provision of the Sherman Act, the right to prosecute was impliedly ended.

Third. That the sentence which was imposed on this conviction of conspiracy ran concurrently with the sentence which the petitioner served for the crime of impersonating a federal officer, and that therefore the petitioner has satisfied the requirements of this later sentence by serving his time when he returned to the Atlanta prison after the trial on the conspiracy charge, when he served approximately one and a half years, the balance of his two-year term.

Fourth. That the commitment issued by the clerk is void.

The power of a circuit judge to issue a writ of habeas corpus, sitting as a judge and not as a court, is involved, and I shall preliminarily dispose of that question before considering the other points. The statute (Act Aug. 29, 1842, c. 257, 5 Stat. 539 (Comp. St. Sec. 1279 et seq.)) provides that the Supreme, Circuit, and District Courts have power to issue writs of habeas corpus. The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. By Act March 3, 1911 (36 Stat. 1167, c. 231, Sec. 289 (Comp. St. Sec. 1266)), the Circuit Courts were abolished and their functions were transferred to the District Courts.

In Whitney v. Dick, 202 U.S. 132, 26 Sup.Ct. 584, 50 L.Ed. 963, it was held that the Circuit Court of Appeals is a court created by statute, and is not endowed with original jurisdiction, and since there is no language in the statute which can be construed into a grant of power to issue a writ of habeas corpus, unless it is one in aid of the jurisdiction already existing, the court is not authorized to issue original or independent writs of habeas corpus. The court said:

'The writ of habeas corpus is not the equivalent of an appeal or writ of error. It is not a proceeding to correct errors which may have occurred in the trial of the case below. It is an attack directly upon the validity of the judgment, and, as has been frequently said, it cannot be transformed into a writ of error. It is doubtless true that if the language of the Court of Appeals Act was fairly susceptible of two constructions, one granting and the other omitting to grant power to issue a writ of habeas corpus, the great importance of the writ might justify a construction upholding the grant. * * * But in the Court of Appeals Act there is no mention of habeas corpus, no language which can be tortured into a grant of power to issue the writ, except in cases where it may be necessary for the exercise of a jurisdiction already existing.'

But the application for the writ is made here to a Circuit Judge of the Circuit Court of Appeals, and not to the court. The petition upon which the same is based advances the claim that the petitioner is restrained of his liberty, and that his constitutional rights have been violated. The power is given to the justices and judges of the courts, within their respective jurisdictions, to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. And the application for a writ of habeas corpus under Act Feb. 5, 1867, c. 28, Sec. 1; Revised Stat. Sec. 754 (Comp. St. Sec. 1282)), 'shall be made to the court or justice or judge authorized to issue the same by complaint in writing,' etc. And by the same act (Rev. Stat. Sec. 755 (Comp. St. Sec. 1283)) it is provided that a judge to whom such application is made shall forthwith award a writ of habeas corpus unless it appears from the petition itself that the party is not entitled thereto. While the Circuit Courts have been abolished, there is still the office of circuit judge as created by the statute. While a circuit judge may not issue a writ of habeas corpus as one of the members constituting the Circuit Court of Appeals, there is still the authority vested in him as a circuit judge to do so, and there is a mandatory provision of the statute requiring him to issue a writ of habeas corpus if the petition be sufficient.

It will be observed that section 716 of the Revised Statutes of the United States (Comp. St. Sec. 1239) provides that they (the courts) shall have power to issue all writs not specifically provided for by statute which may be necessary for the exercise of their respective jurisdictions and 'agreeable to the usages and principles of law. ' This statute authorizing writs of habeas corpus was passed by the first Congress of the United States, sitting under a constitution which had declared that-- 'The privilege of the writ of habeas corpus should not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. ' Const. art. 1, Sec. 9, cl. 2.

The inference of this injunction of the Constitution has, with peculiar force, impressed upon me the obligation of providing efficient means by which this great constitutional privilege should receive life and activity, for if the means be not in existence the privilege itself will be lost. For this obligation the Congress gave and has continued to give since, in each subsequent enactment, the courts the power of awarding writs of habeas corpus.

The right to grant this important writ is given to every judge of the District Court. It has been held that the power vests in a Justice of the Supreme Court. Ex parte Bollman, 8 U.S. (4 Cranch) 95, 2 L.Ed. 554. When the Circuit Courts were abolished, the statute providing for the right of a judge to grant the writ of habeas corpus was not repealed or amended, thus taking away the power from a circuit judge. Circuit judges have become appellate judges, and while they have no original jurisdiction as a court, they have reserved to them the right thus vested by the statute and by the ancient law. I therefore conclude that I have the power to grant the writ of habeas corpus.

The proof shows that Lamar was removed, while a prisoner serving a term under the first sentence, from the United States penitentiary at Atlanta to the Southern District of New York by the medium of a telegram which was sent by the Attorney General, directing the warden of the prison to produce him in New York City. It is by stipulation proved that on the 25th of March, 1917, a printed notice of trial, entitled United States v. Rintelen, Lamar and Martin and others, was served upon the petitioner; that Lamar at once consulted his attorneys at Atlanta and conferred with them about his case. On their advice, an application was prepared for the purpose of obtaining a continuance of Lamar's trial until his term of imprisonment had expired, and the affidavit in support of this application was prepared and signed by the petitioner. The petitioner was informed that his application and the affidavit in support thereof were duly presented to Judge Cushman, who presided at the conspiracy trial on the 10th of April,...