Ex parte Lee, 454.

• Decision Date: 30 July 1954
• Docket Number: No. 454.,454.
• Citation: 123 F. Supp. 439
• Parties: Ex parte LEE.
• Court: U.S. District Court — District of Rhode Island

123 F. Supp. 439

Ex parte LEE.

No. 454.

United States District Court, D. Rhode Island.

July 30, 1954.

John H. Lee, pro se.

Aram A. Arabian, Providence, R. I., amicus curiae, for petitioner.

William E. Powers, Atty. Gen., Alfred E. Motta, Special Counsel, Providence, R. I., for respondent.

DAY, District Judge.

This is an application for a writ of habeas corpus by one John H. Lee who is serving a sentence in the Rhode Island State Prison pursuant to the judgment of the Superior Court of the State of Rhode Island following his conviction by a jury on a charge of committing a criminal abortion.

Although the application is not in artistic form, having been prepared by the petitioner without the aid of legal counsel, this Court has not concerned itself with any technical insufficiencies appearing therein and is fully cognizant of the grounds upon which the petitioner relies as a basis of his claim that his restraint is illegal.

In substance he alleges that his sentence and confinement are illegal because following the verdict of guilty by the jury the Superior Court denied him the assistance of counsel to aid him in perfecting his appeal to the Supreme Court of the State of Rhode Island in violation, as he says, of the Fifth and Sixth Amendments to the Constitution of the United States and of section 10 of Article I of the Constitution of the State of Rhode Island.

Although after reading the contents of the petitioner's application this Court was in grave doubt as to whether it stated any case for relief, all doubt was resolved in favor of the petitioner and the petition was assigned to a day certain for hearing. A writ of habeas corpus ad testificandum directed to the warden of the State Prison was issued commanding him to produce the petitioner before this Court upon the day named therein. The petitioner appeared without counsel and in reply to an inquiry by this Court stated he intended to present and argue his case personally. After this Court had stressed at some length the advisability of his being represented by counsel the petitioner then agreed to accept the aid of counsel. This Court then appointed an experienced, eminently qualified trial lawyer to represent him. The hearing was then continued tentatively to a date suggested by the Court. Subsequently, a continuance was granted in order that this lawyer could adequately prepare the petitioner's case. When the application was next called for hearing the petitioner, irked because of the continuance of the hearing, insisted that he did not desire to be represented by this lawyer and that he wished to conduct the proceedings himself without the aid of counsel. In view of the petitioner's insistence the Court acceded to his wishes and relieved counsel of his assignment. In spite of the petitioner's attitude counsel then requested and was given permission to participate in the proceedings as amicus curiae. At the close of the hearing he also requested and was given time in which to prepare and file a brief in support of petitioner's contentions which has been carefully considered by this Court.

The evidence adduced at the hearing and an examination of the records of the proceedings in the Courts of Rhode Island establish the following facts: on February 27, 1950, the petitioner was placed on trial before a judge and jury in the Superior Court on an indictment charging him with having committed an abortion; that prior to his trial he had engaged counsel and was represented by counsel during the trial; that on the second day of the trial he became dissatisfied with the manner in which his counsel was conducting the trial; that he requested permission of the trial court to discharge his counsel and at the same time requested the court to declare a mistrial and to grant a continuance so that he might engage new counsel, which requests the court denied; that his counsel remained in the case, and at the conclusion of the trial the jury returned a verdict of guilty; thereafter his counsel within the time prescribed by law filed a motion for a new trial in behalf of the petitioner and a request for leave to withdraw as his counsel; this request was granted and the petitioner on the date set for hearing the motion for a new trial requested the trial court to appoint the Public Defender of the State of Rhode Island as his counsel, claiming he was indigent; the court found he was not in fact indigent, denied him the services of the Public Defender and continued the hearing on the motion for one week to enable the petitioner to engage new counsel; one week later the petitioner appeared before the court without counsel and again urged the court to assign the Public Defender to represent him; the court then reiterated its finding that he was not indigent and again denied his request; the petitioner then requested and was given permission to argue his motion for a new trial; in doing so the court stated "I am not going to hold you up to any strict rules as I do a lawyer. I will give you all the latitude you desire."; after arguments by the petitioner and an assistant attorney general of the State of Rhode Island the motion for a new trial was denied and petitioner was sentenced to serve a term of seven years in the State Prison from and after the expiration of a sentence which he was then serving for a similar offense; thereafter the petitioner prepared and filed a bill of exceptions to secure a review of his conviction by the Supreme Court of the State of Rhode Island.

The evidence and record further establish that thereafter the petitioner at his request appeared before the Supreme Court to argue these exceptions; that despite the admonition of that court that he should have counsel and its suggestion that the hearing on the exceptions be continued until he could obtain counsel, he insisted upon proceeding as his own counsel, Lee v. Kindelan, 1953, 80 R.I. 212, 95 A.2d 51; that all of his exceptions were thereafter overruled and his conviction sustained, State v. Lee, 1951, 78 R.I. 46, 78 A.2d 793; that later petitioner filed an application for a writ of habeas corpus in the Supreme Court of the State of Rhode Island and in this Court's opinion raised the same questions as are herein presented; that this petition was later denied and dismissed, Lee v. Kindelan, supra.

On May 1, 1953 the petitioner filed an application for a writ of habeas corpus in this Court, similar in content to the instant petition. This was denied without prejudice because he had not applied to the Supreme Court of the United States for a writ of certiorari to review the action of the Supreme Court of Rhode Island. Petitioner then made such an application which was denied on June 15, 1953. Having exhausted his state remedies the petitioner then prepared and filed the application now before this Court.

In addition to the contentions advanced by the petitioner which the amicus curiae seeks to maintain in his brief he strongly urges upon this Court that the "sole issue" here is whether petitioner was denied his constitutional right to counsel in the Superior Court from the time of the verdict of the jury to the time petitioner argued his bill of exceptions before the Supreme Court. He further asserts that this question was never decided by that Court. This Court cannot agree with this assertion. In Lee v. Kindelan, supra, the Court 80 R.I. at page 216, 95 A.2d 51, at page 53, states:

"* * * He petitioner contends that the trial justice had no authority to grant the attorney's motion to withdraw unless at the same time other counsel was assigned at the expense of the public to assist him in his `Appeal to Rhode Island Supreme Court.' * * *"

and further in 80 R.I. at page 224, 95 A.2d at page 55:

"* * * that he petitioner intelligently, understandingly, deliberately, and voluntarily waived his right, if any, to have further counsel. * * *"

On the other hand if it is his contention that this "sole issue", as he terms it, has never been presented to the Supreme Court of the State of Rhode Island, then it is improperly before this Court and cannot be considered by it. It is a substantive and independent claim of denial of a constitutional right which not having been presented to the state courts is not open for adjudication by this Court on an application for a writ of habeas corpus. See 28 U.S.C.A. § 2254; Melanson v. O'Brien, 1 Cir., 1953, 203 F.2d 934; Ex parte Sullivan, D.C.D. Utah 1952, 107 F.Supp. 514.

When a person who has been convicted and sentenced after a public trial in a state court seeks to obtain his release from confinement by an application for a writ of habeas corpus in a federal court the burden rests upon him to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in the state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify the intervention of the federal court to protect his rights. See Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761.

The right to assistance of counsel and "due process of law" guaranteed by the Fifth and Sixth Amendments to the United States Constitution are not limitations upon the power of the states, but operate upon the national government only, applying only to trials in the federal courts. Thorington v. Montgomery, 1893, 147 U.S. 490, 13 S.Ct. 394, 37 L.Ed. 252; Palko v. Connecticut, 1937, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Betts v. Brady, 1942, 316 U.S. 455, 62 S. Ct. 1252, 86 L.Ed. 1595. Since petitioner here attacks proceedings before a state court, the Fifth and Sixth Amendments to the Constitution of the United States are therefore inapplicable. However, a denial by a state of rights or privileges specifically embodied in the Fifth and Sixth Amendments to the federal constitution may, in certain circumstances, operate to deprive a person of due process of law in violation of...