Ex parte Roberts

Decision Date03 July 1945
Docket NumberCivil Action No. 167.
PartiesEx parte ROBERTS.
CourtU.S. District Court — Western District of Virginia

E. J. Roberts, pro se.

PAUL, District Judge.

The petition for the issuance of a writ of habeas corpus which has been filed by one E. J. Roberts alleges that petitioner is unlawfully restrained of his liberty by the Superintendent of the Virginia State Penitentiary, who holds him under a sentence pronounced by the Circuit Court of Wise County, Virginia, in August, 1940, and that petitioner is now in custody at the lime-grinding plant operated by the State of Virginia at Staunton, a place within this district.

Numerous exhibits are filed with the petition and from these, together with the allegations of the petition, it appears that petitioner, after trial before a jury, was convicted upon two indictments, for forgery and grand larceny respectively and that he received a sentence of eight years on the former and of five years on the latter charge; and was committed to the State penitentiary for service of these sentences with the provision that they were to be served concurrently.

A considerable part of the petition as well as of the exhibits is directed to petitioner's claim that he is innocent of the charges brought against him and relates to the nature or sufficiency of the evidence upon which he was convicted. Allegations of this nature are, of course, no foundation for the issuance of a writ of habeas corpus. Nothing is more well settled than that habeas corpus cannot be used as a substitute for an appeal or writ of error to review the sufficiency of the evidence upon which a conviction has been obtained. The cases in which this principle has been announced are numberless, and only a few need be cited. See Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3; Grant v. Richardson, 4 Cir., 129 F.2d 105, 106; Sanderlin v. Smyth, 4 Cir., 138 F.2d 729, 730.

However, the petitioner further alleges that his conviction was obtained in violation of rights guaranteed to him by the XIV Amendment to the Constitution of the United States; that he was deprived of his liberty without due process of law; that his rights and privileges as a citizen of the United States were abridged, and that he was denied equal protection of the law. Specifically he charges that he was forced into trial without the assistance of counsel for his defense and without an opportunity to produce witnesses in his behalf; that he was tried before a jury none of whose names were called in the presence of petitioner and who were not sworn in his presence; and that the court never pronounced sentence upon him in his presence.

While some of these allegations are denied by the recitals in the court records which are presented with the petition, it might well be considered that they are sufficient to justify the use of habeas corpus for an inquiry into the validity of petitioner's detention. However, there are other considerations which must be taken into account before the issuance of such a writ by this court would be justified. These considerations arise not only from certain settled principles applying to applications of this sort, but from facts set out in the petition here filed. It appears that following petitioner's conviction he was committed to the state penitentiary at Richmond in the Eastern District of Virginia. Petitioner did not apply for a writ of error following his conviction but in December, 1940, a few months after his conviction and sentence, he was permitted to and did file in the Supreme Court of Appeals of Virginia his petition for a writ of habeas corpus. He alleges that this petition was heard in that Court and on January 15, 1941, was dismissed. He does not allege the contents of that petition nor state the grounds of its dismissal. It is reasonable to assume, I think, that the grounds on which his petition was based were the same as now asserted. And inasmuch as the Supreme Court of Appeals of Virginia has original jurisdiction to issue writs of habeas corpus Va.Const. Sect. 88; Code of Va. § 5865, and consented to hear petitioner's application, it is fair to presume that its dismissal was after a hearing on the merits and not upon jurisdictional or other formal grounds.

Thereafter in February, 1943, petitioner, who was then in custody within the Eastern District of Virginia, filed a petition for a writ of habeas corpus in the United States District Court for that district at Richmond. The petition then filed was upon the same grounds and embodied the same allegations of fact as that now before this court. The writ issued and after a hearing before Judge Pollard of the Eastern District, at which evidence was heard upon the merits of petitioner's claims, the court discharged the writ and remanded the petitioner to the penitentiary upon the ground that the evidence was not sufficient to support the allegations of the petition. From this action of the District Court petitioner applied to the judges of the United States Circuit Court of Appeals for the Fourth Circuit for a certificate of probable cause for an appeal 28 U.S.C.A. § 466. This was denied on the ground that the facts shown by the record did not justify allowance of an appeal.

It will be seen, therefore, that the matters now presented in the petition before this Court have been previously considered by (1) The Supreme Court of Appeals of Virginia, (2) the United States District Court for the Eastern District of Virginia, and (3) the United States Circuit Court of Appeals for this circuit; each of which has in turn held adversely to the petitioner. It is true that the present application alleges that since the action of the Circuit Court of Appeals in September, 1943, the petitioner has come into possession of new or additional evidence to support his contentions, the nature of which he indicates. However, this new evidence, with one exception, is pertinent only, if at all, on the question of defendant's guilt or innocence of the charges on which he was convicted; that is, it bears only on the sufficiency of the evidence to prove the charges against him. And this, as has been pointed out, is something which cannot be inquired into or reviewed on habeas corpus. The one exception is an affidavit in support of and cumulative to petitioner's own statements as to his lack of counsel at the trial and that the jury trying him was not sworn.

There is still considerable confusion and some diversity of opinion in the decided cases as to the principles which should govern the federal courts in passing upon applications for writs of habeas corpus designed to procure the release of persons confined under judgments of the state courts and who claim the violation of rights guaranteed them by the Federal Constitution. Some of the guiding rules, however, are well settled. One of these is that the federal courts should be hesitant about any interference with the administration of justice in the state courts and, except in cases presenting exceptional circumstances of peculiar urgency, should not entertain petitions for habeas corpus questioning the validity of state custody, so long as the petitioner has any remedy through the courts of the state. United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 70 L.Ed. 138; Frank v. Mangum, 237 U.S. 309, 328, 35 S.Ct. 582, 59 L.Ed. 969; Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572.

Another settled principle closely related to the one just stated is that in the ordinary case the writ of habeas corpus should not issue from a federal court unless it clearly appears that the petitioner has exhausted his remedies in the courts of the state and that no adequate remedy remains to him under state law. Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 28 L.Ed. 542; Mooney v. Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 88 L.Ed. 572; Sanderlin v. Smyth, 4 Cir., 138 F.2d 729, 731; Jones v. Dowd, 7 Cir., 128 F.2d 331; Ex parte Williams, 317 U.S. 604, 63 S.Ct. 431, 87 L.Ed. 491.

But there is still some seeming confusion in the decisions as to what procedure is available to the petitioner after he has pursued his way through the state courts. In Andrews v. Swartz, 156 U.S. 272, 276, 15 S.Ct. 389, 39 L.Ed. 422; there is language implying that where the matters of which petitioner complains have been raised and decided adversely to him in the state courts, they may not be reviewed by habeas corpus in the federal courts. In Whitten v. Tomlinson, 160 U.S. 231, 242, 16 S.Ct. 297, 301, 40 L.Ed. 406; it is said: "Except in such peculiar and urgent cases, the courts of the United States will not discharge the prisoner by habeas corpus in advance of a final determination of his case in the courts of the state; and, even after such final determination in those courts, will generally leave the petitioner to the usual and orderly course of proceeding by writ of error from this court." (Emphasis supplied.) This statement is repeated in Frank v. Mangum, 237 U.S. 309, 328, 35 S.Ct. 582, 59 L.Ed. 969. To the same effect is the case of Sanderlin v. Smyth, 4 Cir., 138 F. 2d 729, 731, where it is said: "Ordinarily, adjudications made by the state courts in connection with applications made to them will be binding on the federal courts; and, if the prisoner is not satisfied with state court action, his remedy, after exhausting the rights of review provided by state law, is to...

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2 cases
  • United States v. Cavell, Misc. No. 2034.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • January 14, 1957
    ...appear. 3 Dolan v. Alvis, 6 Cir., 1951, 186 F.2d 586, certiorari denied 342 U.S. 906, 72 S.Ct. 298, 96 L.Ed. 678, and Ex parte Roberts, D.C.W.D.Va.1945, 61 F.Supp. 864, were cited by relator. See also United States ex rel. Martin v. Walker, D.C.Conn.1952, 111 F.Supp. 455, affirmed 2 Cir., 1......
  • United States v. Fay
    • United States
    • U.S. District Court — Southern District of New York
    • July 14, 1964
    ...189 F.2d 540, 545-546 (1st Cir.), cert. denied, Farrell v. O'Brien, 342 U.S. 839, 72 S.Ct. 64, 96 L.Ed. 634 (1951); Ex parte Roberts, 61 F.Supp. 864, 868 (W.D.Va.1945). 9 See People v. Boundy, 10 N.Y.2d 518, 522, 225 N.Y.S.2d 207, 210, 180 N.E.2d 565 (1962); Bojinoff v. People, 299 N.Y. 145......

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