Ex parte Stonefield

• Decision Date: 16 January 1941
• Docket Number: No. 192.,192.
• Citation: 36 F. Supp. 453
• Parties: Ex parte STONEFIELD.
• Court: U.S. District Court — Western District of Kentucky

36 F. Supp. 453

Ex parte STONEFIELD.

No. 192.

District Court, W. D. Kentucky.

January 16, 1941.

Thomas W. Hardesty and Lawrence Gammon, both of Newport, Ky., for petitioner.

William Hayes, Asst. Atty. Gen., for the Commonwealth of Kentucky.

MILLER, District Judge.

The petitioner Roy Stonefield has applied for a writ of habeas corpus and that cause be shown why he should not be released from confinement in the Kentucky State Penitentiary at Eddyville, Kentucky, to which institution he was committed following a judgment of the Campbell Circuit Court of Kentucky.

The petitioner was arrested and placed in the county jail on December 18, 1937, for violation of Sections 1159 and 1159a of the Kentucky Statutes dealing with armed robbery. He was indicted by the Grand Jury of the county on February 17, 1938. He was arraigned and pleaded not guilty on the same date and his trial set for March 31, 1938. On March 31st the case was continued until April 1, 1938, at which time it was tried and the jury returned a verdict of guilty. He received a sentence of life imprisonment. He remained in jail from the time of his arrest on December 18, 1937, to the time of his conviction. At the time of his arraignment on February 17, 1938, he asked the Court to appoint counsel for him due to his financial inability to employ counsel himself, but the Court did not appoint such counsel until the afternoon of March 30, 1938. The counsel appointed by the Court had an hour's conference with the petitioner at the jail in the late afternoon of March 30th, at which time the petitioner told the attorney to contact his wife in Cincinnati who could locate other witnesses for him. The attorney contacted the petitioner's wife late that night but was not able to have either the wife or other witnesses in Court on the morning of March 31st. A motion for continuance was granted over the protest of the Commonwealth Attorney and the case continued 24 hours to April 1st. The two witnesses whom petitioner had in mind had moved from the city and could not be located in time to testify at the trial on April 1st. On April 1st petitioner's counsel again moved for a continuance which motion the Court overruled, and the case went to trial with the resulting verdict of guilty. The two witnesses who were not present at the trial testified in the present proceeding that they were present with the petitioner at the home of his mother at the time when the robbery took place. The testimony at the trial was taken in shorthand by the official stenographer, who was instructed following the verdict and judgment to prepare a transcript. The transcript was never written up as the court stenographer shortly thereafter died and her notes were not found. Motion and grounds for a new trial were filed and overruled. On June 6, 1938, an order was entered giving the petitioner an extension of 60 days from the expiration of the original 60 days for the filing of the bill of exceptions. On July 27, 1938, an agreed order was filed giving defendant "additional time in which to prepare and file Bill of Exceptions." The record was filed in the Clerk's Office of the Court of Appeals of Kentucky on July 29, 1938. The bill of exceptions was never approved by the trial Judge or filed with the Clerk of the Court of Appeals. The petitioner contends that he tendered a bystander's bill of exceptions to the trial court which the trial court refused to approve. This contention is denied by the trial Judge. On May 9, 1939, a motion was filed in the Court of Appeals of Kentucky to require the trial Judge to sign the tendered bill of exceptions which motion was overruled on the ground that the proper way to secure the approval of the tendered bill of exceptions was by writ of mandamus under Section 110 of the Kentucky Constitution and not by motion filed in the case itself. Thereafter the Attorney General of Kentucky moved the Court to dismiss the appeal. This motion was overruled and instead the Court of Appeals considered the sufficiency of the indictment and affirmed the judgment on April 26, 1940. In the absence of the bill of exceptions the Court was unable to review the evidence or to consider the instructions of the trial Judge. The case is reported in Stonefield v. Com., 282 Ky. 692, 139 S.W. 2d 752.

The petitioner contends that the judgment of conviction is void and that he is being illegally confined by reason thereof because (1) he was deprived of adequate time in which to make defense, and that the appointment of counsel by the Court less than 48 hours before the trial and refusing motion for a continuance made the proceedings without due process of law, and deprived the petitioner of his constitutional rights under the Fourteenth Amendment to the Constitution of the United States, and (2) that the failure of the Court of Appeals of Kentucky to consider the bill of exceptions alleged to have been tendered by him but which was never made a part of the record prevented him from having his trial properly reviewed on appeal and deprived him of his constitutional rights under the Fourteenth Amendment of the Constitution of the United States.

Jurisdiction to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty when a prisoner is in custody in violation of the Constitution of the United States, or of a law or treaty of the United States, is conferred upon the United States District Court by Title 28 U.S.C.A. §§ 452 and 453. But, "the rule has been firmly established by repeated decisions of this court that the power conferred on a federal court to issue a writ of habeas corpus to inquire into the cause of the detention of any person asserting that he is being held in custody by the authority of a state court in violation of the Constitution, laws, or treaties of the United States, is not unqualified, but it is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist. Ex parte Royall, 117 U.S. 241, 250-253, 6 S. Ct. 734, 29 L.Ed. 868; In re Wood v. Brush, 140 U.S. 278, 289, 11 S.Ct. 738, 35 L.Ed. 505; In re Frederich, 149 U.S. 70, 77, 78, 13 S.Ct. 793, 37 L.Ed. 653; People of State of New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 39 L.Ed. 80; Whitten v. Tomlinson, 160 U.S. 231, 240-242, 16 S. Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Davis v. Burke, 179 U.S. 399, 401-403, 21 S.Ct. 210, 45 L.Ed. 249; Riggins v. United States, 199 U.S. 547, 549, 26 S.Ct. 147, 50 L.Ed. 303; United States ex rel. Drury v. Lewis, 200 U.S. 1, 6, 26 S.Ct. 229, 50 L.Ed. 343; Glasgow v. Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 56 L.Ed. 1147; Johnson v. Hoy, 227 U.S. 245, 247, 33 S.Ct. 240, 57 L. Ed. 497." See United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138. As a result of that rule it has been held many times that orderly procedure requires that before a United States District Court is asked to issue a writ of habeas corpus, in the case of a person held under a state commitment, recourse should be had to whatever judicial remedy is afforded by the state. Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748; United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138; Mooney v. Hollohan, 294 U.S. 103, 115, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Milliken v. McCauley, 9 Cir., 93 F.2d 645; Ex parte Hicks, 9 Cir., 98 F.2d 116; Cunningham v. Skiriotes, 5 Cir., 101 F.2d 635; United States v. House, 9 Cir., 110 F.2d 797. Although, in the present case, an appeal was technically taken to the Court of Appeals of Kentucky, it was in reality no appeal as the question which is now complained of was not presented by those proceedings, although it could have been presented by proper proceedings. On that basis alone we feel that petitioner's failure to have his matter reviewed by the Kentucky Court of Appeals is fatal to his petition in this action.

In cases where an appeal has been taken to the State Court of last resort, it is the further rule that unless there are exceptional circumstances which justify or require the issuance of a writ by a lower Federal Court, the petitioner should be required to have the State Court judgment reviewed through proper proceedings by the Supreme Court of the United States. Such exceptional cases are those of great urgency that require a prompt decision such as cases "involving the authority and operations of the general government, or the obligations of this country to, or its relations with, foreign nations." Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 460, 51 L.Ed. 760; Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036; Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3; Ex parte Jefferson, 9 Cir., 106 F.2d 471. The reason for the rule is sound in that the jurisdiction of a Federal Court is a very delicate one by which a single Judge upon a writ of habeas corpus may reverse the decision of the...