Farrell v. Lanagan, 4231.

• Decision Date: 11 March 1948
• Docket Number: No. 4231.,4231.
• Parties: FARRELL v. LANAGAN, Warden.
• Court: U.S. Court of Appeals — First Circuit

166 F.2d 845 (1948)

FARRELL v. LANAGAN, Warden.

No. 4231.

Circuit Court of Appeals, First Circuit.

March 11, 1948.

Alfred A. Albert, of Boston, Mass., for appellant.

Clarence A. Barnes, Atty. Gen. of Mass., and William S. Kinney, Asst. Atty. Gen. of Mass., on the brief for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAHONEY, Circuit Judge.

This is an appeal from an order of the district court dismissing a petition for a writ of habeas corpus, discharging the writ, and remanding the petitioner to the custody of the warden of the Massachusetts State Prison at Charlestown, Massachusetts.

In 1929 the petitioner was indicted by a grand jury in Middlesex County, Massachusetts, on two charges of assault with intent to commit rape. The petitioner, who was represented by counsel retained by his sisters, pleaded not guilty to each charge and signed a waiver of his right to trial by jury. At the trial he did not take the stand nor did he call any witnesses. He was convicted and sentenced to imprisonment for not more than twenty years and not less than fifteen years on each charge, the sentences to run consecutively.

He petitioned the federal district court for Massachusetts for a writ of habeas corpus claiming that he was deprived of his liberty without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States. The district court issued the writ and held a hearing. The only witness at the hearing was the petitioner himself. The court assumed for purposes of the case that the petitioner had exhausted his state remedies. It found that he had had a fair trial in open court; that he had waived a trial by jury; that he had elected not to exercise his right to testify in his own behalf and that there was no evidence of denial of due process of law by the state court. It entered its order discharging the writ accordingly. The petitioner's motion for leave to appeal was allowed and a certificate of probable cause issued.

According to the record before us, there was no motion for a directed verdict made at the time of the petitioner's trial in the state court. Nor was there any appeal by way of bill of exceptions from the conviction. The petitioner claims he was unable to afford such an appeal. Later, several petitions for writs of habeas corpus were filed in the state courts. One was filed in the Supreme Judicial Court and "returned because it wasn't a proper writ;" others were filed in various county courts and refused because they were improper. No appeals were taken. A prior petition for a writ of habeas corpus was filed in the federal district court for Massachusetts but this was dismissed, and the district judge refused to issue a certificate of probable cause. A certificate was also refused by a judge of this court, and certiorari was denied by the Supreme Court. Farrell v. Lanagan, 1943, 319 U.S. 776, 63 S.Ct. 440, 87 L.Ed. 1722, rehearing denied, 1943, 320 U.S. 811, 64 S.Ct. 32, 88 L.Ed. 490. The petitioner then brought a writ of error before a single justice of the Supreme Judicial Court of Massachusetts, but this was dismissed. No question was reserved for the full bench, but evidently the petitioner sought certiorari in the Supreme Court of the United States which was refused. Farrell v. Massachusetts, 1946, 327 U.S. 797, 66 S.Ct. 817, 90 L.Ed. 1023, rehearings denied, 327 U.S. 819, 66 S.Ct. 958, 90 L.Ed. 1041; 1946, 328 U.S. 879, 66 S.Ct. 1337, 90 L.Ed. 1647.

It is extremely dubious whether the petitioner has exhausted his state remedies and certainly he has not shown exhaustion of state remedies by the incomplete record presented to us. He claims, however, that neither a writ of error nor a writ of habeas corpus is available to him in the state courts. Although we are inclined to think otherwise, there may be some doubt on the availability of either of these writs. Since the Massachusetts reported cases are not entirely clear, we shall assume, arguendo, in favor of the petitioner, as the district court did, that he could secure no relief in the state courts, and proceed to consider the case on the merits of his claim.

The claim that he was denied due process because he did not realize what he had signed when he waived jury trial may perhaps be simply disposed of by pointing out that the federal constitution does not prevent a state completely abolishing trial by jury. See Brown v. Mississippi, 1936, 297 U.S. 278, 285, 56 S.Ct. 461, 80 L.Ed. 682; Snyder v. Massachusetts, 1934, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575. Moreover, the district judge evidently concluded from the testimony that Farrell's signing of a waiver of a jury trial, presumably upon advice of his counsel, was voluntary, a conclusion we cannot hold to be clearly erroneous.¹ The petitioner's claim that his counsel was so inadequate as to constitute the trial one in violation of his constitutional rights is similarly not borne out. Counsel was selected and paid for by the petitioner's family,...