Graham v. Squier, 10

• Decision Date: 31 December 1942
• Docket Number: No. 10,192.,10
• Citation: 132 F.2d 681
• Parties: GRAHAM v. SQUIER, Warden.
• Court: U.S. Court of Appeals — Ninth Circuit

132 F.2d 681 (1942)

GRAHAM v. SQUIER, Warden.

No. 10,192.

Circuit Court of Appeals, Ninth Circuit.

December 31, 1942.

Bartlett Rummel, of Tacoma, Wash., for appellant.

J. Charles Dennis, U. S. Atty., of Tacoma, Wash., and Harry Sager, of Sumner, Wash., and Tom Durham, of Seattle, Wash., Asst. U. S. Attys., for appellee.

Before GARRECHT, HANEY, and HEALY, Circuit Judges.

GARRECHT, Circuit Judge.

Jack Graham filed in the United States District Court for the Western District of Washington, Southern Division, a petition for writ of habeas corpus. Upon return to an order to show cause, which order was directed to P. J. Squier, Warden, United States Penitentiary, McNeil Island, Washington, where petitioner is imprisoned, and after hearing held, the district court made findings of fact and conclusions of law and entered an order denying the petition and dismissing the action. From that order this appeal is taken. The proceeding is one in forma pauperis, the judge of the district court having certified that the petitioner is appealing in good faith.

Petitioner urges that he is being illegally detained at the McNeil Island Penitentiary. Briefly, the circumstances of his imprisonment are these:

Having been indicted in two counts under the Mann Act, 18 U.S.C.A. § 398, Jack Graham, who was represented by counsel of his own choice,¹ was tried by a jury in the United States District Court for the Northern District of California, Northern Division; he was found guilty of the first count only, and was thereafter, on August 29, 1941, sentenced to serve three years in a penitentiary and to pay a $1000 fine. It is by reason of that sentence that he is being incarcerated in the McNeil Island Penitentiary.

The count on which petitioner was convicted was that he had transported Wilma Graham, his wife, from California into Oregon with the intent and purpose that she should practice prostitution. In the course of proving the Government's case, and for the purpose of establishing in particular that petitioner was dependent upon his wife's earnings, the United States attorney introduced in evidence petitioner's Selective Service Questionnaire, sections thereof being marked "Confidential", and which were also designated by the Selective Service Regulations as being "Confidential". There were read to the jury from a "confidential" section statements concerning petitioner's employment status, which were to the effect that because of a heart ailment, he was not working at the time of returning the Questionnaire (December 16, 1940), and was then, and for the preceding year and a half had been, reliant upon the earnings of his wife, whom he designated as his dependent and who had been his common-law wife prior to their marriage in October, 1940. Counsel for petitioner did not object to the admission of this Questionnaire; he did not subsequently make a motion to strike it from the record; nor did he request the court to instruct the jury to disregard it. After judgment of conviction was entered, no motion for new trial was made and no appeal was taken.

Because the Questionnaire was designated as being confidential and because he was required by law to fill out and return such document under oath, petitioner contends that the use of it in the trial was equivalent to requiring defendant to testify against himself; "that even if no adequate objections were made to its introduction, the fact that reference was even made to it was error which was not cured and which deprived the defendant of his constitutional rights". He states in his brief that "The only question on appeal here is whether the defendant, or appellant here, was deprived of his constitutional rights by the introduction of the Selective Service Questionnaire, and if so, whether this is grounds for Habeas Corpus".

Generally, the function of a writ of habeas corpus is to afford petitioner a speedy and effective method of securing his release when illegally restrained of his liberty, which writ lies in all cases of illegal imprisonment by commitment, detention, or restraint, for whatever cause and under whatever pretense; and the writ goes to inquire into the cause of imprisonment. But when directed to an inquiry into the cause of imprisonment in judicial proceedings, the scope of the writ extends only to questions affecting the jurisdiction of the court and the sufficiency in point of law of the proceedings. The writ is never allowed as a substitute for an appeal from a sentence of conviction, or other remedial procedure to correct errors in the trial of a criminal case; it is an appropriate remedy only where the court was without jurisdiction in the premises, or where it lost jurisdiction during the trial, or where it exceeded its jurisdiction in passing the sentence, or where the detention has become illegal due to some subsequent omission or event. Mere errors or irregularities in a judgment or proceeding of a court under and by virtue of which a person is imprisoned, which are not of such a character as to render the proceedings void, cannot be raised on an application for a writ of habeas corpus.

In the proceeding before us it is not questioned that the trial court had jurisdiction over the subject matter of the prosecution and over the person, and further that the punishment meted out was within the power of the court. Here petitioner seeks to nullify the judgment of conviction because the introduction of the Draft Questionnaire allegedly violated the protection guaranteed by that provision of the Fifth Amendment to the Federal Constitution which declares: "nor shall any person be compelled in any Criminal Case to be a witness against himself".

Petitioner relies upon the case of Johnson v. Zerbst, 304 U.S. 458, 465-467, 58 S.Ct. 1019, 82 L.Ed. 1461, and upon the case of Bowen v. Johnston, 306 U.S. 19, pages 23, 24, 59 S.Ct. 442, page 444, 83 L. Ed. 455, from which he quotes:

"Where the District Court has jurisdiction of the person and the subject matter in a criminal prosecution, the writ of habeas corpus cannot be used as a writ of error. The judgment of conviction is not subject to collateral attack. Cases cited. The scope of review on habeas corpus is limited to the examination of the jurisdiction of the court whose judgment of conviction is challenged. Cases cited. But if it be found that the court had no jurisdiction to try the petitioner, or that in its proceedings his constitutional rights have been denied, the remedy of habeas corpus is available. Ex parte Lange, 18 Wall. 163, 178, 21 L.Ed. 872; Ex parte Crow Dog, 109 U.S. 556, 572, 3 S.Ct. 396, 406, 27 L. Ed. 1030; In re Snow, 120 U.S. 274, 285, 7 S.Ct. 556, 561, 30 L.Ed. 658; In re Coy, 127 U.S. 731, 751, 758, 8 S.Ct. 1263, 1268, 1272, 32 L.Ed. 274; Hans Nielsen, Petitioner, 131 U.S. 176, 182, 9 S.Ct. 672, 674, 33 L.Ed. 118; In re Bonner, 151 U.S. 242, 257, 14 S.Ct. 323, 325, 38 L.Ed. 149; Moore v. Dempsey, 261 U.S. 86, 91, 43 S. Ct. 265, 266, 67 L.Ed. 543; Johnson v. Zerbst, 304 U.S. 458, 467, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461."

In the above quotation the clause italicized is stressed by petitioner, and is particularly relied upon by him because, as hereinbefore stated, it is his contention that at the trial one of his constitutional rights — the guaranty against self-incrimination, as declared by the Fifth Amendment — had been transgressed. Petitioner urges that this Bowen case "holds that the writ is available when constitutional rights have been denied as well as when jurisdiction is lacking".

The language of the emphasized clause in the excerpt from the Bowen case, considered in and of itself and isolated from the text of which it is a part, might seem to indicate, as petitioner would have it, that whenever any constitutional right is infringed in a criminal trial, the accused, if he be convicted, may thereafter nullify the judgment by bringing a habeas corpus proceeding. But taking that clause, as is obviously necessary in order to arrive at the true meaning, in conjunction with the statements of the Supreme Court contained in the very same paragraph, and which express the unvaried rule that a criminal action may be collaterally attacked on jurisdictional grounds alone, one sees immediately that the Supreme Court intended no more than that the writ of habeas corpus should issue only in those cases where the denial of the constitutional rights of the accused operated to prevent the trial court from acquiring jurisdiction over the...