Hahn v. Burke, No. 17938.
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
| Writing for the Court | CLARK, Associate Justice, Retired, and CUMMINGS and KERNER, Circuit |
| Citation | 430 F.2d 100 |
| Parties | Frank Robert Cordee HAHN, Petitioner-Appellant, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee. |
| Decision Date | 29 September 1970 |
| Docket Number | No. 17938. |
430 F.2d 100 (1970)
Frank Robert Cordee HAHN, Petitioner-Appellant,
v.
John C. BURKE, Warden, Wisconsin State Prison, Respondent-Appellee.
No. 17938.
United States Court of Appeals, Seventh Circuit.
August 19, 1970.
Rehearing Denied September 29, 1970.
George M. St. Peter, Fond du Lac, Wis., for petitioner-appellant.
Robert W. Warren, William Platz, Madison, Wis., for respondent-appellee.
Before CLARK, Associate Justice, Retired,* and CUMMINGS and KERNER, Circuit Judges.
KERNER, Circuit Judge.
This is an appeal from the district court's denial of a petition, pursuant to 28 U.S.C. § 2254 attacking petitioner's Wisconsin incarceration. Petitioner Frank Hahn pled guilty to a charge of burglary on September 12, 1964, and was sentenced to five years in the state prison for the burglary charge and an additional offense of trying to escape from the County Jail. The execution of petitioner's sentence was stayed, however, and he was placed on probation for a five-year period. Petitioner's probation was revoked without a hearing on December 4, 1964, on the basis that he had violated its terms by absconding to California, and upon his return to Wisconsin in September
In January of 1968, petitioner filed a petition for a writ of error coram nobis in the Circuit Court for Clark County. An evidentiary hearing was held and the coram nobis writ was denied in February of 1968. Petitioner thereafter filed with the Wisconsin Supreme Court a petition for a writ of error to review the order of the Circuit Court denying the petition for a writ of error coram nobis. The Wisconsin Supreme Court treated the petition as one for a writ of habeas corpus and ordered a response. Upon the filing of the response, the Wisconsin Supreme Court affirmed the findings and conclusions of the Circuit Court and denied the petition for a writ of habeas corpus.
In May of 1968, pursuant to an extradition agreement between the Governors of Wisconsin and Illinois, petitioner Hahn was returned to Illinois to stand trial on several indictments for burglary. Petitioner, however, was never tried on these burglary indictments, but instead, was tried and sentenced to 5-10 years for escaping from the Champaign County Jail while awaiting trial on the burglary charges. Subsequently, Hahn was returned to Wisconsin State Prison and on December 2, 1969, received a mandatory conditional release from the Wisconsin State Prison and was placed on a one-year probation.1
On appeal petitioner raises the following contentions:
(1) that his sixth amendment right to representation by counsel was violated by (a) the failure of the trial court to appoint counsel to assist petitioner in his coram nobis petition, and (b) the failure of the Wisconsin Supreme Court to appoint counsel to assist petitioner in his preparation of a writ of habeas corpus to the Wisconsin Supreme Court;
(2) that the State of Wisconsin, by surrendering petitioner Hahn to the authorities of the State of Illinois while he was serving his five-year sentence in the Wisconsin State Prison, waived jurisdiction over petitioner and had no power to incarcerate petitioner upon his return from Illinois;
(3) that petitioner's constitutional rights to due process and equal protection were violated by the revocation of petitioner's probation without a hearing.
Before reaching the merits of petitioner's contentions, we must dispose of issues of jurisdiction and mootness. Since petitioner filed his habeas corpus petition while he was still incarcerated pursuant to his Wisconsin sentence, the "in custody" requirement of 28 U.S.C. § 2254 is satisfied. See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed. 2d 554 (1968). Petitioner's probationer status would also seem to satisfy the "in custody" requirement. Cf. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).
As to mootness, although petitioner is not presently serving his challenged Wisconsin sentence, this appeal is not moot. The probation revocation affixes a permanent blemish to petitioner's record. If petitioner ever has future difficulties with the law in Wisconsin, the judge could take into account the fact that petitioner's probationary status was at one time revoked. Moreover, in this instance, petitioner may be entitled to his outright Wisconsin release as of September, 1969, as a result of the invalid revocation of probation and attendant lack of credit given him on his five-year sentence of September, 1964. Therefore, there are collateral consequences in allowing petitioner's Wisconsin burglary conviction and parole revocation to remain
The record indicates that petitioner was represented by counsel in his coram nobis proceeding. Petitioner's counsel submitted a brief, conducted an evidentiary hearing and appeared on final argument. Consequently, we find petitioner's first contention of error to be without merit.
As to the allegation that the failure of the Wisconsin Supreme Court to appoint counsel on petitioner's state habeas corpus petition was error and the allegation that Wisconsin lost jurisdiction over petitioner by reason of his extradition to Illinois, we agree with the district court that both allegations should be dismissed for failure to exhaust available state remedies. 28 U.S.C. § 2254(b).
Petitioner's final contention is that the failure to provide a hearing upon revocation of his probation violated his constitutional rights.2 The conditions of petitioner's probation were not clear. It appears that petitioner was to return to Illinois, where his mother lived, and practice his trade of barbering. Illinois, however, would not accept petitioner as a probationer, and petitioner claims that because he interpreted his probation as being contingent on staying out of Wisconsin, he believed he could not return to Wisconsin and left for California. The State Department of Public Welfare, without a hearing or without giving petitioner any opportunity to be heard, revoked his probation.
We hold the revocation of petitioner's probation was...
To continue reading
Request your trial
-
United States v. Reyes-Romero, 2:17-cr-292
...them away."No society is free where government makes one person's liberty depend upon the arbitrary will of another." Hahn v. Burke , 430 F.2d 100, 105 (7th Cir. 1970) (quoting Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 217, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (Black, J., diss......
-
United States ex rel. Carioscia v. Meisner, No. 71 C 906
...are particularly relevant to our consideration. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); and Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970), cert. denied, 402 U.S. 933, 91 S.Ct. 1522, 28 L.Ed.2d 868 (1971). In Goldberg, the Supreme Court held that due process requ......
-
Misurelli v. City of Racine, Civ. A. No. 71-C-316
...L.Ed.2d 62 (1965); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (child custody). Note also Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970) (probation); and Bearden v. South Carolina, 443 F.2d 1090 (4th Cir. 1971) 19 Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. ......
-
GETTY OIL COMPANY (EASTERN OPERATIONS) v. Ruckelshaus, Civ. A. No. 4366.
...enforce private liabilities, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1968), see also Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970) and Hall v. Garson, 430 F.2d 430 (5th Cir. 1970); and in suits to protect the public health and safety, Ewing, supra, see a......
-
United States v. Reyes-Romero, 2:17-cr-292
...them away."No society is free where government makes one person's liberty depend upon the arbitrary will of another." Hahn v. Burke , 430 F.2d 100, 105 (7th Cir. 1970) (quoting Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 217, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (Black, J., diss......
-
United States ex rel. Carioscia v. Meisner, No. 71 C 906
...are particularly relevant to our consideration. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); and Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970), cert. denied, 402 U.S. 933, 91 S.Ct. 1522, 28 L.Ed.2d 868 (1971). In Goldberg, the Supreme Court held that due process requ......
-
Misurelli v. City of Racine, Civ. A. No. 71-C-316
...L.Ed.2d 62 (1965); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (child custody). Note also Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970) (probation); and Bearden v. South Carolina, 443 F.2d 1090 (4th Cir. 1971) 19 Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. ......
-
GETTY OIL COMPANY (EASTERN OPERATIONS) v. Ruckelshaus, Civ. A. No. 4366.
...enforce private liabilities, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1968), see also Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970) and Hall v. Garson, 430 F.2d 430 (5th Cir. 1970); and in suits to protect the public health and safety, Ewing, supra, see a......