Harvey v. State of Mississippi

• Decision Date: 12 January 1965
• Docket Number: No. 22005.,22005.
• Citation: 340 F.2d 263
• Parties: Clyde HARVEY, Appellant, v. STATE OF MISSISSIPPI, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

340 F.2d 263 (1965)

Clyde HARVEY, Appellant, v. STATE OF MISSISSIPPI, Appellee.

No. 22005.

United States Court of Appeals Fifth Circuit.

January 12, 1965.

Anthony G. Amsterdam, Philadelphia, Pa., R. Jess Brown, Jackson, Miss., Jack Greenberg, New York City, for appellant.

Harold W. Davidson, James E. Smith, Carthage, Miss., for appellee.

Before TUTTLE, Chief Judge, JONES and ANDERSON,^* Circuit Judges.

TUTTLE, Chief Judge:

On July 10, 1964, Clyde Harvey, a Negro farmer living nine or ten miles from Corinth, Mississippi, was stopped on the way home from town and arrested without a warrant, taken to jail and charged with "possession of whiskey." This is a misdemeanor under the Mississippi Statute punishable by a fine of up to $500 and up to 90 days in jail.¹

On July 13, Harvey went to the home of the Justice of the Peace. In the language of the Justice the following is what happened:

"I went out in front of my house in the yard. He drove the pick-up, pulled up at my driveway, and I went out on the porch and turned the light on. It was getting pretty dark. I saw it was him and I went on out there and he told me he had come down there to enter a plea of guilty. He said he knew that was his whiskey and said he just wanted to enter a plea of guilty to it.

"Q. Did you accept the plea?

"A. Yes, sir

"Q. Did he ask you about what the sentence would be?

"A. Yes. He wanted to know how much the fine would be. I told him I would like to investigate the thing. I at first asked him, `Clyde, are you selling whiskey?\' He said, `No,\' I told him that I wanted to investigate the case further and said, `If you are a bootlegger, I am hard sic on a man that sells whiskey that I am a man that just drinks it.\' And I told him I would let him know the regular court day what his fine would be. And he left and that\'s the last time I saw Clyde Harvey."

The regular court day, to which the case was returnable was July 23rd at Walnut Grove.

On the night before the day fixed for court, Justice of the Peace Adams stated that a lawyer called him from Jackson, Mississippi, stating that he was calling in behalf of Clyde Harvey who wanted to know "what we had done." He said that he told the lawyer that Harvey had already pleaded guilty to the charge and he told him he would let them know what the sentence was on the regular court day, "that I wanted to investigate it." The next day two lawyers came to court stating that they were there "in behalf of Clyde Harvey." The testimony then goes on: "I told them again he had already pleaded guilty to the charge and all I lacked was sentencing. And they wanted to know what the fine was going to be and I told them to contact me that night and I would tell them. So one of them called me from Jackson and wanted to know had I decided. I told them I had and I told them what the fine would be then."

The appellant testified that he did not have any lawyer representing him either before or after the July 23rd court day. While it would be difficult to credit this statement by Harvey under ordinary circumstances, in view of the apparent knowledge the lawyers had about his case and their expressed interest in it, it is not at all difficult to understand it and credit it in light of other facts testified to without dispute at the hearing in the trial court. We refer to the activities engaged in by residents of other states in the State of Mississippi, including the vicinity of Corinth, at the time of the occurrences that have been related above. These persons, generically known as "Civil Rights Workers" were engaged in conducting what they call "freedom schools" to assist in registering Negro applicants to vote in the State of Mississippi, and several of them were staying at the residence of Mr. and Mrs. Harvey. The activities of nonresident counsel in assisting in these efforts were generally known to the trial court and is now generally known to us as well. A motion to remove the Harvey case to the federal court under Civil Rights Removal Statute, Title 28 U.S.C.A. § 1443, makes clear the interest which these civil rights workers had in the Harvey arrest, since in the removal petition it was alleged that the arrest and prosecution here complained of were outgrowths of the Harveys' permitting the civil rights workers to stay in their home. It can thus readily be understood that the out-of-state lawyers may have sought information about the Harvey case as a part of their overall interest in vindicating what they considered to be the rights of the workers to be free from local harrassment, without their having a primary responsibility to represent Clyde Harvey as an accused person. In any event, there was no proof that they were either engaged in, or directly concerned with, representing Clyde Harvey. He testified that he did not engage them. Their activities, as represented by the testimony, were to obtain information.²

Although the Justice of the Peace and Harvey had both spoken in terms of "a fine" as punishment for the offense for which he was charged,³ the sentence entered on the records of the Justice of the Peace was a $500 fine and a 90-day jail term. Although this entry was made on July 23rd, the mittimus or order for arrest was not issued until September 4, 1964, and Clyde Harvey was picked up and put in jail on September 9th. Harvey had no actual knowledge that he had been sentenced to a jail term until the mittimus was served on him and he was put in jail. By that time the 40-day statutory period for the taking of an appeal from a Justice Court to the Circuit Court had expired. Thus, with no appeal available appellant could not be released on bond, and he commenced serving his 90-day sentence.

Thereupon, present counsel got active on behalf of appellant and, asserting discriminatory attitudes prevalent in Leake County, Mississippi, and his apprehension that he could not receive a fair and impartial trial in that County, and also alleging the invalidity of the previous proceeding before the Justice of the Peace, counsel sought to remove the prosecution to the Federal District Court for the Southern District of Mississippi. The removal petition also included a prayer for a writ of habeas corpus. In support of this prayer, it was alleged that appellant had sought to have the plea of guilty set aside by the Mississippi Supreme Court by filing a petition for writ of error corum nobis which had not then been acted upon.⁴

The United States District Court set the matter down for hearing and treated the response filed by the State as a petition for remand to the state court. In view of the record entry showing that a plea of guilty had been entered by the appellant in the Justice of the Peace Court, the District Court concluded that it had no power to retain jurisdiction under 28 U.S.C.A. § 1443 because the petition for removal had not been filed "before trial" as required by Section 1446. The court therefore entered an order remanding the case to the Justice of the Peace for Leake County, Mississippi.

In dealing with the petition for writ of habeas corpus, the trial court stated:

"The petitioner prays for a writ of habeas corpus, and I treated this as a petition, also, for writ of habeas corpus and I did have him brought over for the hearing today and he has testified. And I considered the testimony on the motion to remand. I cannot grant the petition for the writ of habeas corpus. It must be denied because he has not exhausted his state remedies. As to the exhaustion, I cite In Re Wyckoff Wycoff, 159 196 Fed.Supp. 515." And also, "I deny the petition of the writ of habeas corpus because he has not exhausted his state remedies as required to do by Federal Statute."

The appellant filed a Notice of Appeal to this Court both from the order of remand and from the denial of the writ of habeas corpus. In connection with the filing of the notice, appellant also filed a petition for a stay of the order of remand and requested that he be enlarged on bail pending appeal in the habeas corpus case. The motion for stay was initially heard by another panel of this Court but, on account of the absence of the transcript of proceedings before the district court, that panel of the Court reset the case before us for determination on the merits, carrying the motion for stay with the case. After studying the transcript and hearing oral argument, we entered an order enlarging the appellant on his execution of a $500 bond signed by himself pending our determination of the case on appeal. He has made this bond and has now been released pending final determination of the case.

In the present posture of the case we need not determine whether the trial court erred in remanding the case to the state court. The disposition we make of the case moots that question. We proceed at once to the habeas corpus appeal. If Harvey can show an unconstitutional deprivation of his liberty by reason of basic defects in the state court proceedings, and if he has exhausted his state remedies, the petition for habeas corpus is the proper means to test the validity of the state court judgment.

In order to test jurisdiction of the federal courts, we turn first to the question of exhaustion of state remedies. In considering such remedies, we look of course to the state of the matter at the time the federal habeas corpus petition was filed. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.⁵

What remedies, then, were open to Harvey after he learned, several days after the time for appealing his judgment of conviction had expired, that he stood convicted and sentenced to pay a $500 fine and serve 90 days in jail if he desired to raise constitutional questions attacking the trial and sentence? The appellee here points to the Mississippi Statute providing for the writ of habeas corpus. Section 2815 of the Mississippi Code of 1942 as amended, states:

"The writ of habeas corpus shall extend to all cases of illegal confinement or detention

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