Hawk v. Hann

• Decision Date: 11 March 1952
• Docket Number: Civ. 23-51.
• Parties: HAWK v. HANN, Warden.
• Court: U.S. District Court — District of Nebraska

103 F. Supp. 138

HAWK v. HANN, Warden.

Civ. 23-51.

United States District Court D. Nebraska, Lincoln Division.

March 11, 1952.

Richard W. Smith, Lincoln, Neb., for petitioner.

Robert A. Nelson, Asst. Atty. Gen. of Nebraska, for respondent.

DONOHOE, Chief Judge.

Petitioner, Henry Hawk, an inmate of the Nebraska State Penitentiary, transmitted to this court an application for a writ of habeas corpus. The application, crudely prepared by petitioner in his own handwriting, contained an affidavit of poverty and a request to proceed in forma pauperis. Since petitioner alleged, among other things, facts indicating his incarceration in violation of the Constitution of the United States, this court assumed jurisdiction, 28 U.S.C.A. § 2241 et seq., granted petitioner's request to proceed in forma pauperis, and appointed counsel to represent him. Sometime thereafter court appointed counsel filed an amended application for the writ, a show cause order issued, and the Warden of the State Penitentiary responded.

Exhaustion of State Remedies

Petitioner, in custody pursuant to a judgment of a state court, is obviously aware of requirement that all state remedies must be exhausted before his application for habeas corpus can be considered by this court. He played an important role in the establishment of the requirement. Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; 28 U.S.C.A. § 2254; Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L. Ed. 761. He has made every effort to, and insofar as this court is able to discern from an examination of prior proceedings in which he has been involved, he has, at long last, exhausted his state remedies. His endeavors in this connection may be briefly summarized as follows:

Petitioner filed an application for a writ of habeas corpus in the district court for Lancaster County, Nebraska, alleging facts very similar to the facts alleged in this case. The district court denied relief without a hearing. The Supreme Court of Nebraska affirmed. Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181. The Supreme Court of the United States granted certiorari, 324 U.S. 839, 65 S.Ct. 1021, 89 L. Ed. 1402, and reversed on the merits, pointing out that petitioner had stated the violation of a federal constitutional right and was entitled to a hearing. Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61. The petitioner then submitted a motion to the State Supreme Court requesting that the judgment of the United States Supreme Court be enforced and that the State Supreme Court issue a mandate to the district court for Lancaster County to issue a writ of habeas corpus directing that petitioner be produced before it for a hearing upon the allegations in his petition for the writ. The motion was denied. Hawk v. Olson, 146 Neb. 875, 22 N.W.2d 136. The State Supreme Court informed the United States Supreme Court that it misunderstood local procedure and pointed out that in Nebraska habeas corpus was not the proper remedy in the situation petitioner alleged. Since this decision of the Nebraska Supreme Court rested upon a state procedural point, not involving any federal question, a request for certiorari was not a necessary step in the state remedy exhaustion process. White v. Ragen, 324 U.S. 760, 765, 65 S.Ct. 978, 89 L.Ed. 1348; Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572. Petitioner then applied for a writ of habeas corpus here in the federal District Court for Nebraska but was informed that he must first try coram nobis in the State courts. Hawk v. Olson, D.C., 66 F.Supp. 195; affirmed in Hawk v. Jones, 8 Cir., 160 F.2d 807; certiorari denied 332 U.S. 779, 68 S.Ct. 44, 92 L.Ed. 363. Following these decisions, petitioner instituted a proceeding in error coram nobis in the district court for Douglas County, Nebraska, to vacate the judgment and conviction pursuant to which he was imprisoned. The allegations contained in the coram nobis petition are substantially similar to the allegations contained in the application for relief now under consideration. The district court held a hearing; evidence was adduced; and upon consideration of the merits, relief denied. The action of the district court was affirmed by the Nebraska Supreme Court, Hawk v. State, 151 Neb. 717, 39 N.W.2d 561; and the Supreme Court of the United States refused to grant certiorari. Hawk v. Nebraska, 339 U.S. 923, 70 S.Ct. 612, 94 L.Ed. 1346.

Indubitably no further remedies are available to petitioner in the courts of the state of Nebraska.

Effect of Denial of Certiorari

The significance of the denial of certiorari in a situation such as this, where the highest court of the state has considered petitioner's constitutional claims on the merits and ruled adversely to him, is very adequately explained in United States ex rel. Smith v. Baldi, 3 Cir., 1951, 192 F.2d 540, 541, by Judge Goodrich. At page 543 of 192 F.2d he remarks:

"Our narrower question is: What effect in the lower federal courts is to be given to the denial of certiorari by the Supreme Court? The Court, through Mr. Justice Reed, says, Darr v. Burford 339 U.S. at page 217, 70 S.Ct. at page 597, 94 L.Ed. 761: `It is this Court's conviction that orderly federal procedure under our dual system of government demands that the state's highest courts should ordinarily be subject to reversal only by this Court and that a state's system for the administration of justice should be condemned as constitutionally inadequate only by this Court.'

"The doubt-creating word is `ordinarily.' When should a district court and a court of appeals again examine merits? Our inclination would naturally be to say `never.' It is highly uncomfortable for those of us in courts not of last resort to sit in what is, in effect, review of the highest court of a state. The responsibility is one from which we should be glad to be relieved. But Darr v. Burford does not say that denial of certiorari relieves us. The dissenting opinion * * * points out that no directions are given the lower federal courts on the point. It would be unseemly for us to make argument either way on the questions upon which our superiors differ. We think that what we clearly must do, until we are told to the contrary, is to follow the well established rule that a denial of certiorari does not prove anything except that certiorari was denied. When the applicant for habeas corpus has petitioned for certiorari he has fulfilled a procedural requirement. If he gets certiorari his constitutional questions will be adjudicated on the merits by the Supreme Court. If he does not, he may apply to the appropriate lower federal court for a writ. This seems to be the rule compelled, if not decided, by Darr v. Burford and considerations expressed therein.

"But it is to be reiterated that we are not an appellate court for the correction of errors under state law. Each point raised by the relator is to be tested by whether it alleges a violation of rights under the United State Constitution: nothing more. That these allegations have been decided on the merits by the highest state court is a fact to be given great weight by a district court in passing upon petitions for habeas corpus. But that fact does not relieve the federal court of the duty to pass upon the merits of the petition."

This very reasonable position seems to be the one adopted in our own circuit. Anderson v. Eidson, 8 Cir., 1951, 191 F.2d 989; Goodman v. Lainson, 8 Cir., 1950, 182 F.2d 814. Consequently this court granted petitioner Hawk a hearing on the merits of the constitutional questions presented in his application for a writ of habeas corpus. After careful consideration of all the material and competent evidence adduced at this hearing the Court makes the following special

Findings of Fact:

The petitioner is a poor man whose formal education does not extend beyond the third grade. Prior to the time in question petitioner was involved in criminal and habeas corpus proceedings approximately seven different times. In all of these proceedings, except two, petitioner was represented by counsel. In those two, one a habeas corpus proceeding and the other a Dyer Act, 18 U.S.C.A. §§ 10, 2311-2313, prosecution in which a plea of guilty was entered and an appeal taken, petitioner represented himself.

On April 19, 1935, a complaint was filed in the municipal court of Omaha, Douglas County, Nebraska, charging petitioner in two counts with murder. The first count charged petitioner with murder in the first degree while attempting to rob Isadore Perelman on February 28, 1934. The second count charged petitioner with the first degree murder of Perelman by deliberately, with premeditated malice, shooting him with a revolver thereby causing his death.

Petitioner, who was at this time an inmate of the United States Penitentiary at Leavenworth, Kansas, serving a sentence upon a plea of guilty in the United States District Court in Nebraska for violation of the National Motor Vehicle Theft Act, became aware, evidently through one A. C. Anderson, that the complaint had been filed. From his prison cell, the petitioner transmitted the following letter, which was addressed to, and received by, Anderson:

"Post Office Box 7 Leavenworth, Kansas Jan. 30-1936 "Mr. A. C. Anderson Police Station Omaha, Nebraska

"Dear Sir:—

"Just a few lines in regard to our interview yesterday.

"I request of you to send me a Certified Copy of Information against me in District Court there before I consent to return to Omaha for trial.

"You must understand that if I do return to Omaha, that it must be of my own volition, For there is no law under the sun that you could or the State of Nebraska lawfully extradite me as a fugitive from Justice,

"First—I am not guilty of the charge and if and when I agree volintary to return to Nebraska, I will expect an early trial by Jury,

"Now if you or the agents of the State of Nebraska, Meet the above by a written agreement, of which I will approve,...