Hawk v. Olson, No. 12335.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSANBORN, THOMAS, and JOHNSEN, Circuit
Citation130 F.2d 910
PartiesHAWK v. OLSON, Warden.
Decision Date19 October 1942
Docket NumberNo. 12335.

130 F.2d 910 (1942)

HAWK
v.
OLSON, Warden.

No. 12335.

Circuit Court of Appeals, Eighth Circuit.

October 19, 1942.


Henry Hawk, appellant, pro se.

Walter R. Johnson, Atty. Gen., of Nebraska, and H. Emerson Kokjer and John H. Comstock, Asst. Attys. Gen., for appellee.

Before SANBORN, THOMAS, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

Henry Hawk has appealed from an order of the United States District Court for the District of Nebraska denying the issuance of a writ of habeas corpus and dismissing the petition for the writ. Hawk is an inmate of the Nebraska State Penitentiary under a life sentence for first degree murder, which sentence was imposed by the District Court of Douglas County, Nebraska, in 1936. It appears that since his incarceration in the State Penitentiary, Hawk has been a persistent and unsuccessful applicant for release on habeas corpus, this evidently being his third petition to the court below for such a writ.

In 1939, he applied to the District Court of Lancaster County, Nebraska, for habeas corpus. His petition was dismissed, and he appealed to the Supreme Court of Nebraska, which affirmed the dismissal. Hawk v. O'Grady, 137 Neb. 639, 290 N.W. 911. He petitioned the Supreme Court of the United States for certiorari, and that court denied his petition. Hawk v. O'Grady, 311 U.S. 645, 61 S.Ct. 11, 85 L.Ed. 412. In 1941, he again applied for habeas corpus to the District Court of Lancaster County, Nebraska, and that court again dismissed his petition.

The substance of Hawk's present petition is that he is imprisoned without due process of law, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States; that in the proceedings leading up to his conviction and sentence he was denied rights secured to him by the due process clause of the Fourteenth Amendment, in that the trial court was without jurisdiction to try him because he was, at the time, serving a sentence of four years in the United

130 F.2d 911
States Penitentiary at Leavenworth, and was in court in the custody of guards from that institution; that his trial was a mere sham and pretense; that he was denied the right to have counsel and to have compulsory process for the production of witnesses; that he was refused a continuance of the trial in order to prepare his defense, and was hurried to conviction; that the testimony of the State which led to his conviction was manufactured and false, to the knowledge of the trial judge and the prosecuting officers; that the court had no power to pronounce the sentence which was imposed upon him; that he was deprived of his right of appeal; and that, at the termination of the four-year federal sentence, he was feloniously kidnapped by State officers of Nebraska and placed in the State Penitentiary. Hawk attached to his petition for habeas corpus copies of the records and proceedings leading up to his conviction and sentence, including transcripts of the evidence taken at his preliminary hearing and upon his trial

Upon the filing of Hawk's petition, the court below directed the appellee to show cause why the writ should not be issued and to disclose the authority under which the petitioner was held in custody. The appellee filed a response objecting to the issuance of the writ prayed for, and asserting that Hawk was in custody by virtue of a judgment of conviction entered by the District Court of Douglas County, Nebraska, which court, at the time of the entry of the judgment, had jurisdiction of his person and of the subject matter of his case; that he was duly tried, that the jury returned a verdict of guilty of murder in the first degree and fixed the penalty at life imprisonment, that sentence was duly imposed, and that the judgment has become final.

The court below concluded, in effect, that Hawk's petition, including the exhibits which were expressly made a part of it, failed to disclose that he was confined in violation of any right secured to him by the Constitution of the United States, and denied him a writ of habeas corpus and dismissed his petition. The court certified that there existed probable cause for an appeal. 28 U.S.C.A. § 466.

We find it unnecessary to consider whether the appellant's petition sufficiently disclosed a denial of his constitutional rights in the proceedings leading to his conviction and imprisonment, since we think that the court below could not have issued the writ in any event.

It conclusively appears from Hawk's petition that he is confined by the State of Nebraska in the State Penitentiary for a violation of the laws of the State and under a judgment entered and a commitment issued by a court of the State. This is not one of those "rare cases where exceptional circumstances of peculiar urgency are shown to exist," in which a federal court may, in the exercise of a sound discretion, issue a writ of habeas corpus on the application of one in the custody of a state, and thus interfere with the orderly administration by the state of its criminal laws.

In United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138, the Supreme Court of the United States said: "The rule has been firmly established by repeated decisions of this court that the power conferred on a federal court to issue a writ of habeas corpus to inquire into the cause of the detention of any person asserting that he is being held in custody by the authority of a state court in violation of the Constitution, laws, or treaties of the United States, is not unqualified, but is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist. Ex parte Royall, 117 U.S. 241, 250-253, 6 S.Ct. 734, 29 L.Ed. 868; In re Wood, 140 U.S. 278, 289, 11 S.Ct. 738, 35 L.Ed. 505; In re Frederich, 149 U.S. 70, 77, 78, 13 S.Ct. 793, 37 L.Ed. 653; People of State of New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 39 L.Ed. 80; Whitten v. Tomlinson, 160 U.S. 231, 240-242, 16 S.Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Davis...

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27 practice notes
  • Edwards v. Schmidt, No. 70-C-97.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • January 5, 1971
    ...9 Cir. 117 F.2d 939, 940; In re Miller, 9 Cir. 126 F.2d 826, 827; Kelly v. Ragen, 7 Cir. 129 F.2d 811, 814-15; Hawk v. Olson, supra, 130 F.2d 910 911-913; Marsino v. Hogsett, 1 Cir. 37 F.2d 409, 414; United States ex rel. Foley v. Ragen, D.C. 52 F.Supp. 265-270; cf. United States ex rel. Mu......
  • Niklaus v. Simmons, Civ. No. 305-L.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • September 6, 1961
    ...rulings which would support the entry of a general dismissal with prejudice. But in harmony with the reasoning of Hawk v. Olson, 8 Cir., 130 F.2d 910, which admittedly arose in another context. I am of the opinion that dismissal for want of jurisdiction is the more appropriate course. An or......
  • Daniels v. Allen, No. 6330.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 5, 1951
    ...United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138; Jones v. Dowd, 7 Cir., 128 F.2d 331; Hawk v. Olson, 8 Cir., 130 F.2d 910, certiorari denied 317 U.S. 697, 63 S.Ct. 435, 87 L.Ed. 557. Ordinarily, adjudications made by the state courts in connection with applicat......
  • Hawk v. Olson, No. 17
    • United States
    • United States Supreme Court
    • November 13, 1945
    ...(appeal from denial of writ in state District Court), certiorari denied 311 U.S. 645, 61 S.Ct. 11, 85 L.Ed. 412; Hawk v. Olson, 8 Cir., 130 F.2d 910 (appeal from denial of writ in District Court), certiorari denied 317 U.S. 697, 63 S.Ct. 435, 87 L.Ed. 557; Ex parte Hawk, 318 U.S. 746, 63 S.......
  • Request a trial to view additional results
27 cases
  • Edwards v. Schmidt, No. 70-C-97.
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • January 5, 1971
    ...9 Cir. 117 F.2d 939, 940; In re Miller, 9 Cir. 126 F.2d 826, 827; Kelly v. Ragen, 7 Cir. 129 F.2d 811, 814-15; Hawk v. Olson, supra, 130 F.2d 910 911-913; Marsino v. Hogsett, 1 Cir. 37 F.2d 409, 414; United States ex rel. Foley v. Ragen, D.C. 52 F.Supp. 265-270; cf. United States ex rel. Mu......
  • Niklaus v. Simmons, Civ. No. 305-L.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • September 6, 1961
    ...rulings which would support the entry of a general dismissal with prejudice. But in harmony with the reasoning of Hawk v. Olson, 8 Cir., 130 F.2d 910, which admittedly arose in another context. I am of the opinion that dismissal for want of jurisdiction is the more appropriate course. An or......
  • Daniels v. Allen, No. 6330.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • November 5, 1951
    ...United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138; Jones v. Dowd, 7 Cir., 128 F.2d 331; Hawk v. Olson, 8 Cir., 130 F.2d 910, certiorari denied 317 U.S. 697, 63 S.Ct. 435, 87 L.Ed. 557. Ordinarily, adjudications made by the state courts in connection with applicat......
  • Hawk v. Olson, No. 17
    • United States
    • United States Supreme Court
    • November 13, 1945
    ...(appeal from denial of writ in state District Court), certiorari denied 311 U.S. 645, 61 S.Ct. 11, 85 L.Ed. 412; Hawk v. Olson, 8 Cir., 130 F.2d 910 (appeal from denial of writ in District Court), certiorari denied 317 U.S. 697, 63 S.Ct. 435, 87 L.Ed. 557; Ex parte Hawk, 318 U.S. 746, 63 S.......
  • Request a trial to view additional results

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