In re McShane's Petition, W-C-36-62.

• Citation: 235 F. Supp. 262
• Decision Date: 16 September 1964
• Docket Number: No. W-C-36-62.,W-C-36-62.
• Parties: Petition of James P. McSHANE for a Writ of Habeas Corpus.
• Court: U.S. District Court — Northern District of Mississippi

235 F. Supp. 262

Petition of James P. McSHANE for a Writ of Habeas Corpus.

No. W-C-36-62.

United States District Court N. D. Mississippi, W. D.

September 16, 1964.

Herbert J. Miller, Jr., Asst. Atty. Gen., Department of Justice, Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for petitioner.

Joe T. Patterson, Atty. Gen., State of Mississippi, Jackson, Miss., Jess L. Yancy, Jr., Dist. Atty., Bruce, Miss., for respondent.

CLAYTON, District Judge.

James P. McShane, during the time with which we are concerned, was the Chief of the Executive Office of the United States Marshals in the Department of Justice in Washington. On September 30, 1962, at the direction of the Attorney General of the United States, McShane was in Lafayette County, Mississippi, and upon the campus of the University of Mississippi and was acting in his official capacity and as a deputy United States marshal for the Northern District of Mississippi to supervise all of the deputy United States marshals who were in that area regarding the execution and enforcement of orders entered by the United States District Court for the Southern District of Mississippi and the United States Court of Appeals for the Fifth Circuit having to do with the admission of James H. Meredith, a Negro, as a student at the University of Mississippi. He and a number of other deputy United States marshals were also directed by the Attorney General toward the removal of all obstructions of justice to insure that the orders of these courts would be executed and enforced. McShane and the other deputy marshals were acting under the immediate direction of Nicholas de B. Katzenbach, Deputy Attorney General of the United States, who was there, and were thus engaged in the performance of their duties as officers of the United States.

Disorders and a riot occurred on the campus of the University of Mississippi and elsewhere in the immediate vicinity in connection with the said admission of Meredith. At least two people were killed, many others were injured, and much property was damaged or destroyed. Afterward at a special term of the Circuit Court of Lafayette County, Mississippi, the Grand Jury returned an indictment against James P. McShane charging that on the 30th day of September, 1962, "under circumstances such that a breach of the peace may be occasioned, did unlawfully and feloniously use physical acts, to-wit: the ordering of tear gas to be fired into a crowd assembled at University, Mississippi, and thereby causing tear gas to be fired in said crowd; and such conduct did lead to a breach of the peace and did incite a riot in the place aforesaid; and as a result of said breach of the peace and riot; another person, to-wit: Walter Ray Gunter was killed, in violation of § 2087.5 of the Mississippi Code of 1942 and amendments thereto."

A warrant (capias) was issued on this indictment and was in the hands of the Sheriff of Lafayette County, Mississippi for execution when James P. McShane was taken into custody on November 21, 1962. Immediately his petition for a writ of habeas corpus was filed in this court, the writ was issued and he was produced and released on his own recognizance.

The Sheriff filed his answer or return to the petition and writ of habeas corpus; petitioner filed a traverse to this answer or return and then petitioner filed a motion for summary judgment supported by affidavits. Respondent filed an answer to the traverse and an answer to the motion for summary judgment supported by affidavits in opposition to the affidavits of petitioner. Respondent also filed a motion to dismiss. Memorandum briefs were furnished by the parties on both of said motions.

Some unusual delay in the development of this case was occasioned by an earnest effort, before petitioner's motion for summary judgment was filed, to find a time which would be suitable for the trial of the case on its merits in which due consideration had to be given to the fact that many witnesses would be required and that a large part of these had been scattered at great distances from the place where the hearing would have been held.

Additional delay was occasioned by reason of the fact that an appeal was then pending in the Court of Appeals for the Fifth Circuit from the action of this court in sustaining as motions for summary judgment, defendants' motions to dismiss filed in damage suits which arose from the incidents pertaining to the admission of Meredith to the University of Mississippi as a student. These suits were against the aforementioned Deputy Attorney General of the United States; James P. McShane, Chief of the Executive Office of the United States Marshals (the petitioner in the instant case) and other personnel of the Department of Justice of the United States.¹ Further, a case of a similar type in which an opposite result had been reached by the District Court for the Southern District of Mississippi was also then pending on appeal in the Court of Appeals. Disposition of said appeals was considered likely to have an important bearing on the case at bar. Hence, this court stayed its hand awaiting the opinions of the Court of Appeals and finally, on the 24th day of March, 1964, by agreement of the parties in this cause, an order was entered remanding this case to the docket to await the action of the Court of Appeals in said cases.

These appeals were decided by the Court of Appeals on June 1, 1964. Norton v. McShane, 332 F.2d 855 (5 Cir. 1964) and United States v. Faneca, 332 F.2d 872 (5 Cir. 1964). After those opinions were released, the parties were given time to express their views in memorandum briefs as to the impact, if any, they should have on disposition of this case. The last of those briefs being in, the case is now ready for disposition on petitioner's motion for summary judgment and on respondent's motion to dismiss.

I.

The essence of the motion to dismiss is that 28 U.S.C. § 2254 precludes the granting of the relief sought in this court before exhaustion by petitioner of all state remedies which are available to him. Respondent places great reliance on the case of In the Matter of Brown v. Rayfield, 320 F.2d 96 (5 Cir. 1963) wherein relief by way of habeas corpus was denied to petitioners who were engaged as private citizens in certain civil rights activities and were being held on charges of violating an ordinance of the City of Jackson, Mississippi. Respondent says that affidavits charging misdemeanors were there construed to be judgments within the meaning of section 2254 and that thus the indictment in this case is also such a judgment. This court cannot read Brown as so holding. In fact, the language indicates that there had in fact been a trial: "Appellants concede that they have not exhausted their State remedies, either by appeal or by filing a petition for a writ of habeas corpus in the state courts . . . .." (Emphasis added.) Moreover, in quoting from footnote 1 of its opinion in the case of In re Wykoff, 6 Race Relations Law Reporter 793, the court said: "It not appearing from anything asserted in the petition in this case that petitioner sought to appeal her conviction . . . .." (Emphasis added.)

Also, it is clear that this statute, when it was passed in its present form, was intended by Congress to afford protection to federal officers. As originally drafted, section 2254 withdrew habeas corpus from persons held "in custody pursuant to the judgment of a state court or authority of a state officer" until they had exhausted their state remedies. (Emphasis added.) The emphasized phrase was deleted at the insistence of the Senate for fear that if "the section were applied to applications by persons detained solely under authority of a State officer, it would unduly hamper Federal courts in the protection of Federal officers prosecuted for acts committed in the course of official duty." S.Rep.No.1559, 80th Cong., 2d Sess. 9 (1948). The intention is clear also that this statute in its present form was intended to be "declaratory of existing law as affirmed by the Supreme Court." H.R.Rep.No.308, 80th Cong., 1st Sess. A180 (1948). It was well recognized before Congress took this action that, unlike other situations in which the writ might be sought, habeas corpus could be granted to a federal officer who had been ordered committed on charges of violating state law, In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890); In re Lewis, 83 F. 159 (D. Wash.1897), or who had been indicted, West Virginia v. Laing, 133 F. 887, 888 (4 Cir. 1904); Brown v. Cain, 56 F.Supp. 56, 57 (E.D.Pa.1944), or otherwise formally charged with a state offense, United States v. Lipsett, 156 F. 65, 67 (W.D. Mich.1907); In re Fair, 100 F. 149, 150 (D.Nebr.1900), but had not yet been tried on the state charges. No case has been cited and none has been found which stands clearly for the proposition that a federal officer charged with a violation of state law while performing his official duty must exhaust state remedies before seeking habeas corpus relief in a federal court.

It is this court's opinion that respondent's motion to dismiss is not well taken and it will be overruled.

II.

With respect to the motion for summary judgment, this court is of the opinion that this is a proper procedure to be used in a habeas corpus case. In Bowdidge v. Lehman, 252 F.2d 366, 368 (6 Cir. 1958), the Court of Appeals for the Sixth Circuit expressly held that Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment, is applicable to a habeas corpus action. Bowdidge was quoted with approval by the Court of Appeals for this circuit in United States ex rel. Seals v. Wiman, 304 F.2d 53, 64 (5 Cir. 1962), where the court held Federal Rule of Civil Procedure 36 applicable in a habeas corpus case. See also Hunter v. Thomas, 173 F.2d 810 (10 Cir. 1949), where the court concluded that since no express clause in the habeas corpus provisions govern procedures with...