Irvin v. Dowd, Civ. No. 2250.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtPARKINSON
Citation153 F. Supp. 531
PartiesLeslie IRVIN v. A. F. DOWD, as Warden of the Indiana State Prison at Michigan City, Indiana.
Decision Date08 July 1957
Docket NumberCiv. No. 2250.

153 F. Supp. 531

Leslie IRVIN
v.
A. F. DOWD, as Warden of the Indiana State Prison at Michigan City, Indiana.

Civ. No. 2250.

United States District Court N. D. Indiana, South Bend Division,

July 8, 1957.


153 F. Supp. 532
COPYRIGHT MATERIAL OMITTED
153 F. Supp. 533
Theodore Lockyear, Jr., James D. Lopp, Evansville, Ind., James D. Nafe, South Bend, Ind., for petitioner

Robert O'Mahoney and Carl Franceschini, Deputy Attys. Gen., for respondent.

PARKINSON, District Judge.

This is a habeas corpus proceeding initiated by the petitioner on July 2, 1957 upon the presentation thereby to this court of a verified petition for the writ alleging that the petitioner had been tried, convicted and sentenced to death by electrocution on July 9, 1957 by the Gibson Circuit Court of Gibson County, Indiana without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and that he had exhausted all his remedies in the state courts of Indiana.

With his petition for writ of habeas corpus, he filed a petition, with pauper's affidavit thereto attached, for leave to proceed in forma pauperis and for appointment of counsel and a petition for stay of execution.

This court granted leave to the petitioner to file his petition for writ of habeas corpus in forma pauperis and appointed James D. Lopp, Theodore Lockyear, Jr. and James D. Nafe as counsel for and to represent the petitioner herein.

The petitioner having alleged that he had exhausted all remedies by appeal and otherwise before the courts of the State of Indiana and specifically that the Supreme Court of Indiana had held

153 F. Supp. 534
in an unreported opinion on March 13, 1957 it had no further jurisdiction in petitioner's case, this court granted the writ, and, by agreement of the parties, assigned the cause for hearing on July 5, 1957

Prior to the hearing the respondent filed return wherein he denied the allegations of the petition and certified the true cause of detention being under the commitment of the Gibson Circuit Court, and the petitioner filed a traverse thereto.

Upon the issues thus formed the cause was tried to the court and upon conclusion of the hearing on July 5, 1957, the court announced from the bench that it would render its decision by written opinion to be filed with the clerk of this court at 9:00 a.m. on Monday, July 8, 1957.

As the findings of fact and conclusions of law will appear in this opinion it will be filed, as the court announced from the bench, and will so serve.

Counsel are in error when they assume that by the issuance of the writ herein this court determined that the petitioner had exhausted his state court remedies. The petitioner alleged in his petition that he had exhausted all of his state court remedies, otherwise, the court would not have ordered the writ to issue, but these allegations were denied by the respondent and this court, therefore, should determine that question at any stage of the proceedings because the doctrine of exhaustion of state remedies, while not precisely jurisdictional to the consideration of a petition for habeas corpus, involves a concept of broad judicial policy stemming from the concern of the federal courts to preserve the delicate balance of authority between the state and federal judiciary, and reviewing courts are required to apply the doctrine even on appeal from a District Court after issuance of the writ and a hearing therein resulting in the discharge of the petitioner. Schilder v. Gusik, 6 Cir., 1950, 180 F.2d 662; United States ex rel. Touhy v. Ragen, 7 Cir., 1955, 224 F.2d 611.

In face of the allegations of exhaustion of remedies in his petition, the petitioner offered in evidence the transcript filed by him on his appeal to the Supreme Court of Indiana which clearly establishes the fact that after the jury returned its verdict on December 20, 1955 and the Gibson Circuit Court had pronounced sentence thereon on January 9, 1956, the petitioner escaped from the Gibson County jail and the custody of the Sheriff on January 18, 1956, and wrote a letter to one of his attorneys informing him that he knew it was the wrong thing for him to do but if the court would grant him a new trial he would come back, a copy of which was filed with the court and made a part of the record.

The following day, January 19, 1956, his attorneys filed a motion for new trial in the Gibson Circuit Court and on January 23, 1956 the petitioner was still a fugitive from justice with his whereabouts unknown when his attorneys appeared before the court and the court overruled the motion for new trial.

Indiana is a code state and under its criminal code (Section 9-1903, Burns' 1956 Replacement), the causes for a new trial in a criminal case are specified and provides that a motion for a new trial must be in writing and filed within thirty days from the date of the verdict.

Petitioner's time for filing a motion for new trial expired under the statute on January 19, 1956. He was then without the jurisdiction of the Gibson Circuit Court by his own unlawful act in escaping from the jail where he was being held in custody and was still at large on January 23, 1956 when the Gibson Circuit Court denied the motion filed by the attorneys for the petitioner. By his own unlawful act he forfeited his right to utilize the adequate state corrective processes which were available to him and he has thereby failed to exhaust the remedies made available to him in the state courts of Indiana.

He now applies to this court for relief from the judgment of the Gibson Circuit Court and asks this court to hold

153 F. Supp. 535
that he was there denied due process of law and that this court in effect grant him a new trial

The Supreme Court of Indiana, Irvin v. State, 139 N.E.2d 898, held that the petitioner was not entitled during the period he was a fugitive from the Gibson Circuit Court, to any standing in that court or to file any plea or ask any consideration therefrom. That is the law, Allen v. State of Georgia, 1897, 166 U.S. 138, 141, 17 S.Ct. 525, 526, 41 L. Ed. 949, and in that holding we concur.

During that period, the time for petitioner to file a motion for new trial expired and to paraphrase the words of Chief Judge Duffy on page 616 of 224 F.2d in Touhy, supra, we hold that there were available to petitioner adequate state corrective processes which he did not utilize and that he was not prevented by any State officials from utilizing such processes, and that petitioner's petition for writ of habeas corpus must be denied because he had not exhausted his State remedies.

We, therefore, conclude that the petitioner by his own unlawful act in escaping from the custody of the Sheriff of Gibson County, Indiana and thereby absconding from the jurisdiction of the Gibson Circuit Court and remaining a fugitive from the custody thereof and without its jurisdiction during the statutory period when his time for filing a motion for new trial expired, foreclosed himself from and forfeited the right to utilize the adequate corrective processes available to him in the courts of the State of Indiana and that he has failed to exhaust the remedies available to him in the state courts of Indiana, which is an absolute bar to relief by habeas corpus in this court, and his petition must, therefore, be dismissed.

Although this court could rest its decision herein squarely upon the failure of the petitioner to exhaust his remedies in the state courts of Indiana, we will consider the contentions of the petitioner wherein he claims denial of due process whether they present non-federal procedural questions under the law of Indiana or a federal question under the Fourteenth Amendment.

The petitioner contends that the Gibson Circuit Court denied him due...

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7 practice notes
  • Fay v. Noia, No. 84
    • United States
    • United States Supreme Court
    • March 18, 1963
    ...Supreme Court, Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, had reached the merits of Irvin's federal claim, the District Court, 153 F.Supp. 531, was not barred by § 2254 from determining the merits of Irvin's constitutional contentions. IV. Noia timely sought and was denied certiorari her......
  • Irvin v. Dowd, No. 63
    • United States
    • United States Supreme Court
    • May 4, 1959
    ...of Gibson County, Indiana, was obtained in violation of the Fourteenth Amendment. Page 396 The District Court dismissed the writ, D.C., 153 F.Supp. 531, under the provision of 28 U.S.C. § 2254, 28 U.S.C.A. § 2254, that habeas corpus 'shall not be granted unless it appears that the applicant......
  • Irvin v. Dowd, No. 41
    • United States
    • United States Supreme Court
    • June 5, 1961
    ...not receive a fair trial. That court dismissed the proceeding on the ground that petitioner had failed to exhaust his state remedies. 153 F.Supp. 531. On appeal, the Court of Appeals for the Seventh Circuit affirmed the dismissal. 251 F.2d 548. We granted certiorari, 356 U.S. 948, 78 S.Ct. ......
  • Ruetz v. Lash, No. 73-1803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 22, 1974
    ...* *, which is an absolute bar to relief by habeas corpus in this court, and his petition must, therefore, be dismissed.' Irvin v. Dowd, 153 F.Supp. 531, 535 On appeal, this circuit agreed with the district court's analysis and affirmed, saying: 'Defendant did not exhaust his remedies under ......
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7 cases
  • Fay v. Noia, No. 84
    • United States
    • United States Supreme Court
    • March 18, 1963
    ...Supreme Court, Irvin v. State, 236 Ind. 384, 139 N.E.2d 898, had reached the merits of Irvin's federal claim, the District Court, 153 F.Supp. 531, was not barred by § 2254 from determining the merits of Irvin's constitutional contentions. IV. Noia timely sought and was denied certiorari her......
  • Irvin v. Dowd, No. 63
    • United States
    • United States Supreme Court
    • May 4, 1959
    ...of Gibson County, Indiana, was obtained in violation of the Fourteenth Amendment. Page 396 The District Court dismissed the writ, D.C., 153 F.Supp. 531, under the provision of 28 U.S.C. § 2254, 28 U.S.C.A. § 2254, that habeas corpus 'shall not be granted unless it appears that the applicant......
  • Irvin v. Dowd, No. 41
    • United States
    • United States Supreme Court
    • June 5, 1961
    ...not receive a fair trial. That court dismissed the proceeding on the ground that petitioner had failed to exhaust his state remedies. 153 F.Supp. 531. On appeal, the Court of Appeals for the Seventh Circuit affirmed the dismissal. 251 F.2d 548. We granted certiorari, 356 U.S. 948, 78 S.Ct. ......
  • Ruetz v. Lash, No. 73-1803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 22, 1974
    ...* *, which is an absolute bar to relief by habeas corpus in this court, and his petition must, therefore, be dismissed.' Irvin v. Dowd, 153 F.Supp. 531, 535 On appeal, this circuit agreed with the district court's analysis and affirmed, saying: 'Defendant did not exhaust his remedies under ......
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