Irvin v. Dowd, Civ. No. 2250.

• Decision Date: 08 July 1957
• Docket Number: Civ. No. 2250.
• Parties: Leslie IRVIN v. A. F. DOWD, as Warden of the Indiana State Prison at Michigan City, Indiana.
• Court: U.S. District Court — Northern District of Indiana

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.

COPYRIGHT MATERIAL OMITTED

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 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 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 process by denying him a hearing on and a continuance and a change of venue from Gibson County because of bias, prejudice, hostility and excitement in Gibson County.

The facts are that the murder for which the petitioner was tried in the Gibson Circuit Court was committed in Vanderburgh County, Indiana, on December 23, 1954, and an indictment was returned by the Grand Jury of Vanderburgh County on April 21, 1955. On May 10, 1955 the defendant filed a motion and affidavit for a change of venue with prayer that the venue of the action be changed from Vanderburgh County, Indiana to some other county in Indiana, and with the defendant present in court in person and by counsel the motion was sustained by the Vanderburgh Circuit Court and without objection of the defendant the cause was venued to the Gibson Circuit Court of Gibson County, Indiana.

On May 17, 1955 the Gibson Circuit Court, at the request of the defendant, appointed Theodore Lockyear, Jr. as counsel for him and on May 18, 1955 the court, at the request of the defendant, appointed James D. Lopp to assist Mr. Lockyear as counsel for the defendant, and after the disposition of certain motions by the court, none of which rulings are here questioned, on September 12, 1955 the court assigned the cause for trial before a jury on November 14, 1955 without objection by the defendant, he being present in court in person and by counsel. Thus the trial commenced on November 14, 1955, almost eleven months after the crime had been committed and more than eight months after the defendant had confessed to not only the murder for which he was being tried but to other murders also.

Because of the number of murders and the magnitude of the crimes to which the petitioner had confessed, some of the information having been given to the press at the request and direction of the petitioner himself, there was a great amount of publicity in the press and on the radio and television, and it would have made no difference where or when the petititoner had been tried it would have been the same. Even at this late date the proceedings in this court have had statewide publicity.

Under the law in Indiana whether a continuance should be granted on account of public excitement rests...