Irvin v. Dowd

• Decision Date: 19 February 1958
• Docket Number: No. 12080.,12080.
• Citation: 251 F.2d 548
• Parties: Leslie IRVIN, Petitioner-Appellant, v. Alfred F. DOWD, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

251 F.2d 548 (1958)

Leslie IRVIN, Petitioner-Appellant, v. Alfred F. DOWD, Warden, Respondent-Appellee.

No. 12080.

United States Court of Appeals Seventh Circuit.

January 29, 1958.

Rehearing Denied February 19, 1958.

Theodore Lockyear, Jr., James D. Lopp, Evansville, Ind., James D. Nafe, South Bend, Ind., for appellant.

Edwin K. Steers, Atty. Gen. of Indiana, Richard M. Givan, Deputy Atty. Gen., for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

From an order of the district court dismissing his petition for a writ of habeas corpus, petitioner has appealed to this court.¹

The controlling facts are set forth in the opinion of the district court, 153 F. Supp. 531, and in the opinion of the Indiana Supreme Court in Irvin v. State, 236 Ind. 384, 139 N.E.2d 898.

Defendant was tried in the Circuit Court of Gibson County, Indiana, on an indictment charging him with murder. On December 20, 1955, a verdict finding him guilty of murder was returned by the jury and, on January 9, 1956, a judgment was entered on the verdict and he was sentenced to death. On January 18, 1956 defendant escaped from the county jail and his whereabouts was not known on January 19, 1956, at which time the trial court was informed by the sheriff of these circumstances. At the same time the defendant's attorneys filed a motion for a new trial, charging 415 errors committed by the trial court, including several attacking the impartiality of the jurors. The trial court's order of January 23, 1956 recites that defendant's attorneys filed with the court a copy of a letter received from defendant reading, in part, as follows:

"Wednesday "January 18, 1956

"Dear Ted:

"I know this is the wrong thing to do, but I can\'t just go up to Michigan City and wait. If, they ever give me a new trial, I\'ll come back and face it. Maybe the jury then will believe the truth. * * *"

By said order the court overruled the motion for a new trial. Defendant then appealed to the Supreme Court of Indiana, which affirmed the judgment below. Irvin v. State, supra.²

In this case there is no disagreement with the well-established principle that a person convicted of a criminal offense in a state court has no right to prosecute a petition for a writ of habeas corpus in a federal court, based upon an alleged violation of his federal constitutional rights, unless he has exhausted his available state remedies. Brown v. Allen, 344 U.S. 443, 487, 73 S.Ct. 397, 97 L.Ed. 469. This principle has found repeated recognition, including our decision in United States ex rel. Touhy v. Ragen, 224 F.2d 611, 614.

It must be borne in mind that, unless and until defendant shows that he has exhausted remedies afforded him by the state of Indiana, we are not permitted to consider whether his federal constitutional rights were violated at his trial.

However the parties hereto are not agreed on whether defendant did exhaust Indiana's remedy of appeal to the Supreme Court of Indiana, of which he chose to avail himself. The only assignment of error by defendant in the Supreme Court of Indiana was that the trial court erred in overruling his motion for a new trial.

The state supreme court thoroughly considered the law as announced in numerous court decisions, and held, 139 N.E.2d at page 901,

"* * * If a prisoner escapes he is not entitled during the period he is a fugitive to any standing in court or to file any plea or ask any consideration from such court."

That court pointed out:

"* * * There is no showing that the appellant voluntarily surrendered himself. Instead, counsel in argument admitted that he remained a fugitive from justice until he was recaptured in the state of California. This occurred some considerable time after the period within which the motion for a new trial could have been filed. The time ran out on appellant while he was voluntarily a fugitive from justice.

"The action upon which the appellant predicates error in this appeal is based solely upon the overruling of a motion for a new trial. There is no other error claimed. Since appellant had no standing in court at the time he filed a motion for a new trial the situation is the same as if no motion for a new trial had been filed, or he had voluntarily permitted the time to expire for such filing. His letter reveals he was aware of this right, and had talked with his attorneys about a new trial and an appeal.

"No error could have been committed in overruling the motion for a new trial under the circumstances." (Italics supplied for emphasis.)

We must accept as an authoritative statement of the law of Indiana what its supreme court said in the foregoing language. Therefore, briefly stated, the state law applicable to the facts in the record, is: Only by his motion for a new trial presented and argued to the court, while the court had custody of the defendant, could he have taken the first step in his resort to the remedy of appeal afforded him by the law of Indiana.

We think it is plain from a reading of defendant's letter, written after his escape, that he did not intend to again submit himself to the custody of the trial court if that court did not, in advance of such submission by him, grant him a new trial. It follows that if the court, after laborious consideration of the multitudinous grounds asserted by defendant, had denied his motion for a new trial, he would not have voluntarily returned and, if not recaptured, the trial court would have been powerless to enforce its judgment against him. Defendant did not exhaust the remedy afforded him by the law of Indiana. Instead he sought to substitute a remedy of his own creation, which in its operation would have permitted him, from a secret hiding place, by remote control, to coerce the trial court to do his bidding. Thereby he sought to transform the court of a sovereign state into a mere puppet. Indiana had furnished him a remedy, simple and complete, originating in a motion for a new trial and leading by appeal to the highest court in the state. The trial court was in session in its accustomed place to hear such a motion; defendant was not there. There was nothing for the court to do but deny the motion, which it did.

As we have seen, on an appeal to the Supreme Court of Indiana, the action of the trial court was affirmed. We are in accord with the district court, because, in such a situation, a defendant in a criminal case is not entitled to relief in a federal court based upon the alleged violation of his rights derived from the constitution of the United States.

In Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949, Allen procured a writ of error from the United States Supreme Court, to review an order of the Supreme Court of Georgia, dismissing a writ of error from that court to a Superior Court in that state. The latter writ sought to reverse the conviction of Allen for murder. In the federal court Allen relied upon the due process of law provisions of the federal constitution. The facts showed that, after Allen had been convicted and sentenced to death by the Superior Court, he made a motion for a new trial, which was overruled. When his case in the state supreme court was called, it was made to appear by affidavits that, after his conviction and sentence, Allen escaped from jail and was at that time a fugitive from justice. Thereupon the court ordered the writ of error dismissed, unless he surrendered within 60 days or should be recaptured within that time, so as to be subject to the jurisdiction of the court. After the 60 days expired, it appearing that he had not surrendered himself or been rearrested, the Georgia Supreme Court dismissed the writ of error and its judgment was thereafter made the judgment of the Superior Court. Afterwards Allen, having been recaptured, was resentenced to death by the Superior Court, whereupon the writ of error issued from the United States Supreme Court, which pointed out, 166 U.S. at page 140, 17 S.Ct. at page 526:

"* * * In a similar case from the Supreme Court of Nebraska, Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854, wherein it appeared that, pending the writ of error from this court, the plaintiff in error had escaped, and was no longer within the control of the court below, it was ordered that the submission of the cause be set aside, and, unless the plaintiff were brought within the jurisdiction of the court below on or before the last day of the term, the cause should be thereafter left off the docket, until directions to the contrary. A like order, under similar circumstances, was made in Smith v. United States, 94 U.S. 97, 24 L.Ed. 32."

The court also said, 166 U.S. at page 141, 17 S.Ct. at page 526:

"We cannot say that the dismissal of a writ of error is not justified by the abandonment of his case by the plaintiff in the writ. By escaping from legal custody * * * he is put in a position of saying to the court: `Sustain my writ and I will surrender myself, and take my chances upon a second trial; deny me a new trial, and I will leave the state, or forever remain in hiding.\' We consider this as practically a declaration of the terms upon which he is willing to surrender, and a contempt of its authority, to which no court is bound to submit. It is much more becoming to its dignity that the court should prescribe the conditions upon which an escaped convict should be permitted to appear and prosecute his writ, than that the latter should dictate the terms upon which he will consent to surrender himself to its custody."

The court in the Allen case cited Commonwealth v. Andrews, 97 Mass. 543, saying that it was there held that where the defendant escaped during the pendency of his case in the state supreme court, he could not be heard by attorney, the defendant not being present in person; and that if a new trial were ordered, he was not there to answer further, and that if the exceptions were overruled, a...