Johnson v. Ellis, Civ. A. No. 13552.

• Decision Date: 18 May 1961
• Docket Number: Civ. A. No. 13552.
• Citation: 194 F. Supp. 258
• Parties: Adrian JOHNSON, Petitioner, v. O. B. ELLIS, Director, Texas Department of Corrections, Huntsville, Texas, Respondent.
• Court: U.S. District Court — Southern District of Texas

194 F. Supp. 258

Adrian JOHNSON, Petitioner, v. O. B. ELLIS, Director, Texas Department of Corrections, Huntsville, Texas, Respondent.

Civ. A. No. 13552.

United States District Court S. D. Texas, Houston Division.

May 18, 1961.

Bernard A. Golding, Houston, Tex., for petitioner.

Will Wilson, Atty. Gen., of Texas, Frank Briscoe, Dist. Atty., Harris County, Tex., and Samuel H. Robertson, Jr., and Lee P. Ward, Jr., Asst. Dist. Attys., Harris County, Tex., Houston, Tex., for respondent.

INGRAHAM, District Judge.

On March 10, 1961, there was filed in this court on behalf of Adrian Johnson an application for writ of habeas corpus. On May 2, 1961, a hearing was held on said application. This hearing continued for two days; fifteen witnesses, including petitioner, were heard.

Johnson was tried and convicted of murder with malice in the Criminal District Court of Harris County, Texas, in September 1959. His punishment was assessed at death. Petitioner then appealed to the Court of Criminal Appeals of Texas. In a written opinion of April 27, 1960, Johnson v. State, Tex.Cr.App., 336 S.W.2d 175, that court affirmed unanimously. Petitioner's motion for rehearing thereof was denied without written opinion on June 22, 1960.

Thereafter, Johnson filed a petition for writ of certiorari in the Supreme Court of the United States. In such petition he urged primarily that his "confession" or statement of July 22, 1959, admitted at trial, was obtained through police coercion. Certiorari was denied on December 19, 1960, 364 U.S. 927, 81 S.Ct. 355, 5 L.Ed.2d 267.¹

Petitioner has not sought the writ of habeas corpus in the Court of Criminal Appeals of Texas. Hence, upon this procedural posture, a jurisdictional question arises. Normally, exhaustion of state remedies is required as a pre-requisite to federal jurisdiction. 28 U.S. C.A. § 2254. Resort to state habeas corpus remedies must be had before federal relief is sought in the usual case. Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761; 1 Barron & Holtzoff, Federal Practice and Procedure, Sec. 45 (1960); 1 Moore's Federal Practice Sec. 0.230(2) (2d Ed.1960). Our court of appeals has required recourse to state habeas corpus remedies as a preliminary to federal jurisdiction in those cases where federal constitutional issues were not raised earlier in the state proceedings. United States ex rel. Connelly v. Cormier, 5 Cir., 1960, 279 F.2d 37; Williams v. Moore, 5 Cir., 1961, 285 F.2d 590, 591.

Where, on review of his conviction, a petitioner's claim of federal constitutional right has been decided against him by the highest state court and application for certiorari has been denied by the Supreme Court, such petitioner has satisfied the requirements as to exhaustion of state remedies of 28 U.S.C.A. § 2254. In those circumstances petitioner need not endlessly pursue collateral state remedies nor relitigate fruitlessly constitutional issues. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 437, 97 L.Ed. 469.² Our court of appeals cited Brown v. Allen, supra, in United States ex rel. Connelly v. Cormier, supra, and said in 279 F.2d at page 38:

"The cases in which resort to the federal courts has been permitted without first seeking habeas corpus or some other remedy available in the state courts have been like Brown v. Allen * * * where the pursuit of such remedy in the state courts was obviously useless, because the prisoner's claim of federal constitutional right had been decided adversely to him by the state supreme court, and an application for certiorari had been denied."

Hence, petitioner has met the requisites of 28 U.S.C.A. § 2254, as interpreted in Brown and Cormier, supra, if his constitutional arguments were urged upon and rejected by the Court of Criminal Appeals of Texas, certiorari having been denied. Petitioner's federal constitutional contentions are three, all emanating from the due process clause of the Fourteenth Amendment: (1) conviction is based on a coerced confession obtained from petitioner after protracted questioning, repeated threats, actual beatings and physical abuse, and denial of access to counsel and family; (2) petitioner was denied the right to testify at his trial to the effect that during his incarceration in the Harris County jail, while indicted and awaiting trial, he was removed to a distant building by Texas Rangers in order that an additional "confession" could be obtained; and (3) the trial court permitted the introduction by the state of a collateral crime — rectal sodomy — not embraced in the murder indictment.

The court is of the opinion that petitioner's constitutional arguments were urged upon, considered and rejected by the Court of Criminal Appeals of Texas. Petitioner's counsel, Mr. Golding, moved in the state trial that the controverted statement of July 22, 1959, which had been admitted earlier, be stricken from the record and taken from the jury's consideration (Pl.'s Exh. 2-B, Tr. 496-500).³ The basis of this motion was its allegedly having been obtained through police coercion. Counsel's motion to strike on these constitutional grounds was denied (Pl.'s Exh. 2-B, Tr. 500). An exception was taken to this ruling (Pl.'s Exh. 2-B, Tr. 500); this issue went to the Court of Criminal Appeals as Defendant's Bill of Exception No. 24. That court in its opinion at 336 S.W.2d 175 reviewed petitioner's claims of coercion and the police reply thereto at page 178. It then said in 336 S.W.2d at page 179:

"The state first introduced sufficient testimony to authorize the admission in evidence of the written statement of the appellant in accordance with the requirements of Art. 727, C.C.P., and then offered the written statement in evidence.

"Appellant made no objection to the introduction of the statement into evidence on the ground that it was involuntarily made.

"No error appears in the admission of said written statement into evidence." (Emphasis supplied.)⁴

This court believes that the coercion issue was rejected by the Court of Criminal Appeals in the above-quoted passage, particularly the italicized portion thereof. Certainly, the issue was put before that court by petitioner's Bill of Exception No. 24. The basic grounds for the charge of coercion, urged by Mr. Golding at the trial in Tr. 496-500, were noted by the court in 336 S.W.2d at page 178. Petitioner's motion for rehearing, denied by the Court of Criminal Appeals on June 22, 1960, without written order, dwelt primarily on the issue of a coerced confession. Johnson's petition for writ of certiorari in the Supreme Court stressed the coercion question. The trial court's charge to the jury of September 26, 1959, clearly set forth the coercion contention or question (Pl.'s Exh. 3, pp. 7-8). Petitioner's motion for new trial of October 2, 1959, charged error in the admission of the statement (Pl.'s Exh. 3, pp. 57-58). Respondent's "Return and Answer * * * and Motion To Dismiss", filed in this cause on March 21, 1961, urges in III thereof that the coercion issue has already been decided adversely to petitioner in the state courts.

The court is therefore of the opinion that it has jurisdiction over this petition consonant with the teachings of Brown and Cormier, supra. Resort to state habeas corpus remedies was not required where, as here, the federal constitutional issues were raised at trial, argued on appeal to the highest state court, and presented to the Supreme Court in the application for certiorari.⁵ It is clear that the proper procedural route was followed as to the other two constitutional contentions of petitioner. The trial court refused to permit testimony by petitioner as to his removal by Texas Rangers from the Harris County, Texas, jail to another area on August 15, 1959, where he was kept several hours in an effort to obtain another statement (Pl.'s Exh. 2-B, Tr. 340-345; the statement obtained on August 15 is Pl.'s Exh. 1). Art. 710, Vernon's Code of Crim. Proc. of the State of Texas, is said by petitioner to permit such testimony. By petitioner's Bill of Exception No. 22 (Pl.'s Exh. 2-B, Tr. 342), the constitutional aspects of such right to testify were raised and presented to the Court of Criminal Appeals. That court in its affirmance of April 27, 1960, rejected the constitutional contention. Petitioner's third constitutional argument was likewise rejected by the Court of Criminal Appeals. Petitioner complains of the question of the state's attorney to a state's witness as to a possible relationship involving rectal sodomy between the witness and petitioner (Pl.'s Exh. 2-B, Tr. 424-428). Petitioner claims that the trial court thereby permitted the introduction by the state of the issue of a collateral crime, sodomy, not embraced in the murder indictment (Pl.'s Exh. 2-B, Tr. 431, Bill of Exceptions No. 23). In 336 S.W.2d 175, at page 179 the Court of Criminal Appeals rejected petitioner's arguments with respect to this incident.

A brief statement of events of July 20-22, 1959, follows to lend context to the coercion charge subsequently to be discussed. Petitioner, then seventeen, is a Negro possessed of a junior high school level education. Deceased, a white boy twelve years of age, left his home on his bicycle on the afternoon of July 20. On the morning of July 21, decedent's bicycle was found beside a small shack on a vacant lot. The nude body of deceased was found inside a closed disconnected refrigerator. The body had been forced into the refrigerator. Death was caused by asphyxia due to suffocation in association with sodomy (Pl.'s Exh. 2-B, Tr. 244).

The state introduced petitioner's signed written statement of July 22 (Pl.'s Exh. 2-A, Tr. 153-A) in evidence. Petitioner was arrested about 1:30 A.M. on July 22, and in his written statement he declares that it was signed at 6:30 A.M. on the same day. These are the principal points in the controverted "confession": (1) about 6:30 P.M. on July 20 petitioner and nine other young Negroes...