Jones v. Dowd
| Decision Date | 22 May 1942 |
| Docket Number | No. 7896.,7896. |
| Citation | 128 F.2d 331 |
| Parties | JONES v. DOWD, Warden of Indiana State Prison. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Owen A. West, and West & Eckhart, all of Chicago, Ill., for petitioner.
Geo. N. Beamer, Atty. Gen., James K. Northam, Asst. Atty. Gen., and Norman E. Duke, Deputy Atty. Gen., of Indiana, for respondent.
Before EVANS, KERNER, and MINTON, Circuit Judges.
The petitioner-appellant, a prisoner in the Indiana State Prison, brought a petition in the District Court for the Northern District of Indiana for a writ of habeas corpus against the appellee, who is the warden of the Indiana State Prison. The Attorney-General of Indiana moved to dismiss the petition and the court sustained the motion. The error assigned here is that of the District Court in sustaining the motion to dismiss. The petitioner is in prison and without funds, and we appointed counsel for him. With commendable spirit and devotion to his assignment, counsel has prepared an able and exhaustive brief, and argued the cause orally before the court.
Without setting forth in detail all the facts alleged in the petition, the nature of the right asserted by the petitioner will be made to appear sufficiently by the following recital:
On October 19, 1929 in Clinton County, Indiana, the petitioner was indicted for murder. The petitioner was wounded in the affray in which the victim was murdered and was under a physician's care while in jail awaiting trial. On November 27, 1929 in open court he was arraigned and entered a plea of not guilty, and the pauper's attorney, Paul Laymon, was appointed to defend him. On November 29, 1929 a change of venue was taken from Clinton to Boone County. Trial began in the Boone Circuit Court January 20, 1930, and Paul Laymon of Clinton County and Roy Adney of Boone County were designated by the trial court to defend the petitioner. On January 28, 1930 a jury returned a verdict of guilty of murder in the first degree. A motion for a new trial was overruled on February 1, 1930, and the petitioner was sentenced to life imprisonment in the State Prison, in custody of the appellee. No appeal to the Supreme Court of Indiana was taken.
The petitioner alleges that his counsel did not properly prepare for trial and defend him; that certain evidence favorable to the petitioner could have been obtained by proper diligence; that there was error in the court's instructions; and other similar complaints. In short, the allegations in the petition for a writ of habeas corpus set forth facts and the petitioner's conclusions which, if true and properly pleaded in a proper proceeding, were grounds for a new trial or could have been assigned independently as error on an appeal to the Supreme Court of Indiana.
In other words, the petitioner seeks to use the petition for a writ of habeas corpus as a means to review in the Federal courts alleged errors of law committed by the trial court in Boone County, Indiana. It is well established that the procedure in habeas corpus cannot be used to correct errors of law committed by the trial court in a cause where it had jurisdiction, as it had in this case. Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L. Ed. 969; Valentina v. Mercer, 201 U.S. 131, 138, 26 S.Ct. 368, 50 L.Ed. 693; Ex Parte Novotny, 7 Cir., 88 F.2d 72, 74.
Furthermore, the allegations of the petition do not allege that the petitioner had exhausted his remedies in the State court of Indiana. For the purpose of reviewing judgment after the time for appeal has expired, there is available in Indiana upon the proper showing the writ of error coram nobis. Stephenson v. State, 205 Ind. 141, 179 N.E. 633, 186 N.E. 293; Berry v. State, 202 Ind. 294, 165 N.E. 61, 173 N.E. 705, 72 A.L.R. 1177; Partlow v. State, 191 Ind. 657, 134 N.E. 483. Where this writ exists, and is applicable, it is recognized by the Supreme Court as one of the adaptations that meets the requirements of due process under the Fourteenth Amendment to the Federal Constitution. Hysler v. Florida, 62 S.Ct. 688, 691, 86 L.Ed. ___, decided March 2, 1942; Ex parte Botwinski, 314 U.S. 586, 62 S.Ct. 476, 86 L.Ed. ___.
Since the writ of error coram nobis was available to the petitioner in Indiana to review a judgment of the court alleged to have erroneously affected the petitioner's rights, he was required in the absence of special circumstances, which do not appear in this case, to exhaust this remedy in the State court before he could resort to a writ of habeas corpus in the Federal courts. Davis v. Dowd, 7 Cir., 119 F.2d 338.
It is true the petitioner has alleged in his petition that he "offered to file" a petition for a writ of error coram nobis. From the allegations of the petition, we gather this "offer" consisted of a letter of July 6, 1934, which petitioner wrote to the trial judge in Boone County, expressing petitioner's willingness and desire to pursue this remedy, and requesting the judge to appoint counsel to prosecute the remedy, at the expense of the State of Indiana. The judge ignored the letter. On December 16, 1936, petitioner alleges, he tried to file a petition for a writ of error coram nobis which he had prepared. This petition was coupled with a request for counsel at the expense of the State of Indiana, and was accompanied by a brief he had prepared himself. The petitioner is not a lawyer but had read some law books while in prison. The court still ignored petitioner's request. On April 22, 1937 he filed a petition in the Supreme Court of Indiana, without aid of counsel, praying a writ of mandamus against the judge of the Boone Circuit...
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