Joyner v. Parkinson, 11623.

• Decision Date: 07 December 1955
• Docket Number: No. 11623.,11623.
• Citation: 227 F.2d 505
• Parties: William Joe JOYNER, Petitioner, v. Honorable W. Lynn PARKINSON, as Judge of the United States District Court at South Bend, Indiana, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

227 F.2d 505 (1955)

William Joe JOYNER, Petitioner, v. Honorable W. Lynn PARKINSON, as Judge of the United States District Court at South Bend, Indiana, Respondent.

No. 11623.

United States Court of Appeals Seventh Circuit.

December 7, 1955.

William Joe Joyner, pro se., Michigan City, Ind.

No appearance for respondent.

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

PER CURIAM.

On October 17, 1955, petitioner lodged in the office of the Clerk of this Court a petition for writ of certiorari against respondent, accompanied by motion for leave to proceed in forma pauperis, and further motion for appointment of counsel.

Petitioner asks for a writ of certiorari in order to compel respondent to file, in this Court, a proper record on appeal in a certain habeas corpus proceeding against J. Ellis Overlade, Warden, which was heard by respondent and resulted in the entry of order on May 13, 1955 dismissing same.

Petitioner claims that he did not receive a copy of such order of dismissal until on or about September 2, 1955, whereupon, and within thirty days after such date, he filed with the Clerk of the District Court notice of appeal to this Court from such order, together with motion for leave to proceed on appeal in forma pauperis. This latter motion was denied by respondent in an order entered September 19, 1955.

As above stated, on October 17, 1955, petitioner lodged his petition for writ of certiorari in this Court. From this petition, because it includes copies of practically all relevant proceedings in the District Court, a sufficient summary of facts can be made.

Petitioner's basic contentions stem from his conviction in the Criminal Court of Marion County, Indiana, First Division, of the crime of burglary in the first degree on July 28, 1947. In these proceedings he was represented by two reputable and experienced attorneys whom he had employed, and under whose guidance and advice he had entered a plea of guilty. He was sentenced to imprisonment for the term of ten to twenty years, and since has been, and now is, confined thereunder in the Indiana State Prison.

He made an attack upon his sentence by filing, sometime in 1950, a petition for writ of coram nobis in the Criminal Court of Marion County. In such proceeding he asked that the judgment of his conviction be vacated and set aside; that he be allowed to withdraw his plea of guilty and enter a plea of not guilty; and that he be granted a trial on the merits.

An answer or demurrer was filed to his petition for writ of coram nobis, and in due course the matter was heard, resulting in the order and judgment of the Court of November 19, 1950 dismissing his petition.

Petitioner petitioned the Court for an order authorizing him to appeal from the order or judgment of dismissal to the Supreme Court of Indiana as a poor person. On December 7, 1950 the Court denied such petition, and advised petitioner, in this connection, that no right to such appeal as a poor person at public expense was provided for by law. The Court cited, in this connection, State ex rel. Cutsinger v. Spencer, 219 Ind. 148, 41 N.E.2d 601, 603, where it says:

"A petition for coram nobis is not based upon a contention that the judgment attacked is void. It concedes that it is valid upon its face, and that there is no error apparent upon the face of the record. No longer is the state seeking to deprive the defendant of his life, liberty, or property. He is not now `the accused\' in a `criminal prosecution.\' It is he who is now seeking to deprive the State of Indiana of rights concerning his liberty which * * * must be presumed to have been procured by due course of law until he sustains the burden of overcoming the presumption. The petitioner is asking that the taxpayers, the state, be required to bear the expense of furnishing him with a certified record of the proceedings in the criminal case. We know of no constitutional provision that requires that the public shall bear any of the expense of the preparation or prosecution of the petitioner\'s action seeking to overthrow the judgment, nor of any statute requiring or authorizing the expenditure of public funds for such a purpose."

Subsequent to such denial, petitioner wrote a letter to the Clerk of the Criminal Court of Marion County, requesting information as to the costs involved in an appeal such as he contemplated, and in a reply, dated December 19, 1950, the Clerk of that Court advised petitioner that such costs could not be estimated, and suggested that he employ an attorney to take care of such an undertaking.

Petitioner's next move was delayed until May, 1954. At that time he lodged a petition for certiorari with the United States Supreme Court. The Clerk of that Court, under date of May 10, 1954, returned the petition to petitioner with the explanation that the Supreme Court could not take jurisdiction because his petition was not filed within ninety days after the judgment sought to be reviewed.

Thereafter, in November, 1954, petitioner filed his petition for writ of habeas corpus against J. Ellis Overlade, Warden, in the United States District Court, Northern District of Indiana, South Bend Division, alleging that his imprisonment was occasioned by denial to him of due process of law under the Fourteenth Amendment, United States Constitution, in that his plea of guilty to the charge of burglary had been coerced and procured by fraud and duress.

The matter coming before the respondent, it was ordered that the Public Defender of Indiana appear for and represent petitioner. Judge Parkinson, on November 24, 1954, further ordered that the Warden, as respondent therein, show cause within twenty days why the writ should not issue.

The Warden filed a motion to...