King v. Beto, Civ. A. No. 3-2224.

• Decision Date: 05 November 1968
• Docket Number: Civ. A. No. 3-2224.
• Citation: 291 F. Supp. 946
• Parties: Elwin Rudolf KING, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Texas

291 F. Supp. 946

Elwin Rudolf KING, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 3-2224.

United States District Court N. D. Texas, Dallas Division.

November 5, 1968.

John Ensle, (court appointed) Houston, Tex., for petitioner.

Crawford C. Martin, Atty. Gen., of Texas, R. L. Lattimore, Howard M. Fender and Thomas F. Keever, Asst. Attys. Gen., for respondent.

MEMORANDUM AND ORDER

NOEL, District Judge.

Petitioner in this habeas corpus proceeding is attacking two 1959 convictions. He was charged in two indictments with two incidents of statutory rape. He pled not guilty on the first indictment, but was convicted and sentenced to fifty years by the jury. Thereupon the charge in the second indictment was reduced to assault with intent to rape. Petitioner pled guilty and was given a concurrent fifty-year sentence.

Petitioner, in his application for a writ of habeas corpus, asserts that he is not guilty of either offense, and attacks both convictions on numerous grounds. Before the merits of his contentions can be considered, however, the threshold question whether petitioner has exhausted his state remedies must be answered. In this connection, two problems arise. Petitioner in this Court has raised several grounds for relief that have not been presented to the state courts for determination. Secondly, as both of petitioner's attempts to obtain relief in state courts preceded the enactment of Texas's new liberalized post-conviction statute, art. 11.07, Vernon's Ann.Tex.Code Crim.P., the state courts have had no opportunity to apply the new procedure to any of petitioner's claims, leaving the new state procedure unexhausted. Were another evidentiary hearing required or desirable, it would be my duty, in the interest of comity, to remand petitioner to state court, where he might invoke the post-conviction remedies now available to him. State of Texas v. Payton, 390 F.2d 261 (5th Cir. 1968); cf. Bruce v. Beto, 396 F.2d 212, 213 (5th Cir. 1968) (per curiam). For a number of reasons, however, a dismissal without prejudice at this stage of the litigation would be unjust to both parties. Moreover, a refusal to decide petitioner's contentions on the merits now would waste the considerable amount of time and thought that I have devoted to this case. It would frustrate two of the principal purposes of the Great Writ without significantly advancing the interests of comity. For all of these reasons, both justice and sound judicial policy constrain me to dismiss all of petitioner's claims on the merits.

Justice, policy, and the purposes of the writ are intertwined, for the purposes of the writ are to provide an effective, swift means for the vindication of constitutional rights. See Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). In Rowe the Supreme Court identified two basic purposes of the Great Writ: "to provide for swift judicial review of alleged unlawful restraints on liberty," and to be an effective "instrument for resolving fact issues not adequately developed in the original proceedings." Id. at 63, 88 S.Ct. at 1554; accord, Lydy v. Beto, 399 F.2d 59 (5th Cir. 1968).

The proceedings in this matter have long ago become unduly protracted. Four oral hearings have been held, including two exhaustive evidentiary hearings. Of necessity, a substantial amount of time has been consumed. Any further delay in the final resolution of petitioner's contentions should be avoided; both parties can justly insist that this litigation soon come to an end. A dismissal without prejudice would only prolong it. Petitioner would have to file a new petition in the state court in which he was convicted. That court would be constrained to hold yet another evidentiary hearing, for the facts in this matter are hotly disputed, and "where an unresolved factual dispute exists, demeanor evidence is a significant factor in adjudging credibility. And questions of credibility, of course, are basic to resolution of conflicts in testimony." Townsend v. Sain, 372 U.S. 293, 322, 83 S.Ct. 745, 762, 9 L.Ed.2d 770 (1963). If the state court should deny him relief, petitioner would have to return to this or some other federal court for a final resolution on the merits.

Such extended delay is unnecessary. In this Court petitioner has been given a full opportunity to present all his evidence on all his claims. A full record is before me, including affidavits from the state judge and prosecutor. Both petitioner and his counsel have stated in open court that further live testimony is unnecessary, and they have no other evidence to offer. Tr. 330-32, September 28, 1967. The case has been transferred from Houston to the Dallas Division of the Northern District of Texas to afford petitioner and respondent the opportunity to call local witnesses. Petitioner, his trial counsel, and a number of other witnesses have testified before me. Throughout I have observed their demeanor and therefore possess all the evidentiary background requisite to an informed decision on the merits. In another context Chief Judge Brown of our Circuit recently noted that the need to ensure that violations of federal constitutional rights do not go undetected "does not call for two sets of fullblown post-conviction trials." Peters v. Rutledge, 397 F.2d 731, 739 (5th Cir. 1968). Dismissing this case without prejudice would require it to be tried again.

The doctrine of comity does not compel a different result. "The rule of exhaustion of state remedies `is not one defining power but one which relates to the appropriate exercise of power.' Bowen v. Johnston, 306 U.S. 19, 27, 59 S.Ct. 442, 83 L.Ed. 445 1939." Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 839, 9 L.Ed.2d 837 (1963). For the reasons that have been stated, it not only would be inappropriate, but would frustrate the purposes of the Great Writ for me to abstain from resolving this matter on the merits.

Respondent, however, has moved to dismiss the claims that have never been presented to the Texas Court of Criminal Appeals. Counsel for respondent has also expressed an interest in moving to dismiss because of the availability of the new post-conviction procedure, although no formal motion has been filed. I must therefore determine whether I have the power to ignore the wishes of this representative of the State of Texas in this case, and whether it would be wise judicial policy to do so.

The United States Supreme Court in Fay v. Noia, supra, recently adhered to an earlier statement of the rationale that supports the exhaustion doctrine:

It would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation * * *. Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter. Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 1950.

372 U.S. at 419-420, 83 S.Ct. at 838 (emphasis added). The codification of the exhaustion requirement, 28 U.S.C. § 2254, goes no farther than this statement of the rationale for the doctrine:

An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State * * *.

(Emphasis added.) While the exhaustion requirement is often stated loosely, its mandate thus is not that a federal court not act unless state remedies have been exhausted, but that it not interfere with the administration of the state's criminal law until state courts have been given the opportunity to correct violations of constitutional rights. Accord, Hill v. Beto, 390 F.2d 640 (5th Cir. 1968) (per curiam). The Third Circuit has repeatedly held that the exhaustion doctrine "permits denial of a petition for the Great Writ on its merits, though state remedies may not be exhausted":

Manifestly, "it is not an indignity to state processes to assert that a claim of this sort constitutional infringement on its face or on a full record is clearly without merit."

United States ex rel. Drew v. Myers, 327 F.2d 174, 183 (3d Cir.), cert. denied, 379 U.S. 847, 85 S.Ct. 88, 13 L.Ed.2d 52 (1964) (emphasis and brackets by the court, footnotes omitted).

The delicate balance between the federal and state judiciaries would doubtless be upset if federal district and appellate courts made it a practice to review the merits of contentions that had not been presented to the state courts for consideration. The national sovereign should not allow itself to be accused of officious intermeddling. In this case at this stage of the litigation, however, a denial on the merits of petitioner's application for a writ cannot be considered intermeddling. His application, at least as to some of his contentions, was properly before this Court, at least until the enactment of article 11.07. The remaining contentions, which were not presented to the state courts for resolution, raise questions intimately intertwined with the contentions properly in federal court. Since an evidentiary hearing was necessary before the merits of the contentions properly before this Court could be assessed, and since the facts concerning the new contentions were within the knowledge of the witnesses called to testify with respect to the old, it was desirable to explore all the issues and obtain a complete record. On that record, petitioner's contentions can all be dismissed. To follow any other course would be to waste judicial time and afford petitioner "two sets of full-blown post-conviction trials." Peters v. Rutledge, supra, 397 F.2d at 739. Petitioner...