Knox v. Maxwell

• Decision Date: 18 December 1967
• Docket Number: No. C 67-706.,C 67-706.
• Citation: 277 F. Supp. 593
• Parties: Arthur KNOX, Petitioner, v. E. L. MAXWELL, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

277 F. Supp. 593

Arthur KNOX, Petitioner, v. E. L. MAXWELL, Warden, Respondent.

No. C 67-706.

United States District Court N. D. Ohio, E. D.

December 18, 1967.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge:

Petitioner has filed a motion to proceed in forma pauperis, and petitions the court for a Writ of Habeas Corpus. His petition reveals that he is presently in the custody of respondent, E. L. Maxwell, Warden of the Ohio State Penitentiary in Columbus, Ohio. This confinement is pursuant to a sentence imposed by the Common Pleas Court of Cuyahoga County, Ohio. He was sentenced on January 16, 1964, after pleading guilty to a charge of armed robbery, and he did not appeal either the conviction or the sentence.

Petitioner asserts that he is entitled to a Writ of Habeas Corpus from this court on the following grounds:

"Ineffective representation of counsel, and an abridgement in direct violation of Title 18, U.S.C.A. 241 and/or 242. * * *"

Other statements in the petition make it unclear whether the petitioner actually intends his ground to be the "ineffective representation of counsel," as opposed to the denial of counsel altogether. He indicates that he was not represented by counsel at his arraignment or plea; he was only represented at the time of sentencing. He also states that he did not appeal his conviction because he was advised by his attorney that appeal would be useless. In view of these statements, it is unclear from the petition whether the asserted ground is the denial of petitioner's right to counsel at the time of arraignment and plea, or the ineffective representation of counsel at the time of sentencing and thereafter.

His petition reveals that he never appealed his conviction or the imposition of sentence. Neither has he attempted to pursue a remedy under the Ohio Post-Conviction Act, Section 2953.21, Ohio Revised Code.

The initial question for this court to determine is whether petitioner has exhausted the remedies available to him under the laws of Ohio. The Courts of the United States may not grant Writs of Habeas Corpus on behalf of persons in custody pursuant to a state conviction, unless one of three things appears. The applicant must demonstrate that he has exhausted the remedies available to him in the courts of the state. Or he must show that there is either an absence of available state corrective process, or the presence of circumstances which render such process ineffective to protect his rights. Title 28, U.S.C.A., Section 2244.

The court is, therefore, first required to consider whether petitioner has exhausted the remedies available to him under the laws of Ohio. It must then determine whether any remedies that he has not exhausted are ineffective to provide him with relief. In that case his failure to pursue them may be excused. In passing upon the availability of these state remedies, it will be necessary to examine the statutory scheme for post-conviction relief in Ohio.

Section 2725.02 of the Ohio Revised Code empowers the courts of Ohio to grant habeas corpus relief. This power is limited, however, by Section 2725.05, Ohio Revised Code, which provides as follows:

"If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed. If the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order."

This statutory framework is declarative of the common law of Ohio. Freeman v. Maxwell, Warden, 4 Ohio St.2d 4, 210 N.E.2d 885 (1965), cert. denied 382 U.S. 1017, 86 S.Ct. 634, 15 L.Ed.2d 532. Since the statute is coextensive with the common law power in Ohio, it is apparent that the statute is now the exclusive source of the power to issue Writs of Habeas Corpus, and that no common law power outside the statute has survived. The statutory power is, therefore, the only means by which the Ohio courts may grant habeas corpus relief.

Section 2725.05 was originally interpreted somewhat strictly. For a long period, a Writ of Habeas Corpus would be allowed only where the convicting or sentencing court lacked jurisdiction of the person of the defendant or of the subject matter of the offense.

More recently, however, the Supreme Court of Ohio expanded the coverage of the statute. The court itself has stated the reason for this expansion:

"Because there was no other adequate means of collaterally attacking * * * a judgment of conviction, this court has recently been permitting such attacks in habeas corpus proceedings. The only reason for permitting this extension of the right to relief in habeas corpus was that there was no other adequate remedy available in the ordinary course of the law to assert and establish that the judgment of conviction had denied the prisoner his constitutional rights." Freeman v. Maxwell, supra, 4 Ohio St.2d at pp. 5-6, 210 N.E.2d at p. 886.

The expansion of the right to attack a conviction collaterally through habeas corpus was not, however, without limits. In a series of cases, the Ohio Supreme Court held that claims for the denial of certain constitutional rights could be made only at the time of trial or by appeal. These grounds could not be asserted as the basis for a collateral attack of the conviction through habeas corpus proceedings. See: e. g., Partsch v. Haskins, Supt., 175 Ohio St. 139, 191 N.E.2d 922 (right to a speedy trial must be claimed at the trial level and failure to urge it is a waiver of the right); Goman v. Maxwell, Warden, 176 Ohio St. 236, 199 N.E.2d 10 (to the same effect); State v. Frato, 168 Ohio St. 281, 154 N.E.2d 432 (improper denial of transcript for appeal can be raised only on appeal); Tinsley v. Maxwell, Warden, 176 Ohio St. 185, 198 N.E.2d 673 (to the same effect). The court felt that claims of this sort were within the prisoner's knowledge, or at least easily discoverable, at the time of trial, and that appeal was adequate for the correction of these defects. The prisoner was required to raise these claims at trial or on appeal, and could not reserve them as the basis for a later collateral attack.

Since these claims could be raised at trial or on appeal, the court reasoned that the appellate process was an adequate remedy for their correction. And since this adequate remedy existed, there was no need for the extraordinary habeas corpus relief. (See above citations.)

The court employed this reasoning to distinguish between the case where the prisoner asserted as his constitutional claim the incompetency of his counsel and the case where he claimed he was denied the right to counsel altogether. The former claim was held cognizable only on appeal, whereas the latter could be raised through habeas corpus. See Johnson v. State, 177 Ohio St. 37, 201 N.E.2d 602; Vaughn v. Maxwell, Warden, 176 Ohio St. 289, 199 N.E.2d 570, cert. denied 379 U.S. 860, 85 S.Ct. 121, 13 L.Ed.2d 63; Gifford v. Maxwell, Warden, 177 Ohio St. 77, 202 N.E.2d 424; Rodriguez v. Sacks, Warden, 173 Ohio St. 456, 184 N.E.2d 93; Poe v. Maxwell, Warden, 177 Ohio St. 28, 201 N.E.2d 703. By reason of this distinction, a prisoner whose claim was that he was denied the right to counsel altogether would be eligible for habeas corpus relief from the Ohio courts at the time of these decisions. A prisoner who claimed that he was denied the effective representation of counsel would not be so eligible.

What has been outlined above was the law of Ohio prior to 1965. In that year the Legislature passed the Ohio Post-Conviction Act (Sections 2953.21 to 2953.24, Ohio Revised Code). Section 2953.21 provides as follows:

"A prisoner in custody under sentence and claiming a right to be released on the ground that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds relied upon, and asking the court to vacate or set aside the sentence. (Emphasis supplied.)

"Unless the petition and the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the prosecuting attorney, grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto.

"If the court finds that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, it shall vacate and set aside the judgment, and shall discharge the prisoner or resentence him or grant a new trial as may appear appropriate. Cost shall be taxed as in habeas corpus proceedings." (Emphasis supplied.)

Soon after the passage of this Act, the Supreme Court of Ohio in Freeman v. Maxwell, supra, outlined the effect of the new post-conviction remedy on the jurisdiction of the older Writ of Habeas Corpus. The court noted that it had permitted expansion of the right to relief in habeas corpus because there was no other means of collaterally attacking a conviction under Ohio law. This expanded coverage was no longer necessary since the Post-Conviction Act provided an adequate remedy to assert collaterally the denial of a prisoner's constitutional rights. The court then stated:

"Our conclusion is that the availability of the postconviction remedies provided by Sections 2953.21 to 2953.24, inclusive, Revised Code, is ground for denial of such habeas corpus remedies in pending as well as future habeas corpus actions." 4 Ohio St.2d

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