Kramer v. State of Nevada, 9767.
| Decision Date | 24 October 1941 |
| Docket Number | No. 9767.,9767. |
| Citation | 122 F.2d 417 |
| Parties | KRAMER v. STATE OF NEVADA. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Grant L. Bowen, Oliver C. Custer, and John E. Robinson, all of Reno, Nev., for appellant.
Gray Mashburn, Atty. Gen., State of Nevada, W. T. Mathews and Alan Bible, Deputy Attys. Gen., and John W. Bonner, Dist. Atty., of Ely, Nev., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
This appeal is taken from an order of the court below denying the petition of John A. Kramer for a writ of habeas corpus. Kramer alleged in his petition for the writ that he was in custody as a prisoner in the State Prison of Nevada under sentence of death imposed by the courts of that State and that such imprisonment was illegal, void and without due process of law, in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States. In support of this allegation he further alleged that he had been charged with the crime of murder by the State of Nevada; that an attorney was appointed for his defense; that said attorney was negligent in the conduct of such defense; that the trial court misled and confused the jury in giving contradictory instructions relative to the form of verdict the jury should return; that as a result of this, the jury returned a verdict finding defendant Kramer guilty.
The appellant contends the District Court of the United States erred in denying his petition for writ of habeas corpus because:
(1) Counsel assigned appellant by the State trial court was negligent and careless in the conduct of the defense, so as to deprive the defendant of his right to counsel;
(2) The State trial judge gave confusing, conflicting and inconsistent instructions, so as to prevent the jury finding their intended verdict; and (3) The right to fix the penalty rested with the jury and not the judge of the trial court.
The District Courts of the United States are empowered to issue writs of habeas corpus, 28 U.S.C.A. § 451, and the writ extends to a prisoner in jail, in custody in violation of the Constitution of the United States. 28 U.S.C.A. § 453. It is provided by the statute, 28 U.S.C.A. § 454, that the application for the writ shall be "by complaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known." The statute further provides, 28 U.S.C.A. § 454, that "The facts set forth in the complaint shall be verified by the oath of the person making the application." The court or judge to whom the application is made is directed by the statute, 28 U.S.C.A. § 455, to "forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto." (Emphasis supplied.)
The Supreme Court of the United States, in United States ex rel. Kennedy et al. v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138 stated:
Did the District Judge have before him such a rare and exceptional case as to justify an interference with the orderly administration of justice by a state court? Do we have before us on this appeal an abuse of sound discretion by the court below in the denial of the petition for the writ?
The statute, 28 U.S.C.A. § 455, empowers the court or judge to whom the application is made to deny the writ if "it appears from the petition itself that the party is not entitled thereto." In view of the fact that no order to show cause issued and no formal hearing was had, but the court entered a summary order of denial of the petition, we look to the petition and the record brought before us to determine whether the court below properly exercised its statutory discretion in the disposal of the matter. The petition fails to allege, either affirmatively or otherwise, and the record fails to show that the petitioner has exhausted the remedies afforded by the laws of Nevada to persons convicted of violations of its laws for the purpose of trying the legality of their confinement. The order of denial reveals that the petitioner below had appealed his conviction to the Supreme Court...
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