Long v. Benson, 9601.

• Decision Date: 24 January 1944
• Docket Number: No. 9601.,9601.
• Citation: 140 F.2d 195
• Parties: LONG v. BENSON, Warden.
• Court: U.S. Court of Appeals — Sixth Circuit

140 F.2d 195 (1944)

LONG v. BENSON, Warden.

No. 9601.

Circuit Court of Appeals, Sixth Circuit.

January 24, 1944.

George S. Baldwin, of Munising, Mich., for appellant.

Herbert J. Rushton and Edmund E. Shepherd, both of Lansing Mich., and William E. Dowling and Henrietta E. Rosenthal, both of Detroit, Mich., for appellee.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

HICKS, Circuit Judge.

Appeal from an order of the District Court denying appellant's application for a writ of habeas corpus and for the appointment of a special master to hear evidence and report on the cause of appellant's detention in the Michigan State Prison. The petition was prepared by appellant himself. It is difficult to determine the gravamen of appellant's complaint. The petition contains the general averment that appellant is unlawfully restrained of his liberty as a prisoner in the Michigan Branch Prison at Marquette, by appellee Benson, the Warden, under color of the authority of the State of Michigan, but in violation of the due process clause (Sec. 1) of the Fourteenth Amendment. The District Court however found that appellant was confined after a trial in the Recorder's Court of the City of Detroit, and a conviction on January 7, 1931, upon a charge of robbery while armed with a dangerous weapon, and that he was sentenced to imprisonment for not less than twenty nor more than thirty years.

We are compelled to rely upon the briefs of both appellant and appellee for anything approximating a clear view of the bases upon which appellant's claim to a writ of habeas corpus is founded. They are, in substance, (1) that appellant, a colored man, was entitled to two attorneys of his own choice, one white, one colored; (2) that the trial court was prejudiced against appellant; (3) that the prosecuting attorney failed properly to investigate before recommending a warrant of arrest; (4) that the prosecuting attorney knew that the prosecuting witnesses committed perjury; (5) that appellant's counsel did not properly represent him and did not appeal; (6) that petitioner was prejudiced by the granting of three continuances; (7) that the trial court erred by allowing the name of an additional witness to be endorsed on the indictment for information, without notice to appellant; (8) that the trial court erred in not referring appellant to a probation officer before sentence; (9) that it was error for the trial court's successor to decide various motions made by appellant while he was in prison; (10) that the Judge erred in consulting with the Department of Pardon and Paroles before deciding these various motions; that he also erred in corresponding with the Michigan Supreme Court while appellant's application for leave to appeal was pending.

In United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L. Ed. 138, it was said: "The rule has been firmly established by repeated decisions of this court that the power conferred on a federal court to issue a writ of habeas corpus to inquire into the cause of the detention of any person asserting that he is being held in custody by the authority of a state court in violation of the Constitution, laws, or treaties of the United States, is not unqualified, but is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist. Ex parte Royall, 117 U. S. 241, 250-253, 6 S.Ct. 734, 29 L.Ed. 868; In re Wood, 140 U.S. 278, 289, 11 S.Ct. 738, 35 L.Ed. 505; In re Frederich, 149 U.S. 70, 77, 78, 13 S.Ct. 793, 37 L.Ed. 653; People of State of New York v. Eno, 155 U.S. 89, 98, 15 S.Ct. 30, 39 L.Ed. 80; Whitten v. Tomlinson, 160 U.S. 231, 240-242, 16 S.Ct. 297, 40 L.Ed. 406; Baker v. Grice, 169 U.S. 284, 290, 18 S.Ct. 323, 42 L.Ed. 748; Tinsley v. Anderson, 171 U.S. 101, 104, 105, 18 S.Ct. 805, 43 L.Ed. 91; Davis v. Burke, 179 U.S. 399, 401-403, 21 S.Ct. 210, 45 L.Ed. 249; Riggins v. United States, 199 U.S. 547, 549, 26 S.Ct. 147, 50 L.Ed. 303; Drury v. Lewis, 200 U.S. 1, 6, 26 S.Ct. 229, 50 L.Ed. 343; Glasgow v. Moyer, 225 U.S. 420, 428, 32 S.Ct. 753, 56 L.Ed. 1147; Johnson v. Hoy, 227 U.S. 245, 247, 33 S.Ct. 240, 57 L.Ed. 497."

Relying upon this case, which has been consistently followed, the District Court denied the petition for the writ. We find no valid reason for disturbing the order, which appears to us to have been made in the exercise of sound judicial...