Loper v. Ellis, 15299.

• Decision Date: 02 August 1955
• Docket Number: No. 15299.,15299.
• Citation: 224 F.2d 901
• Parties: Otis LOPER, Appellant, v. O. B. ELLIS, General Manager, Texas Prison System, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 901 (1955)

Otis LOPER, Appellant, v. O. B. ELLIS, General Manager, Texas Prison System, Appellee.

No. 15299.

United States Court of Appeals Fifth Circuit.

August 2, 1955.

Otis Loper, pro se.

Willis E. Gresham, Asst. Atty. Gen., for appellee.

Before HOLMES and RIVES, Circuit Judges, and THOMAS, District Judge.

THOMAS, District Judge.

Appellant, charged with the rape of his stepdaughter, was convicted November 17, 1947, in the District Court of Harris County, Texas, and given a sentence of fifty years. He did not appeal from the judgment of conviction. Later, he sought relief with a petition for writ of habeas corpus in the District Court of Houston County, Texas. Upon a hearing, the judge of that court remanded petitioner to the custody of the prison authorities.¹ The Texas Court of Criminal Appeals affirmed the judgment refusing discharge on the writ, and held, inter alia, that the judgment of conviction in the Harris County court appeared valid; that the matters offered in support of the petition for habeas corpus should have been urged in the trial of the Harris County case, or upon an appeal therefrom; and that the writ of habeas corpus could not be resorted to in lieu of such appeal, citing numerous Texas cases.² Rehearing was denied,³ and the United States Supreme Court denied certiorari, June 20, 1949.⁴

Appellant then filed a succession of petitions for a writ of habeas corpus in the United States District Court for the Southern District of Texas. From the order of the district judge on the last of these petitions, appellant seeks to prosecute this appeal. The memorandum included in the order of the district judge finds: (1) that "neither Petitioner's Petition nor the matters he submits show that he is in custody in violation of the Constitution, laws, or treaties of the United States"; (2) that "neither Petitioner's Petition nor the matters submitted in connection therewith comply with the provisions of Section 2242, Title 28 U.S.C.A."; and (3) that "it appears that the legality of the detention of Petitioner has been heretofore determined by this Court on a prior application for Habeas Corpus, and that the present Petition presents no new grounds not heretofore determined, and that the ends of justice will not be served by the present inquiry." As to this last petition, there are no further findings.

The petition for leave to appeal in forma pauperis⁵ was granted by the district judge, though at the same time he declined to issue certificate of probable cause.⁶ Because of the absence of the certificate of probable cause, appellee moved this court to dismiss for want of jurisdiction to hear and determine the appeal; and further urged that there was no ground for the issuance of such a certificate, in that appellant's claims had been adjudicated adversely to him by the highest state court and certiorari denied by the United States Supreme Court. In support of his motion, appellee cited Harris v. Ellis, 5 Cir., 1953, 204 F.2d 685. Disposing first of appellee's motion, we treated the appeal as an application for a certificate of probable cause,⁷ without which the order of the district court would not be reviewable in this court.

So considering the record before us, appellant's primary attack on his conviction alleges that he was deprived of due process of law under the Fourteenth Amendment, and in support of this allegation he urges the following circumstances: During the year following his conviction, his wife sent to him a certified statement, under date of April 26, 1948, to the effect that her failure to appear at the trial in November 1947 as a witness for her husband was due to a threat of prosecution from Harris County authorities for insufficient supervision of her daughter, if she (the wife) appeared in her husband's behalf; that this threat caused her to leave town, and she did not know when the trial took place; that she was certain her husband had not committed the offense with her daughter as alleged by the State.

Taking these allegations of the petition at their face value, as we necessarily must do,⁸ we issued the required certificate of probable cause, and an order to send up the record of the prior petition from the district court, so that we might have the benefit of whatever light the prior petition could shed upon an inadequate record.⁹

A district judge is not required to entertain a succession of applications for writ of habeas corpus where the petition presents no new ground.¹⁰ However, as was said by Mr. Justice Murphy, speaking for the court in Price v. Johnston, 334 U.S. 266, 293, 68 S.Ct. 1049, 1064, 92 L.Ed. 1356, "We are not unaware of the many problems caused by the numerous and successive habeas corpus petitions filed by prisoners. But the answer is not to be found in repeated denials of petitions without leave to amend or without the prisoners having an opportunity to defend against their alleged abuses of the writ. That only encourages the filing of more futile petitions. The very least that can and should be done is to make habeas corpus proceedings in district courts more meaningful and decisive, making clear just what issues are determined and for what reasons."

Petitioner here is not represented by counsel, and should not be held to the niceties of pleading.¹¹ In our opinion, his petition substantially complies with the requirements of Section 2242 of Title 28 U.S.C.A., although the district judge thought otherwise. We have considered, too, although the question has not been raised, whether petitioner has complied with Section 2254 of Title 28, the second paragraph of which reads as follows: "An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."

Having examined the record of two prior petitions in the United States District Court for the Southern District of Texas,¹² and the opinion of the Texas Court of Criminal Appeals, as reported in 219 S.W.2d 81, we find no mention made of the particular allegations on which petitioner bottoms this appeal. Nevertheless, the petition now before us alleges: (1) the petitioner has furnished certified legal documents and statement signed by his wife as evidence that a crime has been committed and that he is being deprived of the right of equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States and the right of due process of law; (2) petitioner filed application for habeas corpus in the Court of Criminal Appeals, Austin, Texas, in case No. 24373, and did file certiorari in the United States Supreme Court; (3) the Court of Criminal Appeals, denying the petitioner a restoration of his liberty, based (its ruling) on the contention that the State was deprived of the right to cross examine the petitioner's wife when she signed the statement.¹³ Petitioner further alleges that he has exhausted all sources open to him in the state court.

A copy of the purported affidavit of the wife is attached to the instant petition for the writ of habeas corpus. It is dated April 26, 1948, and is addressed "To the Honorable Judges: Court of Criminal Appeals; State of Texas." It is certified as being a true copy by the Clerk of the Court of Criminal Appeals of Texas. The Harris County authorities charged with making the alleged threat are not named as individuals or by office. The affidavit does not give the address of the affiant, though appellant states it was made at Dora, Alabama, in Walker County.¹⁴ The seal of the justice of the peace is not shown on the certified copy, except by notation. Neither does the affidavit express a willingness on the part of affiant to return voluntarily to testify in person.

In fact, appellant's present petition for the writ requests the United States District Court to locate his wife so that she can come into court and give testimony and be cross-examined about the statement, and in connection with that request alleges that he has not been allowed to communicate with his wife. As authority for the requested apprehension and return of his wife, appellant cites Public No. 233, 73rd Congress.¹⁵

This statute is, of course, penal and applicable to criminal proceedings only. It cannot be invoked by appellant, if for no other reason than that a habeas corpus proceeding in a federal court is not a criminal proceeding. The right to communicate with his wife must be sought from the Texas authorities.

Coming to the heart of the matter, the question before us is: do the present allegations of petitioner's...