MacKenna v. Ellis
| Decision Date | 02 May 1961 |
| Docket Number | No. 18110.,18110. |
| Citation | 289 F.2d 928 |
| Parties | Edward Morgan MacKENNA, Appellant, v. O. B. ELLIS, Director, Texas Department of Corrections, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Martin L. C. Feldman, New Orleans, La., Edward Morgan MacKenna, Austin, Tex., for appellant.
John L. Estes, Linward Shivers, Tom I. McFarling, Asst. Attys. Gen., for appellee.
Before TUTTLE, Chief Judge, and HUTCHESON, RIVES, CAMERON, JONES, BROWN and WISDOM, Circuit Judges.
On the Court's own motion, our decision reported as MacKenna v. Ellis, 5 Cir., 1960, 280 F.2d 592, has been considered on rehearing before the Court en banc. The opinion and decision are modified in one respect only.
In lieu of the directions at the conclusion of the opinion as quoted in the margin,1 the following is substituted:
The judgment is therefore reversed and the cause remanded with directions to grant the writ, vacate the judgment of conviction, and make such disposition of the petitioner as law and justice may require at the time of the entry of the final order.2
Reversed and remanded with directions.
When MacKenna was here on his first appeal from the order of the district judge, denying his petition for habeas corpus as without merit on its face, I dissented from the opinion of the majority, reported in 5 Cir., 263 F.2d 35, which, reversing the judgment, required the district judge to hold a hearing on the facts. In that dissent I pointed out that, as plainly appeared from the statement of them in the opinion, the claims asserted were merely claims of error which under settled law in this circuit and elsewhere must be asserted not by habeas corpus but by appeal, and that, as grounds for the extraordinary relief of habeas corpus, they were wholly insufficient, indeed patently frivolous. I pointed out also, as strongly as I could that this was another of the growing number of cases in which federal appellate courts, asserting a kind of moral and legal superiority over state courts and the proceedings in them in respect to criminal trials which they do not have, seek to exercise a suzerainty and hegemony over state courts which, under our federal system they do not in law have and, if we are to continue to preserve and hold to our federal system, they cannot in law and in fact exercise.
Now when MacKenna is here again, the appeal this time from a full trial of the issues tendered in the district court and with a thoroughgoing opinion by the district judge finding the appellant's claim in fact without support in the evidence, I am the more convinced that, as a profound believer in the federal constitutional principles which have long governed and which, despite the inroads apparently made on them by some of the decisions of the Supreme Court, still govern us, I must again dissent in order to point out for the benefit of those who, as I do, still believe in our federal system of government and the principles which underlie it, the complete abandonment of those principles, as they affect the relation of state and federal courts, evidenced by the opinion and action of the majority of the court in this case.
My purpose here, then, will be, reaffirming my earlier dissent and approving and adopting the dissenting opinion of Judge Cameron, 280 F.2d at page 605 et seq., to assert as strongly and show as well as I can, that the opinion of the majority in this case, reported in 280 F.2d at page 592, declining to accept the findings and reversing the judgment of the district judge, is contrary to established federal constitutional principles.
I realize that its free and easy approach to the exercise of a supervisory jurisdiction which, under settled principles, is prohibited and denied to the federal courts,1 the majority feels that it is exercising a kind of supernal power which, deriving from some source not made clear, authorizes the court to abandon the principles governing relief by habeas corpus and enables, indeed requires, it to afford a state prisoner, held under a judgment of a state court, the right and opportunity to retry his case and secure relief in the federal courts on mere allegations that error was committed on his trial.
Thus the majority opinion in this case in effect holds that the mere complaint by the applicant that he has been deprived of due process puts the burden on the state to show affirmatively that he has not been so deprived. In short, speaking from the ivory tower of the federal court of appeals, the majority rejecting the careful and considered findings of the district judge that the claims made are not supported by the evidence, declares in effect that the trial in the state court is rendered nugatory and invalid by the mere attack upon it, a view which, with deference, reverses the real position of state and convict in a case where a prisoner has been tried and convicted and is held under a final judgment of a state court of admitted criminal jurisdiction, which judgment has been affirmed on appeal by the highest state criminal court.
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...... Cir.1970) ("exercise of the customary skill and. knowledge which normally prevails at the time and. place"); MacKenna v. Ellis, 280 F.2d 592, 599. (5th Cir.1960), modified, 289 F.2d 928 (5th Cir.1961), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). ......
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...----, 103 S.Ct. 2451, 77 L.Ed.2d 1332 (1983); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), modified on other grounds, 289 F.2d 928 (5th Cir.) (en banc), cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). Whether counsel has rendered adequate assistance is a mixed question......
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...defense counsel's performance rather than on the fairness of the trial as a whole. MacKenna v. Ellis, 280 F.2d 592 (5th Cir.), modified, 289 F.2d 928 (5th Cir. 1960), cert, denied, 368 U.S. 877 (1961). See Comment, supra note 8. 36. See Powell v. Alabama, 287 U.S. 45 (1932). Accord, David, ......