Madison v. Tahash

• Decision Date: 17 January 1966
• Docket Number: No. 3-65-Civ. 336.,3-65-Civ. 336.
• Citation: 249 F. Supp. 600
• Parties: Richard Edward MADISON, Petitioner, v. Ralph H. TAHASH, Warden, Minnesota State Prison, Respondent.
• Court: U.S. District Court — District of Minnesota

249 F. Supp. 600

Richard Edward MADISON, Petitioner, v. Ralph H. TAHASH, Warden, Minnesota State Prison, Respondent.

No. 3-65-Civ. 336.

United States District Court D. Minnesota, Third Division.

January 17, 1966.

COPYRIGHT MATERIAL OMITTED

Richard E. Madison, pro se.

Gerard W. Snell, Sol. Gen. of Minnesota, for respondent.

LARSON, District Judge.

Petitioner Richard E. Madison is presently confined in the Minnesota State Prison at Stillwater pursuant to a conviction and sentence for the crime of robbery in the first degree. He now seeks a writ of habeas corpus, alleging that his arraignment was constitutionally defective. Respondent, Warden of the prison, has filed an Answer denying any violation of constitutional rights and requesting dismissal of the petition.

Exhaustion of Remedies —

If petitioner has not exhausted State remedies, as required by 28 U.S. C.A. § 2254, the petition should be dismissed without prejudice. On July 8, 1965, petitioner's application for a writ of habeas corpus was filed with the Washington County, Minnesota, District Court, and was denied on August 5, 1965. No appeal was taken from this denial, but instead petitioner sought an original writ of habeas corpus from the Minnesota Supreme Court. This was denied on September 23, 1965. The present petition was then filed in this Court.¹

In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the United States Supreme Court considered the question of whether the doctrine of exhaustion of remedies precluded a State prisoner from seeking Federal habeas corpus where he failed to timely appeal his conviction to the highest State court. Rejecting the contention that 28 U.S.C.A. § 2254 "embodies a doctrine of forfeitures," the Court held it is "limited in its application to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court." 372 U.S. at 434, 435, 83 S.Ct. at 847. However, the Court also held that "the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." 372 U.S. at 438, 83 S.Ct. at 849.

Although Fay v. Noia dealt with failure to take a direct appeal, the rationale of that decision must apply as well to the failure to appeal from a denial of post conviction relief in the State courts. The record on the present petition does not conclusively demonstrate that the right of appeal is no longer open to petitioner. Minnesota Statutes § 589.29 provides that appeals from final orders in habeas corpus proceedings must be taken in the same manner as other appeals. The time within which to appeal from an Order is thirty days, which begins to run after notice of filing the Order has been served upon the aggrieved party by his adversary. Minn.Stat.Ann. § 605.08(1). Just as an untimely appeal in the ordinary civil case will be dismissed, so too will a late appeal in a habeas corpus proceeding. State ex rel. Petschen v. Rigg, 257 Minn. 25, 99 N.W.2d 669 (1959). The District Court's Order of denial in the instant case was filed August 9, 1965, but there is no suggestion in the present record that notice of filing was ever served upon petitioner. If no service has been made, then the time to appeal has not yet started to run and petitioner could be remanded to the State courts to to pursue a remedy still open to him.²

But even if the right of appeal is still open here, petitioner should nonetheless be held to have exhausted his State remedies since his contentions were presented to the Minnesota Supreme Court in his application for an original writ of habeas corpus, and were determined on the merits by that court. In this respect the present application is distinguishable from the facts presented in Kurth v. Stephenson, 323 F.2d 997 (8th Cir. 1963). In that case the Eighth Circuit rejected the notion that a habeas applicant had exhausted State remedies although he petitioned the Iowa Supreme Court for an original writ of habeas corpus instead of prosecuting an appeal from a denial of his petition in the lower courts. Unlike the situation here, the habeas application in the Kurth case was not considered by the Iowa court on its merits. Since the time to appeal had not expired, the applicant's contentions could still have been considered by the Iowa court on the merits. Moreover, as indicated by the Supreme Court in Fay v. Noia, the doctrine of exhaustion of remedies is not one of limitation on the habeas corpus jurisdiction of Federal courts, but merely one guiding its exercise. Its purpose is to avoid needless friction between State and Federal judicial systems by giving State courts the first opportunity to correct any constitutional deficiencies which may surround a criminal conviction. That purpose is satisfied where, as here, an applicant's contentions have been reviewed and determined on the merits by the highest State court.

Deliberate By-Pass —

Fay v. Noia permits this Court to exercise a limited discretion in denying petitions for habeas corpus where the applicant has forfeited State remedies by knowingly and deliberately by-passing State procedures. The fact that petitioner herein did seek relief from the Minnesota Supreme Court indicates that his failure to appeal was not a "deliberate by-pass" of State procedures which would bar him from proceeding with a Federal petition.³

Petitioner's Allegations —

Petitioner's contentions, as stated in the application, are as follows:

"I did not have the assistance of counsel at my arraignment on robbery charges in Jan. 5, 1956. I was denied the right to argue my illegal detention in the St. Paul, City Jail for ten days before my arraignment. I was not allowed to the pre-trail (sic) motions given me under the law. I was denied the right to file a petition at my arraignment, arguing illegal arrest, arrest without Warrant, illegal search and siesure (sic), and being held ten days in jail without counsel while a case was built against me by the State."

Petitioner seems to maintain that he had an absolute constitutional right to counsel at arraignment.⁴ The transcript shows that when petitioner appeared for arraignment before a Minnesota District Court on January 3, 1956, he was without counsel.⁵ The Court thereupon asked whether he had funds to employ an attorney and when petitioner indicated he did not, the Court stated, "I will appoint the Public Defender." Petitioner's response was, "I refuse to accept the Public Defender." When the Court stated, "Well, you will have to try the case yourself then," petitioner replied, "I will, I will represent myself * * *." The Court then inquired whether petitioner wanted to plead at that time and he answered by pleading not guilty. Thereafter the charge was read and petitioner again entered a not guilty plea. Subsequently he expressed a desire to have a "competent attorney" represent him. He suggested a lawyer, but expressed doubts as to whether the attorney would accept the case. Petitioner then told the Court, "Perhaps you should appoint someone." At the trial, and at the time of sentencing, petitioner was represented by the Public Defender.

Right to Counsel at Arraignment —

Although petitioner contends he could not waive his right to counsel, it is unnecessary to consider whether the record supports a knowing and intelligent waiver in view of the conclusion that there is no constitutional requirement that petitioner be represented by counsel at arraignment.⁶

Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), extended the Sixth Amendment's guarantee of the right to counsel to State criminal defendants, questions have arisen concerning the time when the right attaches.⁷ In subsequent decisions the Supreme Court has recognized the necessity for the presence of counsel at stages prior to arraignment.⁸ The decision governing the instant case was, however, decided prior to Gideon. In Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), a defendant accused of a capital crime was arraigned without counsel. He entered a plea of not guilty. Under Alabama procedure, once a plea has been entered, whether guilty or not guilty, the defendant may not thereafter raise various defenses. Without determining whether Hamilton would have, or could have, availed himself of the defenses "irretrievably lost" by virtue of the plea, the Supreme Court concluded that arraignment is a "critical stage" in Alabama criminal proceedings. Holding that Hamilton should have been afforded counsel at arraignment, the Court stated, "when one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted." 368 U.S. at 55, 82 S.Ct. at 159.

Although the present case does not involve a capital crime, it seems clear that Hamilton applies to non-capital charges as well, despite intimations to the contrary from some courts.⁹Hamilton was decided prior to Gideon, and Gideon established, at the least, that the right to counsel applies in non-capital felony cases. Certainly it would be anomalous to conclude that the right to counsel exists for non-capital defendants, but at the same time to say that the question of whether or not the right attaches at arraignment depends upon whether the charge is capital or not.¹⁰

The more crucial question is whether Hamilton established an absolute right, or whether the right depends upon a showing of prejudice. That decision was based on a finding that arraignment is a "critical stage" in Alabama. Similarly, the ground for a subsequent decision, White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), in which the court held a defendant was entitled to be represented by counsel at a Maryland preliminary hearing, was a finding that the proceeding was a "critical stage."¹¹ The Court's statement in White that "* * * the...