Marsino v. Hogsett

• Decision Date: 16 January 1930
• Docket Number: No. 4152.,4152.
• Parties: MARSINO v. HOGSETT et al.
• Court: U.S. District Court — District of Massachusetts

37 F.2d 409 (1930)

MARSINO v. HOGSETT et al.

No. 4152.

District Court, D. Massachusetts.

January 16, 1930.

Peter V. Maggio, of Everett, Mass., for plaintiff.

Joseph E. Warner, Atty. Gen., and S. D. Bacigalupo, Asst. Atty. Gen., for defendant Hogsett.

Charles B. Rugg, District Atty., of Worcester, Mass., for other appellees.

BREWSTER, District Judge.

In the above-entitled petition for writ of habeas corpus, Judge Morton ordered the writ to issue, returnable January 6, 1930, at which time a hearing was held and evidence offered by both the petitioner and the respondent.

Marsino is now confined in the Massachusetts State Prison, of which the respondent Hogsett is warden. The writ having issued, two questions are now presented. They are whether the facts established by the evidence lead to the conclusion that Marsino is now in custody in violation of any right secured to him by the Constitution or laws of the United States, and, if so, shall he be discharged from custody in these proceedings?

The application upon which the writ in the case at bar was issued attacks in several ways the validity of the judgment, by virtue of which Marsino is now incarcerated, but, as Judge Morton pointed out in his opinion accompanying the order for the writ, the only federal question now open to the petitioner is whether the trial, conviction, and sentence in the superior court for the county of Worcester in May, 1924, shall be deemed null and void by reason of the provisions of Rev. St. § 766 (28 USCA § 465).

The facts, so far as pertinent to the present inquiry, may be briefly stated as follows:

The petitioner was involved in the wrecking of the First National Bank of Warren, Mass. On November 14, 1923, he was, in this court, sentenced to imprisonment in the federal penitentiary at Atlanta, Ga., for the term of 4 years and 9 months. While he was serving this sentence, an application was made to the Attorney General of the United States by a prosecuting attorney of the state for the production of Marsino before the state court of Massachusetts, in order that he might stand trial upon indictments which had, in the meantime, been returned against him in the superior court for the county of Worcester. This application was granted upon the condition, among others, that a writ of habeas corpus ad respondendum should issue by the state court requiring the presence of Marsino in the state court. After Marsino had been brought into Massachusetts by one Higgins, a federal officer to whom the custody of Marsino had been committed, such a writ was issued by the superior court, commanding the warden to present Marsino before the court on the 14th day of May, 1924, "and from day to day thereafter, for trial on indictments numbered 148 and 151 pending before said court," but to remain at all times in the custody of an officer of the United States and subject to the sentence imposed by the United States District Court for the District of Massachusetts. This writ was served within this district upon Higgins. On the 15th day of May, 1924, Marsino filed in this court a petition for a writ of habeas corpus, alleging that he was restrained by Higgins in violation of the Constitution and laws of the United States. By amendment a new petition was substituted May 16. On the same day an order dismissing the petition and denying the writ was entered. On May 17, 1924, an appeal was taken to the United States Supreme Court, which, on January 25, 1926, affirmed the action of the lower court upon the authority of Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 310, 66 L. Ed. 607, 22 A. L. R. 879; Marsino v. United States, 270 U. S. 627, 46 S. Ct. 206, 70 L. Ed. 768.

Marsino was never tried upon indictments Nos. 148 and 151. These indictments were nol. pros'd, and new indictments for the same offenses, namely, larceny and conspiracy, were returned on the 16th day of May, 1924. On the 19th day of May, 1924, Marsino was called to the bar to stand trial on the new indictments. He was convicted and sentenced on the 29th day of May to imprisonment for a term of not less than 4½ years nor more than 5 years in the state prison in Boston, said sentence not to commence until his sentence in the federal court had terminated. The sentence imposed by the federal court having expired, a mittimus issued out of the superior court for the county of Worcester on March 26, 1927, by virtue of which Marsino is now held by the state authorities.

Rev. St. § 766, as amended March 3, 1893, c. 226, 27 Stat. 751, reads as follows:

"Pending the proceedings or appeal in the cases mentioned in the three preceding sections, and until final judgment therein, and after final judgment of discharge, any proceeding against the person so imprisoned or confined or restrained of his liberty, in any State court, or by or under the authority of any State, for any matter so heard and determined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void."

That the statute is equally effective to stay the proceedings in the state court when the matter heard and determined in the federal court arises upon an application for a writ of habeas corpus which is denied would seem to be clear from a reading of Rev. St. § 763, as it existed at the time Rev. St. § 766, was first enacted. This preceding section related to appeals from the final decision of the District Court upon an application for a writ of habeas corpus or upon such writ when issued. This view is supported by the authorities. In re Shibuya Jugiro, 140 U. S. 291, 11 S. Ct. 770, 35 L. Ed. 510; Lambert v. Barrett, 159 U. S. 660, 16 S. Ct. 135, 40 L. Ed. 296; McKane v. Durston, 153 U. S. 684, 14 S. Ct. 913, 38 L. Ed. 867; United States v. Shipp, 203 U. S. 563, 27 S. Ct. 165, 166, 51 L. Ed. 319, 8 Ann. Cas. 265; In re Ebanks (D. C.) 84 F. 311; Ex parte Martin (C. C.) 180 F. 209.

Does this statute apply to the proceedings had in the state court, out of which came the conviction, sentence, and finally the imprisonment of Marsino? If it does, then such proceedings are declared null and void by the federal laws.

In approaching the consideration of this question, we may take certain propositions to be beyond controversy. In 1924 Marsino was restrained of his liberty by authority of the United States and, while so restrained, he applied to this court for a writ of habeas corpus, alleging that he was so restrained in violation of the Constitution and laws of the United States. He appealed from an order of the court denying his application. Before final judgment had been rendered by the Appellate tribunal, proceedings in a state court were brought against him while so restrained.

The provisions of the section, however, are aimed at only proceedings in a state court which are for the same matter heard or determined or in the process of being heard and determined under the writ of habeas corpus. Consequently, the question comes to this: Were the proceedings in the state court "for any matter heard and determined" upon petitioner's application for a writ of habeas corpus which was denied May 16, 1924?

It becomes important to examine the earlier proceedings instituted in 1924 which resulted in an appeal to the Supreme Court of the United States in order to determine the exact scope and nature of the matters then heard and determined. In the substituted petition it was alleged that Marsino was "unlawfully held in custody, imprisoned and restrained of his liberty at said Worcester, by the respondent, James Higgins, * * * without color of authority of law and in violation of his rights under the Constitution and laws of the United States, and particularly under the Fifth Amendment to said Constitution and section 1 of article 14 thereof," for the reason, as he alleges, that he was serving a term of imprisonment in the United States penitentiary at Atlanta; and "in violation of his rights as aforesaid, and in violation of the terms of the mittimus of" the federal court he was removed by Higgins "without the protection of judicial process, unlawfully and without adequate authority properly exercised, from said United States penitentiary at Atlanta to said city of Worcester where," as he believed, he was to be put on trial upon two indictments found by the grand jury of the county of Worcester for offenses against the laws of the United States.

To this petition the respondent answered denying that the custody, imprisonment, and restraint of Marsino was by virtue of any writ or process issued by the superior court for the commonwealth of Massachusetts, but that he was, in fact, in the custody and imprisoned and restrained by virtue of the original mittimus of November 14, 1923, and that such custody, imprisonment and restraint was not in violation of any rights of the prisoner secured by the Constitution or any laws of the United States.

Thus the issue was sharply drawn. It was whether Marsino's rights, secured to him by the Constitution and laws of the United States, had been invaded by the action of the Attorney General in assenting to, and the warden in complying with, the request of the authorities of Massachusetts that Marsino be taken from his confinement in the federal penitentiary at Atlanta and brought into Massachusetts to stand trial upon indictments pending in the criminal courts of that state. The petition was denied, and it is evident, from his opinion, that this was the only issue then considered by Judge Morton. The denial of the writ involved the conclusion not only that the restraint imposed upon Marsino's liberty by Higgins was lawful, but also that the action of the warden in producing Marsino for trial in Massachusetts did not violate any of Marsino's constitutional or legal rights. This is further made to appear when we note Marsino's requests for rulings made at the hearing, and especially the following request:

"2. The Attorney General has no power to direct, or to...