McCrea v. Jackson

• Decision Date: 04 April 1945
• Docket Number: No. 9869.,9869.
• Citation: 148 F.2d 193
• Parties: McCREA v. JACKSON, Warden.
• Court: U.S. Court of Appeals — Sixth Circuit

148 F.2d 193 (1945)

McCREA v. JACKSON, Warden.

No. 9869.

Circuit Court of Appeals, Sixth Circuit.

April 4, 1945.

Walter M. Nelson, of Detroit, Mich., for appellant.

Edmund E. Shepherd, of Lansing, Mich. (Herbert J. Rushton, of Escanaba, Mich., Edmund E. Shepherd, of Lansing, Mich., Ben H. Cole, of Detroit, Mich., and Daniel J. O'Hara, of Lansing, Mich., on the brief), for appellee.

Before HICKS, HAMILTON, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

In this habeas corpus proceeding, the appellant Duncan C. McCrea, former prosecuting attorney of Wayne County, Michigan, was convicted in the state court on an information charging a conspiracy to obstruct justice. The judgment of conviction and sentence was affirmed by the Supreme Court of Michigan. People v. McCrea, 303 Mich. 213, 6 N.W.2d 489. His application for a writ of certiorari to that court was denied by the Supreme Court of the United States. 318 U.S. 783, 63 S.Ct. 851, 87 L.Ed. 1150. Following this denial, McCrea applied to the United States District Court for the Eastern District of Michigan for a writ of habeas corpus. The district court entered and caused to be served an order directed to the appellee, warden of the Michigan State Prison, to show cause why McCrea should not be forthwith discharged from custody and imprisonment. The appellee warden answered, and incorporated in his answer a motion to dismiss the habeas corpus petition.

In substance, this motion to dismiss was grounded upon averments that no material issue of fact is presented by the petition; and that, as a matter of law, no cause for granting the writ of habeas corpus exists. The appellee, through the Attorney General of Michigan, who in his official capacity has represented the warden throughout these proceedings, filed objections in writing to the issuance of the writs of habeas corpus and habeas corpus ad testifaciendum and to a hearing on the merits, upon the ground that the pending motion to dismiss should be first heard and disposed of.

The district judge ordered the prisoner to be transported to the Wayne County Jail, for accessibility and for conferences with his counsel. The record discloses that no testimony was received in the proceedings before the district judge; but that he heard argument of counsel, and in an extended colloquy sought to ascertain whether any ground was presented by the petition which necessitated the reception of evidence. Ten days following the court proceedings, the district judge filed an opinion, in which he stated that he had examined the pleadings, heard the arguments, read the authorities cited, and had found it unnecessary to hear testimony, inasmuch as the issues which would ordinarily require testimony "are covered by admissions either made by respondent's pleadings or in open court."

The district court declared that "practically" all the questions involved had been passed upon by the state Supreme Court and certiorari therefrom denied by the Supreme Court of the United States; and that any questions not previously raised were waived by the failure to present them on the appeal to the state Supreme Court or in the petition for certiorari addressed to the Supreme Court of the United States. The court asserted that the appellant has not exhausted all remedies in the state court for the reason that, under the law of Michigan, he may still be heard on an application for leave to file a delayed motion for a new trial. The opinion was expressed that it would be presumptuous for the district court to grant a writ of habeas corpus "in view of the fact that the matter was before the Supreme Court of the United States and could have been heard by it if that court had believed that there was merit to petitioner's contention."

The opinion of the district judge concluded: "In view of the admitted facts this, though to some extent still a matter of discretion, is not one of those `rare cases where exceptional circumstances of peculiar urgency are shown to exist.' United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138. We believe further that federal courts are not for trials de novo. Sanderlin v. Smyth, 4 Cir., 138 F.2d 729; Long v. Benson, 6 Cir., 140 F.2d 195; Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293."

An order, dismissing the petition for writ of habeas corpus for the reasons stated in the opinion, was thereupon entered in the district court; and the present appeal is from that order.

Were there no other ground for denial of the petition for the writ of habeas corpus than that "practically" all of the questions involved had been passed upon by the state Supreme Court in affirming petitioner's conviction and sentence, with ensuant denial of certiorari by the Supreme Court of the United States, this court would feel constrained to reverse.

It is true, of course, that a habeas corpus petition cannot be employed as a substitute for a writ of error. Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3. See also the three cases last cited in the opinion of the district court, supra. It is also true that "while it is the usual procedure on an application for a writ of habeas corpus in the federal courts for the court to issue the writ and on the return to hear and dispose of the case, it may without issuing the writ consider and determine whether the facts alleged by the petition, if proved, would warrant discharge of the prisoner." Ex parte Quirin, 317 U.S. 1, 24, 63 S.Ct. 1, 2, 9, 87 L.Ed. 3. But, in Walker v. Johnston, 312 U.S. 275, 285, 61 S.Ct. 574, 579, 85 L.Ed. 830, the Supreme Court declared that if an issue of fact is presented, the only permissible procedure is for the judge to issue the writ, have the petitioner produced, and hold a hearing at which evidence is received. Nothing less is deemed to satisfy the command of the statute that the judge shall proceed "to determine the facts of the case, by hearing the testimony and arguments."

In Holiday v. Johnston, 313 U.S. 342, 350, 351, 352, 354, 550, 61 S.Ct. 1015, 1018, 85 L.Ed. 1392, it was said that a petition for habeas corpus ought not to be scrutinized with technical nicety; that no departure from the plain mandate of the statute can be sanctioned; and that the court has "recently emphasized the broad and liberal policy adopted by Congress respecting the office and use of the writ of habeas corpus in the interest of the protection of individual freedom to the end that the very truth and substance of the cause of a person's detention may be disclosed and justice be done." It was pointed out that Congress has seen fit to lodge in the judge the duty of investigation; that the petitioner must be afforded the right plainly accorded him by the statute of testifying before the judge; that neither the hearing of the testimony of the witnesses nor the weighing and appraising thereof may be delegated to a master; but that the judge personally must perform this function, find the facts and base his disposition of the cause upon his findings. Upon these principles, the discharge of the writ of habeas corpus was reversed and the cause remanded for a determination of the issues of fact upon a further hearing.

The rule declared in United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138, that the due and orderly administration of justice in a state court is not to be interfered with by the issuance of a writ of habeas corpus by a federal court "save in rare cases where exceptional circumstances of peculiar urgency are shown to exist," has supplied the basis for frequent denials of the writ, in cases too numerous to require citation. But the Supreme Court has recently declared that the often quoted statement was made in a case in which the petitioner had not exhausted his state remedies, and "is inapplicable to one in which the petitioner has exhausted his state remedies, and in which he makes a substantial showing of a denial of federal right." Ex parte Hawk, 321 U.S. 114, 117, 118, 64 S.Ct. 448, 450, 88 L.Ed. 572.

It would seem to be settled law that when a material issue of fact is presented by habeas corpus petition, even though the allegations of the petition may tax credulity, the prisoner must be produced and given a hearing by the court, where the facts alleged are dehors the record, were not open to consideration and review on appeal, and constitute a charge that the accused has been convicted in disregard of his constitutional rights. Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302. Compare United States v. Uhl, 2 Cir., 137 F.2d 858, 860; Id., 2 Cir., 137 F.2d 898, 900; Ex parte Rosier, 76 App.D.C. 214, 133 F.2d 316; Lewis v. King, Warden, 8 Cir., 133 F.2d 195; O'Keith v. Johnston, Warden, 9 Cir., 122 F.2d 554, 555.

In his carefully prepared petition for a writ of habeas corpus, which employs language in conformity with the statutes, appellant avers that he is unlawfully confined in the Michigan state prison pursuant to his illegal conviction and sentence in the state court, in violation of his rights under the constitution and laws of the United States; and...