Medberry v. Patterson

• Citation: 188 F. Supp. 557
• Decision Date: 31 August 1960
• Docket Number: Civ. A. No. 6789.
• Parties: Petition of Ellsworth MEDBERRY, Petitioner, v. Wayne K. PATTERSON, Warden of The Colorado State Reformatory, and Harry C. Tinsley, Warden of The Colorado State Penitentiary, Respondents.
• Court: U.S. District Court — District of Colorado

188 F. Supp. 557

Petition of Ellsworth MEDBERRY, Petitioner, v. Wayne K. PATTERSON, Warden of The Colorado State Reformatory, and Harry C. Tinsley, Warden of The Colorado State Penitentiary, Respondents.

Civ. A. No. 6789.

United States District Court D. Colorado.

August 31, 1960.

Samuel D. Menin, Denver, Colo., for petitioner.

Duke W. Dunbar, Atty. Gen. of Colorado, Frank E. Hickey, Deputy Atty. Gen., and J. F. Brauer, Asst. Atty. Gen., for respondents.

ARRAJ, Chief Judge.

This matter comes before the Court on a petition for a writ of habeas corpus on the grounds that petitioner's imprisonment is in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment in that he was denied adequate legal representation and an adequate appellate review.

This is the third time petitioner has sought relief in this Court. The memorandum opinion and order filed in connection with the second petition and reported in D.C.Colo., 174 F.Supp. 720 should be read in connection with this opinion and order.

On June 24, 1939, petitioner was convicted of first degree murder in the District Court in Washington County, Colorado. A motion for new trial was filed alleging thirty-five grounds of error. This motion was denied and petitioner was sentenced to life imprisonment.

Subsequently, on October 13, 1939, the attorneys who had represented Medberry at his trial withdrew their appearance and John E. O'Brien, a member of the Wisconsin Bar but not of the Colorado Bar, entered his appearance for petitioner. Various motions by petitioner for appointment of counsel familiar with Colorado criminal procedure were denied. On October 14, 1939, petitioner's supplemental motion for a new trial or a writ of error coram nobis was denied. Following these rulings petitioner "requested the court to order the preparation of a transcript of the evidence and proceedings in the trial court at public expense to enable defendant to procure a review of the judgment of conviction". Medberry v. People, 107 Colo. 15, 17-18, 108 P.2d 243, 244. This motion too was denied. Thereafter, upon a suggestion of Medberry's indigency, he was permitted to docket his proceeding in error in the Colorado Supreme Court without prepayment of fees and to submit his case on typewritten abstract and briefs. A writ of error was issued on December 18, 1939. A request for a free transcript of the trial proceedings was also made in petitioner's brief before the Colorado Supreme Court. The Colorado Supreme Court denied the free transcript and affirmed Medberry's conviction. Only five issues were presented to and decided by the Colorado Supreme Court, the petitioner contending that lack of a transcript prevented him from arguing other errors alleged to have been committed during the trial. Petitioner did not seek a writ of certiorari from the United States Supreme Court.

Nothing further transpired in the case until petitioner applied in this Court for a writ of habeas corpus which was denied on August 13, 1958, for failure to exhaust state remedies. Petitioner then filed an original petition for habeas corpus in the Colorado Supreme Court which was denied on September 18, 1958, without written opinion. Rehearing was also denied without written opinion. Certiorari from the United States Supreme Court was denied on January 12, 1959. 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed. 2d 304.

Medberry then, on February 4, 1959, again applied for a writ of habeas corpus in this Court. This Court, in a written opinion, Medberry v. Patterson, D.C., Colo., 174 F.Supp. 720, denied the application pointing out that petitioner had further remedies that he could pursue in the Colorado Courts. That opinion indicated that petitioner could proceed by way of petition for a writ of habeas corpus to a Colorado District Court and by way of applying for a free transcript in accordance with the procedure laid down in In re Patterson, 136 Colo. 401, 317 P. 2d 1041. It was further suggested that the Colorado Courts should be given an opportunity to reconsider Medberry's case in the light of Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

After this Court's decision in Medberry v. Patterson, supra, petitioner applied for a writ of habeas corpus in the District Court of Washington County, State of Colorado. Judge Hilbert Schauer of that Court held a hearing on the petition and denied the petition setting forth his findings on the matter. Petitioner appealed to the Colorado Supreme Court which affirmed, Medberry v. Patterson, Colo., 350 P.2d 571, the denial of the writ of habeas corpus was on the ground that habeas corpus was not the proper remedy under Colorado law; there were no rulings on the specific findings of Judge Schauer.

The case is now before this Court on an application for a writ of habeas corpus filed May 9, 1960. A full hearing on all the issues involved in this case was held on July 14, 1960. The Court has had before it and has, under an agreement of the parties, given consideration to the files and records of the previous habeas corpus cases filed in this Court by the petitioner and to the records in the Colorado Supreme Court involving this petitioner.

The first question that must be determined is whether Medberry has exhausted his state remedies, thus meeting the requirements of 28 U.S.C. § 2254. This Court must now hold that he has.

In 1940 Medberry attempted to secure a transcript so as to obtain a full appellate review of his trial and conviction. The argument that he did not exhaust his remedies since he did not seek certiorari from the United States Supreme Court at that time was adequately dealt with in Medberry v. Patterson, D.C.Colo., 174 F.Supp. 720, 726.

It does not appear and the respondents do not contend that the writ of coram nobis is an available remedy. See Litchfield v. Tinsley, 10 Cir., 281 F.2d 486; Kirk v. Best, 123 Colo. 127, 130-131, 225 P.2d 850.

Medberry has clearly complied with the suggestion in Medberry v. Patterson, D.C.Colo., 174 F.Supp. 720 that he attempt to obtain a writ of habeas corpus in a district court of Colorado. The denial by the district court was affirmed by the Colorado Supreme Court on the ground that habeas corpus is not an appropriate remedy under Colorado law for challenging the denial of a free transcript. This is an adequate state ground and exhaustion of state remedies does not require application for and denial of certiorari by the United States Supreme Court when the state decision was based on an adequate state ground. Medberry v. Patterson, D.C.Colo., 174 F. Supp. 720, 726; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348.

The issues thus narrow to whether in order to exhaust his state remedies Medberry should now apply for a free transcript or whether by failing to ask for a new appellate review and free transcript before January 1, 1957, (the significance of this date will appear later) he failed to comply with Colorado's procedural requirements for an available remedy and thereby waived any Constitutional rights he may have possessed.

In dealing with either of these alternatives it is necessary to determine whether a second appeal is available to Medberry under Colorado law. If a second appeal is available he has not exhausted his state remedies. If it is not he has exhausted his state remedies.

This Court finds nothing in Colorado law that would allow Medberry a second appeal to the Colorado Supreme Court. Both respondents' brief and the Court's opinion in Medberry v. Patterson, Colo., 350 P.2d 571, make it clear that Colorado considers that Medberry has had his appellate review. The general rule is that there can be no second appeal. 24 C.J.S. Criminal Law § 1633, p. 228 and cases there cited. The opinion in Medberry v. Patterson, Colo., 350 P.2d 571, shows that no second appeal is available. The Court there said that the remedy was to have sought certiorari in the United States Supreme Court from the affirmance of his conviction. No mention is made of a second appeal to the Colorado Supreme Court as a possible remedy. And respondents in their brief in regard to an application for a free transcript of the last Medberry proceeding in state courts say that no second review is available under the rules. This Court finds no reason to believe that the same rule would not apply to a second appeal of Medberry's 1939 conviction. Certainly here, as in Dowd v. United States ex rel. Cook, 340 U.S. 206, 209, 71 S.Ct. 262, 95 L.Ed. 215, there is no indication that Medberry could have a second appeal as of right. Apparently under that decision a remedy less than an appeal as of right is one which does not have to be exhausted. This Court must therefore conclude that no new appeal of Medberry's conviction is available in the Colorado Courts.

With this in mind we turn to the respondents' argument that in order to exhaust his state remedies Medberry must again apply to the Colorado Courts for a free transcript under In re Patterson, 136 Colo. 401, 317 P.2d 1041, 1042.

The opinion of In re Patterson, supra, points out that one is not entitled to a transcript if it would be a "vain and useless thing" See Kirkendoll v. People, 138 Colo. 267, 331 P.2d 809. This is in conformity with the concurring opinion of Mr. Justice Frankfurter in Griffin v. People of State of Illinois, 351 U.S. 12, 24, 76 S.Ct. 585, 100 L.Ed. 891, in which it is pointed out that a state may protect itself from subsidizing frivolous appeals. Clearly, giving Medberry a free transcript for purposes of an adequate appellate review would be a "vain and useless thing" when no further appellate review is available. Therefore, it seems inescapable that the Colorado Courts would properly under In re Patterson, supra, deny Medberry a free transcript on the ground that it would be a vain and useless thing.

Before considering further the legal aspects of this...