Medberry v. Patterson, Civ. A. No. 6303.

• Decision Date: 14 April 1959
• Docket Number: Civ. A. No. 6303.
• Citation: 174 F. Supp. 720
• 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

174 F. Supp. 720

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. 6303.

United States District Court D. Colorado.

April 14, 1959.

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

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., and John W. Patterson, Asst. Atty. Gen., for respondents.

ARRAJ, District Judge.

This matter having come on to be heard before the Court on the 16th day of March, 1959, involves the petition of Ellsworth Medberry for a writ of habeas corpus on the ground that his detention in the Colorado State Reformatory¹ is unlawful in that after a trial on a charge of first degree murder and conviction of life imprisonment petitioner's rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution were violated because he was denied an adequate appellate review and adequate legal representation. For reasons hereafter mentioned, this Court is of the opinion that the petition should be denied.

The events leading up to the trial and conviction are reported in Medberry v. People, 1940, 107 Colo. 15, 108 P.2d 243. These events will be summarized here. Petitioner was "hitch-hiking" from Wisconsin to Colorado in March 1939. He carried a .25 caliber automatic pistol. The victim "picked up" petitioner near Sedgwick, Colorado. They drove to a schoolhouse which was about four miles from Akron, Colorado. They stopped at this schoolhouse some time in the early evening of March 10, 1939. While there the victim was fatally injured by a bullet from petitioner's automatic. Subsequently, petitioner was arrested in Fond du Lac, Wisconsin, and returned to Colorado.

On March 18, 1939, an Information was filed in the District Court of Washington County, Colorado, charging petitioner with first degree murder. On April 10, 1939, Messrs. Munson and Chutkow, members of the Colorado Bar, entered their appearance as attorneys for petitioner. Arraignment was held on the same day, at which time the petitioner plead not guilty. The trial opened on June 15, 1939, and ended on June 24, 1939. The jury returned a verdict of guilty. On July 22, 1939, a motion for new trial was filed. The motion was overruled on July 31, 1939. Petitioner was given a life sentence on the same day. No writ of error was sued out of these proceedings.

On October 13, 1939, Mr. John E. O'Brien of Fond du Lac, Wisconsin, a member of the Wisconsin Bar, but not of the Colorado Bar, was allowed to enter his appearance on behalf of petitioner. On the same day, Messrs. Munson and Chutkow withdrew their appearance.

On October 14, 1939, petitioner filed a motion for appointment of counsel on the grounds that he was indigent and that counsel familiar with Colorado criminal procedure was essential to prosecute further proceedings in the trial court, and, if necessary, in the Colorado Supreme Court. This motion was denied on October 14, 1939. A supplemental motion for the appointment of counsel was filed on October 23, 1939, which motion was overruled on October 26, 1939.²

On October 14, 1939, petitioner had filed a supplemental motion for a new trial or a writ of error coram nobis. This motion was denied on the same day.

On November 22, 1939, petitioner moved the court, on the grounds of indigency, for a free transcript of the proceedings subsequent to sentencing,³ i. e. the proceedings with respect to the motion for the appointment of counsel and the supplemental motion for a new trial or a writ of error coram nobis. This motion was denied on December 7, 1939.⁴

A writ of error was issued on December 18, 1939. The Colorado Supreme Court allowed petitioner to docket his case without the payment of the docket fees, and also permitted petitioner to file typewritten abstracts and briefs.⁵ Petitioner's bill of exceptions consisted of the District Court's Clerk's transcript, the certified transcript of the supplemental proceedings, letters between Mr. O'Brien and the Judge of the District Court and newspaper accounts of the trial. The Attorney General of the State of Colorado moved the trial court to strike the bill of exceptions, and the motion was granted. But the Colorado Supreme Court allowed the bill of exceptions to stand. On December 2, 1949, the Colorado Supreme Court affirmed the conviction. Medberry v. People, 1940, 107 Colo. 15, 108 P.2d 243.⁶ A writ of certiorari from the United States Supreme Court was not sought.

No further court action was instituted until 1958, when petitioner applied for a writ of habeas corpus from this Court. On August 13, 1958, the application was denied on the ground that petitioner had not exhausted his state remedies. On September 9, 1958, an original petition for habeas corpus was filed in the Colorado Supreme Court. The grounds for the petition were the same as those now before this Court. The petition was denied on September 18, 1958, without written opinion. Petition for rehearing was denied on October 14, 1958, also without written opinion. A petition for a writ of certiorari from the United States Supreme Court was filed on November 28, 1958. This petition was denied on January 12, 1959, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304. On February 4, 1959, petitioner filed his present petition in this Court. A writ of habeas corpus was issued on February 5, 1959, directing that petitioner be produced for hearing.

Before the merits of petitioner's claims may be considered, it must first be determined whether petitioner has exhausted his state remedies, whether any adequate state remedy is available or whether available state remedies would be ineffective. 28 U.S.C.A. § 2254. However, before considering this matter, one of petitioner's claims may be disposed of on the face of the petition — the claim that he did not have adequate legal representation.

It appears from the face of the petition, and the exhibits attached thereto, that petitioner was represented by counsel in all court proceedings from the day he was arraigned to the present date. His contention is that during the period from October 13, 1939, to December 2, 1940, the period in which petitioner was represented by Mr. O'Brien, who was not familiar with Colorado criminal procedure, he did not have adequate legal representation and that the failure of the Colorado courts to appoint local counsel on grounds of petitioner's indigency violated his constitutional rights. But the fact remains that during that period petitioner was represented by counsel; therefore, in essence, petitioner's claim is that he was denied effective assistance of counsel. Although there is doubt whether petitioner was in fact indigent at that time,⁷ the petition must fail, even on the assumption of indigency, since it does not allege with particularity in what way the acts or the failure to act of Mr. O'Brien prejudiced the petitioner;⁸ therefore, that part of the petition relating to this claim is dismissed.

In relation to his claim that he was not provided a free transcript, respondents contend that petitioner has not exhausted his state remedies because of one or both of the following reasons: (1) that petitioner failed to seek a writ of certiorari from the United States Supreme Court to the Colorado Supreme Court in relation to the latter court's affirmance of Medberry's conviction; (2) that petitioner still has an effective remedy in the state courts by way of petition for a writ of habeas corpus to a Colorado District Court.

There is no doubt that in ordinary cases an application for a writ of certiorari from the United States Supreme Court is a "state remedy" under 28 U.S.C.A. § 2254. Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L. Ed. 761; Ex parte Hawk, 1944, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. It is also clear that when a state offers alternative methods, or more than one method by which to attack a conviction on the ground that a constitutional right has been violated, only one method must be prosecuted — including only one application for a writ of certiorari from the United States Supreme Court. Brown v. Allen, 1953, 344 U.S. 443, 447, 486, 73 S.Ct. 397, 97 L.Ed. 469; Wade v. Mayo, 1948, 334 U.S. 672, 68 S.Ct. 1270, 92 L. Ed. 1647; United States ex rel. Alvarez v. Murphy, 2 Cir., 1957, 246 F.2d 871; Cranor v. Gonzales, 9 Cir., 1955, 226 F.2d 83, certiorari denied 350 U.S. 935, 76 S. Ct. 307, 100 L.Ed. 816; United States ex rel. Master v. Baldi, 3 Cir., 1952, 198 F. 2d 113; Bacom v. Sullivan, 5 Cir., 1952, 194 F.2d 166, certiorari denied 345 U.S. 910, 73 S.Ct. 651, 97 L.Ed. 1345. Therefore, to hold that petitioner failed to exhaust his state remedies by not requesting a writ of certiorari from the United States Supreme Court to the Colorado Supreme Court in relation to the Colorado Supreme Court's decision on December 2, 1940, would require a finding: (1) that petitioner waived any constitutional right he might have had to a free transcript by not seeking his final "state remedy" (a writ of certiorari) at the time he prosecuted his direct appeal to the Colorado Supreme Court, or (2) that Colorado offers no collateral method of attack and that since certiorari from the Colorado Supreme Court's decision in 1940 would be the only method by which the United States Supreme Court could have reviewed the state court's decision on the merits, failure to have requested certiorari at that time is also a failure to have exhausted state remedies.

There is no doubt that one convicted of a crime may waive a constitutional right by failing to raise the question when orderly procedure requires that it be put in issue. Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Ex parte Spencer, 1913, 228 U.S. 652, 33 S.Ct. 709, 57 L.Ed. 1010. But it is also well settled that a constitutional right cannot be waived when the accused did not know or...