Miller v. Crouse

• Decision Date: 02 June 1965
• Docket Number: No. 7927.,7927.
• Citation: 346 F.2d 301
• Parties: James E. MILLER, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

346 F.2d 301 (1965)

James E. MILLER, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Lansing, Kansas, Appellee.

No. 7927.

United States Court of Appeals Tenth Circuit.

June 2, 1965.

James L. Cunningham, Denver, Colo., for appellant.

William M. Ferguson, Atty. Gen. of Kansas, and Richard H. Seaton, Asst. Atty. Gen. of Kansas, for appellee.

Before PICKETT and LEWIS, Circuit Judges, and DAUGHERTY, District Judge.

DAUGHERTY, District Judge.

This is an appeal for review of the action taken by the United States District Court for the District of Kansas upon a petition for a writ of habeas corpus filed by a state prisoner in the Kansas State Penitentiary. The petitioner, the appellant herein, was charged by an information filed by the Acting County Attorney in and for Franklin County, Kansas, with two counts of forgery and two counts of passing forged instruments.¹ He entered a plea of guilty to counts 1 and 3 and sentence was imposed by the District Court of Franklin County, Kansas. The same information by which the appellant herein was charged also charged two co-defendants with committing the four offenses involved. The appellant appeared before the State District Court for arraignment, and having no counsel he was appointed counsel pursuant to the requirements of a Kansas statute.² The transcript of the arraignment proceedings, which is before the Court, indicates that the matter of the arraignment was adjourned or continued to permit the appellant and his court-appointed counsel to confer fully about the matter at hand. After this conference was had, the petitioner appeared again before the trial court with his counsel, and counsel announced that the petitioner would waive the formal reading of the indictment and further announced that the petitioner desired to enter a plea of guilty as to counts 1 and 3 of the information. These are the two counts that involve forgery.³ The Court then inquired of the appellant if it was his personal desire to enter a plea of guilty to forging the two instruments involved. The appellant affirmed that it was in fact his desire to so enter such a plea. The other two counts which involved the passing of forged instruments were dismissed by the State. Upon these pleas of guilty, and immediately following the acceptance of the plea of guilty by the State Court Judge, the defendant was sentenced on each count to a term under the applicable Kansas indeterminate sentence law,⁴ the sentences to run concurrently.

Thereafter, in December of 1963, the appellant petitioned the State District Court of Leavenworth, Kansas, for a writ of habeas corpus. In his application the appellant contended he was being illegally and unlawfully restrained for the reasons as set out in his numbered contentions: First, that no public offense had in fact been committed or in law could this offense have been committed and charged to him for the reason that he was in fact illiterate and being unable to read and write was, therefore, incapable of being guilty of the crime of forgery; Secondly, that the prosecutor of Franklin County, Kansas, had been guilty of malfeasance by the fact of his filing an information charging forgery against him under the above circumstances. In the latter part of this pro se application for a writ in the State Court the appellant pointed out that he had informed the trial judge that he could not read nor write and knowing the same the judge did not advise him of the nature of the charge against him and as to the possible punishment or sentence he could receive, or to his right to a trial by jury. The application for a writ of habeas corpus in the State Court did not set forth any factual allegations to substantiate the claimed wrongs alleged to have been done the petitioner, but the petitioner relied upon the certified transcript of his arraignment proceeding that was attached to his application as an exhibit. The petitioner requested no counsel in this State habeas corpus proceeding and none was appointed. On December 12, 1963, the appellant's petition to the State District Court was denied without a hearing, the State District Court stating that after considering the petition as filed it was found that the petitioner had not made a prima facie showing as to the illegality of his restraint. By this language we must assume that the State District Court Judge considered each and every material allegation contained in the application for a writ and found that none on their face and as supported by the record were of merit in law or in fact.

The State District Court in this habeas corpus proceeding determined by its order that the judgment entered by the trial court in Franklin County was not susceptible to collateral attack by the allegations made by the petitioner in his application. This interpretation so far as it deals with state law and state procedures is conclusive upon the Federal Courts unless a showing is made that the petitioner was denied any primary rights safeguarded by the United States Constitution in the state court proceedings. In regard to such federal questions, of course, a finding by the State Court is not conclusive and binding upon the Federal Courts. However, the writ of habeas corpus cannot be used as a substitute for an appeal and alleged errors in a state court proceeding in exercise of jurisdiction over a case properly before it cannot be reviewed by federal habeas corpus unless there has been a deprivation of constitutional rights such as to render a judgment void or to amount to a denial of due process. Bizup v. Tinsley, D.C., 316 F.2d 284; Gay v. Graham, 10 Cir., 269 F.2d 482; Smith v. Hand, 10 Cir., 305 F.2d 373, cert. denied 371 U.S. 870, 83 S.Ct. 135, 9 L.Ed.2d 107.

No appeal of this denial of the application for a writ of habeas corpus by the State Court was prosecuted by the appellant herein to the appellate courts of the State of Kansas.

It is noted that in his initial application for a writ to the State Court, the petitioner — appellant herein — alleges as the gravamen of his complaint that because of the singular fact that he was and is to some degree illiterate, that fact standing alone makes it impossible under the law for him to commit and be guilty of the crime of forgery, that is to say, a violation of Kansas G.S. 21-608. The appellant in that pleading to the State Court in no way attempted to point out his innocence or that he was perhaps only an innocent accompanying party to the real culprit in this crime. Nor, does he attempt to point out that he was not in fact really aware of the nature of the charge against him or of the possible punishment that could be inflicted upon him as a result of a plea of guilty. Nor, does the petitioner attempt to assert that his counsel did not adequately represent him nor properly advise him of the nature of the charges and his predicament as he stood before the State Court. From his own statement the petitioner points out "at best he could have only been charged with aiding and abetting the commission of a felony", thereby indicating his awareness of the fact that under Kansas law, one need not be guilty only as a principal before being criminally responsible for his involvement in an illegal act.⁵

After receiving no relief on his application to the State District Court and while still in the custody of the State of Kansas the appellant filed, on a printed form provided for such purpose, a petition for a writ of habeas corpus in the Federal Court below with a hand-written brief attached in support thereof and an application to proceed in forma pauperis. An order was entered by the Court below on January 28, 1964, denying the application of the petitioner to prosecute his action in forma pauperis. On March 19, 1964, the appellant filed a pro se pleading styled "Motion for a Rehearing" directed to the Court and requesting reconsideration of the application to proceed in forma pauperis. In response to this motion, the District Court entered its order of March 19, 1964, from which this appeal is taken. The Court, though faced with a motion regarding the prosecution of the action in forma pauperis, chose apparently to treat the appellant's petition for a writ on the merits, or so we have considered his order, and, therefore, we treat this appeal as one from the denial of the petition on the merits without a hearing. The petitioner in stating the grounds on which he based his allegation that he was being held in State custody unlawfully, stated (1) that he had received no relief with reference to his restraint in his previously filed State habeas corpus proceeding; (2) that no public offense was committed in fact or in law for the reason that it is mandatory that one so accused and convicted of forgery be able to read and write, and, thus, therefore, no public offense was in fact involved in the charge against him and he was incapable of committing the act or being guilty of the crime of forgery; (3) that the state prosecutor was guilty of malfeasance in proceeding against him by information for such public offense under the circumstances of his being in fact unable to read and write; and (4) in his pro se brief in support of the petition, he alleges or complains that he was not advised by the State trial court of the nature of the charge against him, the punishment therefor, nor of his right to trial by jury. No factual allegations are stated either in the petition nor the brief attached thereto in support of any of the foregoing contentions made by the appellant. The petitioner apparently again relied solely upon the certified transcript of the arraignment proceeding had...