Mitchell v. Henslee

• Citation: 208 F. Supp. 533
• Decision Date: 06 September 1962
• Docket Number: No. PB 62 C 24.,PB 62 C 24.
• Parties: Lonnie MITCHELL, Petitioner, v. Lee HENSLEE, Superintendent of Arkansas State Penitentiary, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

208 F. Supp. 533

Lonnie MITCHELL, Petitioner, v. Lee HENSLEE, Superintendent of Arkansas State Penitentiary, Respondent.

No. PB 62 C 24.

United States District Court E. D. Arkansas, Pine Bluff Division.

September 6, 1962.

Delector Tiller, Christopher C. Mercer, Jr., Little Rock, Ark., for petitioner.

J. Frank Holt, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., Little Rock, Ark., for respondent.

YOUNG, District Judge.

This is a habeas corpus proceeding prosecuted in forma pauperis by Lonnie Mitchell, a male Negro, who in 1959 received a death sentence from the Circuit Court of Union County, Arkansas, following his conviction of having raped a 77 year old crippled white woman. The conviction was affirmed by the Supreme Court of Arkansas. Mitchell v. State, 230 Ark. 894, 327 S.W.2d 384. No application for certiorari was made to the Supreme Court of the United States.

At his trial petitioner was represented by court appointed counsel, Mr. J. S. Thomas of El Dorado, and Mr. Thomas also prosecuted the original appeal, which will hereinafter be called Mitchell No. 1. Subsequently, petitioner obtained the services of his present counsel who in 1960 filed a motion in the Union County Circuit Court to vacate the 1959 conviction. The motion was denied and this was affirmed by the Arkansas Supreme Court. Mitchell v. State, 232 Ark. 371, 337 S.W.2d 663. This portion of the case will hereinafter be called Mitchell No. 2. Neither was there an application for certiorari to the Supreme Court of the United States from this decision. Still later, petitioner filed a petition for habeas corpus in the Circuit Court of Jefferson County, Arkansas (the site of the Arkansas State Penitentiary). That petition was also denied and affirmed by the Arkansas Supreme Court. Mitchell v. State ex rel. Henslee, Ark., 346 S.W.2d 201. This will hereinafter be called Mitchell No. 3. Petitioner did not apply for certiorari to the Supreme Court of the United States from this decision just as he did not from the previous decisions. At a still later date petitioner applied to the Arkansas Supreme Court for leave to file a Writ of Error Coram Nobis based on the sole issue of insanity, and this application was denied without written opinion (see statements of counsel).

Upon the filing of the application for leave to file and prosecute in forma pauperis a petition for habeas corpus, the application was granted, the petition filed, execution stayed and an order entered setting a hearing for August 21, 1962 at 10:00 a. m. At an informal conference held on August 20, 1962 in the chambers of this court, with counsel for both petitioner and respondent present, the court announced that the formal hearing to be held the next day would be limited to introducing into the record all relevant portions of the state proceedings and giving the petitioner opportunity to present to the court the exceptional circumstances relied on by him to take this case outside the rule laid down by Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. This rule, of course, is that a state prisoner cannot secure review of his conviction in the state court by means of habeas corpus proceedings in the federal District Court until he has exhausted all available state remedies and applied to the Supreme Court of the United States for certiorari to review adverse decisions of the highest state court, except in the event of exceptional circumstances. By delaying any hearing to permit the taking of testimony until such time as the court could consider the records of the state proceedings and determine whether such hearing would be necessary, the court was following the guide laid down in Brown v. Allen, 344 U.S. 443, at page 502, 73 S.Ct. 397, 97 L.Ed. 469, et seq., directing the District Judges on the procedure to be followed in the disposition of applications for habeas corpus by prisoners under sentence of state courts.

In the instant petition the petitioner claims that his conviction was obtained in violation of rights guaranteed by the Fourteenth Amendment to the Constitution of the United States and was for that reason void. The petition contains five alleged violations of his constitutional rights, and they are, in substance, as follows:

1. It is the practice and custom in Arkansas for Negro men to receive death sentences for rapes committed upon white women whereas white men are not sentenced to die for rapes whether committed on white or Negro women and that this alleged practice and custom constitutes an unconstitutional application of the Arkansas rape statute which violates the due process and equal protection clauses of the Fourteenth Amendment.

2. Racial discrimination was practiced in the selection of the jury.

3. Petitioner's confessions were obtained by coercion and other unlawful means and should not have been admitted into evidence.

4. Petitioner was insane at the time of the commission of the rape and is now insane.

5. Petitioner did not have the effective assistance of counsel in the course of the original proceedings against him.

We now consider these allegations in the above order.

I

Ark.Stat.Ann. § 41-3403 (1947) provides in substance that any person convicted of rape shall suffer the punishment of death, or, if the jury so recommends, imprisonment for life. As indicated, petitioner contends that in practice this statute is so applied that Negro men who are convicted of rape upon white women usually receive the death sentence, whereas white rapists never receive the death sentence regardless of the race of their victims. This, it is said, amounts to a denial to Negro men of the equal protection of the laws.

No such argument was advanced in the trial court or urged upon the Arkansas Supreme Court in the original appeal. It was first brought up in Mitchell No. 2 and again brought up in Mitchell No. 3. It is well established that federal constitutional questions not raised in the original state court proceedings are waived and cannot be considered later by a federal court in the course of habeas corpus proceedings. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469. This contention could have been raised in the original State proceedings, and when petitioner failed to do so, he waived the point and cannot litigate it here.

Aside from waiver, it should be pointed out that it is by no means clear that Negro men are invariably sentenced to death upon conviction for rape while white men are never sentenced to death for rape in Arkansas. In this regard see Note 1 to the opinion of the Arkansas Supreme Court in Mitchell No. 3:

"Arkansas cases have not yet been digested by race. On the point here alleged, if it can properly be termed a point, a cursory research discloses Needham v. State, 215 Ark. 935, 224 S.W.2d 785, to be a recent case affirming a judgment based upon a jury verdict assessing the death penalty to a white person convicted of rape. Almost all of the cases found made no reference whatever to race, thereby rendering it impossible to tell the race of the condemned."

II

Concerning the allegation of racial discrimination in the selection of the jury, the panel from which the trial jury was selected was not objected to at the original trial nor was this matter urged upon the Arkansas Supreme Court in the original appeal, and this point was therefore waived just as number 1 above. It should be pointed out, however, that a Motion to Quash was filed in regard to the first panel selected by the jury commissioners in which racial discrimination was the basis for the Motion. The Circuit Judge promptly granted the Motion, quashed the panel, and ordered the jury commissioners to select a new panel of jurors. He further instructed them that they were not to make any discrimination in the selection of this panel because of race, color or...