Mooney v. Holohan

• Decision Date: 27 June 1934
• Docket Number: No. 21766-S.,21766-S.
• Citation: 7 F. Supp. 385
• Parties: MOONEY v. HOLOHAN, Warden.
• Court: U.S. District Court — Northern District of California

7 F. Supp. 385

MOONEY v. HOLOHAN, Warden.

No. 21766-S.

District Court, N. D. California, S. D.

May 17, 1934.

On Request for Reconsideration June 2, 1934.

On Petition for Appeal, etc., June 27, 1934.

Frank P. Walsh, of New York City, John F. Finerty, of Washington, D. C., and George T. Davis, of San Francisco, Cal., for petitioner.

ST. SURE, District Judge.

Petitioner claims that he is unlawfully restrained of his liberty, and detained under color of authority of the state of California, in custody of the warden of San Quentin Penitentiary, and prays that a writ of habeas corpus issue in his behalf.

Petitioner is held by the warden of San Quentin under a commitment of the superior court of the state of California, based upon an indictment charging him with murder of one of several persons who were killed in San Francisco on July 22, 1916, by the bomb explosion on the occasion of the Preparedness Parade; judgment of conviction of murder in the first degree was had, and sentence of death imposed; appeal was taken to the Supreme Court of the state, and the judgment affirmed; the death sentence was subsequently commuted to life imprisonment.

Briefly stated, the basic grounds alleged in the petition for the writ are as follows:

That the conviction and imprisonment of petitioner were obtained by the state solely by perjured testimony which was known by the state's prosecuting officer to be perjured when offered in the trial; that while petitioner knew that such testimony, when presented, was untrue, and suspected it was perjured, he was taken completely by surprise, and could not by any reasonable diligence have discovered, prior to the denial of his motion for a new trial and his appeal to the Supreme Court of the state, the evidence subsequently developed impeaching and refuting such perjured testimony.

That the state has since admitted that the testimony upon which such conviction was obtained was perjured, and that by reason of it petitioner has been wrongfully convicted; that under the Constitution and laws of California the courts of the state are denied jurisdiction and power to set aside or modify a judgment in a criminal case except for error of law as shown by the record in the proceedings of the trial court.

That petitioner discovered, subsequent to his appeal to the Supreme Court of the state, certain evidence which so impeached and refuted the perjured testimony that had it been presented to the trial court, and, had the jury found petitioner guilty, such evidence "would have required the trial judge, as he himself has since stated, to set aside such verdict and to have granted a new trial"; that such evidence was known to the state, but was deliberately suppressed and concealed.

In support of the petition, alleged statements of fact are presented, and reference is made to a large number of exhibits.

Upon these grounds, it is contended that the verdict of the jury, judgment of conviction, commitment, and restraint of petitioner are without due process of law, and in violation of the Fourteenth Amendment to the Constitution of the United States.

Whether the matters alleged by petitioner as grounds for the issuance of a writ of habeas corpus constitute a denial of "due process of law" presents a question which this court may not consider upon the merits. The case of Urquhart v. Brown, 205 U. S. 179, 181, 27 S. Ct. 459, 460, 51 L. Ed. 760, clearly defines the province of a federal court on habeas corpus where attempt is made to interfere with the regular course of procedure under state authority. In that case, Brown, the appellee, was imprisoned under a final judgment of the Supreme Court of the State of Washington (In re Brown, 39 Wash. 160, 81 P. 552, 1 L. R. A. (N. S.) 540, 109 Am. St. Rep. 868, 4 Ann. Cas. 488), and applied to the Circuit Court of Appeals for a writ of habeas corpus upon the ground that the state statute under which he was imprisoned, as construed by the highest court of the state, was unconstitutional and void. The Circuit Court (Brown v. Urquhart, 139 F. 846) adopted that view and discharged the appellee, but the Supreme Court reversed the judgment. "It is the settled doctrine of this court," says the Supreme Court of the United States, "that, although the circuit now district courts of the United States, and the several justices and judges thereof, have authority, under existing statutes, to discharge, upon habeas corpus, one held in custody by state authority in violation of the Constitution or of any treaty or law of the United States, the court, justice, or judge has a discretion as to the time and mode in which the power so conferred shall be exerted; and that, in view of the relations existing, under our system of government, between the judicial tribunals of the Union and of the several states, a Federal court or a Federal judge will not ordinarily interfere by habeas corpus with the regular course of procedure under state authority, but will leave the applicant for the writ of habeas corpus to exhaust the remedies afforded by the state for determining whether he is illegally restrained of his liberty. After the highest court of the state, competent under the state law to dispose of the matter, has finally acted, the case can be brought to this court for re-examination. The exceptional cases in which a Federal court or judge may sometimes appropriately interfere by habeas corpus in advance of final action by the authorities of the state are those of great urgency, that require to be promptly disposed of; such, for instance, as cases `involving the authority and operations of the general government, or the obligations of this country to, or its relations with, foreign nations.' The present case is not within any of the exceptions recognized in our former decisions. If the applicant felt that the decision, upon habeas corpus, in the supreme court of the state, was in violation of his rights under the Constitution or laws of the United States, he could have brought the case by writ of error directly from that court to this court. In Reid v. Jones, 187 U. S. 153, 23 S. Ct. 89, 47 L. Ed. 116, it was said that one convicted for an alleged violation of the criminal statutes of a state, and who contended that he was held in violation of the Constitution of the United States, `must ordinarily first take his case to the highest court of the state, in which the judgment could be reviewed, and thence bring it, if unsuccessful there, to this court by writ of error; that only in certain exceptional cases, of which the present is not one, will a circuit court of the United States, or this court, upon appeal from a circuit court, intervene by writ of habeas corpus in advance of the final action by the highest court of the state.' So, in the recent case of United States ex rel. Drury v. Lewis, 200 U. S. 1, 26 S. Ct. 229, 50 L. Ed. 343, it was said that, in cases of the custody by state authorities of one charged with crime, the settled and proper procedure was for a circuit now district court of the United States not to interfere by habeas corpus, `unless in cases of peculiar urgency, and that, instead of discharging, they will leave the prisoner to be dealt with by the courts of the state; that, after a final determination of the case by the state court, the Federal courts will even then generally leave the petitioner to his remedy by writ of error from this court. The reason for this course is apparent. It is an exceedingly delicate jurisdiction given to the Federal courts by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the Federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state, and finally discharged therefrom.'"

Upon the authority of Urquhart v. Brown, supra, our Circuit Court of Appeals, in Ex parte Whitacre, 17 F.(2d) 767, affirmed an order of the United States District Court denying an application for a writ of habeas corpus, and the ruling is in point here. The appellant was convicted of the crime of robbery in the first degree in the superior court of Los Angeles county, Cal. Judgment of conviction was affirmed by the state District Court of Appeal, and a petition for rehearing was denied by that court and by the Supreme Court of the state. Appellant then applied to the United States District Court for a writ of habeas corpus, on the ground that, upon his trial in the state court, the jury were made judges of the law and the facts, thereby depriving him of his liberty without due process of law in violation of the Constitution of the United States. It was held that whether the laws of a state or the procedure in its courts in criminal cases is in violation of the constitutional rights of a convicted defendant will not be considered by a federal court on petition for a writ of habeas corpus, but petitioner will be left to his remedy in direct proceedings, through which the question may ultimately be presented to the Supreme Court of the United States. See, also, Collins v. Smith, etc., (C. C. A. 9) 17 F.(2d) 988.

It therefore appears, under the law, that, in a case such as is presented here by petitioner, the proper procedure to be followed to obtain the consideration of a federal court is by petition for writ of habeas corpus in the highest court of the state, and, if there denied, to seek a writ of certiorari in the United States Supreme Court for a review of the judgment of the state court.

Petition denied. Let judgment of dismissal be entered.

On Request for Reconsideration.

Plaintiff requests this court to reconsider its order dismissing his petition for a writ of habeas corpus, and urges that a rule to show cause why the petition should not be granted be issued so that a consideration on the merits may be had.

Plaintiff contends that this court erred in its ruling denying his petition for the following reasons:

1. The plaintiff has...