Palmer v. JUDGE AND DIST. ATTY. GEN., C-75-50-E.

• Decision Date: 03 March 1976
• Docket Number: No. C-75-50-E.,C-75-50-E.
• Parties: James G. PALMER, Petitioner, v. JUDGE AND DISTRICT ATTORNEY GENERAL OF the THIRTEENTH JUDICIAL DISTRICT OF TENNESSEE, Defendants.
• Court: U.S. District Court — Western District of Tennessee

411 F. Supp. 1029

James G. PALMER, Petitioner, v. JUDGE AND DISTRICT ATTORNEY GENERAL OF the THIRTEENTH JUDICIAL DISTRICT OF TENNESSEE, Defendants.

No. C-75-50-E.

United States District Court, W. D. Tennessee, E. D.

March 3, 1976.

COPYRIGHT MATERIAL OMITTED

Jef Feibelman, Memphis, Tenn., for petitioner.

David L. Raybin, Asst. Atty. Gen., State of Tennessee, Nashville, Tenn., for defendants.

MEMORANDUM DECISION

McRAE, District Judge.

In June 1975 James G. Palmer, acting pro se, filed this suit, titled "Motion — Writ of Mandamus," seeking to have a 1959 Gibson County Tennessee indictment quashed and a renewed 1975 detainer filed against petitioner in Illinois ordered withdrawn. The petitioner claims that he has been denied his rights to a speedy trial by the appropriate officials of Tennessee.

This Court ordered this suit to be treated as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Subsequently the Court denied the State's Motion to Dismiss, ordered the State to file an answer, issued a Writ of Habeas Corpus Ad Prosequendum directing that Palmer be delivered to this District for an evidentiary hearing, appointed local counsel to represent petitioner at said hearing, and later conducted the evidentiary hearing.

Palmer is presently serving a 180-year sentence in Illinois for a 1960 murder conviction. At the time of his arrest in Illinois in 1959 he allegedly was coerced into signing a confession to the Illinois crime and also to a murder in Gibson County, Tennessee.

In December 1959 Palmer was indicted by the Grand Jury for Gibson County, Tennessee, for murder. The case was docketed as Number 2960 of the Humboldt Law Court of Humboldt, Gibson County, Tennessee, and on April 20, 1960, a warrant was issued for Palmer by the Gibson County sheriff. However, on motion of the District Attorney General, the indictment was "retired on leave to re-instate." The Sheriff of Gibson County was ordered to "place a hold order on the defendant, from the state of Illinois where he was convicted and sentenced to 180 years in the penitentiary of that state." Pursuant to that order, on March 2, 1962, a detainer was filed with the Illinois authorities.

On January 25, 1967, the petitioner wrote the Judge of Gibson County for information concerning the indictment; however, he received no answer to his inquiry. In June of 1967 he submitted a "Petition for a Writ of Mandamus" to the state court in Gibson County, Tennessee, in which he asked to be brought forthwith to trial. A copy of this application was also sent to the Governor of Tennessee. That copy in turn was forwarded by Henry C. Foutch, Assistant Attorney General for the State of Tennessee, to William R. Kinton, District Attorney General. General Kinton was requested to take whatever action he deemed necessary and advisable in connection with this matter. No action was taken at all. On March 1, 1970, the petitioner wrote General Kinton and asked what actions had been taken in regard to his petition and again Palmer received no response to this inquiry.

On May 25, 1970, the petitioner filed a Motion to quash the fugitive warrant and dismiss charges in the state court in Gibson County, asking that the charge be dismissed for want of prosecution and that the warrant lodged against him with the Illinois authorities be withdrawn. By this time more than ten years had passed since Palmer was indicted and a detainer placed on him by the State of Tennessee.

Having received no answer from, nor satisfaction in, the Tennessee state courts, Palmer filed a "Petition for Writ of Mandamus" in this Court in the Eastern Division against the same defendants who are presently defendants in this suit.¹ In the meantime, on January 26, 1971, Palmer filed another petition in Humboldt, Gibson County, Tennessee, to quash the warrant. The former suit in this Court asked that the indictment against the petitioner be quashed for want of prosecution and that the warrant with the Illinois authorities be ordered withdrawn. That case was dismissed by this Court's Order on August 12, 1971, because in the June 1971 term of the Humboldt Law Court a Consent Order was entered on the State's Motion withdrawing the detainer on Palmer. In addition, Lawrence Jackson, Sheriff of Gibson County, wrote the following letter to the Illinois State Penitentiary at Joliet, Illinois, on August 9, 1971:

Please refer to your file on the above named subject. Palmer This is our official notice to you that we do not wish to prosecute this subject. You may release him when his time is up and return our detainer to this office. Thanking you in advance for your cooperation . . .. emphasis added

A copy of this correspondence was forwarded to this Court by General Kinton, by a letter dated August 9, 1971, setting out, among other things, that it was at his direction that the Sheriff of Gibson County wrote the Illinois State Penitentiary at Joliet.

However, without explanation, and in complete contradiction to the 1971 assurances given to this Court and to the petitioner, a new capias was issued for the defendant on the 1959 indictment by the Humboldt Law Court in 1975. This process was forwarded on April 20, 1975, to the Illinois State Penitentiary by James C. Greenhaw, Sheriff of Gibson County, Tennessee. In a letter of the same date Mr. Greenhaw stated, "The purpose of this letter is to place a renewal on the Detainer Warrant which was sent to you some time ago in regard to Mr. Palmer." The letter further requested the Illinois officials to contact the Sheriff of Gibson County "as soon as his Palmer's time is up there with you so that we Tennessee might instigate extradition proceedings to return this subject to the State of Tennessee for trial purposes."

Exhaustion of State Remedies

The State's position is that petitioner has not exhausted his Tennessee remedies upon his claims concerning his denial of a speedy trial under the Sixth Amendment of the United States Constitution, and that there are no extraordinary circumstances which justify this Court's intervention into the merits of this speedy trial claim. Petitioner, on the other hand, asserts that he is being held in violation of the Sixth Amendment right to a speedy trial by virtue of the detainer warrant which the State of Tennessee has placed against him in Illinois.² 28 U.S.C. § 2254 indeed requires an exhaustion of state remedies before a United States District Court shall entertain an application for a Writ of Habeas Corpus by a person in custody pursuant to a state court judgment. However, an exception to this rule arises when it appears "that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254(b).

From the undisputed history of the petitioner's efforts to obtain relief in the state courts, the State has unjustifiably failed to act or respond, therefore this Court concludes that it should dispense with another attempt of state remedy. On June 18, 1967, Palmer filed a Petition for Writ of Mandamus in Circuit Court of Gibson County. It is undisputed that the State had knowledge of this Petition as evidenced by the June 20, 1967, letter from General Foutch to General Kinton requesting Kinton to act upon said Petition. However, no action was taken. Again, in May 1970, petitioner sent another Petition to quash the warrant. Both of these Petitions were pending in Tennessee Courts on October 13, 1970, the date of Mr. Justice Henry's letter to the Illinois Penitentiary. (See footnote 1, supra.) At that time Justice Henry informed Palmer that he had been told by the District Attorney General that "action will be taken in the Humboldt Law Court `within the next few days.'" Still no action was taken on any petition and to this date no action apparently has been taken in the state courts.

The United States Court of Appeals for the Sixth Circuit has ruled that where there are circumstances rendering the state corrective process ineffective to protect a prisoner's rights, federal habeas corpus relief may be granted without requiring a futile exhaustion of state remedies. Terry v. Wingo, 454 F.2d 694 (6 Cir. 1972); Lucas v. People of State of Michigan, 420 F.2d 259 (6 Cir. 1970). In Allen v. Leeke, 328 F.Supp. 292, 294 (D.S.C.1971), Judge Russell catalogued the reported cases in which the state's delay has warranted dispensing with the requirement of exhaustion. This list is informative because the longest delay recorded was two years: U. S. A. ex rel Hill v. Deegan, 268 F.Supp. 580 (S.D.N. Y.1967). In Cresta v. Eisenstadt, 302 F.Supp. 399 (D.Mass.1969), the fact that the state court was in recess for three months following prisoner's filing for a habeas writ, thus denying petitioner any opportunity to a hearing in that time, warranted disregard of the requirement of exhaustion. Palmer has been denied a hearing or other disposition of his petitions for at least 60 months and perhaps as long as 96 months.

The State also urges that principles of federalism and comity militate against this Court's interference in the determination of Palmer's Sixth Amendment contentions. This Court is in full agreement with the principle of comity. Theoretically, the individual will not be disadvantaged by this doctrine, since state courts as well as federal courts are bound by the strictures of the United States Constitution. However, this theoretical premise assumes that the states will allow the individual to present his claims in the state forum without overly burdensome procedural snarls and that such forum will render its decision on those claims with reasonable dispatch. When the state does not act in such a manner, the effect of the exhaustion doctrine and comity is "to shield an invasion of the citizen's constitutional rights." U. S. A. ex rel. Johnson v. Rundle, 286 F.Supp. 765, 767 (E.D.Pa.1968), quoting Jordan v....