Potter v. Ciccone

• Decision Date: 24 June 1970
• Docket Number: Civ. A. No. 18263-3.
• Citation: 316 F. Supp. 703
• Parties: Larry G. POTTER, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.
• Court: U.S. District Court — Western District of Missouri

316 F. Supp. 703

Larry G. POTTER, Petitioner, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent.

Civ. A. No. 18263-3.

United States District Court, W. D. Missouri, W. D.

June 24, 1970.

J. Martin Kerr, UMKC Legal Assistance Program, Kansas City, Mo., for petitioner.

Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for respondent.

ORDER DENYING PETITION FOR HABEAS CORPUS

BECKER, Chief Judge.

In petitioner's prior petition for habeas corpus, Potter v. Ciccone (W.D.Mo.) Civil Action No. 18184-3, he complained that he was placed in the Kankakee, Illinois, jail without cause and retained there for an unreasonable time without medical treatment. Since petitioner did not thereby state any denial of his federally protected rights by the respondent (the Director of the United States Medical Center for Federal Prisoners), the petition was denied on March 23, 1970, without prejudice to any remedies which petitioner might have under the Federal Civil Rights Act, Sections 1981-88, Title 42, United States Code, or conceivably under Section 2255, Title 28, United States Code, to challenge his federal conviction in the committing court upon these grounds.

On March 20, 1970, a letter from petitioner dated March 18, 1970, was received in this division. In pertinent part, it stated:

"On August 7th 1969 I was sent to the Chicago halfway house from Milan, Michigan. I stayed about a month and ran off I was mixed up. So I went to Kankakee, Ill. and committed a break in which is a felony I was out of my head by then. I was arrested Nov. 17th 1969 by the Kankakee Police and put in jail I seen a FBI agent the same day so he call D. C. and told them I had been caught. I stayed in jail 3 months and then I went to court while I was in jail The court had 2 mental doctors to see me after they seen me they told the court that I was mentally incompetent so the court committed me to the Illinois Mental Health and Walfare Department that was Feb 3 or 4, 1970, on Feb 5 1970 I was taken to the Kankakee State Hospital and was comitted. I was put on the intensesive care ward because I was on medication 100 mg. thorozine that night at 8:00 P. M. the federal Marshals came in and took me out forcefully I was not released by any doctors for I was just committed. They took me 80 miles away to the county jail at Danville, Ill. I was there 5 days then sent to Terre Haute. Right now I am sitting in a cell in the Springfield Hospital. I am receiving no help at all and it is not because I don't want it. Its because this is not a mental hospital. I am only asking that I can go back to the Kankakee State Hospital and get help." (sic)

Since, if read liberally, in the light of the command of the United States Supreme Court in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, the petition might thereby have stated the denial of one or more of petitioner's federally protected rights, the letter of March 20, 1970, was treated as a successive petition for habeas corpus, petitioner was granted leave to file it in forma pauperis, and respondent was ordered to show cause within 20 days why the writ of habeas corpus should not issue, granting the relief prayed by petitioner. After an extension of time was granted by the Court, respondent's response to the show cause order was filed on May 13, 1970. Therein, respondent averred that "petitioner was sentenced in the United States District Court for the District of Utah, under the provisions of 18 U.S.C. §§ 5010(b) and 5017(c), upon his plea of guilty to violation of 18 U.S.C. § 2312 (Dyer Act)"; that "on June 27, 1967, petitioner was released on parole from the Community Treatment Center (CTC) at Chicago, Illinois, with supervision until March 28, 1971"; that "on February 15, 1968, a parole violator warrant was issued against petitioner * * *, the parole violator warrant was executed, and petitioner was committed to the Federal Correctional Institution at Milan, Michigan on March 28, 1968"; that "on August 7, 1969, petitioner was transferred to the Community Treatment Center at Chicago, Illinois"; that "on September 15, 1969, petitioner absconded from the Chicago Community Treatment Center"; that "on or about November 17, 1969, petitioner was arrested by the police in Kankakee, Illinois on a burglary charge and was confined in the Kankakee Jail"; that "in February of 1970, the Illinois State charges against petitioner were dismissed, and he was placed in a mental institution in that State"; that "on February 6, 1970, petitioner was taken into federal custody as an escaped federal prisoner, and that on February 12, 1970, petitioner was transferred to the United States Penitentiary, Terre Haute, Indiana"; that "on March 4, 1970 petitioner was received at the United States Medical Center for Federal Prisoners, Springfield, Missouri from the Federal institution at Terre Haute"; and that "computed uninterruptedly from the date of his conviction on March 29, 1965 in accordance with 18 U.S.C. § 5017(d)," petitioner's sentence "expires at full term on March 28, 1971." Respondent therefore contended that petitioner was in lawful custody.

On May 18, 1970, the Court entered its order expressly inviting petitioner to file a traverse to the response within 10 days, in which traverse petitioner should admit or deny the factual allegations of the response. Petitioner submitted his letter dated May 18, 1970, which he requested be accepted as a "legal traverse" and which was accordingly filed herein on May 22, 1970. That letter as written is as follows:

"I received your order directing me to file a travers to Dr. Ciccone's response to this show cause order.

"Sir: I do not know how to file a travers and I have no one here to help me.

"Will you please except this as a legal traverse? I will give all the facts that the Honorable Judge Becker wants me to answer to.

"I deny Dr. Ciccone's answer to the show cause order that was issued to him by Judge Becker. Dr. Ciccone's response is not correct.

"On Nov. 17 1969 I talked to F.B.I. Agent Mr. Dean of Kankakee Ill. I feel I should of been taken into federal custody then instead of being turned over to the Ill. authoritys to stand trial.

"At 4:30 p. m. on Nov. 17 1969 I was taken in front of a Judge at the Kankakee Court House in which the Judge read off my state charges to me. I asked the Court how they were able to try a federal prisoner and they stated that they had permission from Washington, D. C. to try me. This is on court records in Kankakee Ill.

"After two months in the Kankakee Jail the Court had two doctors talk to me they were Dr. Dash and Dr. Graft they found me mentally incompent to stand trial.

"On Feb. 3 or 4th 1970 I was taken in front of Judge Victor Cardosi of the Kankakee Ill. state court. At this time Judge Cardosi stated in court that I be turned over into the custody of the Ill. mentally health and welfare dept.

"At that point I asked my attorney Mr. Michale Berz of Kankakee Ill. if I was going to be turned over to the U. S. Marshals and he stated that I was not going to be released to the Marshals in fact he stated that I would be taken to a state hospital for treatments. Like the Judge ordered.

"So on Feb. 5 1970 under court order by the State of Ill. I was taken to the Kankakee State Hospital and comitted. At no time was I ever turned over to the Government by the Court or the Police Dept. or the Doctors at the Hospital.

"The U. S. Marshals took it upon thereselfs when they came in that hospital and forcefully removed me from there custody. They did not have permission from the doctors or the court.

"The records at the Kankakee Ill. court will prove that my statements and allegations are true and correct.

"At no time of my trial did Judge Cardosi state that I would be turned over to the U. S. officers. If they were going to release me to the U. S. officers they would have never comitted me to the state hospital to being with. They were well aware that I was a federal prisoner but they had the OK from D. C. to try me. That is what they told me * * *"

Petitioner also forwarded a letter which had been written to him by Michael R. Berz, attorney at law in Kankakee, Illinois, which expressed his "shock" at hearing "that the authorities have disregarded Judge Cardosi's court order and interrupted your treatment." Thereafter, petitioner obtained the...