Robbins v. Green

• Decision Date: 21 December 1954
• Docket Number: No. 4879.,4879.
• Citation: 218 F.2d 192
• Parties: Allan L. ROBBINS, Warden, Maine State Prison, Appellant, v. George F. GREEN, Petitioner, Appellee.
• Court: U.S. Court of Appeals — First Circuit

218 F.2d 192 (1954)

Allan L. ROBBINS, Warden, Maine State Prison, Appellant, v. George F. GREEN, Petitioner, Appellee.

No. 4879.

United States Court of Appeals First Circuit.

Heard December 7, 1954.

Decided December 21, 1954.

Roger A. Putnam, Asst. Atty. Gen., with whom Alexander A. LaFleur, Atty. Gen., was on the brief, for appellant.

Milton A. Nixon and Chapman, Beyer, Nixon & Earles, Portland, Maine, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

This is an appeal by the warden of Maine State Prison from an order of the district court entered July 16, 1954, in a habeas corpus proceeding discharging appellee George F. Green from confinement in said prison pursuant to a superior court judgment of conviction on May 17, 1949, of the crime of uttering a forged instrument. The district judge signed a certificate of probable cause for appeal, as required by 28 U.S.C. § 2253.

Undismayed by a long succession of rebuffs, Green has during the period of his imprisonment been indefatigable in seeking his release on habeas corpus, by numerous petitions submitted to judges of the State, which have generally been rejected, without a hearing, by a simple order of denial unaccompanied by any opinion or explanation, and by numerous petitions submitted to various federal judges.

Petitioner alleges in the petition now before us that the State court judgment of conviction, and the mittimus issued to the warden pursuant thereto, are void under the due process clause of the Fourteenth Amendment on two grounds: (1) "that, he was ordered to trial on a three hour notice and that he did not have adequate time and opportunity to consult with his attorney to prepare his defense"; and (2) "that, after the jury brought in its verdict of guilty, the Court proceeded at once to impose sentence upon him without waiting for his counsel to return to the courtroom, and when he did return he found that your petitioner had been taken to prison." To show compliance with the requirement of 28 U.S.C. § 2254 as to exhaustion of State remedies, petitioner sets forth that he had previously submitted to Hon. Frank A. Tirrell, Jr., an Associate Justice of the Supreme Judicial Court of Maine, a petition for a writ of habeas corpus dated January 13, 1954, setting forth the same two grounds for release; that immediately upon receipt of the said petition Justice Tirrell wrote to petitioner stating: "The petition is denied and the writ as prayed for is refused. The docket entry has been made accordingly"; that petitioner, because of his poverty, cannot obtain a review by the full bench of the Supreme Judicial Court of Justice Tirrell's order of denial, since "he is unable to bear the costs of prosecuting a bill of exceptions as prescribed by the State Statutes and the rules of Court", the State affording no alternative procedure in forma pauperis.

Respondent warden moved the district court to dismiss the petition for lack of jurisdiction on the ground that "the petition does not show that the petitioner has exhausted the remedies available in the Courts of the State of Maine as is required by Title 28, United States Code, Sec. 2254." This motion to dismiss was denied by the district court. 120 F.Supp. 61. After a full trial on the merits, the district court found the facts against petitioner as relating to the charge that he had been rushed to trial without adequate opportunity to consult with counsel and prepare his defense, but found the facts in favor of petitioner in respect of the second ground for relief, viz., that the trial court had imposed sentence of imprisonment upon Green immediately upon the return of the verdict of guilty, in the absence of counsel for the convicted man. As a conclusion of law, the district court ruled that Green's resulting detention was unlawful under the due process requirements of the Fourteenth Amendment, citing Martin v. United States, 5 Cir., 1950, 182 F.2d 225, 227, 20 A.L.R. 2d 1236, certiorari denied, 1950, 340 U.S. 892, 71 S.Ct. 200, 95 L.Ed. 647.

Accordingly the district judge at first ordered that the petition be retained on the docket of the court without disposition until further order of court, "in order to provide the State a reasonable opportunity to take such steps as are appropriate to correct the error in the sentence as found by this Court." 120 F.Supp. at page 67. It having become apparent after the lapse of a reasonable time that the State authorities were either unwilling or unable to correct the error by bringing the prisoner before the trial court for resentence in the presence of his counsel, the district court finally entered the order now on appeal discharging petitioner.

On this appeal the warden presents no question as to the correctness of the district court's findings of fact and conclusion of law on the merits, but relies upon a single alleged error, viz., that the district court erred in denying his motion to dismiss the habeas corpus proceeding for want of jurisdiction. Therefore in the present posture of the case we may take it that Green was entitled to release from an unlawful confinement, but that, according to appellant's contention, this release should have been accomplished by action of the State courts rather than by order of the federal district court.

From the transcript of the oral argument in support of the motion to dismiss, we gather that respondent's contention in the district court was that Green invoked the wrong remedy in his application to Justice Tirrell; that instead of proceeding by way of a petition for a writ of habeas corpus he should have sought review of the validity of his confinement by way of the statutory writ of error described in Ch. 116 of Maine Rev.Stat. (1944). This is evident by respondent's reliance upon the case of Preston v. Reed, 1945, 141 Me. 386, 44 A.2d 685, which case quotes and relies upon the various statutory provisions for the writ of error. This was apparently the understanding of the district judge, for he concluded that issues raised by a statutory writ of error must be determined on the record of the proceedings in question, citing ...