Ruetz v. Lash

Citation500 F.2d 1225
Decision Date22 July 1974
Docket NumberNo. 73-1803,73-1803
PartiesNeal RUETZ, Petitioner-Appellant, v. Russell E. LASH, Warden, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Frederic Weber, Chicago, Ill., for petitioner-appellant.

Theodore L. Sendak, Atty. Gen., A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and MATTHES, Senior Circuit Judge. *

MATTHES, Senior Circuit Judge.

This appeal from an order of the district court denying habeas corpus relief poses a unique question-- whether the escape of appellant following his state conviction constituted a deliberate bypass of state remedies so as to disentitle him to relief under the equitable principles governing habeas corpus.

In May of 1971, appellant, Neal Ruetz, was convicted by a jury in the LaGrange County, Indiana, Circuit Court of first degree murder. He was sentenced on June 3, 1971, to life imprisonment. At sentencing, appellant indicated his desire to file a motion to correct errors, a state procedural requisite to filing an appeal. The trial judge promptly instructed Ruetz's trial attorney to file such a motion on his client's behalf within the statutory 60 day period. Defense counsel's request that appellant be allowed to remain in LaGrange County to assist in the preparation of the motion was denied, and appellant was remanded to the custody of the sheriff for transportation to the Indiana State Prison.

Two days after sentencing, appellant 'walked away from the LaGrange County Jail through an open garage door.' State ex rel. Ruetz v. LaGrange Circuit Court, 281 N.E.2d 106, 108 (Ind.1972). He was apprehended and returned to LaGrange County more than three months later, on September 27, 1971. In the meantime, his lawyer timely filed a motion to correct errors. The trial court did not act upon the motion until September 30, 1971, after Ruetz had been returned to custody. At that time, in the presence of appellant and his attorney, the motion was overruled. The court further ordered that 'the defendant having been a fugitive from justice during the statutory period for filing motion to correct errors in this cause he has waived his right to appeal, and his request for an appeal is now denied by the court.'

Appellant sought a writ of mandamus from the Supreme Court of Indiana ordering the trial court to allow appellant to perfect an appeal. The state supreme court denied relief, saying:

'In the case at bar the relator was not within the jurisdiction of the court at the time his motion to correct errors was filed. The time permitted by the rules of this Court for the filing of such a motion had long expired at the time the relator was captured and returned to the jurisdiction of the court. Under the above authority, the relator had no standing in court during the period in which the motion to correct errors could be filed. By so voluntarily absenting himself from the court's jurisdiction, the relator has effectively and knowingly waived his right to a timely appeal to this Court.'

State ex rel. Ruetz v. LaGrange Circuit Court, 281 N.E.2d 106, 107 (Ind.1972).

A vigorous dissent was filed by Justice DeBruler, arguing that the record did not show a voluntary, knowing, and intelligent waiver by appellant of his constitutional and statutory right to appeal. In addition, the dissent asserted, the supposed rationale for the 'escape rule'-- the nonenforceability of a court order against a fugitive-- was inapplicable to this case since Ruetz was back in court at the time the trial court ruled on the motion to correct errors. Id. at 107-109.

On January 5, 1973, appellant filed a petition for habeas corpus in the United States District Court for the Northern District of Indiana. The district court, however, refused to consider appellant's claims on the ground that appellant had forfeited his right to habeas corpus relief by deliberately by-passing his state remedies. While acknowledging that 'the State court's determination does not 'bar independent determination of the question (of waiver) by the federal courts," the court concluded that 'this is one of the few types of cases in which the voluntariness of petitioner's waiver has been held to be determinable by the petitioner's actions without an inquiry into the subjective intent of the petitioner himself.' In so holding, the district court relied upon a 1958 decision of this circuit stating that an escape by a defendant during the time allotted for filing a motion for a new trial constituted an abandonment of the remedy. Irvin v. Dowd, 251 F.2d 548, 553 (7th Cir. 1958), rev'd on other grounds, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959).

As the district court recognized, 'waiver affecting federal rights is a federal question.' Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). Nevertheless, the district court, in the instant case, concluded that the act of escape, by definition, constituted waiver under the federal standard as well as under the state standard. The district court was of the opinion that this result was dictated by our case of Irvin v. Dowd, supra. As Irvin v. Dowd concerned the same Indiana 'escape rule' at issue in the present case and as the procedural history is rather complicated, we pause to describe the case in some detail.

On January 18, 1956, Leslie Irvin escaped following his conviction for murder in the Gibson County, Indiana, Circuit Court. On the day following his escape, his counsel timely filed a motion for a new trial. The motion was promptly overruled on the ground that Irvin was a fugitive. Irvin was apprehended after the expiration of the period for filing a motion for new trial. He appealed from his conviction, challenging only the overruling of his motion for new trial. The Supreme Court of Indiana affirmed, stating:

'If a prisoner escapes he is not entitled during the period he is a fugitive to any standing in court or to file any plea or ask any consideration from such court. 'Since appellant had no standing in court at the time he filed a motion for a new trial the situation is the same as if no motion for a new trial had been filed, or he had voluntarily permitted the time to expire for such filing.'

Irvin v. State, 139 N.E.2d 898, 901 (Ind.1957).

Although concluding that 'no error could have been committed in overruling the motion for a new trial under the circumstances,' the court proceeded to dispose of the contentions made in Irvin's motion for a new trial.

When Irvin applied for federal habeas corpus, the district court found

'that the petitioner by his own unlawful act in escaping * * * and remaining a fugitive * * * during the statutory period when his time for filing a motion for new trial expired, * * * forfeited the right to utilize the adequate corrective processes available to him in the courts of the State of Indiana and * * * failed to exhaust the remedies available to him * * *, which is an absolute bar to relief by habeas corpus in this court, and his petition must, therefore, be dismissed.'

Irvin v. Dowd, 153 F.Supp. 531, 535 (N.D.Ind.1957).

On appeal, this circuit agreed with the district court's analysis and affirmed, saying: 'Defendant did not exhaust his remedies under the law of Indiana. By his escape he abandoned the remedy to which his attorneys resorted.' Irvin v. Dowd, 251 F.2d 548, 553 (7th Cir. 1958).

The United States Supreme Court granted certiorari and held that the doctrine of exhaustion of state remedies was not applicable since the Indian Supreme Court had proceeded to an adverse determination of Irvin's constitutional claims. Accordingly, the case was reversed and remanded for consideration of Irvin's petition on the merits. Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959). 1

Four years later in Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837 (1963), the United States Supreme Court limited the doctrine of exhaustion of state remedies 'to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court.' Under the teachings of Fay v. Noia, Irvin had exhausted his state remedies even if the Indiana Supreme Court had not reached the merits of his constitutional claims.

It is clear that the statement of this circuit in Irvin v. Dowd that 'by his escape he abandoned the remedy' cannot be separated from the now discredited holding in that case that Irvin failed to exhaust his state remedies.

In fairness, it should be noted that Irvin's motion for a new trial was overruled while he was a fugitive, whereas appellant's motion to correct errors was overruled in his presence.

Fay v. Noia controls, not only with regard to the doctrine of exhaustion of state remedies, but also with regard to the principles governing a determination of what constitutes a 'deliberate by pass' of state remedies. In the latter respect, Mr. Justice Brennan recognized a limited discretion in the federal judge to deny habeas corpus relief to an applicant who has deliberately bypassed the orderly procedure of the state courts. 372 U.S. at 438, 83 S.Ct. at 849. But he cautioned:

'We wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461-- 'an intentional relinquishment or abandonment of a known right or privilege'-- furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is...

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  • Braun v. Powell
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 13 December 1999
    ...5. In the absence of Wisconsin case law suggesting waiver would occur, the answer to this rhetorical question is "no." See Ruetz v. Lash, 500 F.2d 1225 (7th Cir.1974) (escape does not constitute knowing decision to forego state remedies and thus does not result in waiver); McKinney v. Unite......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 1 November 1979
    ...of appellant's direct appeal was a denial of due process or other constitutional rights of appellant. Appellant relies on Ruetz v. Lash, 500 F.2d 1225 (7th Cir.) and similar cases. He says that there was no waiver of his rights to the appeal, that the State court cut off his appeal rights t......
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    • Supreme Court of Indiana
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    ...loss of most of the record of the trial. Cf. Ruetz v. LaGrange Circuit Court (1972), 258 Ind. 354, 281 N.E.2d 106; Ruetz v. Lash (7th Cir. 1974), 500 F.2d 1225. The crime in question is the murder of Thomas Schultz, the owner of a South Bend laundry, in July of Six alleged errors are presen......
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    • Court of Appeals of Indiana
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