Scott v. Henslee, Civ. No. 2382.

• Decision Date: 24 March 1952
• Docket Number: Civ. No. 2382.
• Parties: SCOTT v. HENSLEE.
• Court: U.S. District Court — Eastern District of Arkansas

104 F. Supp. 218

SCOTT v. HENSLEE.

Civ. No. 2382.

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

March 24, 1952.

Thad Williams, J. R. Booker, Little Rock, Ark., for petitioner.

Ike Murry, Atty. Gen. of Arkansas, George E. Lusk, Jr., Asst. Atty. Gen. of Arkansas, for respondent.

LEMLEY, District Judge.

This cause comes on for hearing upon respondent's return to an order to show cause why a writ of habeas corpus should not issue in accordance with the prayer of petitioner's application. In said return respondent challenges our jurisdiction on the ground that petitioner has not exhausted his state remedies, and this question has been submitted on the pleadings, documentary evidence, a stipulation of counsel entered into in open court, oral argument, and written briefs. We have concluded the respondent's position is well taken, and that the proceedings should be dismissed.

This is a habeas corpus proceeding brought pursuant to 28 U.S.C.A. § 2241 et seq., whereby petitioner seeks release from the Cummins Farm Unit of the Arkansas State Penitentiary, of which the respondent is Superintendent. Petitioner is presently confined in said institution by virtue of judgments and commitments issued out of the Circuit Court of Yell County, Arkansas, after petitioner had entered pleas of guilty to two informations charging him with burglary and grand larceny. He contends that his confinement is unlawful and is in contravention of rights guaranteed to him by the 14th Amendment to the Constitution of the United States, and he alleges that he has exhausted "all possible state remedies."

Petitioner alleges that he was innocent of the crimes charged against him, but that he was arrested by the local officers and was threatened and beaten by them until he confessed; that he was held incommunicado, was moved from jail to jail, was not permitted to obtain counsel, was not informed that he had a right to counsel, either by employment or by appointment from the Court, was not permitted to see relatives or friends, and was not provided with counsel by appointment from the Court. He states further "that the atmosphere of intimidation and physical beating which followed said intimidation hovered around and over the defendant during all of the proceedings in the said Circuit Court of Yell County, Arkansas, thus resulting in the illegal commitment of the petitioner to the State Penitentiary of Arkansas". It is further alleged that petitioner has been denied rights guaranteed to him by the 14th Amendment, that he has not intelligently and competently waived said rights, and that the Circuit Court of Yell County was completely lacking in jurisdiction to commit him to the penitentiary. All of these allegations are denied by respondent, and, as stated, the latter further contends that petitioner has not exhausted his state remedies.

It is not entirely clear from the petition itself whether the gravamen of petitioner's complaint is that he was coerced into pleading guilty or that he lacked the assistance of counsel under circumstances in which due process of law required that he be afforded such assistance. It appears from the original brief filed on behalf of the respondent that the Attorney General thought that petitioner was relying solely on duress; petitioner's reply brief, however, indicates that he is relying, at least primarily, on his lack of counsel. Since both grounds are, in a sense, alleged in the petition, we will consider that petitioner is relying upon both.

The record before us, including the stipulation of counsel, reflects that on October 8, 1951, petitioner pleaded guilty to two informations in the state court, one charging burglary and grand larceny and the other charging burglary alone; upon his pleas he received sentences totalling eight years. On November 7, 1951, less than a month after he was sentenced, petitioner filed a habeas corpus petition in the Circuit Court of Lincoln County, Arkansas, where Cummins Farm is located, which petition contained substantially the same allegations as the petition before us. The Circuit Judge of Lincoln County issued the writ and return was made thereon by respondent. On November 24, 1951, the Circuit Court of Lincoln County, after declining to hear testimony in support of the factual allegations of the petition, vacated the writ and remanded petitioner to custody; petitioner appealed to the Supreme Court of Arkansas, but on January 15, 1952, before said Court had acted, he filed a motion to dismiss his appeal without prejudice, which motion was granted on January 28, 1952. The instant petition was filed on February 4 of the current year. It has been further stipulated that petitioner has never applied to the Circuit Court of Yell County, Arkansas, the sentencing court, for the writ of error coram nobis.

Neither side controverts the proposition that before this Court may issue the writ of habeas corpus and inquire into the truth of petitioner's allegations it must appear that the latter has exhausted all available state remedies. See 28 U.S.C.A. § 2254. While petitioner concedes that he has never applied for a writ of error coram nobis and further concedes that he did not prosecute his habeas corpus proceedings in the state court to conclusion in the Supreme Court, he excuses his failure in these respects on the ground that neither the writ of error coram nobis nor the writ of habeas corpus, as employed in Arkansas, is broad enough to afford him the relief which he seeks. In other words, he argues that we should hold that there is an absence of state corrective process in Arkansas whereby he can challenge in the state courts the validity of the judgments complained of on the ground that they were entered in violation of his federal constitutional rights. We do not agree.

Arkansas recognizes both the writ of error coram nobis and the writ of habeas corpus; as indicated, petitioner has never applied for coram nobis, and he voluntarily abandoned his habeas corpus proceedings in the state court before the Supreme Court of Arkansas could act with respect to them. We have found no clear-cut Arkansas decisions establishing that coram nobis and habeas corpus are not adequate and appropriate remedies to be employed in attacking judgments in criminal cases which are claimed to have been rendered under circumstances amounting to a deprivation of due process of law. The most that can be said from petitioner's stand-point is that the scope of these writs in Arkansas has not been precisely defined in due process cases, and that the question of their adequacy in such cases may be open or doubtful. This is not sufficient to justify us in retaining jurisdiction. Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177; Hawk v. Jones, 8 Cir., 160 F.2d 807, affirming Hawk v. Olson, D.C.Neb., 66 F.Supp. 195; Barton v. Smith, 9 Cir., 162 F.2d 330; Hampson v. Smith, 9 Cir., 162 F.2d 334. The cases just referred to hold that, at least in the absence of controlling state decisions definitely establishing the unavailability or inadequacy of a given state remedy, a state prisoner seeking habeas corpus in the federal courts, in order to show that he has exhausted his state remedies or that he has no adequate state remedy, must establish that he has applied to the state courts for relief by means of the remedy in question, that he has prosecuted his attempt in good faith to conclusion in those courts, including the appellate courts, and that he has been refused relief. It is not sufficient for such a petitioner to show that the question of the adequacy or availability of such remedy in the state courts is doubtful, or that if he had applied to the state courts they would possibly, or even probably, have held that the remedy sought was unavailable or inadequate. We think that these decisions are applicable here, and that the instant proceedings must be dismissed.

In Woods v. Nierstheimer, supra, it was contended by petitioner that he had no state remedy in the courts of Illinois because the time within which he was permitted to file in those courts an application for the statutory substitute for the writ of error coram nobis had expired. This contention was rejected, and it was held that it could not be said, in the absence of an authoritative ruling by the Supreme Court of Illinois, that the latter court would so construe the statute limiting the time for the filing of such an application so as to deprive petitioner of his right to challenge a judgment rendered in violation of constitutional guarantees where his action was commenced after the period of limitations had run.

Hawk v. Olson, supra, was one of the chapters in the long and complicated Hawk litigation; after exhausting the state remedy of habeas corpus Hawk filed a petition for a writ of habeas corpus in the federal District Court without applying for a writ of error coram nobis in the Nebraska state courts. He contended, as a justification for his omission, that said writ had been abolished in Nebraska, or that if it did exist, it did not afford him an adequate remedy to challenge the judgment under which he was confined on the ground that he had been denied the effective assistance of counsel between the time of his plea of not guilty and the time that the jury was drawn to try him, and on the further ground that perjured testimony had been knowingly used to obtain his conviction. The District Court, on the authority of Woods v. Nierstheimer, supra, held that since he had not applied to the courts of Nebraska for coram nobis, his petition must be dismissed. 66 F.Supp. 195. This decision was affirmed by the Circuit Court of Appeals. 160 F.2d 807.

Speaking of the language in the Nierstheimer case, District Judge Delehant said: "In effect, it is an admonition against the assumption of doubtful jurisdiction and a warning that Ex parte Hawk, supra 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572, is to be followed literally in its...