Seybold v. Cady, 17952.

• Decision Date: 20 August 1970
• Docket Number: No. 17952.,17952.
• Parties: John Allen SEYBOLD, Petitioner-Appellant, v. Elmer O. CADY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

431 F.2d 683 (1970)

John Allen SEYBOLD, Petitioner-Appellant, v. Elmer O. CADY, Warden, Respondent-Appellee.

No. 17952.

United States Court of Appeals, Seventh Circuit.

August 20, 1970.

John Allen Seybold, pro se.

Robert W. Warren, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, Wis., for appellee.

Before, FAIRCHILD, and PELL, Circuit Judges and ESCHBACH, District Judge.¹

PELL, Circuit Judge.

In 1964 the petitioner, Seybold, during the course of a trial in the criminal division of the Circuit Court of Milwaukee County, Wisconsin, entered guilty pleas to charges of armed robbery and attempted murder. He received indeterminate sentences of not more than twenty years to run consecutively and is still serving these in the Wisconsin state prison.

The present appeal is from the denial by the district court of two petitions for habeas corpus filed about July 1, 1969. There was no evidentiary hearing.

While it is quite difficult to separate Seybold's conclusionary chaff from factual wheat² it appears there would be adequate alleged items of the latter category to require an evidentiary hearing under 28 U.S.C. § 2243.

However, before making such a determination, it is necessary to decide whether such hearing is not here required because of Seybold's non-compliance with the requirement of exhaustion of state remedies under 28 U.S.C. § 2254.

We turn therefore to a review of the history of Seybold's post-conviction proceedings. He did not institute a direct appeal from his conviction but contends he was prevented from so doing by a seven-month delay in receiving a copy of the transcript of the trial.

Since Seybold did plead guilty and since the general rule is that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of non-jurisdictional defects and defense, including claims of violation of, at least, some constitutional rights prior to the plea (see Hawkins v. State, 26 Wis.2d 443, 132 N.W.2d 545 (1965), and cases there cited), it may be arguable as to whether Seybold was harmed by the delay in securing the transcript. While we recognize that Seybold is contending that his plea of guilty was improperly induced, which might under some circumstances be significant, we do not in this opinion, because of our ultimate disposition, purport to pass upon the question presented by the claim of demand of access to the trial transcript.

On March 12, 1965, Seybold filed a petition for an order to show cause for a writ of habeas corpus in the Wisconsin Supreme Court pursuant to the governing statutes of that state, Wisconsin Statutes (1967), § 292.01 et seq. In his petition while Seybold referred to the denial of the transcript, this appears³ to have been merely responsive to a question as to the reason for not appealing and was not at the time urged as a ground for relief. Basically, the petition claims (1) that the plea of guilty was coerced by threats that Seybold's wife, a co-defendant in the trial, would otherwise receive a long-term sentence,⁴ (2) that Seybold's court-appointed counsel whom he had unsuccessfully sought to discharge earlier in the trial did not inform him regarding his constitutional rights concerning "deals" and (3) that the "deal" included a proviso that it should not be mentioned in court thereby forcing Seybold to commit perjury.

The Wisconsin Supreme Court made the following order under date of March 25, 1965:

"Ordered that the petition for a writ of habeas corpus be and the same is hereby denied for the following reasons:

"1. There is no claim made by the petitioner that, being innocent, he entered a plea of guilty which he would not have entered but for the alleged `deal.\'

"2. There is no allegation that Judge Daley participated in the alleged `deal\', and the questions asked of petitioner by Judge Daley at the time that petitioner changed his plea to guilty negative such participation.

"3. A promise to recommend probation for petitioner\'s wife in return for petitioner changing his plea to guilty is not against public policy; and there is no claim made that petitioner\'s wife did not receive probation upon the recommendation of the district attorney pursuant to the terms of the alleged `deal.\'"

No further petition or pleading of any sort was thereafter filed by Seybold in any Wisconsin court.

Under date of July 25, 1966, Seybold filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin. A copy of the petition is not in the record. However, the record does disclose that the district court required a response from the state to which Seybold filed a "traverse."

On October 26, 1966, the district judge denied the petition stating in his order, inter alia, the following: "That decision of the Wisconsin Supreme Court indicates that the petition was denied because certain claims and allegations were not made in the petition before that court. The instant petition contains these claims and allegations among others. It appears, therefore, that petitioner has not exhausted state remedies with respect to these claims and allegations. 28 U.S.C. § 2254."

The first petition for writ of habeas corpus, as well as four other civil actions, at least one of which was related to his Wisconsin incarceration, are referred to in Seybold v. Milwaukee County Sheriff, 276 F.Supp. 484 (E.D.Wis. 1967), which held in abeyance the cause of action which was then before the court.

On June 27, 1968 a complaint was filed by Seybold in the same district court against the then warden of the state prison seeking an injunction against the prisoner's continued incarceration and damages, alleging violation of constitutional rights. The district judge by order of July 22, 1968 held the action in abeyance but stated in his order that insofar as the suit for injunction was concerned, the "action is improper and the plaintiff should file a petition for writ of habeas corpus."

The court did not specify the forum and we do not conceive this particular pronouncement to do other than to specify the remedy that should have been used.

In any event, Seybold did again resort to the district court, filing on September 3, 1968, a petition for writ of habeas corpus and at the same time requesting the composition of a three judge district court "because this District Court HAS on past occasion demonstrated an extreme bias and prejudice in its adjudication of `PRISONER SUBMITTED' petitions and actions."

Feeling no necessity at this juncture for detailing each of the grounds of the 1968 petition, suffice it to say there were new grounds specified (with no indication in most instances as to why they had not been previously advanced).

The district judge in his order of November 7, 1968, expressing the opinion that most of the matters were being presented for the first time, ruled that there had been no exhaustion of remedies, and that the court had no jurisdiction. The petition, as well as the three judge writ request, was denied.

The current petitions which are involved in the present appeal were filed on July 1, 1969. Briefly, Seybold's present grounds for relief are predicated upon the following claims: improper consecutive sentences, coercion of guilty plea, tardy appointment of counsel, ineptness of counsel, ...