Sharpe v. Commonwealth of Kentucky

• Decision Date: 04 June 1943
• Docket Number: No. 8909.,8909.
• Citation: 135 F.2d 974
• Parties: SHARPE v. COMMONWEALTH OF KENTUCKY.
• Court: U.S. Court of Appeals — Sixth Circuit

135 F.2d 974 (1943)

SHARPE v. COMMONWEALTH OF KENTUCKY.

No. 8909.

Circuit Court of Appeals, Sixth Circuit.

June 4, 1943.

Appellant not represented by counsel.

W. Owen Keller, Asst. Atty. Gen. of Ky. (Hubert Meredith, Atty. Gen. of Ky., and W. Owen Keller, Asst. Atty. Gen. of Ky., on the brief), for appellee.

Before HICKS, SIMONS, and MARTIN, Circuit Judges.

SIMONS, Circuit Judge.

Upon remand of the above cause for further proceedings in pursuance of the memorandum opinion of the Supreme Court in Sharpe v. Buchanan, 317 U.S. 238, 63 S.Ct. 245, 87 L.Ed. ___, it becomes necessary to consider the problem upon the original record and the briefs and argument of counsel, since no supplemental record or briefs have been filed and no additional argument submitted when the cause was set for rehearing.

The appellant is serving a life sentence in a Kentucky penitentiary, by reason of a judgment of the Fayette Circuit Court at Lexington, responding to a jury verdict of guilty on the charge of murder. He filed in the court below a petition for a writ of habeas corpus alleging his conviction in the state court to be in violation of rights preserved by the Fifth and Fourteenth Amendments, because it was obtained by the Commonwealth on perjured evidence and an extorted confession, and because denied relief therefrom in the Kentucky courts, when newly discovered evidence showed the killing for which he was tried to have been done by another. The District Judge to whom the petition was addressed went at great length into the circumstances upon which it was based, but made no findings of fact upon conflicting testimony because he was of the view that he had no power to entertain the petition when remedies available to the petitioner under the law of the Commonwealth of Kentucky were not yet exhausted. On appeal we agreed. Sharpe v. Buchanan, 6 Cir., 121 F.2d 448. We there observed that the appellant, not having sought in the state courts a writ of habeas corpus challenging the validity of his trial and sentence, a writ would not lie to attack the state judgment unless it be shown that corrective judicial process was not there available, upon the authority of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. No such showing being made, we affirmed the judgment.

Subsequently, upon a petition for rehearing, it was represented to us that an application for habeas corpus had been filed in the state court after we had rendered judgment, but it also appearing that an appeal from an adverse decision thereon was still pending in the Kentucky Court of Appeals, we denied the rehearing petition on the ground that we could not assume that the Kentucky Court would decide the appeal adversely to the petitioner. Certiorari to the Supreme Court of the United States was then sought. While the petition therefor was pending the Kentucky Court of Appeals affirmed the state court's order denying habeas corpus, Sharpe v. Commonwealth, 292 Ky. 86, 165 S.W.2d 993. Upon that decision being certified or called to its attention, the Supreme Court concluded that the obstacle to a consideration of the merits of the petitioner's application which we had encountered, was now removed. It therefore vacated our judgment and remanded the case to us for such further proceedings as we may deem appropriate.

The history of the case is reviewed in the careful opinion of the District Court, Ex parte Sharpe, 36 F.Supp. 386. It is necessary to recite the more salient facts therein appearing. On December 12, 1937, one Richard Mutran was murdered in Lexington, Kentucky. On April 12, 1938, the appellant was indicted by a grand jury on a charge of committing the murder, pleaded not guilty, and upon trial the jury returned a verdict of guilty, fixing the petitioner's punishment at life imprisonment. No appeal was taken from the verdict and judgment. Two years later petitioner applied for a writ of coram nobis in the Fayette Circuit Court. From a ruling denying the petition an appeal was taken to the Kentucky Court of Appeals which affirmed the judgment, Sharpe v. Com., 284 Ky. 88, 143 S.W.2d 857. A petition to the governor of Kentucky for pardon was thereafter denied. The petition for writ of habeas corpus to the United States District Court for the Western District of Kentucky followed.

In the petition it is alleged that the appellant is not guilty of the crime of which he is convicted; that the Commonwealth had introduced in evidence at the trial a confession obtained by coercion, beating, threats, intimidation, starvation, and influence of drugs; that the petitioner had repudiated the confession before the trial; that the Commonwealth had introduced against him perjured evidence, and that subsequent to his conviction, and while in confinement, one Patrick Stevens, a fellow prisoner, had confessed that he and not the appellant had killed Mutran, which newly discovered evidence was not known to the appellant and not available to him at the time of trial.

The District Judge, upon a painstaking exploration into controlling authority, arrived at the conclusion that he could not issue the writ at the prayer of a person held under a state commitment unless recourse had first been had to whatever judicial remedies the state afforded. He relied upon Baker v. Grice, 169 U.S. 284, 18 S.Ct. 323, 42 L.Ed. 748; Mooney v. Holohan, supra, and a number of cases in the Circuit Courts of Appeal. It was also his conclusion that even were state court remedies exhausted, a lower Federal Court should not issue the writ but the petitioner should be required to have the state court judgment reviewed, through proper proceedings, by the Supreme Court of the United States. This was in reliance upon Markuson v. Boucher, 175 U.S. 184, 20 S.Ct. 76, 44 L.Ed. 124; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L.Ed. 760; Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036; Woolsey v. Best, 299 U.S. 1, 57 S.Ct. 2, 81 L.Ed. 3. In respect to errors at the trial, it was his conclusion that the writ of habeas corpus could not be used as a writ of error to review the validity of the state court judgment where the defendant voluntarily had elected not to have the proceedings reviewed by the state court of last resort. On the question of newly discovered evidence he recognized and applied the provisions of the Criminal Code of Kentucky, § 271(6), § 273, which require that an application for new trial must be made at the same term at which the verdict is rendered, and that this had been held to apply even though the defendant did not know of the existence of such evidence until the term had expired, Wellington v. Commonwealth, 159 Ky. 462, 167 S.W. 427; Greer v. Commonwealth, 165 Ky. 715, 178 S.W. 1027.

We assume that the decision of the Supreme Court in Sharpe v. Buchanan, Warden, supra, implies no error in the court below in refusing to entertain the petition while state court remedies were still available to the petitioner, nor in our...