Snow v. Roche
| Citation | 143 F.2d 718 |
| Decision Date | 30 June 1944 |
| Docket Number | No. 10720.,10720. |
| Parties | SNOW v. ROCHE, District Judge. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Frank J. Hennessy, U. S. Atty., and A. J. Zirpoli, Asst. U. S. Atty., both of San Francisco, Cal., for respondent.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
Cecil Snow, petitioner herein, has applied to this court for the issuance by it of the writ of mandamus directed to Honorable Michael J. Roche, United States District Judge for the Northern District of California, commanding him to entertain and decide Snow's petition for the issuance of the writ of habeas corpus.
The petition for writ of habeas corpus is headed as follows:
"District Court of the United States Northern District of California Southern Division
The Honorable Judge Roche
CECIL SNOW Petitioner, VS. > No. 23177 JAMES A. JOHNSTON, Warden U.S.P., Alcatraz, California Respondent. "
The petition was filed with the district court as indicated in its heading and was assigned for attention, under the rule of rotation in accordance with the rule of court,1 to Judge Louis E. Goodman, who proceeded to consider the petition, and, after having done so, dismissed the petition upon the ground that upon its face it does not state facts, which, if considered as true, would entitle petitioner to be released from the custody of the respondent warden.
It is the theory of petitioner here that the petition for the writ of habeas corpus was filed with Judge Roche under 28 U.S.C.A. § 452 and not with the court under 28 U.S.C.A. § 451, that Judge Goodman was entirely without jurisdiction to entertain the proceeding, and that his judgment of dismissal is void. Upon this statement petitioner draws the conclusion that the petition for the writ of habeas corpus is still pending with Judge Roche, and asserts that the latter judge will not perform his duty and entertain and decide the issues raised in the petition. See Rutkowski v. St. Sure, 9 Cir., 143 F.2d 715. Also, Rutkowski v. Johnston, D.C., 52 F.Supp. 430.
The petition for the writ of mandamus is always addressed to the legal discretion of the court and although it is a law proceeding should be considered upon equitable principles. The writ need not be granted if it is apparent upon the face of the petition that the action sought to be ordered cannot legally be performed. Ex parte Skinner & Eddy Corp., 265 U.S. 86, 95, 44 S.Ct. 446, 68 L.Ed. 912; United States ex rel. Arant v. Lane, 249 U.S. 367, 371, 39 S.Ct. 293, 63 L.Ed. 650; Duncan Townsite Co. v. Lane, 245 U.S. 308, 311, 38 S.Ct. 99, 62 L.Ed. 309; United States v. Dern, 289 U.S. 352-358, 53 S.Ct. 614, 77 L.Ed. 1250. We, therefore, have the right and, indeed, the duty of examining the petition submitted to us with these principles in mind.
The petition here contains the recital of the entire petition for the writ of habeas corpus hereinabove referred to, and we have studied it with care. In no part of such petition is the legal custody of petitioner questioned. He does not claim the deprivation of any constitutional right in the conviction of the crime for which he is incarcerated, in the commitment to respondent, or in the legality of his detention. He complains that he has been illy and inhumanely treated in the matter of food and of dental and medical treatment, and that he has been confined to the "Isolation Block" which he sometimes refers to as the "Hole" or "Black Hole." He claims that he suffers from sinus trouble and that Alcatraz climate aggravates it. He asserts that the physicians in attendance are subservient to wishes of others and are not seriously concerned with the welfare of the patients. His complaints go to other matters, all of which relate to the personal treatment he habitually or occasionally receives at the hands of authorities in charge of the prison. According to the petition petitioner has been under discipline at the prison, and the prison physicians will, if questioned, falsely declare him to be insane. A large part of his petition is devoted to narrative of asserted severe treatment to others.
The allegations of this petition, if taken as true, do not claim or establish the illegal detention of the petitioner, and, therefore, as it seems to us, the sphere of the writ of habeas corpus does not reach to the subject matter of his complaint.
In Re Medley, Petitioner, 134 U.S. 160, 173, 10 S.Ct. 384, 33 L.Ed. 835, the Supreme Court was considering its power under habeas corpus in a case in which a legally convicted murderer under sentence of...
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...These have met the answer that habeas corpus is not a proper remedy, because it only tests the legality of detention. (Snow v. Roche, 9 Cir., 1944, 143 F.2d 718; Taylor v. United States, 9 Cir., 1950, 179 F.2d 640). Other circuits agree. (But see Coffin v. Reichard, 6 Cir., 1944, 143 F.2d 4......
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