Stewart v. Bishop

• Decision Date: 21 November 1968
• Docket Number: No. 18148.,18148.
• Parties: Clarence STEWART, Jr., Appellant, v. O. E. BISHOP, Superintendent of Arkansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

403 F.2d 674 (1968)

Clarence STEWART, Jr., Appellant, v. O. E. BISHOP, Superintendent of Arkansas State Penitentiary, Appellee.

No. 18148.

United States Court of Appeals Eighth Circuit.

November 21, 1968.

Harold B. Anderson, Little Rock, Ark., for appellant.

Larry W. Chandler, Asst. Atty. Gen., of Arkansas, Little Rock, Ark., for appellee; Bruce Bennett, Previous Atty. Gen., and Jack L. Lessenberry, Asst., Atty. Gen., on brief.

Before VAN OOSTERHOUT, Chief Judge, and BLACKMUN and LAY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

The threshold issue before us is whether this court has acquired jurisdiction to review either or both of the two orders entered by the District Court in a habeas corpus proceeding instituted in such court by petition of Clarence Stewart, Jr., hereinafter referred to as defendant, wherein he asserts he is being illegally detained by the defendant, the superintendent of the Arkansas State Penitentiary, upon his conviction of murder in the state court and the resulting death sentence imposed. We hold that this court has not acquired jurisdiction to consider the appeal and hence dismiss the appeal. A brief recital of the history and background of this litigation is essential for a proper understanding of the issue presented.

This proceeding is the latest step in a long series of litigation which arose out of the murder of William N. Caldwell in Pulaski County, Arkansas, on January 8, 1959. Defendant was charged with such murder, was found guilty by a jury of murder in the first degree and a death sentence was imposed. His conviction was affirmed. Stewart v. State, 233 Ark. 458, 345 S.W.2d 472, cert. denied, 368 U.S. 935, 82 S.Ct. 371, 7 L.Ed.2d 197. Upon Stewart's habeas corpus petition, the federal District Court determined that Stewart, a Negro, had been deprived of a fair trial because Negroes had been systematically excluded from the trial jury panel. Such court directed that Stewart be given a new trial and that unless such trial was afforded within a reasonable time fixed, the petition would be granted. We affirmed upon appeal. Henslee v. Stewart, 8 Cir., 311 F.2d 691, cert. denied, 373 U.S. 902, 83 S.Ct. 1289, 10 L.Ed.2d 198.

The State accorded the defendant the new trial as directed. Stewart was again convicted of first degree murder and again given a death sentence. His second conviction was affirmed. Stewart v. State, 237 Ark. 748, 375 S.W.2d 804, cert. denied, 379 U.S. 935, 85 S.Ct. 336, 13 L.Ed.2d 345.

Issues and facts in the murder trial are not relevant on the underlying jurisdictional issue now before us. The pertinent facts are covered in the reported cases cited.

In the present habeas corpus petition, filed January 28, 1965, defendant asserts that his constitutional rights were violated in his second trial and conviction in the following respects:

1. That he was charged by an information drawn by the prosecuting attorney instead of by an indictment of a grand jury as required by the Constitution of the United States.

2. That Negroes have been systematically excluded as jury commissioners.

3. That petitioner is now insane and was insane before the crime was committed.

4. That race was a factor in selecting the jury at his trial and that it was so drawn upon a racially proportionate basis as to discriminate against petitioner because of his race.

5. That his alleged confession was coerced.

Prison Superintendent Stephens filed a response admitting that the defendant was being held on the death sentence imposed upon his conviction but denied all allegations of violation of constitutional rights. A full evidentiary hearing was afforded in the federal District Court. Defendant at all stages of the proceeding, including the attempted appeal, was permitted to proceed in forma pauperis and was represented by counsel. The trial court on June 30, 1965, filed an order reading:

"The State of Arkansas is given seven months from June 30, 1965 to either allow the trial court to conduct a hearing on the issue of voluntariness of Stewart\'s confessions or admissions, or to retry him. If, for good cause shown, it becomes impossible or inappropriate to try him within that period of time, application may be made to this Court by either Stewart or the State for a reasonable extension of time.

"If Stewart is given a hearing to determine the issue of voluntariness or if he is retried, the Court will enter dismissal of Stewart\'s present petition of habeas corpus. If Stewart is not given such a hearing — or, if the State elects, a new trial — within the period prescribed in this order, or within such other period of time as may be set by an appellate court, Stewart\'s petition for habeas corpus will be granted.

"A memorandum opinion containing the Court\'s findings of fact and conclusions of law will be subsequently filed with the clerk."

Filed on the same day is a copy of a letter from the judge to counsel advising that a memorandum opinion will be filed shortly and that it will reflect "that I have ruled adversely to Stewart on all of the issues raised by him except the one which arises under Denno."

Defendant filed a motion to reconsider on July 13, 1965. On July 23, 1965, the trial court filed a memorandum opinion (Stewart v. Stephens, reported at 244 F.Supp. 982) which reflects that the court gave careful consideration to all issues raised. The memorandum opinion reflects the view that all issues, except the Jackson v. Denno issue, were resolved against the defendant. The opinion with respect to the Jackson v. Denno issue (378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908) is identical with the second paragraph of the June 30 order quoted above. An order was entered denying defendant's motion to reconsider.

Notice of appeal, filed July 30, 1965, reads:

"Comes CLARENCE STEWART, JR., by his attorney Harold B. Anderson, and files Notice of Appeal from the Opinion rendered June 30, 1965, from all issues which this honorable court ruled adversely to Stewart except the one which arises under Denno or the voluntariness of this confession, also denial of Motion to Reconsider, July 23, 1965."

Thereafter, the State afforded defendant a full evidentiary hearing in the State trial court before the judge who presided at the trial resulting in the conviction on the Jackson v. Denno issue of the voluntariness of defendant's confession. The State produced a number of witnesses who gave their testimony. The defendant offered no witnesses. The State trial court determined that Stewart's confession, which was received at his trial, was voluntarily made. Upon appeal, the Supreme Court of Arkansas affirmed. Stewart v. State, 241 Ark. 4, 406 S.W.2d 313 (September 12, 1966), cert. denied, 386 U.S. 946, 87 S.Ct. 983, 17 L.Ed.2d 877 (February 27, 1967).

On September 17, 1966, the State filed in the federal District Court a motion setting out the fact that the State court had fully complied with the federal court's direction to hold a Jackson v. Denno hearing. Attached to the motion is a copy of the Supreme Court of Arkansas affirming opinion last described. The motion prays that the petition for habeas corpus be dismissed. Attached thereto is a certificate of service of the motion upon defendant's counsel by mail on September 16, 1966. The record discloses no response by the defendant.

The federal District Court on September 29, 1966, entered an order of dismissal, concluding, "The hearing required by this court's order dated June 30, 1965, having been granted Stewart, his petition for writ of habeas corpus is dismissed." No appeal has been taken from such final order.

It is the duty of the Court of Appeals to satisfy itself as to its jurisdiction to consider an appeal, whether or not the jurisdictional issue is raised by the parties. Young v. Chicago, Milwaukee, St. Paul & Pacific R. Co., 8 Cir., 369 F.2d 502, 504; Agrashell, Inc. v. Hammons Products Co., 8 Cir., 352 F.2d 443; Smith v. Sherman, 8 Cir., 349 F.2d 547, 550. Such duty applies with respect to attempted appeals in habeas corpus cases. Collins v. Miller, 252 U.S. 364, 365, 366, 40 S.Ct. 347, 64 L.Ed. 616. Habeas corpus is a civil remedy for the enforcement of a right to personal liberty. It is not a stage of a criminal proceeding or an appeal therefrom. Fay v. Noia, 372 U.S. 391, 423-424, 83 S.Ct. 822, 9 L.Ed.2d 837; Riddle v. Dyche, 262 U.S. 333, 336, 43 S.Ct. 555, 67 L.Ed. 1009.

Rule 81(a) (2) expressly makes the rules of civil procedure applicable to habeas corpus proceedings. 28 U.S.C.A. § 2253, which governs appeals in federal habeas corpus proceedings, clearly contemplates that appeals shall be from the final order. 28 U.S.C.A. § 1291, the general statute conferring jurisdiction upon the Court of Appeals to review District Court judgments, limits review to "all final decisions of the district courts of the United States."

A final decision generally is one which ends litigation on the merits and leaves nothing for the court to do but execute the judgment. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911. In Smith v. Sherman, 8 Cir., 349 F.2d 547, 551-552, this court defined "finality" as follows:

"`Finality\' in the context hereinabove considered has occupied innumerable courts through the years, but a general definition therefor seems to have emerged as being acceptable. A decree is said to be final when it terminates the litigation on the merits and leaves nothing further to be done but to enforce it by execution. Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945); United States v. Bighorn Sheep Co., 276 F. 710 (8 Cir.1921); Asher v. Ruppa, 173 F.2d 10 (7 Cir.1949). A final judgment is the last word of the law, the final determination of the matters submitted to a court in an action. Karl Kiefer Mach. Co. v. United States Bottlers Mach. Co., 108 F.2d 469 (7 Cir.1939). A final judgment is one which, if affirmed on appeal, leaves nothing to be done below other than to execute the

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