Sullivan, ex parte
| Decision Date | 06 February 1953 |
| Docket Number | No. 7950,7950 |
| Citation | 253 P.2d 378,123 Utah 28 |
| Parties | Ex parte SULLIVAN et al. |
| Court | Utah Supreme Court |
A. W. Sandack, A. J. Moll and Reid W. Nielson, Salt Lake City, for appellant.
Petitioners seek a writ of habeas corpus from this court, alleging that they are illegally confined in the Utah State Prison.
Petitioners were found guilty of first degree murder after a trial in the district court of the Fifth Judicial District of the State of Utah and were thereafter sentenced to death. They appealed their convictions to this court and the sentences were upheld, State v. Braasch, 229 P.2d 289. Petition for rehearing was denied in this court on June 19, 1951. Thereafter, petitioners filed a petition for writ of certiorari in the Supreme Court of the United States on November 16, 1951. Certiorari was denied by that court on January 7, 1952, 342 U.S. 910, 72 S.Ct. 304, 96 L.Ed. 681. On February 19, 1952, petitioners made application to this court for a writ of habeas corpus which on the same date was denied. On February 20, 1952, they filed a petition for such writ in the United States District Court, district of Utah. After a hearing, that court on September 24, 1952 handed down an opinion 107 F.Supp. 514 but entered no judgment on the writ, but retained jurisdiction, while giving the petitioners an opportunity to exhaust their remedies in the State courts.
We address ourselves to the issues which are raised by their second petition here.
There can be no doubt about the United States District Court having jurisdiction to issue a writ of habeas corpus in a case where a person is held in custody by virtue of conviction in a State court, if questions as to the validity of his conviction under the Constitution of the United States are raised by the petition. In 1867, Congress enacted a statute conferring upon the courts of the United States, and the several judges and justices thereof, the power to grant writs of habeas corpus in all cases where a person is allegedly restrained of his liberty in violation of the Constitution or of a treaty or law of the United States. See Carfer v. Caldwell, 200 U.S. 293, 26 S.Ct. 264, 50 L.Ed. 488. A case particularly pertinent in the present proceedings is that of Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 588, 59 L.Ed. 969. Therein the United States Supreme Court, after referring to the enactment of 1867, said:
Conceding the jurisdiction of the United States District Court to try the issue raised under the writ of habeas corpus, we next confront the question as to whether this court should, in light of the fact the same matter is presently being considered by the United States District Court, entertain the petition; or whether we should deny the issuance of the writ upon the sole ground that another court of concurrent jurisdiction in the premises has taken jurisdiction of the matter and has not yet entered a judgment. Normally, comity would stay our hand. But the United States District Court, sustaining a contention made by the Attorney General of the State of Utah, held that the petitioners had not exhausted their remedies in the state courts; and this being a condition precedent to the United States District Court acting in the matter, he advised that they take steps to exhaust such remedies and if relief were not thereby secured, he would enter an appropriate judgment in the proceedings, in the meantime retaining jurisdiction under the writ. This ruling was made pursuant to Title 28, U.S.C.A. Sec. 2243, which provides that in habeas corpus the court 'shall summarily hear and determine the facts, and dispose of the matter as law and justice require', and on the authority of Ex parte Wells, D.C., 90 F.Supp. 855, and Shipman v. Dupre, 339 U.S. 321, 70 S.Ct. 640, 94 L.Ed. 877.
While we entertain some doubt about the question, we are not disposed to deny the writ merely upon the ground that the United States District Court having assumed jurisdiction should proceed to determine the question without further recourse to this court. The Dupre case, supra, was an action for a declaratory judgment presented to a statutory three-judge federal court wherein the plaintiff asked that a statute of the State of South Carolina be declared in violation of the Constitution of the United States. The court heard the matter on the merits and dismissed the complaint. On appeal, the United States District Court remanded the case with instructions that the United States District Court retain jurisdiction, since it did not appear that the courts of South Carolina had construed the statute involved, in order to give plaintiff an opportunity by appropriate proceedings to have the statute construed by the state courts of South Carolina. Of course, construction of state statutes is peculiarly a province of the state courts, and such construction is binding upon all the Federal courts. It was therefore peculiarly appropriate that a Federal court not take action declaring a state statute to be either valid or invalid until construction by the state courts, since subsequent construction by the state courts might remove any question as to its constitutionality.
In Ex parte Wells, supra, the petitioner, a prisoner in Folsom Prison, secured a writ of habeas corpus from the United States District Court of the Northern District of California, to test the constitutionality of a sentence of death imposed upon his being convicted of violating a statute of the State of California. This statute made it a capital offense for a person undergoing a life sentence to, with malice aforethought, assault any other person with a dangerous instrumentality with intent to do great bodily harm. That conviction, like the one here involved, was appealed to the Supreme Court of California and was there upheld. One of the questions raised on appeal was the constitutionality of the statute in question. Under the authority of previous cases decided by that Supreme Court and under the reasoning of the court in the case itself, the constitutionality of the act was upheld, People v. Wells, 33 Cal.2d 330, 202 P.2d 53. The attack on the constitutionality of the statute there made was that, as applied to a prisoner serving an indeterminate sentence of not less than five years, whose maximum term at the prison had not been fixed by Adult Authority, the statute deprives such prisoner of equal protection of the law.
In the United States court, as we read the opinion, it was not merely the constitutionality of the statute, as construed by the Supreme Court of California, which was brought into question, but its application in the particular case. It was made to appear by evidence adduced at the hearing in the United States District Court, that the Adult Authority of California had refrained from fixing any maximum sentence upon recommendation of the district attorney of Sacramento County.
Several years prior to the commission of the offense of which he was found guilty and sentenced to death, the Adult Authority, while considering the question of whether the petitioner should be paroled, addressed a letter on the subject to the district attorney who had prosecuted the case against petitioner. In reply to that letter, the district attorney suggested and recommended that no maximum term be fixed by the Adult Authority. He gave as his reason for this recommendation that if no such action were taken the maximum sentence would be construed to be a life sentence. He then stated that since the prisoner was a dangerous character, should be, in the absence of a maximum term being fixed, commit such an assault as is defined in the statute under which he was convicted, he would be guilty of a capital offense. It was under this state of fact that the United States District Court concluded that the due process clause had been violated. However, since the precise question thus raised, had not, in its opinion, been presented to the Supreme Court of California, the United States court retained jurisdiction and reserved a final ruling in the matter until appropriate proceedings could be taken to exhaust petitioner's remedy in the state courts. In short, in the California case it was held by the United States district judge that while the constitutionality of the statute in question as construed by the California courts had theretofore been ruled upon, the validity of the sentence in the light of the additional evidence produced before the United States District Court had not.
Such is not the case here. The question of due process and the question of the validity of the conviction under the Constitution and statutes of the State of Utah by virtue of the fact that petitioners were deprived of counsel at the preliminary hearing and that they thereafter enacted the crime at the scene thereof were fully considered and discussed by this court in its opinion in the case of State v....
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Application of Sullivan, Civil No. 21-52.
...so it becomes necessary for this court to determine the matter upon the merits. Since the case was here before, the Supreme Court of Utah, 253 P.2d 378, has denied a petition for habeas corpus and the Supreme Court of the United States, 346 U.S. 861, 74 S.Ct. 75, has denied a petition for a......
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Ex parte Hamilton
...D.C., 107 F.Supp. 514. A proceeding of habeas corpus was then filed in the Supreme Court of Utah, which was denied. Ex parte Sullivan, 123 Utah 28, 253 P.2d 378. Certiorari was denied by the Supreme Court of the United States. Braasch v. State of Utah, 346 U.S. 861, 74 S.Ct. 75, 98 L.Ed. Th......
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State v. Sullivan, 5128.
...107 F. Supp. 514. A proceeding in habeas corpus was then filed in the Supreme Court of Utah. The application for the writ was denied, 253 P.2d 378; and certiorari was denied Braasch v. State of Utah, 346 U.S. 861, 74 S.Ct. 75, 98 L.Ed. 373. Thereafter the trial court granted the writ in thi......