United States ex rel. Travis v. Travis
| Decision Date | 09 November 1970 |
| Docket Number | Civ. A. No. 1249. |
| Citation | 319 F. Supp. 380 |
| Parties | UNITED STATES of America ex rel. William Cecil TRAVIS, Jr., Petitioner, v. William C. TRAVIS, William G. Travis, Algie Jesse Travis, Wylie W. Cunningham, Frankie Cunningham, George Blaine, and Alease Blaine, sureties for William Cecil Travis, Jr., and the Honorable Howard M. Jarrett, Judge of the Intermediate Court of Mercer County, West Virginia, Respondents. |
| Court | U.S. District Court — Southern District of West Virginia |
James B. McIntyre, Charleston, W. Va., for petitioner.
David W. Knight, Pros. Atty., Mercer County, Princeton, W. Va., Willard A. Sullivan, Asst. Atty. Gen. of W. Va., Charleston, W. Va., for respondents.
In this petition for a writ of habeas corpus ad subjiciendum, the petitioner alleges that he is being unlawfully and unjustly restrained of his liberty under color of authority of the State of West Virginia, in that he is in the custody of the respondents, sureties on a supersedeas bond executed by him before the Intermediate Court of Mercer County, West Virginia, following his conviction of a felony in that court.1 The sureties appear to have taken the petitioner into custody pursuant to the provisions of West Virginia Code, 62-1C-14, which places in a surety the power to take his principal into custody and surrender him to the court. It was developed at a hearing held on October 30, 1970, that, after filing the petition and before service of the show cause order, the petitioner was surrendered or transferred to the custody of either the Warden of the West Virginia Penitentiary or to the Warden of the West Virginia Medium Security Prison.2
The petition alleges that subsequent to his conviction, the petitioner applied to the Circuit Court of Mercer County, West Virginia, for a writ of error and supersedeas. Failing to get the writ there, he then applied to the Supreme Court of Appeals of West Virginia for like relief, which was refused by summary order.
An examination of the averments of the petition reveals that the grounds relied upon for federal intervention are (1) the failure of the state appellate court to delineate its reason, or reasons, for rejecting the appeal, and (2) the failure or refusal of the state appellate court to correct trial court error committed in the giving of, or refusing to give, certain instructions.
The respondents have moved to dismiss on the ground that the facts alleged fail to show petitioner's entitlement to the relief sought. In oral argument, respondents' counsel also raised the question of petitioner's failure to exhaust state remedies under 28 U.S.C.A. 2254, in that (a) he had failed to show that he had exhausted all remedies for direct appeal, since it appeared that he did not apply to the Supreme Court for certiorari after his appeal was rejected by the state's highest court, and (b) he had failed to seek habeas relief at the state level. While a disposition of the case on either or both of these grounds might very well be warranted, this Court, under the circumstances,3 prefers to rest its decision upon a more substantive basis.
As to the first ground assigned in this court for relief—failure of the appellate court to give its reason, or reasons, for rejecting the appeal—petitioner's counsel has not referred us to any constitutional or legislative provision or rule of court that required the Supreme Court of Appeals of West Virginia to write an opinion or give any reason for its rejection of applications for appeals or writs of error, and this Court's own research has failed to reveal any. It will be presumed that the reviewing court performed its legal responsibility and gave the case proper consideration. Scalf v. Bennett, 408 F.2d 325 (8th Cir. 1969). Therefore, the point is deemed to be frivolous and will be given no further consideration.
As to the second ground for relief— failure of the appellate court to rectify trial court errors—it is readily seen that the threshold question for this court to consider is whether the averment that certain instructions were erroneously given or refused presents a case properly cognizable for federal habeas relief under 28 U.S.C.A. 2241. That section provides, among other things, that the writ of habeas corpus shall not extend to a prisoner unless he is in custody in violation of the Constitution or laws of the United States. The petition does not point to any violation by the trial court of any specific federal law or constitutional provision; its averments relate only to alleged trial errors and the failure or refusal of the appellate court to correct them on appeal.
Decisional law makes its clear that, unlike the appeal, writ of error or certiorari, the writ of habeas corpus does not exist to collaterally attack mere errors or irregularities which are not jurisdictional and which, at the most, render a judgment merely voidable; it can only be used to attack those judgments or proceedings which are void or where the procedure employed was so basically unfair as to deprive the accused of a constitutionally protected right under the Due Process Clause of the Fourteenth Amendment. U. S. v. Shoaf, 341 F.2d 832 (4th Cir. 1964); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bridges v. Wixon, 326 U.S. 135, 149, 65 S.Ct. 1443, 89 L.Ed. 2103. Thus, federal courts will intervene in a state court proceeding only when a fundamental right of the prisoner has been denied and taken from him arbitrarily or a trial in accordance with the established procedural law of the state in a court of competent jurisdiction has not been afforded him. Odell v. Hudspeth, 189 F.2d 300, cert. denied, 342 U.S. 873, 72 S.Ct. 116, 96 L.Ed. 656 (10th Cir. 1951). In Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942), the Supreme Court said that the federal writ extends only to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused and where the writ is the only effective means of preserving his rights.
Considering the instant petition in the context of these principles of constitutional law, it is readily seen that it fails to meet the required standard for federal intervention. Upon the face of the petition, it appears that the petitioner was charged, tried, convicted and sentenced in accordance with established law of the State of West Virginia and that all procedural safeguards necessary to meet the standard of federal due process at the trial level were afforded him. It also shows on its face that the petitioner was afforded a review of his conviction, first by the Circuit Court of Mercer County and then by the Supreme Court of Appeals of West Virginia, the court of last resort in that state. Under such circumstances, summary dismissal ordinarily would be in order, however, because of the sincerity evinced by petitioner's present counsel in oral argument and in order to avoid the possibility that a miscarriage of justice might go uncorrected, this Court agreed to review the trial transcript which includes the evidence, the instructions given and refused and the arguments of counsel to the jury.
The thrust of the argument of counsel for the petitioner was directed to the refusal of the trial court to give Defense Instruction No. 28, dealing with the principles applying to the use of circumstantial evidence, and the refusal of the appellate court to rectify the error on appeal. It was argued that the offered instruction was authorized by existing state decisional law and its refusal deprived the petitioner of the equal protection of the law. Allusion was also made to the refusal of Defense Instructions Nos. 9 and 14. Counsel for the respondents resisted the contention primarily on the ground that the state's case did not rest upon circumstantial evidence alone; rather it was made up of both direct and circumstantial evidence, and under such circumstances the giving of Defense Instruction No. 28 would have been improper, and that State's Instruction No. 7 on the subject, which the Court gave, was proper. That instruction reads:
The defense objected to the giving of this instruction on the sole ground that "it doesn't require the State to establish by circumstantial evidence the commission of the offense by the accused to the exclusion of every other reasonable hypothesis." However, if this was a valid objection at the time, it was taken care of by the giving of Defense Instruction No. 10, which reads as follows:
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State v. Trimble
...discussion of a meritless point simply because it has been stated. State v. Pugh, 600 S.W.2d at 116; see United States ex rel. Travis v. Travis, 319 F.Supp. 380, 381 (S.D.W.Va.1970); People v. Parker, 60 Mich.App. 368, 230 N.W.2d 437, 438 We find no infringement of defendant's federally pro......
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State v. Pugh
...do not interpret our constitutional mandate nor Rule 30.25(a) to require discussion of those points. See United States ex rel. Travis v. Travis, 319 F.Supp. 380, 381(1) (S.D.W.Va.1970); People v. Parker, 60 Mich.App. 368, 230 N.W.2d 437, 438(6) (1975). We have therefore focused our attentio......