United States ex rel. Sterling v. Pate
Decision Date | 21 November 1968 |
Docket Number | No. 16749.,16749. |
Citation | 403 F.2d 425 |
Parties | UNITED STATES of America ex rel. Rex STERLING, Petitioner-Appellee, v. Frank J. PATE, Warden, Illinois State Penitentiary, Respondent-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
William G. Clark, Atty. Gen., of Illinois, A. Zola Groves, Asst. Atty. Gen., Chicago, Ill., for respondent-appellant; John J. O'Toole, Asst. Atty. Gen., of counsel.
Joseph E. McHugh, Chicago, Ill., for petitioner-appellee.
Before CASTLE, Chief Judge, and KILEY and SWYGERT, Circuit Judges.
The respondent-appellant, Frank J. Pate, Warden, Illinois State Penitentiary, prosecutes this appeal from the December 20, 1967, order of the District Court granting the petition of Rex Sterling, petitioner-appellee, for a writ of habeas corpus, and ordering the petitioner discharged.
The petitioner was convicted on November 23, 1931, in the Circuit Court of Montgomery County, Illinois, on his plea of guilty to burglary and larceny. He is serving a sentence of from one year to life as a result of that conviction. In his petition he alleges, inter alia, that he was unattended by his court-appointed counsel at the trial held on November 23, 1931, at which time he changed his plea to a guilty plea upon which he was convicted and sentenced. The District Court, after an evidentiary hearing, found such to be the case1 and ordered the petitioner discharged.
In this connection the District Court found:
The petitioner relies on these critical factual findings as compelling affirmance of the District Court's order discharging him. In this respect petitioner points to our recognition in United States ex rel. Gates v. Pate, 7 Cir., 355 F.2d 879, 881, that:
But the fact that there is evidence to support the District Court's factual findings, and thus preclude them from being characterized as "clearly erroneous", requires affirmance only if the court also applied the court legal criteria in reaching its ultimate conclusion.
The factual findings above set forth are based on the petitioner's version of what occurred on November 23, 1931, the day of his trial, as related by him in his testimony before the District Court, and on the fact that the mittimus2 issued by the clerk of the state court to the sheriff directing that the defendant be taken from the bar of the court and delivered for incarceration states that on November 23, 1931, the defendant appeared before the court "in his own proper person unattended by counsel". But the mittimus is not a part of the common law record. People v. Valentino, 354 Ill. 584, 188 N.E. 825; People v. Stacey, 372 Ill. 478, 24 N.E. 2d 378. And, the duly certified copy of the common law record in the state court criminal proceeding, filed in the District Court pursuant to leave of court and admitted in evidence as a respondent's exhibit, recites that on November 23, 1931, the defendant appeared in "open court as well in his own proper person as by C. R. Missimore, his attorney". Moreover, Attorney Missimore testified in the District Court that he was so present in the state court representing the petitioner during the November 23, 1931, proceeding which culminated in petitioner's change of plea, conviction, and sentencing.
The duly certified common law record prevails in case of variance between it and the mittimus. Cf. People v. Stubblefield, 391 Ill. 609, 63 N.E.2d 762.
Although during the closing arguments before the District Court the trial judge, in a colloquy with counsel, recognized that he was confronted with the problem of "whether or not by parol evidence you can alter a certified record under Illinois law," it appears from the same colloquy that in proceeding to enter the judgment order discharging the petitioner the court, rather than resolving that issue, relied on what it characterized as "areas of uncertainty about the memory of the witness Missimore" which "do not in any way cause his testimony to contradict substantially the testimony of the petitioner". Acceptance of such characterization of Missimore's testimony, and treatment of the court's conclusion based thereon as an appraisal of the weight of the evidence or as a credibility resolution, are, nevertheless, of no aid to petitioner.
It is apparent that the District Court applied an incorrect legal standard when it accepted the testimony of the petitioner, coupled with the recital in the mittimus, to impeach the verity of the certified common law record of the criminal proceeding. It has been consistently held in habeas corpus proceedings that the record of the trial court in the underlying criminal proceeding is not open to collateral attack, but that such record imports absolute verity and may not be so impeached. Thus, with respect to the judgment reflected by the record in a criminal proceeding, it was cogently observed in Hill v. United States ex rel. Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 762, 80 L.Ed. 1283:
.
To the same effect see: Riddle v. Dyche, 262 U.S. 333, 43 S.Ct. 555, 67 L.Ed. 1009; Goto v. Lane, 265 U.S. 393, 44 S.Ct. 525, 68 L.Ed. 1070; Ex parte Craig, 2 Cir., 282 F. 138; Braun v. United States, 9 Cir., 16 F.2d 118, 80 Ct.Cl. 211; Farnsworth v. Zerbst, 5 Cir., 98 F.2d 541; Thomas v. Hunter, 10 Cir., 153 F.2d 834; Williams v. Huff, 79 U.S.App.D.C. 31, 142 F.2d 91.
Braun v. United States, supra, was a habeas corpus proceeding in which the petitioner denied that he had entered a plea of guilty. It was there stated (16 F.2d 118):
In our opinion it is firmly established that if the state court record of petitioner's criminal conviction fails to speak the truth he should seek to correct it in a proceeding filed in the Montgomery County circuit court for that purpose3 — and he may not do so in a federal habeas corpus proceeding by way of collateral attack on the state court's certified record.
The District Court applied an impermissible legal standard — one involving collateral impeachment of a certified state court criminal record — in ordering the discharge of the petitioner.
Accordingly, the judgment order from which this appeal is taken is reversed.
Reversed.
I agree that generally the record of a trial court cannot be impeached in a habeas corpus proceeding, and that the petitioner ought to first seek to correct the record by appropriate proceeding in the sentencing court. But that rule presupposes a...
To continue reading
Request your trial-
People v. Allen
...People v. Saxton,400 Ill. 257, 260, 79 N.E.2d 601 (1948)). The same observations apply to the Mittimus. See United States ex rel. Sterling v. Pate, 403 F.2d 425, 427 (7th Cir. 1968), cert. den. 396 U.S. 911, 90 S.Ct. 225, 24 L.Ed.2d 186. The manifest weight of the evidence indicates that th......
-
State v. Lyon, 46106
...there is a remedy by motion to correct it to the end that it may speak the truth. * * *' See, also, united States ex rel. Sterling v. Pate, 7 Cir., 403 F.2d 425 (1968); Accardi v. Blackwell, 5 Cir., 412 F.2d 911 The state's motion for an order nunc pro tunc correcting the journal entry to s......
-
United States ex rel. Stewart v. Pate
...ipso facto that he was advised by the state court of the mandate. 3 The district court applied the rule in United States ex rel. Sterling v. Pate, 403 F.2d 425 (7th Cir. 1968), cert. den. 396 U.S. 911, 90 S.Ct. 225, 24 L.Ed.2d 186 (1969), that the common law record imports verity and cannot......