United States ex rel. Worlow v. Pate, 16970

• Decision Date: 16 July 1969
• Docket Number: 17239.,No. 16970,16970
• Citation: 411 F.2d 972
• Parties: UNITED STATES of America ex rel. James L. WORLOW, Petitioner-Appellant, v. Frank J. PATE, Warden, Illinois State Prison, et al., Respondents-Appellees. UNITED STATES of America ex rel. Glenn LANE, Petitioner-Appellant, v. Frank J. PATE, Warden, Illinois State Prison, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

411 F.2d 972 (1969)

UNITED STATES of America ex rel. James L. WORLOW, Petitioner-Appellant, v. Frank J. PATE, Warden, Illinois State Prison, et al., Respondents-Appellees.

UNITED STATES of America ex rel. Glenn LANE, Petitioner-Appellant, v. Frank J. PATE, Warden, Illinois State Prison, et al., Respondents-Appellees.

Nos. 16970, 17239.

United States Court of Appeals Seventh Circuit.

June 10, 1969.

Rehearing Denied July 16, 1969.

Holland C. Capper, Chicago, Ill., for appellant.

William J. Scott, Atty. Gen., Chicago, Ill., for appellees, James R. Thompson, Thomas J. Immel, Asst. Attys. Gen., of counsel.

Before CASTLE, Chief Judge, MAJOR, Senior Circuit Judge, and KERNER, Circuit Judge.

CASTLE, Chief Judge.

Petitioners were co-defendants in a state prosecution for larceny and burglary, in which they were convicted and sentenced to terms of fifteen to twenty-five years. Thereafter they were co-petitioners in a state habeas corpus proceeding in which the Illinois Supreme Court affirmed their convictions. People ex rel. Lane v. Pate, 39 Ill.2d 115, 233 N.E.2d 554 (1968). Petitioners then separately petitioned in the district court for writs of habeas corpus, alleging, as they had unsuccessfully done in the Illinois Supreme Court, various constitutional errors including that the indictments were neither filed against nor served upon them prior to their trial, and that the jury was never polled and the verdict never signed. The district court denied both petitions and this court granted a certificate of probable cause and consolidated the appeals.

In denying the petitions, the district court neither ordered the state court record produced nor conducted an evidentiary hearing. The State contends that neither the record nor a hearing was necessary to the district court's disposition since the Illinois Supreme Court had given petitioners a full and fair hearing on the same questions of fact raised in the petitions, as evidenced by the opinion of that court in People ex rel. Lane v. Pate, supra. Thus, the state argues, the district court was justified in summarily presuming the correctness of the opinion and findings of the state court, as established by 28 U.S.C. § 2254(d).

However, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), cited by both parties to the instant case, does not permit a federal district court to accept a state court's findings of fact on the sole basis of an appellate opinion. The Supreme Court in Townsend held that, where findings of fact are in dispute, an evidentiary hearing must be held by the district court if the habeas applicant did not receive a full and fair hearing in a state court. 372 U.S. at 312-313, 83 S.Ct. at 757. Thus, it is incumbent upon the district judge to determine whether a proper state hearing has been held. In this regard, the Supreme Court stated:

"A District Court sitting in habeas corpus clearly has the power to compel production of the complete state-court record. Ordinarily such a record — including the transcript of testimony (or if unavailable some adequate substitute, such as a narrative record), the pleadings, court opinions, and other pertinent documents — is indispensable to determining whether the habeas applicant received a full and fair state-court evidentiary hearing resulting in reliable findings. See United States ex rel. Jennings v. Ragan, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296; Townsend v. Sain, 359 U.S. 64, 79 S.Ct. 655, 3 L.Ed.2d 634. Of course, if because no record can be obtained the district judge has no way of determining whether a full and fair hearing which resulted in findings of relevant fact was vouchsafed, he must hold one. So also, there may be cases in which it is more convenient for the district judge to hold an evidentiary hearing forthwith rather than compel production of the record. It is clear that he has the power to do so." 372 U.S. at 319, 83 S.Ct. at 760.

Therefore, if the district judge determines "that the habeas applicant was afforded a full and fair hearing by the State court resulting in reliable findings, he may, and ordinarily should, accept the facts as found in the hearing." 372 U.S. at 318, 83 S.Ct. at 760. However, the Supreme Court further held that the state-court record was ordinarily "indispensible" to the district court's making that determination. A published appellate opinion cannot alone be a substitute for a state-court record, since it would not contain evidence of those constitutional errors at which the writ of habeas corpus is directed.¹

Indeed, to allow district courts to rely solely on such opinions would, where findings of fact are contested, emasculate the writ. Thus, since state prisoners must exhaust their state remedies before they can obtain federal review, there would of necessity always be a state court finding or opinion which would have determined the general issues, raised in the federal habeas application, adversely to the petitioner. The federal court may accept the state court's findings of fact,² but only if it determines, by an independent view of the record, that those findings were the result of a "full and fair hearing." Such a requirement does not conflict with the provisions of 28 U.S.C. § 2254(d). See Woodington v. Mathews, 401 F.2d 125, 127 (7th Cir. 1968). Accordingly, we hold that the district court's denial of the petitions for writs of habeas corpus in the instant case, without having compelled production of the state court record to determine whether petitioners' contentions were fully and fairly dealt with by the state court, was error.

Petitioners further contend on appeal that the district court erred in not appointing counsel to assist them in preparing their petitions to that court. The courts have consistently held, however, that although the right to counsel has been expanded, it does not necessarily include the right of a prisoner to have an attorney prepare collateral attacks in post-conviction proceedings. Thus, while appointment of counsel in habeas corpus proceedings may be required in certain cases, Campbell v. United States, 318 F. 2d 874 (7th Cir. 1963), Milani v. United States, 319 F.2d 441 (7th Cir. 1963), "appointment of counsel for indigents in habeas corpus and section 2255 proceedings rests in the sound discretion of the district court unless denial would result in fundamental unfairness impinging on due process rights." LaClair v. United States, 374 F.2d 486, 489 (7th Cir. 1967).³

Moreover, the Supreme Court recently noted with approval the practice of most federal courts to appoint counsel in post-conviction proceedings only after the court determines "that issues are presented calling for an evidentiary hearing." Johnson v. Avery, 393 U.S. 483, 487, 89 S.Ct. 747, 750, 21 L.Ed.2d 718 (1969). Under the facts presented by the instant case, the district court acted within its discretion in refusing to appoint counsel to assist petitioners in the preparation of their petitions before that court.

Therefore, the judgments of the district court denying the petitions for writs of habeas corpus are vacated and the cases remanded with directions to compel production of the state court record in order to determine whether petitioners were given a full and fair hearing in the state court.

This court expresses its appreciation to Holland C. Capper, a member of the Chicago, Illinois bar, for his excellent services on appeal as court-appointed attorney for petitioners.

Vacated and remanded.

MAJOR, Senior Circuit Judge (concurring in part and dissenting in part).

I concur in the majority opinion insofar as it holds that "the district court acted within its discretion in refusing to appoint counsel to assist petitioners prepare their petitions before that court." I dissent from that portion which holds that the district court erred in denying petitions for issuance of writs of habeas corpus "without having compelled production of the state court record to determine whether petitioners' contentions were fully and fairly dealt with by the state court."

Before agreeing to such a result, which in my view is calculated to be a...