United States v. Baldi

Decision Date26 October 1951
Docket NumberNo. 10433.,10433.
Citation192 F.2d 540
CourtU.S. Court of Appeals — Third Circuit


Thomas D. McBride, Philadelphia, Pa. (Herbert S. Levin, Michael von Moschzisker, Philadelphia, Pa., on the brief), for appellant.

Randolph C. Ryder, Deputy Atty. Gen. of Pennsylvania (Colbert C. McClain, Asst. Dist. Atty., James W. Tracey, Jr., First Asst. Dist. Atty., Philadelphia, Pa., Robert E. Woodside, Atty. Gen. on the brief), for appellee.

Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.

GOODRICH, Circuit Judge.

This appeal is from a judgment of the United States District Court for the Eastern District of Pennsylvania, sitting en banc, dismissing a petition for habeas corpus filed on behalf of Smith, the relator. Smith's case has had a long history. It was considered by three judges of the Court of Oyer and Terminer of Philadelphia County. It has been twice to the Supreme Court of Pennsylvania, once to the Supreme Court of the United States, twice to the District Court for the Eastern District of Pennsylvania and twice to this Court. The history is fully written in opinions which have come down during the course of the various proceedings concerning Smith.1 We shall, therefore, state, from point to point, only such facts as are necessary to bring out the questions involved.

The case starts with a killing. Smith while a passenger in a taxi cab drew a gun and killed the taxi driver. He was almost immediately apprehended. He has been adjudged guilty of murder in the first degree and sentenced to death. The killing of the taxi driver by Smith is not denied. This is not a case where a man has been forced into a confession. Nor is it a case where a friendless man has been overreached because he did not have legal counsel. The long record shows that Smith's claimed rights have been vigorously and intelligently asserted. The questions turn upon events in the course of Smith's trial which will be stated as the points arising out of them are taken up.

Federal and State Jurisdiction

First be it noted that Smith was not prosecuted by the United States; he was accused, tried and convicted in the Pennsylvania courts. Citations of federal decisions like Frame v. Hudspeth, 10 Cir., 1939, 109 F.2d 356, are of no value to us unless they raise the same constitutional law points present when habeas corpus is sought for a state prisoner. Smith's case went once to the Supreme Court of Pennsylvania on the question of a sentence imposed by the Court of Oyer and Terminer. It was again before the Supreme Court of Pennsylvania in habeas corpus proceedings. The basis for the prayer for the writ was the same as that now before the federal courts. The Supreme Court of Pennsylvania denied the writ and certiorari was denied by the Supreme Court of the United States.

So every question before us has been decided adversely to Smith's contentions and the Supreme Court has refused review through certiorari. What is the significance of such refusal? It is urged upon us by the respondent that it is highly significant. He argues that if Smith's petition for certiorari had shown a deprivation of constitutional rights his case would have been reviewed. That certiorari was refused shows, it is argued, that no such deprivation was even alleged. There was, it is pointed out, no such direction by the Supreme Court as there was in Burke v. State of Georgia, 1950, 338 U.S. 941, 70 S. Ct. 422, 94 L.Ed. 580, allowing petitioner to proceed in the federal district court without prejudice from the denial of his petition for certiorari.

The last word on the subject by the Supreme Court is Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761.2 The proposition decided in that case does not immediately concern us here. If application for certiorari must in every case be made to review the final state court action before resort may be had to habeas corpus in a federal court, that condition has been fulfilled. Our narrower question is: What effect in the lower federal courts is to be given to the denial of certiorari by the Supreme Court? The Court, through Mr. Justice Reed, says, 339 U.S. at 217, 70 S.Ct. at page 597, 94 L.Ed. 761: "It is this Court's conviction that orderly federal procedure under our dual system of government demands that the state's highest courts should ordinarily be subject to reversal only by this Court and that a state's system for the administration of justice should be condemned as constitutionally inadequate only by this Court."

The doubt-creating word is "ordinarily." When should a district court and a court of appeals again examine merits? Our inclination would naturally be to say "never." It is highly uncomfortable for those of us in courts not of last resort to sit in what is, in effect, review of the highest court of a state. The responsibility is one from which we should be glad to be relieved. But Darr v. Burford does not say that denial of certiorari relieves us. The dissenting opinion in that case points out that no directions are given the lower federal courts on the point. It would be unseemly for us to make argument either way on the questions upon which our superiors differ.3 We think that what we clearly must do, until we are told to the contrary, is to follow the well established rule that a denial of certiorari does not prove anything except that certiorari was denied. When the applicant for habeas corpus has petitioned for certiorari he has fulfilled a procedural requirement. If he gets certiorari his constitutional questions will be adjudicated on the merits by the Supreme Court. If he does not, he may apply to the appropriate lower federal court for a writ. This seems to be the rule compelled, if not decided, by Darr v. Burford and considerations expressed therein.4

But it is to be reiterated that we are not an appellate court for the correction of errors under state law. Each point raised by the relator is to be tested by whether it alleges a violation of rights under the United States Constitution: nothing more. That these allegations have been decided on the merits by the highest state court is a fact to be given great weight by a district court in passing upon petitions for habeas corpus. But that fact does not relieve the federal court of the duty to pass upon the merits of the petition.

The District Court exercised its "discretion" to decline to pass upon the merits. We do not think it had such discretion, and proceed to consider whether, if factually true, the petition sets forth a violation of the federal Constitution.

Does Relator's Petition Allege Violation of Due Process?

Smith's points have to do with (1) whether his mental state was such that he could be tried; (2) whether his mental state at the time of the shooting was such that he could be convicted of murder.

Has a man a constitutional right not to be tried or executed if "insane" or not to meet the penalty for a crime committed while in that condition? Is the imposition of criminal responsibility in such case, in the words of Mr. Justice Black, so "offensive to the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions" that it violates substantive due process?5 We do not know. It may be no violation of the federal Constitution for a state to provide by law that insanity at the time of commission of a crime no longer bars conviction, sentence or execution. The same may be true as to mental incompetence at the time of trial, sentence or execution.6 We are not called upon to decide these questions.

The reason we are not called upon to decide them is that Pennsylvania does not disregard the mental condition of a defendant accused of crime. According to its substantive law a man has the right not to stand trial or pay the penalty for an act if his mental condition is not such as to fulfill the legal test of "sanity."7 And it recognizes the familiar rule that insanity at the time of the offense requires acquittal.8 Smith is entitled to have procedural due process observed in the protection of these substantive rights even though substantive due process would not compel the rights to be given. Insanity being a defense under Pennsylvania law, due process guarantees all defendants fair opportunity to present the defense. So we must examine the contentions on which Smith relies for his charge that Pennsylvania subjected him to treatment which was not due process of law.

The first is that he was "overreached" when he was arraigned. Prior to arraignment Smith had been confined in jail. The day before arraignment his relatives had procured private counsel for him. That counsel had not yet had opportunity to enter his appearance and knew nothing of the time set for Smith's arraignment. So when the prisoner stood up to plead he was alone. and the court suggested that Joseph Alessandroni, Esq., a member of the Philadelphia Bar in good standing who was in the courtroom at the time, stand with him. Mr. Alessandroni did not know Smith and had but a moment's consultation with him. Smith, on Mr. Alessandroni's advice, pleaded not guilty.

Did this arraignment constitute lack of due process? It is a little hard to see how entering a plea of not guilty can deprive a man of any rights. In the cases holding that the Fourteenth Amendment required effective assistance of counsel at arraignment a plea of guilty had been entered.9 The possibility of prejudice in such cases is obvious. But it is argued here that because counsel was not, and had no opportunity to be, informed of Smith's previous mental history he could not at the time of arraignment ask for a special trial to test his sanity then and there, as provided by Pennsylvania law.10 Lack of effective assistance of counsel resulted in the loss of this valuable right, says relator, and...

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