United States v. Bibb, 12012.
| Decision Date | 10 December 1957 |
| Docket Number | No. 12012.,12012. |
| Citation | 249 F.2d 839 |
| Parties | UNITED STATES of America ex rel. Fred HUNTER, Petitioner-Appellant, v. Joseph D. BIBB, Director, etc., Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James R. Sweeney, Chicago, Ill., for appellant.
Latham Castle, Atty. Gen., Theodore G. Maheras, Asst. Atty. Gen., William C. Wines, Asst. Atty. Gen., of counsel, for appellee.
Before FINNEGAN, HASTINGS and PARKINSON, Circuit Judges.
Hunter's petition for a writ of habeas corpus was dismissed by the district court because: (1) he had not exhausted his state court remedies and, (2) of the pendency of Illinois post-conviction proceedings. Ill.Rev.Stat.1957, chap. 38, par. 826 et seq. When he appealed to this court respondent, relying on the absence of a certificate of probable cause, moved for dismissal and we took that motion with the case. See 28 U.S.C. § 2253; Joyner v. Parkinson, 7 Cir., 1955, 227 F.2d 505. Subsequently we appointed counsel for Hunter who contends that the allegations in the petition prepared by Hunter exhibit cruel and inhuman treatment of this prisoner and for that reason, along with the claim of damages, should now be the basis for relief under the Civil Rights Act, 42 U.S.C.A. § 1983. But even with extreme tolerance allowed prisoners who are laymen, we cannot permit Hunter's basic petition filed below and on which the district court acted, to be converted into something other than a petition for a writ of habeas corpus. Indeed court appointed counsel vigorously opposes any view that would make the underlying papers such a petition. Actually there are two major points in Hunter's papers: (1) the claim of brutal treatment in the Illinois State Penitentiary and (2) an assertion of deprivation of his constitutional right to counsel based on a claim that the person allegedly representing him, when he was convicted of murder in the Criminal Court of Cook County, one E. A. Simmons, was not a licensed attorney, but an imposter.
Point 1, just stated, closely resembles United States ex rel. Atterbury v. Regan, 7 Cir., 1956, 237 F.2d 953 and, would be determinative, if we countenanced conversion of the initial papers to something other than a petition for the writ. Even if the second point were properly before us under a certificate of probable cause it would be premature owing to the pendency of the Illinois post conviction proceedings.
While we had this case under advisement, Hunter filed...
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...rule. Peinado v. Adult Authority of the Department of Corrections, 405 F.2d 1185 (9th Cir. 1969), and United States ex rel. Hunter v. Bibb, 249 F.2d 839 (7th Cir. 1957). In Peinado, the state prisoner claimed a violation of constitutional rights on the grounds that: (1) in a prison discipli......
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...1967, 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 139; see Goss v. Illinois, 1963, 7 Cir., 312 F.2d 257, 259; cf. United States ex rel. Hunter v. Bibb, 1957, 7 Cir., 249 F.2d 839; cf. Davis v. Maryland, 1965, D.Md., 248 F.Supp. 951, 952-953. To hold otherwise would be tantamount to repealing th......
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