United States v. Cavell, 13324.

• Decision Date: 18 July 1961
• Docket Number: No. 13324.,13324.
• Citation: 294 F.2d 12
• Parties: UNITED STATES of America ex rel. Donald TILLERY v. Angelo C. CAVELL, Warden, Western State Penitentiary, Pittsburgh 33, Pennsylvania, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

294 F.2d 12 (1961)

UNITED STATES of America ex rel. Donald TILLERY v. Angelo C. CAVELL, Warden, Western State Penitentiary, Pittsburgh 33, Pennsylvania, Appellant.

No. 13324.

United States Court of Appeals Third Circuit.

Argued December 8, 1960.

Decided July 18, 1961.

William Claney Smith, Pittsburgh, Pa., (Edward C. Boyle, Dist. Atty. of Allegheny County, Pittsburgh, Pa., on the brief), for appellant.

John P. Flaherty, Jr., East Pittsburgh, Pa., for appellee.

Before BIGGS, Chief Judge, and GOODRICH and FORMAN, Circuit Judges.

FORMAN, Circuit Judge.

This is an appeal by Angelo C. Cavell,¹ Warden of the Western State Penitentiary of Pennsylvania, from an order of the United States District Court of the Western District of Pennsylvania, discharging Donald Tillery from custody in that prison following his petition for a writ of habeas corpus.

At the outset we are met with a motion by Tillery to quash the appeal for lack of jurisdiction because the appellant Warden failed to obtain a certificate of probable cause in accordance with the provisions of § 2253 of Title 28 U.S.C.A., which reads in pertinent part as follows:

"An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State Court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause."²

While numerous decisions have held that the lack of a certificate by the petitioner deprived the court of jurisdiction on appeal our attention has not been called to any case in which the issue has been raised that it is necessary for a state or its representative to obtain the certificate nor have we found any.³

Section 2253 of Title 28 finds its origin in the Act of Congress of March 10, 1908, 35 Stat. 20. Congress was concerned with the abuse of the writ of habeas corpus in the federal courts resulting, it was said, in protracted appellate proceedings in frivolous cases and undue interference with state process. Ex parte Farrell, 1 Cir., 1951, 189 F.2d 540. The objective of the legislation is brightly illuminated in the following statement in the report of the Committee of the Judiciary of the House of Representatives accompanying H.R. 4777, from which § 2253 of Title 28 emanated:

"The purpose of this bill is to correct a very vicious practice of delaying the execution of criminals by groundless habeas corpus proceedings and appeals therein taken just before the day set for execution, which now obtains * * *.

* * * * * *

"* * * The attention of the committee was called to a condition existing in one of our States where petition for habeas corpus after petition and successive appeals from adverse decisions thereon in the same case had been prosecuted, involving a purely factious delay of three or four or more years. This statute makes it impossible to continue this vicious practice, as under it no appeal can be prosecuted unless either the United States court making a final decision or a justice of the Supreme Court shall be of the opinion that there exists probable cause for such appeal. That the delay of execution and punishment in criminal cases is the most potent cause in inducing local dissatisfaction, not infrequently developing into lynching, is obvious, and it is certainly the duty of Congress to eliminate so far as possible all unnecessary and factious delay, and this will be accomplished by the passage of this bill." H.R.Rep. No. 23, 60th Cong., 1st Sess. (1908).

This legislative history makes it clear that petitions to the federal courts filed by persons in state custody resulting in unnecessary delay in state proceedings was the evil that was sought to be remedied. Congress was not concerned with appeals in these cases taken by a state or its representatives.

It is true that the plain meaning of § 2253 seems to require that no appeal either by the petitioner or by the state or its representative may be taken without a certificate of probable cause. However, recent Supreme Court pronouncements make it clear that resort may be had to legislative history even where the statute is unambiguous. Thus in United States v. American Trucking Ass'ns, 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063, 84 L. Ed. 1345, it was said:

"There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. When that meaning has led to absurd or futile results, however, this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one `plainly at variance with the policy of the legislation as a whole\' this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no `rule of law\' which forbids its use, however clear the words may appear on `superficial examination.\' * * *" (Footnotes omitted.)

To the same effect are Harrison v. Northern Trust Co., 1943, 317 U.S. 476, 479, 63 S.Ct. 361, 87 L.Ed. 407 and Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 1955, 348 U.S. 437, 444, 75 S.Ct. 489, 99 L.Ed. 510.

The requirement that a certificate issue before an appeal could be taken was plainly a device to reduce appeals from decisions in favor of states or their officers not their appeals from decisions against them. To require a state or its officers to obtain a certificate "is plainly at variance with the policy of the legislation as a whole." We therefore hold that a state or its custodial officers are not required by § 2253 of Title 28 to obtain a certificate of probable cause before an appeal may be taken by it or them to this court from a final order of a United States District Court in a habeas corpus proceeding where the detention complained of arises out of process issued by a state court.

The genesis of this action takes us back to a payroll robbery which was perpetrated in September 1957 in Pittsburgh. Informed that he was wanted by the police for being implicated in the offense Tillery surrendered himself on October 8, 1957. He was confined in the Allegheny County Jail until October 17 or 18, 1957, when he was arraigned in the Court of Oyer and Terminer of Allegheny County, Judge Homer S. Brown presiding. Under the practice he was advised that an information charged him with armed robbery. He entered a plea of not guilty to the charge and made known to the court that he wished to have counsel assigned to him for his trial. He was thereafter indicted and his case was listed together with those of his alleged accomplices for December 12, 1957. The accomplices entered pleas of guilty. Tillery was tried to the court without a jury on the afternoon of December 13, 1957. A verdict of guilty was entered in the case and on December 16, 1957 he was sentenced to imprisonment for a term of six to twelve years. No appeal was taken from the judgment of sentence.

On November 8, 1958, Tillery filed a petition for a writ of habeas corpus in the Common Pleas Court of Allegheny County, alleging, among other things, the following: When he was brought before the Allegheny County Court for trial on December 13, 1957, Judge Homer S. Brown was told he was without counsel. He assigned his son, Byrd Brown, to represent him. The lawyer told him he was not sufficiently familiar with the case to go to trial and would ask to have it postponed until January 6, 1958. He thereupon made such a motion before Judge Brown but it was overruled. The court declared a recess until 1:30 p. m. when Tillery alleges he was returned to court but the attorney, Byrd Brown, was not present. The court thereupon appointed Carl Blanchfield to represent him. Together with his attorney he went into another court room and started to draw a jury. His attorney then told him he could plead guilty which he declined to do. His lawyer then advised him that if he went to a jury trial he would get 20 years and that it was too much work to go to a jury trial and that he was going to take a non-jury trial. He took him into the hallway and told him to sign some papers for a non-jury trial which he did. At 1:30 p. m. he was brought back to Judge Brown's court room. His lawyer advised the court the case was being tried without a jury. He was not asked any questions about the case by his lawyer as to witnesses or defense. He was tried and convicted as aforesaid.

Tillery charged that he was "deprived of his liberty without due process of law in violation of the 14th Amendment to the United States Constitution" in his trial and conviction in the state court because:

"a) Trial judge denied motion for continuance after the appointment of Byrd Brown as defense counsel;

"b) Deprived of right to defense counsel wherein the trial court did not appoint defense counsel Carl Blanchfield sufficiently far enough in advance of trial to permit counsel to familiarize himself with the case and adequately prepare the defense;

"c) Trial judge failed to comply with the duty and responsibility resting on the court to protect the fundamental rights of this destitute defendant, held in custody, to appoint counsel sufficiently far in advance of trial to enable counsel adequately to prepare the defense."

He annexed a petition for the subpoenaing of five witnesses. A hearing was held before Judges Homer S. Brown and Walter P. Smart of the Court of Common Pleas on October 23, 1958 and on December 19, 1958, Judge Brown filed an opinion in which he refused the petition for a writ of habeas corpus and an order was made accordingly.

Thereafter Tillery sought to appeal in the Superior Court...