United States v. Handy

• Decision Date: 24 March 1953
• Docket Number: No. 10447.,10447.
• Parties: UNITED STATES ex rel. DARCY v. HANDY, Warden, et al.
• Court: U.S. Court of Appeals — Third Circuit

203 F.2d 407 (1953)

UNITED STATES ex rel. DARCY v. HANDY, Warden, et al.

No. 10447.

United States Court of Appeals Third Circuit.

Argued January 7, 1952.

Reargued December 1, 1952.

Decided March 24, 1953.

As Amended March 28, 1953.

Rehearing Denied April 29, 1953.

COPYRIGHT MATERIAL OMITTED

Charles J. Margiotti, Pittsburgh, Pa., (J. Dress Pannell, Harrisburg, Pa., Morton Witkin, Philadelphia, Pa., on the brief), for appellant.

Randolph C. Ryder, Deputy Atty. Gen. of Pa., (Donald W. VanArtzdalen, Asst. Dist. Atty., and Willard S. Curtin, Dist. Atty., Doylestown, Pa., Robert E. Woodside, Atty. Gen., of Pa., on the brief), for appellees.

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

PER CURIAM.

The majority of the court is of the opinion that the relator must be afforded the opportunity to prove the allegations set out in his petition for habeas corpus insofar as they relate to the alleged atmosphere of hysteria and prejudice prevailing at his trial, including any issues raised by Judge Boyer's asserted visits to the courtroom during Darcy's trial, since the undisputed and incontrovertible facts as shown by the record do not countervail the allegations of hysteria and prejudice. See Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830.

The court has considered the allegations of the petition concerning the conduct of Darcy's counsel and the entire record upon this issue. It is the opinion of a majority of the court that the District Court was justified in deciding against the petitioner on this issue without taking testimony.

All members of the court are of the opinion that the affidavits of members of the jury must be stricken from the relator's petition.

The respective views of the members of the court are set out in the opinions which follow this per curiam opinion.

The judgment of the court below will be reversed with the direction to enter an order staying Darcy's execution until the disposition by the court below of the instant case on remand on the issue of alleged hysteria and prejudice. The court below will be directed to strike from the petition for habeas corpus the jurors' letters attached thereto. The stay order entered by this court will be vacated.

BIGGS, Chief Judge.

The question presented by the instant case is whether the Commonwealth of Pennsylvania denied to the relator, Darcy, due process of law as guaranteed to him by the Fourteenth Amendment during his trial for first degree murder. Darcy was charged with murder in the first degree because a bystander, Kelly, was shot and killed by one of Darcy's companions in the course of the armed robbery of the Feasterville Tavern, near Doylestown, Pennsylvania. Two of Darcy's co-actors in the robbery, Foster and Zeitz, were tried just before Darcy by the same court which later tried him. Foster and Zeitz were found guilty of first degree murder and the penalty was fixed at death. Darcy also was found guilty of first degree murder and was sentenced to death.

A history of the proceedings prior to this appeal follows. Darcy was tried, convicted and sentenced in the Court of Oyer and Terminer of Bucks County, Pennsylvania, at No. 37 February Term 1948. A petition for a new trial was filed and was denied by that court, Darcy's conviction and sentence being affirmed. An appeal was taken to the Supreme Court of Pennsylvania and the judgment of the court below was affirmed, Mr. Justice Jones dissenting. See Commonwealth v. Darcy, 362 Pa. 259, 66 A.2d 663. An application for certiorari to the Supreme Court of the United States was denied. See 338 U.S. 862, 70 S.Ct. 96, 94 L.Ed. 528.

Darcy next filed a petition for habeas corpus to the Supreme Court of Pennsylvania. This was the first petition for habeas corpus filed to the Supreme Court of Pennsylvania. It was denied without opinion. An application for certiorari to the Supreme Court of the United States was denied. See 338 U.S. 862, 70 S.Ct. 96, 94 L.Ed. 528.

Darcy then applied to the Supreme Court of Pennsylvania for certiorari to the Court of Oyer & Terminer of Bucks County and for reargument nunc pro tunc. In this application Darcy raised all the grounds set forth in his instant petition save one, viz., that Darcy's counsel would not permit him to take the stand. The application was denied by the Supreme Court of Pennsylvania without opinion. The relator did not apply for certiorari to the Supreme Court of the United States from this denial.

On the same day on which Darcy's petition to the Supreme Court of Pennsylvania for certiorari to the Court of Oyer & Terminer of Bucks County and for reargument nunc pro tunc was denied by the Supreme Court of Pennsylvania, Darcy filed his petition for habeas corpus in the court below.

The petition came on for hearing on April 5, 1951, on an order so directing¹ which also stayed Darcy's execution until the final disposition of the petition by the court below. The Commonwealth moved orally to dismiss the petition as insufficient in law. Leave to file an answer nunc pro tunc was granted to the Commonwealth and an answer was received by the Clerk on April 17, 1951 and was filed by him as of April 3. It will be noted that the answer was filed six days after the court below entered its final order.

The grounds raised by the petition for habeas corpus filed in the court below were not set up in the first petition for habeas corpus filed to the Supreme Court of Pennsylvania. Because of this the court below further stayed Darcy's execution² but indicated that it would have to dismiss the petition because Darcy had not exhausted his State remedy. The court below, however, retained jurisdiction of the cause purportedly to permit Darcy to exhaust his State remedy by filing a new, a second, petition for habeas corpus to the Supreme Court of Pennsylvania, setting up all the grounds raised by the instant petition. The Supreme Court of Pennsylvania denied the second petition for habeas corpus filed to it, sub nom. Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785, passing on every substantial ground alleged in the petition.

The instant case then came on for further hearing on April 10 and 11, 1951. Darcy moved orally in the alternative for (1) the writ, or (2) for an additional stay pending application by him to the Supreme Court of the United States for certiorari. On April 11, 1951, the court below dismissed the petition, pointing out that by the terms of the orders the stay of execution was at an end. The order of dismissal included a provision denying any further stay of execution. The court below filed an opinion reported sub nom. United States ex rel. Darcy v. Handy, D.C., 97 F.Supp. 930. At the time of the hearing of April 10 and 11 Darcy, as indicated, had not yet applied to the Supreme Court of the United States for certiorari from the denial by the Supreme Court of Pennsylvania of the second petition for habeas corpus. After the dismissal of the petition and the denial of further stay by the court below application for certiorari was made to the Supreme Court of the United States and the application was denied. See Com. of Pennsylvania ex rel. Darcy v. Claudy, 342 U.S. 837, 72 S.Ct. 61, 96 L.Ed. 632. Darcy meanwhile had appealed to this court.³

While it is clear that the court below denied any further stay and dismissed the petition, the route by which the court below reached its final conclusion is not entirely certain. As has been said the court below issued an order in the nature of a rule to show cause on the petition⁴ and a motion to dismiss the petition as insufficient in law was made orally by the Commonwealth. The court below at this point apparently was following the technique laid down by the Supreme Court of the United States by Mr. Justice Roberts, in Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. 830. Mr. Justice Roberts stated that "* * * if, upon the face of the petition, it appears that the party is not entitled to the writ, the court may refuse to issue it. Since the allegations of such petitions are often inconclusive, the practice has grown up of issuing an order to show cause, which the respondent may answer. By this procedure the facts on which the opposing parties rely may be exhibited, and the court may find that no issue of fact is involved. In this way useless grant of the writ with consequent production of the prisoner and of witnesses may be avoided where from undisputed facts or from incontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting the writ exists. On the other hand, on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge. This practice has long been followed by this court * * * and by the lower courts. * * * It is a convenient one, deprives the petitioner of no substantial right, if the petition and traverse are treated, as we think they should be, as together constituting the application for the writ, and the return to the rule as setting up the facts thought to warrant its denial, and if issues of fact emerging from the pleadings are tried as required by the statute."

It will be observed that under the ruling of Walker v. Johnston in order to dismiss a petition for habeas corpus on a rule to show cause there must be no substantial issue of fact involved and undisputed and incontrovertible facts must afford an insufficient basis for the legal relief sought. We adhered to this view in the case of United States ex rel. Master v. Baldi, 3 Cir., 198 F.2d 113. The court below in the instant case at the instance of the Commonwealth, received in evidence, at the time of the first hearing, April 5, 1951, the transcript of the proceedings of Darcy's trial in the Court of Oyer and Terminer and numerous other records relating to the appeals to the Supreme Court of Pennsylvania and to the Supreme...