United States v. Handy, 257.

• Citation: 130 F. Supp. 270
• Decision Date: 09 June 1955
• Docket Number: No. 257.,257.
• Parties: UNITED STATES of America, ex rel. David DARCY, Relator, v. Earl D. HANDY, Warden of Bucks County Prison, Dr. Fred S. Baldi, Warden of the Western State Penitentiary, Rockview, and Carl H. Fleckenstine, United States Marshal for the Middle District of Pennsylvania, Respondents.
• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania

130 F. Supp. 270

UNITED STATES of America, ex rel. David DARCY, Relator, v. Earl D. HANDY, Warden of Bucks County Prison, Dr. Fred S. Baldi, Warden of the Western State Penitentiary, Rockview, and Carl H. Fleckenstine, United States Marshal for the Middle District of Pennsylvania, Respondents.

No. 257.

United States District Court, M. D. Pennsylvania.

February 12, 1955.

Judgment Affirmed June 9, 1955.

COPYRIGHT MATERIAL OMITTED

Charles J. Margiotti, Pittsburgh, Pa., Morton Witkin, Philadelphia, Pa., J. Dress Pannell, Harrisburg, Pa., Samuel Goldstein, Pittsburgh, Pa., for relator.

Randolph Ryder, Asst. Atty. Gen., Frank P. Lawley, Deputy Atty. Gen., Frank V. Truscott, Atty. Gen., Donald W. Van Artsdalen, Doylestown, Pa., J. Julius Levy, U. S. Atty., Scranton, Pa., for respondents.

MURPHY, District Judge.

This case is here on remand,¹ a majority of the Court of Appeals having ruled that opportunity must be afforded relator to prove the allegations 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 court room.² After a hearing was scheduled³ respondent moved⁴ to dismiss contending that the court lacked jurisdiction and judicial power to conduct the inquiry or to grant the writ. The motion is without merit. Similar questions were disposed of contrary to respondent's position in an opinion by Judge Goodrich speaking for the full court in United States ex rel. Elliott v. Hendricks, June 2, 1954,⁵ 213 F.2d 922. See Id., at page 929. "We cannot have any doubt, even were the question a new one, that the federal power is ample, under the Constitution, to authorize the use of habeas corpus procedure to test the question whether one confined under state process is, in that confinement, deprived of his rights under the Constitution of the United States. Nor have we doubt that the power may be assigned to all the federal judiciary or part of it. If the authority of federal courts is to be more limited than that provided by the present statute, that limitation must be made by the Congress." And see Mr. Justice Reed in Brown v. Allen, supra, 344 U.S. at pages 460, 464, 478, 486, 73 S.Ct. at pages 408, 409, 411, 418, 422, and Mr. Justice Frankfurter, Id., 344 U.S. 443, at page 508, 73 S.Ct. 437, at page 447, "Congress has the power to distribute among the courts of the States and of the United States jurisdiction to determine federal claims. It has seen fit to give this Court power to review errors of federal law in State determinations, and in addition to give to the lower federal courts power to inquire into federal claims, by way of habeas corpus". Id., 344 U.S. 510, 73 S.Ct. 448, "Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Constitution whereby federal law is higher than State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted."

See Mr. Justice Black, 344 U.S. at page 549, 73 S.Ct. at page 431, "I agree with the Court that the District Court had habeas corpus jurisdiction * * * including power to release * * * if the prisoner is held as a * * * violation of constitutional rights. This I understand to be a reaffirmance of the principle embodied in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543."⁶

Has the applicant met the burden of showing that he has exhausted the remedies available in the state courts within the meaning of 28 U.S.C.A. § 2254; Darr v. Burford, 339 U.S. 200, at page 218, 70 S.Ct. 587, 94 L.Ed. 761; Brown v. Allen, 344 U.S. at pages 448-450, 486, 487, 73 S.Ct. at pages 402-404, 422, supra? Respondent argues that the Pennsylvania Supreme Court did not directly meet and dispose of the question of hysteria and prejudice. See Commonwealth ex rel. Darcy v. Claudy, April 10, 1951, 367 Pa. 130, 79 A.2d 785.

The Court of Appeals, however, found contra. See opinion C. J. Biggs, supra, 203 F.2d at page 411, describing the opinion in 367 Pa. 130, 79 A.2d 785, as "passing on every substantial ground alleged in the petition."⁷ See and cf. Brown v. Allen, supra, 344 U.S. at page 458, 73 S.Ct. at pages 407, 408; United States ex rel. Smith v. Baldi, February 9, 1953, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549; Commonwealth ex rel. Elliott v. Baldi, April 14, 1953, 373 Pa. 489, 96 A.2d 122, certiorari denied June 8, 1953, 345 U.S. 976, 73 S.Ct. 1125, 97 L.Ed. 1391.

A remedy may be exhausted by affirmative use thereof and failure therein or by inaction or failure to resort thereto.

Assuming arguendo there was some evidence of hysteria and prejudice before or at the trial, the law of Pennsylvania affords a number of methods of raising the question and spelling it out on the record and in the event of an adverse decision reserving it for review on appeal to the Supreme Court of Pennsylvania and on certiorari to the United States Supreme Court. Pre-trial, by challenging the array, see Commonwealth v. Zell and Herr, 81 Pa.Super. 145, at page 150, or by motion for continuance, Commonwealth v. Balles, 160 Pa.Super. 148, 150-151, 50 A.2d 729, or change of venue, Commonwealth v. Karmendi, 328 Pa. 321, 339, 342, 195 A. 62. The Pennsylvania Supreme Court itself could upon proper showing remove the indictment to another county for trial, Commonwealth v. Ronemus, 205 Pa. 420, 54 A. 1095. At trial, by motion for withdrawal of juror, Commonwealth v. Mehlman, 163 Pa.Super. 534, 544, 63 A.2d 400. Post-trial, by motion for new trial, Commonwealth v. Deni, 317 Pa. 289, 293, 176 A. 919. Finally, on appeal and on petition for certiorari to the United States Supreme Court.

No such question was suggested either before, during or after the trial. See Rel.Ex.Nos. 4, 5, 10, 115, 116, 137; the motion for a new trial and opinion denying same; the assignments of error and statements of question involved on appeal, see paper books Supreme Court of Pennsylvania, 362 Pa. 259-286; Commonwealth v. Darcy, May 26, 1949, 362 Pa. 259, 66 A.2d 663, rehearing refused June 24, 1949.

The petition for certiorari (No. 96 Misc.), denied October 1949, 338 U.S. 862, 70 S.Ct. 96, 94 L.Ed. 528, raised only questions as to the jury view of the locus in quo and the charge of the court on presumptions from the use of a deadly weapon.

August 1, 1949, relator petitioned the Supreme Court of Pennsylvania for a writ of habeas corpus complaining that at the trial, over objection, the jury heard testimony as to offenses committed by defendant other than that named in the indictment. Petition denied without opinion August 12, 1949 (not reported); certiorari denied (No. 102 Misc.) October 23, 1949, 338 U.S. 862, 70 S.Ct. 96, 94 L.Ed. 528.

The question was not raised until after the relator failed in his attempt to have the Pennsylvania Board of Pardons commute his sentence to life imprisonment. (April 1950, denied May 5, 1950; application for reargument granted June 1950, continued to March 20, 1951, rejected March 21, 1951; again on March 29, 1951, rehearing denied March 30, 1951). April 2, 1951, relator's petition to the Supreme Court of Pennsylvania for certiorari to the Court of Oyer and Terminer of Bucks County, and for reargument nunc pro tunc, claimed denial of due process of law alleging that his trial counsel did not permit him to testify at his trial, (cf. opinion Biggs J., 203 F.2d at page 410, Maris J. at page 420); did not produce witnesses as to his background, good behavior, character or reputation although they were available; the proximity of the two trials; jurors' letters and opinions; hysteria; Judge Boyer's commendation and participation; and failure to continue the case. Denied without opinion April 3, 1951 (No. 429 Misc., Docket No. 9). Relator did not seek certiorari from the United States Supreme Court.

April 3, 1951, the present petition was filed in the district court. We withheld ruling thereon to afford relator an opportunity to seek a writ of habeas corpus from the Supreme Court of Pennsylvania, raising the precise questions and, if he failed therein, to seek certiorari from the United States Supreme Court. The petition filed April 9, 1951, was denied April 10, 1951, Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785.⁸

Application for certiorari filed June 12, 1951; denied October 8, 1951, 342 U.S. 837, 72 S.Ct. 61, 92 L.Ed. 632.

In his petition for certiorari filed June 12, 1951, relator's counsel at p. 7 states "All these facts were ascertained as a result of investigation by present counsel of the Petitioner and were presented to the Supreme Court of Pennsylvania for the first time in the Petition for Writ of Habeas Corpus which it refused on April 10, 1951."⁹ And at p. 3, "* * * former counsel of petitioner either failed to set forth said additional reasons or were unaware of the said additional reasons which for the most part were the result of investigation by present counsel". And see Id. p. 12, "* * * former counsel, employed after the petitioner's conviction and prior to the employment of present counsel, either failed to include * * * or perhaps were unaware of the facts. * * *"

Res adjudicata does not apply, Salinger v. Loisel, 265 U.S. 224, at page 230, 44 S.Ct. 519, 68 L.Ed. 989, see and cf. Brown v. Allen, supra, 344 U.S. at page 458, 73 S.Ct. at pages 407, 408, and Price v. Johnston, 334 U.S....