United States v. Holton

• Decision Date: 05 January 1956
• Docket Number: No. 11483.,11483.
• Citation: 227 F.2d 886
• Parties: UNITED STATES of America, ex rel. Tony MARINO, Petitioner-Appellant, v. Ralph H. HOLTON, District Director, Immigration and Naturalization Service, Chicago, Illinois, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

227 F.2d 886 (1955)

UNITED STATES of America, ex rel. Tony MARINO, Petitioner-Appellant, v. Ralph H. HOLTON, District Director, Immigration and Naturalization Service, Chicago, Illinois, Respondent-Appellee.

No. 11483.

United States Court of Appeals Seventh Circuit.

December 6, 1955.

Rehearing Denied January 5, 1956.

COPYRIGHT MATERIAL OMITTED

Irving Goodman, Nathan B. Engelstein, Chicago, Ill., Emil M. Caliendo, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., Anna R. Lavin, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.

Before MAJOR, LINDLEY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

The district court dismissed a writ of habeas corpus which it had issued on the petition of Tony Marino, and remanded him to the custody of respondent's predecessor, District Director of the Immigration and Naturalization Service of the United States, who had custody of petitioner when the writ was issued, under a warrant for his deportation to Italy from whence he had emigrated to the United States in 1923. The warrant was issued March 2, 1926 on a charge, inter alia, that he had been sentenced to imprisonment for a term of one year or more because of conviction in the United States of a crime involving moral turpitude, to wit: murder, committed within five years after his entry¹. From the district court's order Marino appeals to this court.

Marino's said petition for writ of habeas corpus, filed May 15, 1951, alleged that a judgment of conviction was entered in the Circuit Court of Winnebago County, Illinois, on April 30, 1925, and he was on that day sentenced to life imprisonment and delivered to the warden of the Illinois State Penitentiary; that about 25 years later he filed in said court a petition for habeas corpus, "but was denied relief;" that he thereafter "obtained certiorari from the Supreme Court of the United States" and that "The Attorney General of the State of Illinois confessed error," as a result of which the judgment of the trial court in the habeas corpus case was "vacated and the cause was remanded"².

The petition set forth that it appears from the opinions in the latter case that "the murder conviction * * * was void, for the reason that your petitioner was denied due process of law which the Fourteenth Amendment requires." Specifically petitioner averred that he "had no attorney at the trial," and:

"Although the common law record recites that petitioner was arraigned in open court and advised through interpreters of the meaning and effect of a plea of guilty and that petitioner signed a statement waiving trial by jury, the Attorney General of Illinois admitted and the Supreme Court found, that the waiver was not in fact signed by your petitioner. No plea of guilty was entered at the trial. Your petitioner was 18 years old at the time and had been in this country only two years. Your petitioner did not understand English or court procedure. The arresting officer served as an interpreter for petitioner at the trial."

Petitioner further alleged that "upon remand to the trial court the judge again denied relief," and that petitioner again asked the Supreme Court to grant certiorari, but his petition was denied.³ Petitioner also averred that on July 8, 1950 he was granted a parole,⁴ at which time he was turned over to the immigration authorities.

Respondent's predecessor as district director filed a return to the writ of habeas corpus, setting forth that the warrant of deportation was issued following a hearing accorded to petitioner. Following the issuance of the writ, and with the consent of the district court, a new administrative hearing was granted to petitioner for the purpose of bringing the record up to date. At this hearing on August 21, 1951, petitioner was represented by his counsel. As a result thereof the immigration hearing officer decided that "in view of the fact that the Petitioner's conviction of the crime of murder still stands, he is subject to deportation on the charge." Accordingly, the assistant commissioner entered an order for deportation which, as later amended, was affirmed by the Board of Immigration Appeals on August 29, 1952, and on October 10, 1952 a warrant of deportation was issued.

The return also includes a transcript of the hearing of August 21, 1951, including a stipulation by Marino and his attorney, and the examining officer, qualifying the admission of records pertaining to Marino's conviction. These documents include the common law record, showing a filing on April 21, 1925, in court before Judge Earl D. Reynolds of an indictment of Marino by the Winnebago County grand jury on April 17, 1925, charging him with the murder by shooting of Charles E. Patterson; that on April 21, 1925 he was furnished with a copy of the indictment and lists of witnesses and jurors, and remanded to custody of the sheriff for plea; his appearance in open court on April 23, 1925, when the court explained "fully to said Defendant through interpreters, * *, the meaning and effect of a plea of guilty and the punishment which the Court can render in a case of this character." The court record proceeds as follows:

"After such explanation, said Defendant, Tony Marino alias Toni Marino, files a written waiver of a trial by jury to the charge in the indictment.

"And now said Defendant is remanded by the Court to the custody of the Sheriff for hearing of evidence as to mitigating circumstances before passing a sentence."

Included in the record of the same date is a typewritten paper purporting to bear Marino's signature and reading as follows:

"And now comes the above named defendant, in his own proper person, and waives trial by jury in the above entitled cause, and enters a plea of guilty, and requests the above named judge of the Circuit Court, or such judge of the Circuit Court as may be called upon to hear the above entitled cause upon a change of venue from above named Judge of the Circuit Court, if one should be granted, to try said cause without the intervention of a jury."

The record further shows that on April 24, 1925 the

"Court on own motion hears evidence as to the mitigating circumstances before passing sentence upon the plea of guilty of said Defendant.

"And after having heard said testimony the Court takes the matter under advisement, and said Defendant is remanded to the custody of the Sheriff for sentence."

The record also shows that on April 25, 1925 Marino, who, the court found, was 20 years of age, was sentenced to the penitentiary for the term of his natural life.

The documents admitted by stipulation include the record of a habeas corpus proceeding filed by Marino in the Circuit Court of Winnebago County, on January 6, 1947. His petition alleged that he was "not given any papers of any kind" at the hearing before Judge Reynolds on April 21, 1925, that "no one spoke to him or asked him any questions at this hearing," that he did not on April 23, 1925 sign a jury waiver, that "the record shows^4a that petitioner did not enter a plea of guilty" and that "he was not warned of the consequences" thereof, that "he did not persist in the plea of guilty," that the court "used biased interpreters to translate the proceedings in this case to petitioner and the trial court," and used interpreters on April 23, 1925 only, that the court "did not appoint counsel to represent petitioner," and that "petitioner was without the advice of counsel from the date of his arrest until he entered this prison."

The same petition also sets forth "that the record does not show" that "the alleged plea of guilty * * * was received and recorded, as required by law," that the trial court informed him of "his constitutional right to have a jury trial," or that the trial court informed him of "his constitutional right to enjoy the assistance of counsel." It further alleges that petitioner "did not competently, intelligently, or understandingly waive a jury trial or enter a plea of guilty to the indictment in this cause, that in fact there was no waiver of a jury trial or a plea of guilty entered in this cause by petitioner," that petitioner "was denied a fair and impartial trial," and that "the judgment * * * is absolutely void."

The documents admitted by stipulation also include a transcript of certain proceedings before Judge Dusher of the Circuit Court of Winnebago County following the filing in that court on January 26, 1948 of the mandate in Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240.⁵ These proceedings show that Judge Dusher construed the mandate to mean that the court "should have a full and complete hearing of what transpired" in the murder case and "determine whether or not the petitioner received a fair trial * * *, or if he was deprived of any of his constitutional rights." He heard evidence and considered the common law record and also the trial judge's docket. He found by "a clear preponderance of the evidence, even beyond any reasonable doubt," that Marino did sign "this jury waiver; that he was advised of its contents and in it there is a plea of guilty; that Marino testified falsely when he said he did not sign this waiver of jury." He further found that the "common law record together with the judge's docket⁶ shows that a plea of guilty was entered and that Marino was advised of his statutory and constitutional rights."

As to Marino's representation by counsel, the court found that within a day after Marino's arrest his friends retained for him attorney Harry B. North, one of the best and most prominent lawyers in the northern part of Illinois, who on February 28, 1925 spent two and one-half hours with Marino. Before Judge Dusher, Marino denied that he ever saw North. Judge Dusher declared Marino's testimony on this point to be a falsehood. Another witness, Manilli, testified that he was present at that time and acted as an interpreter between attorney North and Marino. The...