United States v. Kennedy, Civ. No. 1671.

• Decision Date: 06 May 1946
• Docket Number: Civ. No. 1671.
• Citation: 66 F. Supp. 183
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. KULICK v. KENNEDY, Warden.

66 F. Supp. 183

UNITED STATES ex rel. KULICK v. KENNEDY, Warden.

Civ. No. 1671.

District Court, D. Connecticut.

May 6, 1946.

COPYRIGHT MATERIAL OMITTED

Hayden C. Covington, of Brooklyn, N.Y. for plaintiff.

Adrian W. Maher, U. S. Atty., of Bridgeport, Conn., and Valentine J. Sacco, Asst. U. S. Atty., of Hartford, Conn., for defendant

HINCKS, District Judge.

The petitioner herein, after conviction in May, 1945, on a verdict of guilty in the United States District Court for the Southern District of New York, for an alleged violation of the Selective Training and Service Act of 1940, 50 U.S.C.A.Appendix, § 301 et seq., was sentenced to serve a term of three and a half years under the custody of the Attorney General. From this judgment no appeal was taken. Being now confined under the authority of that judgment in the Federal Correctional Institution at Danbury in this District, he has addressed a petition for a writ of habeas corpus to this court. The writ issued as prayed and after due return by the warden named as the respondent therein the parties have been fully heard.

The petitioner asserts that contrary to the Constitution he was denied due process of law first by the Selective Service System in connection with his classification and thereafter by the court at the trial which resulted in his conviction; as a result of this claimed denial he contends that the judgment of the court on the authority of which he is now concededly detained was a nullity for lack of requisite jurisdiction, and hence open to collateral attack in this proceeding.

However, the petitioner failed to appeal from said judgment and since concededly all the rulings of the trial court of which petitioner now bitterly complains could have been raised by an appeal seasonably taken, the Government contends that the judgment of the New York court is subject neither to attack nor review here. Thus the first question for determination here is whether this court on the pending petition has the power and duty to consider and adjudge whether the judgment of conviction, entered in a sister court, which on its face has all the attributes of a valid judgment is in truth a nullity since dependent upon some violation of the petitioner's constitutional rights.

Where, as here, the trial court had jurisdiction over the subject matter and over the defendant's person any claim of error appearing in its proceedings — even error involving the denial of a constitutional right — ordinarily can be raised only through the appellate process and a failure to appeal is an effective waiver of the claim. However, a writ of habeas corpus will issue on a petition alleging facts which show that the apparent waiver was induced by fraud, coercion or ignorance of legal rights and if after hearing such allegations are found sufficiently sustained, the apparent waiver will be treated as ineffectual. Walker v. Johnson, 312 U. S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; United States ex rel. McCann v. Adams, 320 U.S. 220, 64 S.Ct. 14, 88 L.Ed. 4. In such cases, as also on petitions alleging jurisdictional objections had not been correctly dealt with by a trial court, Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455, a court in habeas corpus proceedings will after examination afford protection to such rights as may be found infringed.

This, to be sure, is not a case like those just cited, in which an appeal was waived or frustrated because of lack of competent counsel. The petitioner here was represented on his trial by the same counsel who is now vigorously pressing this petition. I hold, however, that the failure to appeal from the judgment of conviction may not be taken as an effective waiver of a constitutional right because the state of the law at the time of the trial was such that not even competent counsel could then have foreseen the utility of an appeal.

This was so because the charge upon which the petitioner was indicted and convicted was not that of having willfully failed to report for induction pursuant to an order of his local board. If such had been the charge, under the doctrine of Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, decided in January, 1944, the petitioner, on the theory that he had failed to comply with an administrative order, valid on its face, would not have been entitled to interpose as a defense the claimed invalidity of the administrative order and not until he had complied with the administrative order would he have been entitled to a review of its validity on habeas corpus proceedings. Here concededly the petitioner, physically at least, had reported for induction but after acceptance by the induction authorities had refused to submit to induction. Thus the case here fell within the scope of the rule of Estep v. United States and Smith v. United States, 66 S.Ct. 423. Under this opinion the petitioner who had reported but refused to submit to induction was entitled to defend on the ground that the Selective Service Agencies in classifying him as 1-A, had acted without any foundation of fact, or arbitrarily and capriciously.

At the time of the trial in May, 1945, the rule of United States v. Flakowicz, 146 F. 2d 874, a Second Circuit case in which the defendant there was also represented by petitioner's counsel here, appeared to be controlling and a writ of certiorari from that decision had already been denied. 325 U.S. 851, 65 S.Ct. 1086, 89 L.Ed. 1971. And, as was pointed out in Mr. Justice Frankfurter's concurring opinion in the Estep case, the right to interpose as a defense in a criminal action such as this a claimed denial of due process by the Selective Service Agencies had been overruled by the Courts of Appeal in seven other federal circuits with more than forty appellate judges concurring. To be sure, petitioner's counsel, who also represented Estep and Smith, had applied for a writ of certiorari to review the decision of the Circuit Court of Appeals for the Third Circuit reported in 150 F.2d 768. But it was not until October, 1945, that this writ was granted. Consequently, and especially in view of the earlier denial of certiorari in the Flakowicz case, while Kulick's right of appeal was still alive, his counsel, though still persisting in his prosecution of an appeal in the Estep case, had had scant ground to believe that an appeal in the Second Circuit would serve any useful purpose whatever.

In this situation, I think the petitioner should not be penalized because his counsel failed to foresee that widely prevalent doctrine apparently firmly settled would be upset and hence failed to appeal in his behalf. I think him entitled now in these proceedings to a judicial ascertainment of his constitutional rights and appropriate relief from any invasion of those rights which may be found.

In this aspect the case here resembles Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 446, 83 L.Ed. 455. There the court pointed out that the rule of review only through the appellate process "is not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." And it held that a state of existing "uncertainty and confusion with respect to the question whether" certain offenses were triable in the state or federal courts was an "exceptional circumstance" which warranted a relaxation of the rule of review only by appeal. 306 U.S. at page 27, 59 S.Ct. at page 446, 83 L.Ed. 455.

Here, I think, the reversal of doctrine accomplished by the Estep opinion was an "exceptional circumstance" which justified resort to remedies now available only on a writ of habeas corpus. Whether under that circumstance some violation of a constitutional right resulted can be determined only if I look behind the judgment. I therefore address myself to that task.

From the petitioner's file with the Selective Service system which in its entirety has been received into the record here, from the complete transcript of his trial in the New York court which has also been received in evidence here, and from the evidence originally received at the hearing here on the issues raised by the petition for the writ, I make the following findings of fact:

1. The petitioner was born June 17, 1923. After godly upbringing by parents who are members of the sect known as Jehovah's Witnesses and extensive religious training in his childhood under the direction of the Watch Tower Bible and Tract Society which is the legal corporation which underlies the membership of that sect, the petitioner decided in December, 1939, to devote his entire life to the Lord and His Witness. At that time, when aged 16, he was baptized and from that time has considered himself as an ordained minister of the sect, not by virtue of any ceremony, ritual, or official appointment as such — of which indeed there was no evidence — but by virtue of his self-dedication and his subsequent acts. He was then in his third year in high school. At the close of that school year he entered upon what he called "full time pioneer activity" for about four months. Under the practice of the sect, a "pioneer" was required to devote a minimum of 150 hours of service monthly to the religious work of the sect.

2. Thereafter, in October 1940, he returned to complete his high school course. At the same time for about a year he attended a private commercial school two evenings a week so he "could apply for a well-paid job". In August 1941, he sought and obtained full-time employment with R.C.A. Communications. This continued until July 3, 1942, requiring his attendance for five to six and a half days per week. To secure this employment he falsely represented (1) that he was two years older than his actual age and (2) that he had been employed for three years by three specified employers. There was, however, no evidence that these false...