United States v. McCorkle

• Decision Date: 19 November 1954
• Docket Number: No. 11399.,11399.
• Parties: UNITED STATES of America ex rel. Silvio DE VITA, Appellant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

216 F.2d 743 (1954)

UNITED STATES of America ex rel. Silvio DE VITA, Appellant, v. Lloyd W. McCORKLE, Principal Keeper of the New Jersey State Prison at Trenton, New Jersey, Respondent.

No. 11399.

United States Court of Appeals Third Circuit.

Argued October 8, 1954.

Decided November 19, 1954.

Isadore Glauberman, Jersey City, N. J., for appellant.

Charles V. Webb, Jr., Newark, N. J., C. William Caruso, Newark, N. J., on the brief, for respondent.

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Petitioner and Joseph Grillo had been convicted in a New Jersey state court of first degree murder arising out of an armed robbery. Since there had been no recommendation for mercy by the jury, under the state law the convictions carried mandatory death sentences.¹ A third participant had also been found guilty of murder but as to him a jury recommendation of mercy had resulted in a life sentence.

On the particular phase of the case with which we are here concerned there had been an application to the state court for a new trial which had been denied. The state supreme court affirmed that decision on June 28, 1954.² Some time thereafter execution of appellant and Grillo was set for the week of August 15, 1954. During the interval the attorneys who had represented them withdrew from such representation. Appellant's present attorneys came into the matter August 12, 1954, a Thursday. On the next day on behalf of appellant they made three separate applications to Justices Black, Jackson and Clark for a stay of execution pending application for certiorari. They were advised Saturday of the refusal of the applications. Sunday intervened and the following day, Monday, they appeared before the district judge on duty at Newark seeking an order directing appellee to show cause why a writ of habeas corpus should not be granted.³ At that time while a definite day and time for the executions had not as yet been announced counsel expected that they might occur the next day, Tuesday. Under the circumstances the coming into the federal court was entirely proper. To wait until steps could be taken to exhaust the remedy of a formal petition for certiorari would have rendered the federal habeas corpus "process ineffective to protect the rights of the prisoner" as is stated in the alternative clause of the governing statute, 28 U.S.C. § 2254. Appellant and Grillo would have both been dead long since. See Thomas v. Teets, 9 Cir., 1953, 205 F.2d 236, certiorari denied 346 U.S. 910, 74 S.Ct. 240; United States ex rel. Jackson v. Ruthazer, 2 Cir., 1950, 181 F.2d 588, certiorari denied 339 U.S. 980, 70 S.Ct. 1027, 94 L.Ed. 1384.

There had been no prior application for habeas corpus to the district court on the grounds alleged in the petition. Those grounds were that a trial juror's fraudulent concealment on voir dire of allegedly disqualifying facts and his untruthful answers with respect thereto indicated such bias and prejudice on his part that DeVita was deprived of a fair trial by an impartial jury contrary to the Fourteenth Amendment of the Federal Constitution. The facts so concealed or falsified were stated to be that the juror had himself been a victim of a strikingly similar armed robbery within a year of the trial and that as a result he knew a number of detectives who it is strongly inferred were from the same specialized field of criminal investigation in the municipality which had been the locale of both offenses.

While, as will be seen, examination of the merits of petitioner's allegations is not now indicated⁴ it should be noted that a primary defense trial objective for all three defendants had been to obtain a jury recommendation of life imprisonment.

As has been stated the petition was filed in the district court August 16, 1954 and application for the writ or a rule to show cause why it should not be issued was made to the sitting district judge that same day. After presentation by counsel the district judge declared a recess. That same afternoon he returned to the bench and read his written decision. In it he stated that the court conceived the Supreme Court opinion in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, "to be the leading case on the problem with which the court is presented now, * * *." He then said:

"In the Brown v. Allen case the Supreme Court said, `Application to district courts on grounds determined adversely to the applicant by the state court should result in a refusal of the writ without more if the court is satisfied by the record that the state process has given fair consideration to the issues and the offered evidence and has resulted in a satisfactory conclusion.\'" (Emphasis supplied.)

He further stated:

"Now, the only record which the Court has before it now is the opinion which Mr. Glauberman was good enough to give me, written by Justice Burling." (Emphasis supplied.)

The court concluded from the above that:

"* * * my primary consideration in this application, Mr. Glauberman and Mr. Alper, is to see whether state process has given fair consideration to the issues presented here, * * *." (Emphasis supplied.)

Thereafter the district judge for four typewritten pages quoted from the state court opinion and, quite obviously convinced by that language, stated:

"So it is quite apparent that the court did give ample and full consideration to the question which you now raise here, and under Brown versus Allen it is clear what my duty is under the circumstances * * *

* * * * * *

"Therefore, I shall have to deny the writ peremptorily, * * *." (Emphasis supplied.)

Further on in the opinion the district judge remarked that the state courts "have much more time to consider the merits that you have raised before me than this court has. I realize the peremptory job that I have so I must dispose of it peremptorily and courageously as is my duty."⁵ (Emphasis supplied.)

At the end of his opinion the judge said he would allow a certificate of probable cause and in his order dismissing the petition appears the following: "* * * probable cause for appeal is hereby certified."

Both sides agree that the Brown v. Allen doctrine was controlling in the district court. We are in accord with that theory.

The underlying facts are simple. The district judge made no attempt to dispose of the petition as insufficient on its face or absent the "record". See Mr. Justice Frankfurter's separate opinion in Brown v. Allen, supra, 344 U.S. at page 502, 73 S.Ct. 443, and Mr. Justice Jackson's concurrence, 344 U.S. at page 547, 73 S.Ct. 430. Cf. Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 85 L.Ed. 830. Specifically he examined what he accepted as the state court record in the DeVita case or a substitute therefor but which unfortunately consisted solely of the opinion in that proceeding. In his opinion above referred to he makes it plain that he intended to and believed he had in fact considered the merits of the application. What he did actually was to examine the opinion and from that satisfy himself that the state court had given fair consideration to the issues raised by the petition as Brown v. Allen requires and that it had arrived at the satisfactory conclusion made necessary by the same decision.⁶ That the district judge regarded the petition as raising a substantial question or questions is further evidenced by his certification of the action as possessing probable cause for appeal.⁷ Appellee argues that this was motivated by the heart rather than the head. Though of no moment in the face of the solemn certification for appeal it is difficult to adopt such construction in the light of the judge's comment immediately prior to his allowance of the certificate in which he decried the cruelty of constant stays in capital cases where there had been convictions.

The state court opinion on which the district judge completely relied was not the "record" alluded to in Brown v. Allen, supra. Footnote 19, 344 U.S. at page 464, 73 S.Ct. at page 411, to that opinion makes this evident. The first sentence of that comprehensive exposition of just what the "record" means reads:

"When an application for habeas corpus by a state prisoner is filed in a federal district court after the exhaustion of state remedies, including a certiorari to this Court, it rests on a record that was made in the applicant\'s effort to secure relief through the state from imprisonment, allegedly in violation of federal constitutional rights."

The final sentence of the footnote states:

"If useful records of prior litigation are difficult to secure or unobtainable, the District Court may find it necessary or desirable to hold limited hearings to supply them where the allegations of the application for habeas corpus state adequate grounds for relief."

And see Dorsey v. Gill, 80 U.S.App. D.C. 9, 148 F.2d 857, 869-870, certiorari denied 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003; United States ex rel. Holly v. Commonwealth of Pennsylvania, D.C.W.D.Pa.1948, 81 F.Supp. 861, 864, 871, affirmed 3 Cir., 1949, 174 F.2d 480.⁸

The state court opinion does refer to certain evidence and does draw certain factual and legal conclusions therefrom. But without ever seeing the transcript of the state trial it is not enough to take that opinion as the record and from it adjudge that "* * * the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion."⁹ Brown...