United States v. Overlade, Civ. No. 2184.
| Decision Date | 03 April 1957 |
| Docket Number | Civ. No. 2184. |
| Parties | UNITED STATES of America ex rel. Alonzo ANDERSON v. J. Ellis OVERLADE, as Warden of the Indiana State Prison. |
| Court | U.S. District Court — Northern District of Indiana |
Robert Baker, Public Defender, Indianapolis, Ind., for petitioner.
Robert O'Mahoney, Deputy Atty. Gen., for respondent.
This is a habeas corpus proceeding wherein writ was issued, return and answer thereto filed, and tried to the court. It is the cause on the merits which now solicits the decision of this court.
As the findings of fact and conclusions of law will appear herein, this opinion will be filed and will so serve.
Providing equal justice to the poor and rich alike has been a goal to the attainment of which our people have never ceased to hope and strive, and if there be any State in our Union which has created the processes for so doing, it is the State of Indiana. In Indiana our courts are open to all of our people and every indigent person accused of crime is provided with counsel at public expense and in the event of conviction has the right of appeal with counsel and transcript furnished to him at public expense. If an indigent person is prevented by the State from the use of any of these afforded remedies he has been denied equal protection of the law under the Fourteenth Amendment but if, without any act of prevention by the State, he fails to timely pursue the remedies available to him he has foreclosed himself of all right to complain because under such circumstances he has been denied no constitutional right whatsoever.
The petition for writ of habeas corpus alleges that the petitioner was sentenced to the Indiana State Prison on June 2, 1955 for a term of two to five years on a jury verdict of guilty and was delivered to the Indiana State Prison on June 5, 1955; that he was competently and ably represented by John Caylor, court-appointed counsel, and following the return of the verdict and imposition of sentence counsel consulted with him and petitioner fully believed that Attorney Caylor would timely file a proper motion for new trial and, if denied, would appeal; that immediately following petitioner's admission to the Indiana State Prison he was placed in quarantine and attempted to write to Mr. Caylor but the prison officials refused to permit him to do so; that he was called to the office of Ben Chiaccio, an inmate counselor, and told that he would have to confine his legal correspondence to the office of the Indiana Public Defender; that following his release from quarantine he was first made aware that under the statute a motion for new trial, as a prerequisite to an appeal to the Indiana Supreme Court, must be filed in the trial court within thirty days following verdict or imposition of judgment, and on June 25, 1955 he prepared a motion for new trial in longhand and forwarded it to the office of the warden for typing with instruction that it had to be filed in the trial court on or before July 2, 1955; that it was not mailed from the State Prison until on or...
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...and fails to timely pursue his remedy of appeal, he cannot complain of a denial of his constitutional rights. United States v. Overlade (U.S.D.C.Ind.1957) 149 F.Supp. 425. See, also, Holloway v. State of Oklahoma (Okl.Cr.1961) 365 P.2d 829; State of New Jersey v. Janiec (1951) 6 N.J. 608, 8......
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...may rely on the presumption that the accused's lawyer will protect his client's rights on appeal.' See also United States ex rel. Anderson v. Overlade, 149 F.Supp. 425 (D.C.Ind.1957). This view has also received appellate approval. In Pate v. Holman, 341 F.2d 764 (5th Cir. 1965), the court ......