United States v. Pate

• Decision Date: 03 February 1965
• Docket Number: 14675.,No. 14598,14598
• Citation: 341 F.2d 885
• Parties: UNITED STATES of America ex rel. Joseph CALHOUN, Petitioner-Appellee, Cross-Appellant, v. Frank J. PATE, Warden of the Illinois State Penitentiary, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

341 F.2d 885 (1965)

UNITED STATES of America ex rel. Joseph CALHOUN, Petitioner-Appellee, Cross-Appellant, v. Frank J. PATE, Warden of the Illinois State Penitentiary, Respondent-Appellant, Cross-Appellee.

Nos. 14598, 14675.

United States Court of Appeals Seventh Circuit.

February 3, 1965.

Robert Jay Nye, Chicago, Ill., for appellant, Calhoun.

William G. Clark, Atty. Gen. of Illinois, Daniel P. Ward, State's Atty., Cook County, Chicago, Ill., for respondent-appellant, Pate, Elmer C. Kissane, James R. Thompson, Jr., Asst. State's Attys., of counsel.

Before DUFFY, KNOCH and CASTLE, Circuit Judges.

KNOCH, Circuit Judge.

Relator Joseph Calhoun was convicted in a bench trial in the criminal Court of Cook County on a charge of unlawful sale of narcotics and sentenced to serve twenty-five years in the Illinois State Penitentiary. On an appeal alleging among other grounds that guilt had not been proven beyond a reasonable doubt, the Supreme Court of Illinois, People v. Calhoun, 22 Ill.2d 31, 174 N.E.2d 166, affirmed the conviction and the United States Supreme Court denied certiorari, 368 U.S. 935, 82 S.Ct. 373, 7 L.Ed.2d 196.

Relator then filed his petition for writ of habeas corpus in the United States District Court alleging that there had been no evidence to support the conviction and that known perjured testimony had been used by the prosecution.

Respondent-appellant, Warden Frank J. Pate, moved to dismiss the petition on the ground, inter alia, that relator had failed to exhaust state remedies. This motion was denied as was another motion challenging the jurisdiction of the District Court. Respondent's motion for a more definite statement of the cause of action (relator now being represented by Court-appointed counsel) was also denied.

Respondent filed an answer denying that the District Court had jurisdiction. Relator's motion, to strike the answer on the ground that the Court had twice ruled as a matter of law that it had jurisdiction, was entered and continued to April 25, 1963, at which time order was entered giving leave to respondent to amend his answer and the cause was continued to May 2, 1963 to set hearing on the petition for writ of habeas corpus and relator's motion to strike portions of the answer. On that date the respondent filed an amended answer admitting jurisdiction in the District Court. Respondent argues that under these circumstances, fearing judgment by default, respondent cannot be said to have waived or abandoned the jurisdictional defense.

In the field of habeas corpus, this court has said that the parties cannot bestow jurisdiction by agreement. United States ex rel. Circella v. Sahli, 7 Cir., 1954, 216 F.2d 33, 37. See also Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948).

Relator's motion for summary judgment on the ground that the state court conviction was supported by no evidence was denied.

The State's Attorney's appearance as co-counsel for respondent was stricken on the ground that the statute which allows the State's Attorney to defend state officers sued in Cook County is inapplicable in the Northern District of Illinois which embraces more than one county.

The District Court then granted the relator's motion for summary judgment on the ground that the record showed only a scintilla of evidence and that conviction on such mere scintilla of evidence constituted a denial of due process of law as a matter of law. This appeal by respondent followed.

Study of the record indicates that relator has not presented to an Illinois State court his claim that his conviction was completely unsupported by any evidence of his guilt, and that the prosecution presented known perjured testimony at his trial.

Relator has not exhausted his state remedies as required by Title 28, U.S.C. A. § 2254. Relator may possibly prove to be correct in his present conjecture that the Illinois Supreme Court will consider its review on writ of error to be res judicata as to all questions which were not, but could have been, raised. Nevertheless, the Illinois State Court should have the opportunity to correct an alleged constitutional violation. Fay v. Noia, 372 U.S. 391, 419-420, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1963).

Application for writ of habeas corpus is a state remedy available to relator. People v. Loftus, 400 Ill. 432, 81...