United States v. Ragen

Citation54 F. Supp. 973
Decision Date28 March 1944
Docket NumberNo. 111.,111.
PartiesUNITED STATES ex rel. BONGIORNO v. RAGEN.
CourtU.S. District Court — Northern District of Illinois

Charles Liebman, of Chicago, Ill., for petitioner.

Hector A. Brouillet, Asst. Atty. Gen., and James V. Cunningham, Asst. State's Atty., of Chicago, Ill., for respondent.

BARNES, District Judge.

In this case, which is now before the court for decision after a hearing on the merits, the petitioner, John Bongiorno, seeks release, upon a writ of habeas corpus, from the Illinois State Penitentiary at Joliet, Illinois, where he is serving a sentence of 199 years, imposed by the Criminal Court of Cook County, Illinois, in September, 1933. The petitioner claims that he is held in custody in violation of the Constitution of the United States.

The respondent has contended throughout the proceeding that this court should not have assumed jurisdiction for the reason that the petitioner failed, before coming to this court, to exhaust his remedies in the State courts by making application for writs of habeas corpus in the courts of Illinois, and, for the further reason, that this is not that "rare" case wherein a Federal court should interfere with the administration of justice in the State courts.

Congress has given the power to Federal District courts to issue writs of habeas corpus in cases where the petitioner claims that he is being held in custody under a State commitment in violation of the Constitution of the United States, Secs. 451, 452, 453, Title 28 U.S.C.A., but, ordinarily, an application for habeas corpus by one detained under a State court judgment of conviction for crime will be entertained by a Federal court only after all State remedies available, including all appellate remedies in the State courts and in the Supreme Court of the United States by appeal or writ of certiorari, have been exhausted. Ex parte Henry Hawk, 64 S.Ct. 448 (opinion filed January 31, 1944); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Urquhart v. Brown, 205 U.S. 179, 27 S.Ct. 459, 51 L. Ed. 760; Achtien v. Dowd, 7 Cir., 117 F. 2d 989; Sanderlin v. Smyth, 4 Cir., 138 F.2d 729. In Mooney v. Holohan, supra, it was said that (294 U.S. at page 115, 55 S.Ct. at page 343, 79 L.Ed. 791, 98 A.L.R. 406), "recourse should be had to whatever judicial remedy afforded by the state may still remain open." Another principle, applicable to cases of this character, is that "the due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist." United States v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138.

In October, 1942, the writer of this memorandum received through the mails a letter from one Sam Bongiorno, stating: "My father (John Bongiorno) is an inmate of the Illinois State Penitentiary at Joliet, Ill. He has a petition for a writ of habeas corpus which he has been trying to send to you for the past two years, but the authorities will not let it out. If there is any way in which you can obtain, or aid us in obtaining the release of this petition, it will be very much appreciated." Believing that this communication made it the duty of this court to determine whether John Bongiorno was being denied access to the courts, in violation of his constitutional and statutory rights, the court caused an order to be made on November 27, 1942, reading, in part, as follows:

"It having been represented to the court that John Bongiorno, who is an inmate of the Illinois State Penitentiary at Joliet, Illinois, has sought to file in the office of the clerk of this court a petition for writ of habeas corpus but that the authorities at such penitentiary will not permit the filing of the same;

"It is Ordered that the Warden of the Illinois State Penitentiary at Joliet, Illinois be, and he is hereby, commanded and directed to show cause, if any he has, in writing, on or before the opening of court on December 7, 1942, why the said John Bongiorno should not be permitted to file, in the office of the clerk of this court, a petition for writ of habeas corpus; * * *"

"It is further Ordered that the Honorable Russell Whitman, as chairman of the Committee on Civil Rights of the Chicago Bar Association, and/or such member or members of the Committee * * * as the Honorable Russell Whitman may designate be, and they are, and each of them is, hereby appointed as attorney or attorneys for said John Bongiorno."

The respondent, the warden of the Illinois State Penitentiary at Joliet, Illinois, filed no writing in response to the above-quoted rule. When the matter was called at the opening of court on December 7, 1942, the return day of the rule, the respondent failed to appear, and the court thereupon directed a writ of habeas corpus to issue for John Bongiorno. Later in that morning, the respondent and his counsel did appear in court, and there made statements which confirmed the charge that it had been the established practice in the Joliet prison not to permit the prisoners themselves to send petitions for writs to any court, and that such practice had existed for more than two years past. Sometime later in the day, the original petition for habeas corpus of Bongiorno was received through the mails from respondent's office, and was filed.

The court concluded that, by reason of these special circumstances, that is, the policy of the State administrative authorities to refuse prisoners the right to send petitions to any court, and, further, the inability of this court to compel the State authorities to permit petitioner to exercise his rights in this respect, the petitioner, as a practical matter, had exhausted his State court remedies, and that this constituted a "rare" case of which this court was required to assume jurisdiction. Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034. While, at the time the court issued the writ in this case, the opinion in the case of Ex parte Henry Hawk, supra 64 S.Ct. 450, had not yet been handed down, the court finds, in the italicized language of the following quotation from that opinion, authority for the action which the court took: "But where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions raised, either because the state affords no remedy, see Mooney v. Holohan, supra, 294 U.S. at page 115, 55 S.Ct. at page 343, 79 L.Ed. 791, 98 A.L.R. 406, or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, cf., Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 supra; Ex parte Davis, 318 U.S. 412, 63 S.Ct. 679 87 L.Ed. 868, a federal court should entertain his petition for habeas corpus, else he would be remediless. In such a case he should proceed in the federal district court before resorting to this Court by petition for habeas corpus."

The court is now, after hearing, required to pass upon the merits of the case.

Briefly stated, the petitioner has sought to establish the following: (1) That his trial took place in an atmosphere so charged with public passion, prejudice and hysteria, as to deprive him of due process of law; (2) that the affirmance by the Supreme Court of Illinois of his conviction was based upon supposed facts and circumstances not supported by the record on the writ of error; (3) that he was denied the equal protection of the laws; (4) invalidity of the 199-year sentence; and (5) that the totality of facts in the setting of this case constitute a "denial of fundamental fairness shocking to the universal sense of justice."

In support of petitioner's claim that his trial took place in an atmosphere so charged with public passion, prejudice and hysteria as to deprive him of due process, he introduced in evidence copies of many Chicago newspapers published during the interval between his arrest and his trial. These exhibits do show a considerable amount of publicity regarding crimes in this vicinity and contain articles commenting on the local crime situation, but there was no showing of actual bias on the part of the jury by reason of the publications, or that the newspaper publicity affected at all the ability of the jury to render an impartial verdict. The court is of the opinion that the evidence, submitted on this contention, does not, in this collateral attack upon a State judgment, bring this case within the rule, applied in a very few cases in the United States Supreme Court, where it was determined that the trials were dominated by mob violence or mob psychology (Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Frank v. Mangum, 237 U.S. 309, 345, 35 S.Ct. 582, 59 L.Ed. 969) to the extent that "there was only the form of a court under the domination of a mob" (Ashe v. Valotta, 270 U.S. 424, 46 S.Ct. 333, 334, 70 L.Ed. 662).

Bongiorno appealed from the Criminal Court of Cook County to the Supreme Court of Illinois, and the conviction was affirmed. People v. Bongiorno, 358 Ill. 171, 192 N.E. 856. In the present proceeding, he contends that the affirmance by the Supreme Court of Illinois of his conviction was based upon supposed facts and circumstances not supported by the record on the writ of error.

The story of his crime is related by Bongiorno in his amended application herein as follows: That on July 8, 1933, he and one Ross King agreed to enter a certain building in Chicago and commit the crime of robbery with a gun in order to obtain money for living expenses; that they did commit the crime of robbery with a gun; that, while the robbery was going on, Bongiorno heard a knock at the door and a voice say, "Police officers, open up;" that he laid down his gun and said, "Don't shoot, I am coming out," and he walked out into the hall with his hands raised and submitted to arrest by police officer Redlich, then standing with a drawn gun; that, while he was in the custody of...

To continue reading

Request your trial
9 cases
  • United States v. Rosenberg
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 25 Febrero 1952
    ...prescribed by the statute. See also Kenimer v. State ex rel. Webb, 81 Ga.App. 437, 59 S.E.2d 296. 32 United States ex rel. Bongiorno v. Ragen, D.C.N.D.Ill., 54 F.Supp. 973, affirmed 7 Cir., 146 F.2d 349. Perhaps this is but an elliptical way of saying that, if the statute permitted such a s......
  • State v. Young
    • United States
    • Ohio Supreme Court
    • 18 Junio 1980
    ...one of the syllabus, and Ex Parte Fleming (1930), 123 Ohio St. 16, 20, 173 N.E. 441. The court, in United States ex rel. Bongiorno v. Ragen (D.C. Ill. 1944), 54 F.Supp. 973, referred to the earlier case of Weems v. United States (1910), 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793, wherein the ......
  • State v. Iaukea
    • United States
    • Hawaii Supreme Court
    • 16 Junio 1975
    ...341 (6th Cir. 1964); Jordan v. Fitzharris, 257 F.Supp. 674 (D.C., 1966); Austin v. Harris, 226 F.Supp. 304 (D.C., 1964); Bongiorno v. Ragen, 54 F.Supp. 973 (D.C., 1944), aff'd, 146 F.2d 349 (7th Cir.), cert. den., 325 U.S. 865, 65 S.Ct. 1194, 89 L.Ed. ...
  • White v. Ragen Lutz v. Same
    • United States
    • U.S. Supreme Court
    • 23 Abril 1945
    ...to represent them. See United States ex rel. Foley v. Ragen, D.C., 52 F.Supp. 265, Id., 7 Cir., 143 F.2d 774; United States ex rel. Bongiorno v. Ragen, D.C., 54 F.Supp. 973. 2 Apparently the practice of the Illinois Supreme Court was not heretofore so restricted. Cf. People ex rel. Day v. L......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT