United States v. Ragen
| Citation | 231 F.2d 312 |
| Parties | UNITED STATES of America ex rel. Harrison STEWART, Petitioner-Appellant, v. Joseph E. RAGEN, Warden of the Illinois State Penitentiary, Joliet Branch at Joliet, Illinois, Respondent-Appellee. |
| Decision Date | 20 March 1956 |
| Court | U.S. Court of Appeals — Seventh Circuit |
Harrison Stewart, pro se.
Latham Castle, Chicago, Ill., for appellee.
Before DUFFY, Chief Judge, and LINDLEY, Circuit Judge.
The petitioner, appearing pro se, lodged in the office of the Clerk of this Court, a motion for the issuance of a certificate of probable cause under Title 28 U.S.C. § 2253, and also, a motion for leave to appeal and otherwise proceed in forma pauperis under Title 28 U.S.C. § 1915. The Attorney General of Illinois, appearing for respondent, lodged a motion to dismiss. The petitioner, in turn, lodged a reply to which, as part thereof, was annexed a copy of petitioner's petition for writ of error to the Supreme Court of Illinois under the Illinois Post Conviction Hearing Act, Illinois Revised Statutes, Ch. 38, §§ 826-832.
The allowance of petitioner's motions depends on whether both or either of them present some substantial question worthy of consideration. Morris v. Igoe, 7 Cir., 209 F.2d 108, 109; United States ex rel. Morris v. Radio Station WENR, 7 Cir., 209 F.2d 105, 107; Davis v. United States, 7 Cir., 214 F.2d 594, 596; Thomas v. Duffy, 9 Cir., 191 F.2d 360; Higgins v. Steele, 8 Cir., 195 F.2d 366, 369; Parsell v. United States of America, 5 Cir., 218 F.2d 232, 235-236. Such substantial question must bear material relation to the order of the District Court entered June 9, 1955 dismissing without hearing his petition for writ of habeas corpus filed in that court. In this connection it is to be noted that petitioner's application to the District Court for issuance of a certificate of probable cause for appeal was denied.
In his petition for writ of habeas corpus, petitioner alleged on several grounds that he was deprived of constitutional rights in the matter of his conviction on May 16, 1946 of the crime of rape in the Criminal Court of Cook County, Illinois. His trial was had before a judge of that Court without a jury. He was sentenced to life imprisonment, and ever since has been and now is, confined thereunder. An Assistant Public Defender was appointed to and did represent petitioner. Petitioner, being indigent, could not afford the transcript incident to appellate review.
According to his allegations in his motions and reply, petitioner instituted three proceedings attacking his conviction and sentence, two of which were proceedings under the Illinois Post Conviction Hearing Act, and the third a petition for writ of error on the common law record filed with the Supreme Court of Illinois.
Petitioner first proceeded under the Illinois Post Conviction Hearing Act by filing a petition with the Criminal Court of Cook County on December 20, 1949, — the Act having become effective the preceding August 4th. The Court sustained a motion to strike, and entered judgment of dismissal on June 1, 1951. The petitioner, as he admits, failed to petition for writ of error to the Supreme Court of Illinois to review such judgment within six months after its entry as provided in § 832 of the Illinois Post Conviction Hearing Act, with the result that such judgment became and ever since has been final.
Petitioner's next step was his petition for review on the common law record of the judgment of his conviction and sentence to the Supreme Court of Illinois. This petition was denied since the Court could find no error upon such record. People v. Stewart, 412 Ill. 106, 105 N.E. 2d 725.
Petitioner's third and final attack on the judgment of his conviction and sentence in the Courts of Illinois was the institution and prosecution early in 1952 of a proceeding in the Criminal Court of Cook County under the Illinois Post Conviction Hearing Act. The grounds for relief alleged were similar to...
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...Kozicky v. Fay, 248 F.2d 520 (C.A.2d Cir., 1957); Whitley v. Steiner, 293 F.2d 895 (C.A.4th Cir., 1961); United States ex rel. Stewart v. Ragen, 231 F.2d 312 (C.A.7th Cir., 1956); and United States ex rel. Dopkowski v. Randolph, 262 F.2d 10 (C.A.7th Cir., 1958), with, e.g., Ex parte Houghto......
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