United States v. Ragen

• Decision Date: 10 June 1944
• Docket Number: No. 8506.,8506.
• Citation: 143 F.2d 774
• Parties: UNITED STATES ex rel. FOLEY v. RAGEN, Warden.
• Court: U.S. Court of Appeals — Seventh Circuit

143 F.2d 774 (1944)

UNITED STATES ex rel. FOLEY v. RAGEN, Warden.

No. 8506.

Circuit Court of Appeals, Seventh Circuit.

June 10, 1944.

George F. Barrett, Atty. Gen., of Illinois (William C. Wines, Asst. Atty. Gen., of counsel), for appellant.

Kenneth C. Sears, of Chicago, Ill., for appellee.

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from a judgment of the District Court, entered on September 27, 1943, discharging upon habeas corpus the appellee, George Foley, from incarceration in an Illinois State Penitentiary located in Will County, Illinois. The writ was directed to respondent, Joseph E. Ragen, warden of the penitentiary, who filed a return thereto. The court heard the testimony of both the relator and the respondent, and also received in evidence a number of written documents and exhibits. The court, in support of its judgment of discharge, entered findings of fact and conclusions of law and also rendered an extended opinion. United States ex rel. Foley v. Ragen, Warden, et al., D.C., 52 F.Supp. 265, 269. Reference to this opinion will obviate the necessity for a detailed narrative of the unusual situation which confronted the trial judge.

Relator was convicted on October 14, 1933 in the Circuit Court of Sangamon County, Illinois, of burglary and larceny and was sentenced, under the Indeterminate Sentence Act, Chap. 38, § 802, Ill.Rev.Stats. 1943, to a term of one year to life. By reason of such sentence, he was confined in the Illinois penitentiary until his discharge in the instant proceeding. He claims that during all of such time he was without funds to employ counsel and without relatives or friends whom he could call upon for assistance. He was permitted to file his petition in the instant matter in forma pauperis, and the court appointed counsel who ably represented him. On respondent's appeal to this court, we, on our own motion, appointed counsel to represent the relator, who has submitted a well prepared brief and argument in support of the judgment.

We are confronted, as often in cases of this character, with the question as to whether relator had exhausted his remedies in the state court so as to confer jurisdiction upon a federal court. The court below recognized the general rule in this respect, but for reasons hereinafter stated concluded that this was "that rare case where exceptional circumstances of peculiar urgency are shown to exist," which removed it from the general rule. It would serve no good purpose to cite or discuss the numerous cases in which this general rule has been announced and applied, in view of the recent decision in Ex Parte Hawk, 321 U.S. 114, 64 S.Ct. 448 (decided subsequent to the opinion of Judge Barnes in the instant case). The general rule there stated (page 116 of 321 U.S., page 450 of 64 S.Ct.) is:

"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 this Court by appeal or writ of certiorari, have been exhausted." (Citing cases.)

We shall, therefore, first consider the relator's efforts to secure his release through state remedies available, and then the circumstances which the court below thought made this an exceptional case. In doing so, we note that relator's petition itself is devoid of any jurisdictional allegations. Ordinarily we think this would be fatal, but in view of the unusual circumstances we shall consider, as the court below no doubt did, all facts which tend to show jurisdiction, the same as though they had been properly alleged.

The sole proceeding instituted by the relator in an Illinois court, seeking his release, was a petition filed (or sought to be filed) in the Supreme Court of Illinois in the early part of March 1943, in which he asked leave to proceed in forma pauperis. There is some contradiction in the record as to whether this petition was permitted to be filed. In a letter directed to relator, dated May 11, 1943, and signed by the clerk of the Supreme Court, this statement is contained:

"Petitioner was allowed to file this petition for writ of habeas corpus as a poor person. The petition upon consideration was denied."

Notwithstanding this positive statement on the part of the clerk of the Supreme Court, Warden Ragen on March 11, 1943 sent a notice to relator as follows:

"I am today in receipt of the following letter dated March 9th, 1943 from Edward F. Cullinane, clerk pro tempore, Supreme Court, State of Illinois, Springfield, as follows:

"`Re: No. 27136 ex rel. Foley v. Ragen. The Supreme Court today denied the motion of the petitioner in the above entitled case for leave to sue as poor person and for writ of habeas corpus.'"

It will be noted that the letter from the warden is inconsistent with the letter from the clerk of the Supreme Court and that the former was written almost two months prior to the latter. It seems reasonable to believe that the relator, after receiving the warden's letter, must have written directly to the Supreme Court and in response received from the clerk the letter above mentioned. Without endeavoring to explain the inconsistency, we think the statement contained in the clerk's letter must be accepted as a fact.

It appears from the statement above quoted from the Hawk case that it was incumbent upon the relator to seek a review of the action of the Illinois Supreme Court "by appeal or writ of certiorari" to the Supreme Court of the United States. More important, however, is the fact that other Illinois courts were available to relator. § 2 of the Habeas Corpus Act of Illinois, Ill.Rev. Stats. 1943, Chap. 65, provides three courts to whom application for the writ of habeas corpus may be made: (1) to the Supreme Court, (2) to a court of competent jurisdiction in the county in which the applicant is imprisoned, and (3) to a court of competent jurisdiction in the county from which said applicant was committed. The Supreme Court may in the exercise of its discretion grant the writ. North Chicago Hebrew Congregation v. Board of Appeals, 358 Ill. 549, 554, 193 N. E. 519. The other courts to which application may be made are of general jurisdiction in which the relator, upon a proper showing, has an absolute statutory or constitutional right to relief by habeas corpus. The order or judgment in such proceeding is not final and, therefore, not appealable. It also cannot be pleaded as a bar to another such proceeding. People ex rel. Maglori v. Siman, 284 Ill. 28, 30, 119 N.E. 940.

It appears plain, therefore, that it is incumbent upon a person who seeks habeas corpus to do so in each of the three courts designated by the statute before it can be said that his state remedies have been exhausted. Here again the situation is similar to that before the Supreme Court in Ex parte Hawk, supra, where the court (page 116 of 321 U.S., page 449 of 64 S.Ct.) stated:

"So far as appears, petitioner's present contentions have been presented to the state courts only in an application for habeas corpus filed in the Nebraska Supreme Court, which it denied without opinion. From other opinions of that court it appears that it does not usually entertain original petitions for habeas corpus, but remits the petitioner to an application to the appropriate district court of the state, from whose decision an appeal lies to the state Supreme Court * * *."

"Of this remedy in the state court petitioner has not availed himself."

The only distinction between the two situations is that in Nebraska the Supreme Court has the right to review the judgment of a lower court in habeas corpus, while in Illinois the Supreme Court has no such right. It will be noted in the Hawk case the Supreme Court of Nebraska denied the writ, just as the Supreme Court of Illinois did in the instant case. The court having held in the Hawk case that it was incumbent upon Hawk to resort to a lower court after his writ was denied by the state Supreme Court, we think it follows that the same must be held as to the relator in the instant case.

The substance of relator's complaint that he was unlawfully detained may be divided into two parts: (1) that the trial resulting in his conviction was conducted in such manner as to deprive him of his constitutional rights, and (2) that he has been deprived of his constitutional rights by the Parole Board of Illinois and by its statutory successor, the Division of Correction. While the District Court made certain findings of fact which raise some doubt as to whether relator was properly convicted, its judgment was not predicated upon this theory but was based wholly upon the acts of the Parole Board and its successor.

In view of this basis for the court's decision, it is not of controlling importance but nevertheless it seems pertinent to observe that relator's complaint regarding the manner of his conviction was and is still open to review as a matter of right by writ of error to the Supreme Court of the state. Chap. 38, Par. 771, Ill.Rev. Stats. 1943. This is a writ of right, and must be issued in all criminal cases where the penalty is not death. There is no time limit within which the writ must be sought except the common law period of twenty years, which period has not expired. In the recent case of People v. Brown, 383 Ill. 287, 48 N.E.2d 953, the writ of error issued and a judgment was reversed eleven years after conviction.

Also, in the Hawk case, the Supreme Court held that it was incumbent upon the applicant to exhaust the common law writ of error coram nobis...