United States v. Ragen

• Decision Date: 30 March 1948
• Docket Number: No. 47 C 284.,47 C 284.
• Citation: 77 F. Supp. 15
• Parties: UNITED STATES ex rel. MILLS v. RAGEN.
• Court: U.S. District Court — Northern District of Illinois

77 F. Supp. 15

UNITED STATES ex rel. MILLS v. RAGEN.

No. 47 C 284.

District Court, N. D. Illinois, E. D.

March 30, 1948.

Martin S. Gerber, of Chicago, Ill., for relator.

George F. Barrett, Atty. Gen., of Illinois, and William C. Wines, Asst. Atty. Gen., of Illinois, for respondent.

CAMPBELL, District Judge.

On October 18, 1935 the relator was indicted by the Cook County Grand Jury for a burglary allegedly committed on October 12, 1935. By reason of the relator's previous record, the indictment contained an habitual count. On October 21, 1935, the Criminal Court of Cook County appointed the Public Defender to represent the relator. On October 23, 1935 the relator was arraigned and pleaded not guilty. On October 25, the relator secured a continuance of the trial to October 31, 1935.

On the latter date, the cause came on for trial before the Criminal Court of Cook County. Another indictment was also pending against the relator at that time. From the transcript of the proceedings before that court, it appears that the court was informed by both the relator and the Assistant Public Defender that the relator desired a short continuance because one George M. Crane, an attorney who had been retained by the relator's family on or about October 30th to represent him, was not then present. Although at one point in the transcript the trial court stated that, if Mr. Crane personally appeared and requested a continuance, he would grant one for a reasonable time, the transcript as a whole reveals impatience, irascibility, and an attitude of prejudice against the defendant on the part of the trial judge. On the ground that the state's witnesses had come from Michigan, the court refused the relator's repeated requests for a continuance so that he could be represented by his own counsel. The court told the relator that he could either plead guilty to one indictment in return for dismissal of the other, or he would go to trial immediately on both indictments. When the relator again requested a continuance, the court summoned a jury. After the jury was sworn and the burglary charge explained to them by the court, the relator withdrew his plea of not guilty and pleaded guilty. The court thereupon ordered the state to nolle pros. the other case pending against the relator and not to have any indictments returned on four other charges against the relator.

On the plea of guilty and the habitual count in the indictment, the court sentenced the relator to life imprisonment. On November 5, 1935 the relator moved to vacate the sentence and to grant a new trial. Although the record does not show the disposition of this motion, it may be assumed that the motion was denied.

On March 13, 1946 the Illinois Supreme Court on a writ of error affirmed the judgment. The United States Supreme Court denied a petition for a writ of certiorari on May 13, 1946, Mills v. Ragen, 328 U.S. 846, 66 S.Ct. 1027, 90 L.Ed. 448. On August 8, 1946 the Criminal Court of Cook County dismissed a petition for a writ of habeas corpus. From this dismissal the relator's petition for a writ of certiorari was denied by the United States Supreme Court on October 28, 1946, 329 U.S. 770, 67 S.Ct. 132.

The relator filed his petition for a writ of habeas corpus in this court on February 12, 1947. The respondent's motion to dismiss was denied, and the writ issued returnable on July 21, 1947. A hearing was had on July 24, 1947. The cause was then taken under advisement, leave being granted the parties to argue the relator's motion to strike portions of the respondent's return and to argue the question of jurisdiction raised by the respondent. On stipulation of the parties, extensions of time were allowed for the filing of briefs, the petitioner's reply brief finally being filed on February 2, 1948.

Prior to considering the merits of the case, it is necessary to rule on the pending motions. First, the relator has moved to strike as scandalous and immaterial certain allegations in the respondent's return respecting the relator's previous record and statements allegedly made to an Assistant Public Defender admitting his guilt. This motion is denied. Second, leave is granted the relator on his motion to introduce subsequent to the hearing in this court an affidavit recently received from George M. Crane, attorney for the relator at his trial, concerning the circumstances of his absence on the day of the trial. Third, counsel for the relator has urged again in his brief that the testimony of, and the records produced by, the witness Frank Ferlic, a former Assistant Public Defender, be striken, for the reasons that the witness could not identify the relator as the defendant whom he had visited in the County Jail in 1935, and that the interview memorandum in the Public Defender's file, purporting to contain a statement by the relator of his guilt, has no case number, date or other notation definitely connecting the memorandum with the case of this relator. This objection was raised at the hearing and overruled, for the reason that in a proceeding of this nature I believe that all evidence which may possibly bear on the issues should be before the court. However, since the evidence produced by the witness Ferlic was not definitely connected with the relator, I have accorded it no weight. Fourth, the respondent was given leave at the end of the hearing to argue the jurisdictional issue in the briefs. In his brief, the respondent has not argued the point, apparently standing on the jurisdictional argument made in his return.

The respondent has there argued that the relator has not exhausted his state remedies, since, although he prosecuted a writ of error from the Supreme Court of Illinois to review his conviction he did not file a bill of exceptions from the Criminal Court of Cook County. Although the twenty-year common law limitation period applies to the writ of error, a bill of exceptions must be submitted to the trial judge for certification within fifty days after conviction, or proceedings to submit a bill taken within such time. Smith-Hurd Ill.Ann.Stat. c. 110, § 259.70A. This relator did not take a writ of error until more than ten years after conviction. Since the relator could not then take a writ of error with a bill of exceptions, the respondent argued in his return that habeas corpus cannot be used as a substitute even though the time for effectively prosecuting an appeal has expired, citing Sunal v. Large, 1947, 332 U.S. 174, 67 S.Ct. 1588. It is sufficient answer to this aspect of the respondent's jurisdictional argument to quote the following language from the Sunal case, 332 U.S. at page 178, 67 S.Ct. at page 1590: "We put to one side comparable problems respecting the use of habeas corpus in the federal courts to challenge convictions obtained in the state courts. * * * So far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal." It should also be noted in passing that the rule of the Sunal case is limited to mere errors of law not invading the constitutional rights of defendants or involving the jurisdiction of the trial court.

The respondent made the second jurisdictional point in his return that since the United States Supreme Court has denied certiorari to review a denial of a petition for habeas corpus by a state court, this court should not reexamine the matter, on the authority of White v. Ragen, 1945, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. Although the denial of habeas corpus in the White case was by the Illinois Supreme Court, the rule of that case is equally applicable to a denial of habeas corpus by a lower state court, because of the Illinois rule that the jurisdiction of the state Supreme Court and lower courts to issue habeas corpus is concurrent, and the corollary rule that a denial of habeas corpus by a lower court is not reviewable by the state Supreme Court. With respect to the respondent's point that this court cannot reexamine on habeas corpus a case in which the United States Supreme Court has denied certiorari, the following quotations from White v. Ragen are relevant (324 U.S. at pages 764, 765, 65 S.Ct. at pages 980, 981): "If this Court denies certiorari after a state court decision on the merits, or if it reviews the case on the merits, a federal District Court will not usually re-examine on habeas corpus the questions thus adjudicated. Ex parte Hawk, supra, 321 U.S. 118, 64 S.Ct. 450, 88 L.Ed. 572. But where the decision of the state court is that the remedy of habeas corpus is not available under the state practice, or its decision is based upon some other adequate non-federal ground, it is unnecessary for the petitioner to ask this Court for certiorari in order to exhaust his state remedies, since we would lack jurisdiction to review the decision of the state court; and the denial of certiorari by this Court would not preclude a District Court from inquiring into the federal question presented to, but not considered by, the state court."

The Court then referred to the announcement made by the Illinois Supreme Court in People ex rel. Swolley v. Ragen, 1945, 390 Ill. 106, 61 N.E.2d 248, in which that Court stated that habeas corpus could not be used in place of the writ of error to review errors of a court having jurisdiction of the person and subject matter, and that petitions raising questions of fact, only, would not be considered. The United States Supreme Court took this announcement to mean that the Illinois Supreme Court will not entertain original applications for habeas corpus except on a record which excludes on its face the possibility of any trial in that court of an issue of fact.

The Court then went on to say (324 U.S. at page 767, 65 S.Ct. at page 982): "It follows that whenever the Illinois Supreme Court denies a petition for the writ originally filed in that court, without opinion or other...