United States v. Ragen, 43-C-624.

• Decision Date: 30 September 1943
• Docket Number: No. 43-C-624.,43-C-624.
• Citation: 52 F. Supp. 265
• Parties: UNITED STATES ex rel. FOLEY v. RAGEN, Warden, et al.
• Court: U.S. District Court — Northern District of Illinois

52 F. Supp. 265

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

No. 43-C-624.

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

September 30, 1943.

Isaac E. Ferguson, Kenneth B. Hawkins, and Leslie H. Vogel, all of Chicago, Ill., for relator.

George F. Barrett, Atty. Gen. of Illinois, Hector A. Brouillet, Asst. Atty. Gen., of Illinois, and Thomas J. Courtney, State's Atty., and James V. Cunningham, Asst. State's Atty., both of Chicago, Ill., for respondents.

BARNES, District Judge.

Earlier habeas corpus case. On August 16, 1942, George Foley addressed to the writer and managed to mail from prison a one-page letter, which he entitled "A petition for a writ of habeas corpus." In this letter, Foley stated merely that he was detained in the Illinois State Penitentiary at Stateville, Joliet, in violation of the constitution of the United States. As now appears, on August 16th Foley made an abortive attempt to mail to the writer hereof a petition for a writ of habeas corpus which he had himself prepared. This petition came to the attention of the warden of the prison, then E. M. Stubblefield. On August 25th, the warden sent a memorandum to Foley as follows:

"I cannot comply with the request contained in your note of August 16, as it is not permissible for an inmate to prepare a petition for a writ of habeas corpus within the institution: however, no objection will be made to your arranging with an attorney, relatives or friends to have the petition prepared by them, and you will be permitted to furnish whatever information they require in the formulation of the petition."

On August 31st, the writer hereof acknowledged receipt of Foley's letter of August 16th and explained to him that "nowhere in your petition do you state the facts which makes your imprisonment a violation of the constitution." On September 6th, Foley addressed another personal letter to the writer and stated that he was seeking permission of the prison authorities to send a seven-page petition which he had prepared. The seven-page petition never arrived. This was the petition referred to in the letter of the warden of August 25th. The petition was handed back to Foley. On September 20th, Foley managed to send to the writer "Part 2 of Petition," another one-page writing, in which he stated that he had been convicted of burglary in Springfield, Illinois, in October, 1933, and sentenced to imprisonment for an indeterminate term of one year to life, that the parole board had notified him in writing that his "final sentence" would be 12 years; that the 12 years, less good time earned, expired December 15, 1941, and that the Department of Public Safety, under the 1941 law (that is, the 1941 statute which for the first time gave parole authority to the Department of Public Safety in lieu of the Department of Public Welfare) sentenced him to an additional term of three years. On September 22, 1942, the writer ordered the foregoing correspondence filed in Habas Corpus Case No. 108 and issued a writ, returnable October 12, 1942, and the prisoner was produced, before the judge of the court to whom the case was assigned, on October 12th, but it then appeared that all of his documents had been taken away from him by one of the prison officials and the hearing was deferred in order to obtain production of the essential documents. Meanwhile, however, a return to the writ of habeas corpus was filed by E. M. Stubblefield, warden of the Illinois State Penitentiary, at Joliet, Illinois, in substance as follows:

(1) That the petitioner was in the custody of the respondent by virtue of a mittimus issued October 14, 1933, from the Sangamon County Circuit Court, wherein the petitioner was found guilty of the crime of burglary and larceny and sentenced for the term of one year to life.

(2) That petitioner had not served his full time and was still subject to the orders of the Parole Board of the State of Illinois.

(3) That the petitioner had not exhausted his remedies for release in the State court before applying to this federal court for a writ of habeas corpus.

Because of the jurisdictional objection, the further hearing of the petition was resumed on November 10th without the presence of the petitioner and the petition was denied. No oral testimony was taken and no documents were introduced in evidence. This closed the earlier case (No. 108).

State court petition. Promptly after learning of the final order in the earlier case, Foley prepared a petition for writ of habeas corpus to be presented to the Supreme Court of Illinois and asked the warden (now Joseph E. Ragen) for permission to mail it. On November 30, 1942, Warden Ragen wrote Foley as follows: "I am returning herewith your petition for a writ of Habeas Corpus, inasmuch as it is not permissible for same to be mailed out, as there is a rule at this Institution whereby all inmates must have their petitions for writs prepared by a competent attorney, on the outside, or by relatives or friends."

Foley says he then took sick and went to the hospital, and that he then conceived the idea of sending a personal letter to Justice Gunn, asking him if he could send him a petition for writ of habeas corpus. This letter came to the attention of Warden Ragen and on January 8, 1943, the warden wrote to Foley as follows: "I am returning herewith your letter dated January 3rd to the Honorable Walter T. Gunn, inasmuch as prisoners incarcerated in this Institution are now permitted to file petitions for writs of habeas corpus." Thereupon, Foley mailed to the Supreme Court of Illinois his petition for writ of habeas corpus and motion for leave to file said petition in forma pauperis. On March 11, 1943, Warden Ragen sent a notice to Foley 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.'"

Foley says that he then prepared a petition for rehearing addressed to the Supreme Court of Illinois, but never sent it. "I was under the impression at that time that I couldn't sue as a poor person, so I decided it would be useless to send it." Instead, he prepared another petition to this court and a petition to the Supreme Court of the United States.

Petition of March 19, 1943. The petition now before this court consists of an original petition dated March 19, 1943, and "motion for leave to amend" sworn to by the petitioner on June 22, 1943. All of the papers sent to the writer by Foley on March 19, 1943, and subsequently were filed in this case on June 30, 1943, and on that date the writer entered an order in substance as follows:

(1) On the court's motion, leave granted to George Foley to file his petition for writ of habeas corpus as a poor person and without advance payment of costs.

(2) That a writ of habeas corpus issue against Joseph E. Ragen, Warden, directing him to produce the body of the petitioner before this court on July 7, 1943.

(3) That a member of the bar of this court be appointed attorney for the petitioner.

(4) That the hearing on the petition and return shall preliminarily deal with the question as to whether or not petitions for writs of habeas corpus by inmates of the Illinois State Penitentiaries at Joliet, are permitted to be sent out without restrictions, whether restrictions have ever at any time been imposed upon the sending out of such petitions, and, if they have, when such restrictions were removed, if they have been removed.

Petition in Supreme Court of the United States. On May 5, 1943, Foley asked one of the prison officials to cause to be mailed to the Supreme Court of the United States a petition for a writ of habeas corpus. Warden Ragen received a letter from the clerk of the Supreme Court of the United States dated May 14, 1943, as follows: "I have your letter of the 11th enclosing an application for writ of habeas corpus on behalf of George Foley. This application will be presented to the Court and you will be advised of the action taken thereon." A copy of the foregoing letter was received by Foley, also a further letter from the clerk of the Supreme Court of the United States, dated June 7, 1943: "In the matter of ex parte George Foley, October term, 1942, the Court today denied the motion for leave to file petition for writ of habeas corpus without prejudice to the pending application in the District Court."

Issues raised by petition and return. The petitioner relies on the following propositions:

1. That his imprisonment, which has already run nearly ten years, has been from its commencement unlawful and in violation of the due process of law guaranteed to him by the 14th amendment to the Constitution of the United States in that, at his trial in the Circuit Court of Sangamon County, Illinois, which resulted in the judgment and sentence upon which he is now detained, he was not in true sense and in good faith afforded the assistance of counsel. That, instead, he was compelled to accept perfunctory representation by a lawyer appointed by the court to defend him, but who declined to call any witnesses for the defense, although such witnesses were available, and devoted himself solely to an effort to induce the petitioner to plead guilty upon a charge of which he was innocent.

2. That on October 16, 1934, after hearing on petitioner's (automatic) application for parole, the Parole Board of Illinois fixed the final date of petitioner's imprisonment as October 31, 1945.

3. That the action taken by the Parole Board October 16, 1934, was within the authority and power vested in said board by the laws of Illinois; also in accordance with the rules and regulations then in effect governing paroles (which rules and regulations were adopted by the board pursuant to the...