United States v. Richmond, Civ. No. 6294.

• Decision Date: 14 October 1958
• Docket Number: Civ. No. 6294.
• Citation: 178 F. Supp. 69
• Parties: UNITED STATES ex rel. Harold D. ROGERS v. Mark S. RICHMOND, Warden of Connecticut State Prison (Substituted Respondent).
• Court: U.S. District Court — District of Connecticut

178 F. Supp. 69

UNITED STATES ex rel. Harold D. ROGERS v. Mark S. RICHMOND, Warden of Connecticut State Prison (Substituted Respondent).

Civ. No. 6294.

United States District Court D. Connecticut.

October 14, 1958.

Louis Pollak, New Haven, Conn., Jacob Zeldes, Bridgeport, Conn., for petitioner.

Abraham S. Ullman, State's Atty. for New Haven County, New Haven, Conn., Robert C. Zampano, East Haven, Conn., for respondent.

J. JOSEPH SMITH, Chief Judge.

By writ of habeas corpus, this court set aside a state court judgment on a jury finding of relator's guilt of murder in the first degree, by reason of lack of due process through the use of two confessions found by the state trial court to have been voluntary, but found after hearing by this court to have been not voluntary. The Court of Appeals reversed, remanding for consideration of the entire record of the proceedings before the state courts, a portion of which, the testimony and the findings of the trial judge on the issue of the voluntary character of the two confessions, had not been placed in evidence at the hearing here. United States ex rel. Rogers v. Richmond, 2 Cir., 252 F.2d 807 and 812. The Supreme Court denied certiorari, with a brief opinion. Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361.

The remand of this matter to this court for further proceedings in accordance with the opinion of the Court of Appeals has left some doubt as to the meaning of the language employed by that court in both its original opinion and the opinion on rehearing.

The Court of Appeals felt that this court had followed improper procedure in holding a hearing de novo without first calling for the entire record of the state trial proceedings (or at least those sections pertinent to the coerced confession issue, including testimony at the preliminary hearing before the trial judge on that issue), and in making its decision that relator was entitled to have the judgment of conviction set aside on the basis of testimony adduced at this hearing, rather than on the basis of the state trial record. The Court of Appeals relied on its interpretation of Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, a case in which the Supreme Court discussed the procedures to be followed by a United States District Judge when he is dealing with a state prisoner's application for a writ of habeas corpus. According to the Court of Appeals, Brown v. Allen requires a District Judge to call for and examine the state trial record in such cases. It further held:

"Unless the judge below shall find in the record thus before him material which he deems to constitute `vital flaws' and `unusual circumstances' within the meaning of Brown v. Allen, we hold that he should make the necessary constitutional determinations exclusively on the basis of the historical facts as found by the State trial court. Brown v. Allen, 344 U.S. at pages 507, 508, 73 S.Ct. at page 446." 252 F.2d at page 811 (Emphasis supplied).

This would appear to be a clear command to the court below to proceed as follows:

1st, Obtain the state trial record.

2nd, Examine same to determine whether the state proceedings were marred by some "vital flaw" or "unusual circumstance."

3rd, Should this examination reveal no such flaws or circumstances, then the court must confine itself to analyzing the historical facts as found by the state trial court as the basis of determining the constitutional question raised by relator's petition.

4th, Alternatively, should the examination reveal the existence of such a flaw or of such circumstances, then the court is allowed to go outside the state record and to hold a hearing on the same issues that were tried in the state trial court, if the court, in its discretion, decides that a trial de novo of these issues is necessary.

If there were any doubt that the use of the word "should" added anything but a mandatory spirit to this paragraph, that should be dispelled by the word "exclusively" as it is used to describe the method by which the court is to make the constitutional determination. The Court of Appeals did not recede from this position in denying relator's petition for rehearing. In that petition relator had argued that the opinion previously issued was in conflict with Brown v. Allen, the very opinion relied on by the Court of Appeals. It appears that relator relies on Brown v. Allen as providing authority that the District Judge has discretion to hear such evidence as the parties choose to offer at the federal hearing, including evidence on issues already heard in the state court and which is, of course, in the state record. The Court of Appeals stated in its supplementary opinion that it did not read Brown v. Allen as relator did; that any "additional evidence" heard by the District Judge, in the absence of a vital flaw, etc., had to be confined to evidence material on the constitutional question which the state court had excluded or as to which it had made no finding. Relator's bid for certiorari was denied by the Supreme Court. However, contrary to its usual practice, the Supreme Court issued a brief statement with the denial, designed, apparently, to guide the courts below by explaining how the members of the Court interpreted the opinion of the Court of Appeals:

"On consideration of the petition for a writ of certiorari herein to the United States Court of Appeals for the Second Circuit, it is ordered by this Court that the said petition be, and the same is hereby denied. We read the opinion of the Court of Appeals as holding that while the District Judge may, unless he finds a vital flaw in the State Court proceedings, accept the determination in such proceedings, he need not deem such determination binding, and may take testimony. See Brown v. Allen, 344 U.S. 443, 506, et seq., 73 S.Ct. 397, 97 L.Ed. 469." Rogers v. Richmond, 357 U.S. 220, 78 S.Ct. 1365, 2 L.Ed.2d 1361 (June 16, 1958).

This "interpretation" by the Supreme Court, on its face, seems to mean that the District Judge, after examining the record of the state proceedings, is free to accept the state factual determinations in those proceedings and base his constitutional determination thereon, or to reject them and call for testimony on which to base his constitutional determinations, unless his examination of the state proceedings reveals some "vital flaw", in which instance the implication is that he cannot accept the state determination but must call for testimony. This, essentially is relator's present position. See Comment to the same effect (that the Supreme Court rejected any limitation on the discretion of the District Court) 58 Columbia Law Review 895.

Yet if that were so there would be no bounds on the exercise of the judge's discretion, although the Court sought to define some such bounds in Brown v. Allen. The Supreme Court's allusion to the discussion on p. 506 et seq. of that opinion emphasizing the possibility that the facts have been tried and adjudicated against the applicant, and implying that their determination may well be accepted in the absence of a vital flaw in their state court determination points to a standard to be...