United States v. Richmond

• Decision Date: 31 July 1959
• Docket Number: Civ. A. No. 7885.
• Citation: 177 F. Supp. 504
• Parties: UNITED STATES ex rel. James CARRONO v. Mark S. RICHMOND, Warden Connecticut State Prison.
• Court: U.S. District Court — District of Connecticut

177 F. Supp. 504

UNITED STATES ex rel. James CARRONO v. Mark S. RICHMOND, Warden Connecticut State Prison.

Civ. A. No. 7885.

United States District Court D. Connecticut.

July 31, 1959.

James Carrono, petitioner, pro se.

J. JOSEPH SMITH, Chief Judge.

In a previous opinion in this matter, the court denied this petitioner's petition for a writ of habeas corpus for failure to affirmatively indicate that he had exhausted his state remedies in compliance with 28 U.S.C. § 2254. However, dismissal was without prejudice to petitioner's right to cure the defect by amendment. D.C., 177 F.Supp. 503.

Apparently attempting to take advantage of the door thus left open, petitioner, James J. Carrono, has submitted various documents to the court which he contends show an exhaustion of remedies. By way of review it might be noted at this point that petitioner is presently serving a life sentence in the Connecticut State Prison imposed in 1957 upon his plea of guilty to the crime of murder in the second degree, for which he had been indicted. Among other claims, petitioner here challenges the plea of guilty to murder in the second degree as coerced, extracted from him while in a state of mental instability. The petition, as originally filed, indicated that the petitioner had applied for a writ of habeas corpus in the Superior Court of Connecticut, and that relief had been denied by that court. It was not stated whether or not petitioner had received a hearing in the Superior Court, and if so, what issues had been raised there. The amendment to the petition filed by petitioner indicates that he received a hearing before the Superior Court. A copy of the petition submitted to the Superior Court in that proceeding accompanied the amendment and reveals that a claim of coerced plea, among others, was presented to the Superior Court. Petitioner has also removed the obscurity surrounding his attempts, subsequent to the Superior Court hearing, to obtain review of that court's denial of the petition. It now appears that petitioner was possessed of some funds at the time he applied for habeas corpus in the Superior Court, and thus was able to pay the sixteen dollar filing fee required by Connecticut law. General Statutes of Connecticut, Rev.1958, Sec. 52-259. But he did not have sufficient resources to comply with the fee requirements for an appeal to the Supreme Court of Errors, General Statutes, Sections 52-259, 52-269, and also provide the bond required on all appeals. Connecticut Practice Book (1951 ed.) Sec. 379. Consequently his attempts to appeal the adverse decision received in the Superior Court were unavailing. Neither in the original petition nor in the amendment thereto is anything alleged concerning any attempt by petitioner to obtain a writ of certiorari from the Supreme Court of the United States so that that Court might review the state court's denial of habeas corpus.

A novel question thus arises in connection with this petitioner's application for a writ of habeas corpus in this federal district court. The usual situation in this court's experience is that of a state prisoner, without funds, who cannot take advantage of any state remedy because of Connecticut's insistence on the payment of filing fees. In such situations, there being no state remedy available at all and no state court judgment to review, no question arises as to the effect of a failure to petition the Supreme Court for certiorari. This court has construed Jennings v. State of Illinois, 1951, 342 U.S. 104, 111, 72 S.Ct. 123, 96 L.Ed. 119 as allowing prisoners so situated to proceed into the federal court without applying for certiorari. United States ex rel. Martin v. Walker, D.C.D.Conn.1952, 111 F.Supp. 455, affirmed 2 Cir., 1953, 203 F.2d 563. But in the instant case petitioner has received a judgment from a state court; he has availed himself of a state remedy. Before he can proceed in this federal district court the effect of 28 U.S.C. § 2254 on this situation must be examined. The case creating the problem is Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, wherein the Supreme Court held that "ordinarily" a state prisoner should not be considered to have exhausted the remedies available in the courts of the state until he had petitioned that Court for certiorari and the petition had been denied.

An examination of the jurisdiction of the Supreme Court of the United States to review state court judgments is indicated as a first step.

28 U.S.C. § 1257 begins:

"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: * * *" (Emphasis supplied.)

Whether the method of review employed be that of appeal or writ of certiorari, it must first appear that the judgment is final and that it has emanated from the "highest court * * * in which a decision could be had." The language employed has been construed as warranting review by the Supreme Court of judgments of state courts which are situated relatively low in local judicial hierarchy. It has been held that the writ of certiorari from the Supreme Court is properly addressed to an intermediate appellate court, rather than the higher appellate court of the state, when review by the latter of the former's decisions is discretionary, even where in declining review the higher court referred to the merits. American Railway Express Co. v. Levee, 1923, 263 U.S. 19, 44 S.Ct. 11, 68 L.Ed. 140. In that case the petitioner had received an adverse decision in a civil case in a Louisiana trial court; an appeal to an intermediate appellate court, the Court of Appeal, brought an affirmance. The Supreme Court of Louisiana refused to issue a writ of certiorari to bring up the case for review "for the reason that the judgment is correct." Mr. Justice Holmes stated that the United States Supreme Court's writ of certiorari was properly addressed to the Court of Appeal rather than the Supreme Court of Louisiana. Although it was necessary for petitioner to invoke the jurisdiction of the Supreme Court of Louisiana, nevertheless, when it was declined, the Court of Appeal was shown to be "the highest court of the State in which a decision could be had." Accordingly, review of the intermediate court's judgment by the Supreme Court of the United States was permitted under the then existing statute, a predecessor of Section 1257. In Virginian Railway Co. v. Mullens, 1926, 271 U.S. 220, 46 S.Ct. 526, 70 L.Ed. 915, a civil action in tort, the judgment of a trial court was reviewed by the Supreme Court of the United States on writ of certiorari, the state's Supreme Court of Appeals having previously declined to review the judgment of the trial court. Similar treatment of an appeal rather than review on certiorari was afforded by the Court as recently as 1954. Michigan-Wisconsin Pipe Line Co. v. Calvert, 1954, 347 U.S. 157, 74 S.Ct. 396, 98 L.Ed. 583.

It appears then, that when a higher state court can, under the constitution or laws of the state, decline to review questions presented to lower courts and adjudicated therein, and has in fact so declined, such lower court is, ipso facto, the "highest court * * * in which a decision could be had."

The same result follows where the higher court (higher in the hierarchal sense) is, by constitution or statute, without power to review the decision of the lower court. In Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, the Supreme Court held that the issuance of a writ of certiorari to a judge of the Court of Appeals of Maryland was proper because in acting on petitioner's application to him for a writ of habeas corpus, he had acted as a court, and his judgment, being that of a "court" was also a judgment of the "highest court of the State in which a decision could be had" for the reason that an order of a Maryland judge in a habeas corpus case, whatever the court to which he belongs, was not reviewable by any other court of Maryland, except in specific instances not there applicable. 316 U.S. at page 460, 62 S.Ct. 1255. See also White v. Ragen, 1945, 324 U.S. 760, 767, footnote 3, 65 S.Ct. 978, 89 L.Ed. 1348.

A writ of certiorari was addressed to the County Court of Kings County, New York, in Canizio v. People of State of New York, 1946, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545, that court having denied petitioner's motion for writ of error coram nobis, such decision being evidently nonappealable to any higher court under then existing New York practice. 327 U.S. at page 85, 66 S.Ct. 452. In Woods v. Nierstheimer, 1946, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177, writs were directed to the Circuit Court of Randolph County, Illinois, and the Criminal Court of Cook County, Illinois, because Illinois did not provide for appellate review of an order denying a petition for a writ of habeas corpus. See also Marino v. Ragen, 1947, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170; Tucker v. State of Texas, 1946, 326 U.S. 517, 66 S.Ct. 274, 90 L.Ed. 274; Largent v. State of Texas, 1943, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873.

In summary then, it appears that the Supreme Court of the United States has the authority under 28 U.S.C. § 1257 to review either by appeal or on writ of certiorari final judgments of lower state courts where relatively higher state courts have either declined to review those judgments or are without power to review them.

Turning now to the situation presented by the current laws of Connecticut we have the following problem.

As has been said, Darr v. Burford, supra, and a line of preceding cases require that a state prisoner desiring to obtain a discharge on writ of habeas corpus must "ordinarily" show an exhaustion of state remedies, up to and including a petition for certiorari in the Supreme Court. Carrono is such a prisoner. He began his attempt to exhaust his state remedies by applying for a writ of habeas corpus in the Superior Court of...