United States v. Whelchel, 13604.

• Decision Date: 22 October 1962
• Docket Number: No. 13604.,13604.
• Parties: UNITED STATES of America ex rel. Chester R. BLANTON, Petitioner-Appellant, v. Paul B. WHELCHEL, Superintendent of Indiana State Reformatory, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

308 F.2d 586 (1962)

UNITED STATES of America ex rel. Chester R. BLANTON, Petitioner-Appellant, v. Paul B. WHELCHEL, Superintendent of Indiana State Reformatory, Respondent-Appellee.

No. 13604.

United States Court of Appeals Seventh Circuit.

October 5, 1962.

Rehearing Denied October 22, 1962.

Karl J. Stipher, Daniel E. Johnson, Indianapolis, Ind., for appellant.

William D. Ruckelshaus, Asst. Atty. Gen., Indianapolis, Ind., for appellee.

Before DUFFY, KNOCH and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

Petitioner, Chester R. Blanton, appeals from a judgment denying his petition for a writ of habeas corpus.

The pertinent facts are as follows. On October 15, 1952 petitioner was convicted in the Criminal Court of Marion County, Indiana of the crime of armed robbery after a jury trial in which he was represented by two attorneys, ostensibly of his own choice. Immediately after sentencing, petitioner consulted his attorneys about the filing of a motion for a new trial. Neither promised to file such a motion. One of them, however, agreed to "look into it and see what the possibilities were of winning on appeal."

Petitioner was held in the Marion County jail until October 21, 1952, at which time he was removed to the Indiana State Prison at Michigan City. Pursuant to a prison rule, then in effect, petitioner was placed in quarantine which prevented him from communicating with anyone unless cleared by local authorities.

Although there is no showing when petitioner's quarantine ended, he was able to forward a letter to his attorney on November 6, 1952, and on November 12 or 13 he received a letter from this attorney indicating that the latter would not undertake to file a motion for a new trial. He received the same information from relatives on the 13th. Sometime during the period in question he personally prepared a motion for a new trial which was timely filed in the trial court on November 13. With regard to petitioner's competency to undertake such a task the District Court stated in its findings:

"Petitioner is a layman with no formal legal education but studied law in the penitentiary and was experienced in the preparation and handling of criminal legal pleadings and proceedings prior to the trial in question. He has been a regular subscriber to the Northeastern Reporter. He had successfully prosecuted proceedings in the year prior to the commission of the crime in Count Two of the charge and secured his release from the Indiana State Prison."

The motion for a new trial was denied. The Indiana Supreme Court affirmed, Blanton v. State, 233 Ind. 51, 115 N.E.2d 122; rehearing denied, 233 Ind. 51, 116 N.E.2d 631. Petitioner was represented by court appointed counsel in the appeal.

In 1954 petitioner applied to the trial court for permission to file a belated, and what he termed a "proper", motion for a new trial. The application was denied and the Indiana Supreme Court affirmed. 234 Ind. 142, 124 N.E.2d 382; certiorari denied, 350 U.S. 850, 76 S.Ct. 90, 100 L. Ed. 756. Although the State Supreme Court affirmed on the ground that there was no statutory provision for a supplemental motion for a new trial after the period of time allowed by statute has expired, it noted that "it thus appears by the record of this court, of which we take judicial notice, that appellant has had all the remedy the law gives him by way of appeal." (at 384)

In 1956 petitioner filed a petition for a writ of habeas corpus in the District Court. The petition was denied for failure to exhaust state remedies.

Thereafter, in 1957 petitioner filed in the trial court a petition for writ of error coram nobis. Although this petition is not a part of the record in the instant proceeding, petitioner asserts in his present petition for writ of habeas corpus:

"That said petition fully and substantially, reasserted the facts and circumstances alleging a clear denial of `due process\' and `equal protection\' of laws in the proceedings, trial and conviction, and suppression of relator\'s timely and diligent efforts to prosecute an adequate and effective appeal from his conviction upon his imprisonment at the Indiana State Prison immediately following his conviction and commitment thereto on October 21, 1952."

Moreover, in the hearing before the District Court petitioner testified as follows:

"The best conclusion I could come to from the denial of my habeas corpus petition was on the grounds that I had not exhausted the Petition for Writ of Error Coram Nobis. That is, in effect, what I later did. I filed a motion to vacate and void judgment, or Petition for Error Coram Nobis, in the Marion County Criminal Court, and hearing was held on that."

The petition for writ of error coram nobis was denied. Thereafter, petitioner filed in the trial court a motion for leave to appeal as a pauper and for a transcript of the record in the coram nobis proceeding. After a denial of this motion he sought the aid of the Indiana Public Defender and asked him to purchase a transcript for use on appeal. The Public Defender declined to purchase a transcript or to provide counsel for an appellate review. While still in correspondence with the Public Defender, petitioner's time for perfecting an appeal expired.

Petitioner presents two issues in this appeal. He contends (1) that, by placing him in prison quarantine during the period when he needed the assistance of an attorney in preparing and filing a "proper" motion for new trial, the State of Indiana effectively prevented an appeal of his original conviction, hence it deprived him of the equal protection of the laws required by the Fourteenth Amendment; and (2) that the State of Indiana denied him, an indigent, equal protection of the laws by conditioning his right to appeal the denial of his petition for error coram nobis upon the approval of the Public Defender when no such condition is imposed upon a non-indigent.

The District Court concluded that petitioner was not denied his constitutional rights by being held in quarantine during a portion of the statutory thirty day period in which a motion for a new trial must be filed. We believe this conclusion is correct.

Following his conviction, petitioner consulted with cou...