United States v. York

• Decision Date: 29 November 1967
• Docket Number: Civ. No. 12173.
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. Irma RUSH v. Janet YORK, Superintendent, Connecticut State Farm for Women.

281 F. Supp. 779

UNITED STATES ex rel. Irma RUSH v. Janet YORK, Superintendent, Connecticut State Farm for Women.

Civ. No. 12173.

United States District Court D. Connecticut.

November 29, 1967.

William D. Graham, Hartford, Conn., for plaintiff.

Edward R. Smoragiewicz, Asst. Pros. Atty., Hartford, Conn., for State of Connecticut.

MEMORANDUM OF DECISION ON PETITION FOR WRIT OF HABEAS CORPUS

BLUMENFELD, District Judge.

Irma Rush petitions for a writ of habeas corpus on the ground that her present imprisonment is based on a criminal proceeding against her in which she was denied her constitutional right to the assistance of counsel. She was charged with the fraudulent issue of three checks, one for $10.00, one for $4.00, and one for $7.50, drawn on her bank account closed some eight months earlier. Although a twenty year old minor, a welfare recipient, and obviously indigent and pregnant (the baby was born six days after she was sentenced), no attorney was appointed to represent her during those proceedings in the Circuit Court. With a case worker of the State Welfare Department appointed as her guardian ad litem, the petitioner was put to plea immediately thereafter and she pleaded guilty to all three counts. On the basis of a report and recommendation by her guardian ad litem (and case worker), the petitioner was sentenced to an indeterminate three year term in the State Farm for Women.¹

Exhaustion of State Remedies

The threshold question and here the principal issue is whether the petitioner has exhausted her state remedies. The principle of exhaustion of state remedies is one of comity and not jurisdiction. Wainwright v. Simpson, 360 F.2d 307 (5th Cir. 1966). In other words, "The rule of exhaustion `is not one defining power but one which relates to the appropriate exercise of power.'" Fay v. Noia, 372 U.S. 391, 420, 83 S.Ct. 822, 839, 9 L.Ed.2d 837 (1963). Simply stated, the principle underlying the exhaustion requirement is that if the doors of the state and federal courts are both open a state prisoner ought to try the state door first.

How this principle should be applied in federal courts is elaborated in 28 U.S.C. § 2254.²

The respondent advances the interesting contention that the petitioner has not exhausted her state remedies by failing to seek relief by way of habeas corpus in the state court. But when Mr. William D. Graham, Senior Attorney of the Legal Aid Department of the City of Hartford, sought to file a petition for a writ of habeas corpus in the proper venue, the clerk of the Superior Court cryptically advised him "that the Clerk's Office has no authority to waive the entry fee or costs in a Habeas Corpus action." Any possible ambiguity in the letter of the court clerk to Mr. Graham was dispelled when on October 30, 1967, he advised the prosecuting attorney for the Circuit Court (who is counsel for the respondent in this case) that the

"Clerk's Office has no authority to waive the entry fee of $45.00 in a Habeas Corpus action, except where the petitioner is represented by the Public Defender or Special Public Defender so appointed."

On more than one occasion, this court has expressly held that such an obstacle imposed by Connecticut to an indigent's pursuit of a state remedy does not bar him from applying to the federal courts for a writ of habeas corpus. United States ex rel. Embree v. Cummings, 233 F.2d 188, 189 (2d Cir. 1956). At a later date, it was only in response to the man-date of Judge Smith (now Circuit Judge) that LeRoy Nash, an indigent state prisoner serving a sentence of 25-30 years, was granted the right to appeal from his conviction without payment of costs. The state did not appeal from Judge Smith's determination that state court remedies had been exhausted by the act of the Superior Court's clerk in returning to Nash his application for a writ of habeas corpus for lack of payment of the entry fee. United States ex rel. Nash v. Richmond, Civil No. 7718 (D.Conn. Sept. 12, 1959). See State v. Nash, 149 Conn. 655, 656-57, 183 A.2d 275, 276-77, cert. denied, 371 U.S. 868, 83 S.Ct. 130, 9 L. Ed.2d 104 (1962).

The respondent's contention that Miss Rush could have filed her petition in the Superior Court rests on the premise that she should have sought the assistance of a public defender to act as conduit for filing her petition. But that contention is distorted from the start. It is an uncritical attempt to squeeze the right of an indigent prisoner to bring a habeas action without payment of court costs under the label of his sixth amendment right to the assistance of counsel in a criminal proceeding.

As always, it is important to reach the precise question presented. The right of an indigent prisoner to petition for a writ of habeas corpus without the payment of court fees is not the controlling issue. That has been settled. For more than a decade, since Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), it has been held that equal justice is not afforded where review "depends on the amount of money" a criminal defendant has. (351 U.S. at 19, 76 S.Ct. at 591). Cf. State v. Hudson, 154 Conn. 631, 635, n. 3, 228 A.2d 132, 134, n. 3 (1967). And where a state prisoner sought a writ of habeas corpus the United States Supreme Court, citing from its prior opinion in Smith v. Bennett, 365 U.S. 708, 709, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), said:

"We specifically held in Smith that having established a post-conviction procedure, a State cannot condition its availability to an indigent upon any financial consideration. And we held in Lane Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) that the same rule applies to protect an indigent against a financial obstacle to the exercise of a state-created right to appeal from an adverse decision in a post-conviction proceeding." Long v. District Court of Iowa, 385 U.S. 192, 194, 87 S.Ct. 362, 364, 17 L.Ed.2d 290 (1966).

Here, the question is whether the denial of the right to file a petition for a writ of habeas corpus without payment of court costs to an indigent state prisoner who is represented by counsel other than a public defender designated by the court operates to exhaust her state court remedies. Cf. Jennings v. Illinois, 342 U.S. 104, 72 S.Ct. 123, 96 L.Ed. 119 (1951).

The Denial of the Remedy

While there may be no warrant for putting the imprimatur of permissible authority on a clerk of the Superior Court to make determinations of law contrary to law, there is at present no expression in Connecticut's decisional and statutory law or in its Rules of Practice on which to ground a valid challenge to the clerk's view. A clerk of the Superior Court has informed me that he is under oral instructions from the judiciary to permit the filing of petitions for a writ of habeas corpus by only those indigent prisoners who are incarcerated at the State Prison without payment of fees.³ Such informal advice (hearsay on hearsay) is no "justification for this court to consider this application moot and to order petitioner to pursue a post-conviction remedy" pro se. Spaulding v. Taylor, 234 F.Supp. 747, 748 (D.Kan.), aff'd, 336 F.2d 192 (10th Cir. 1964).

The Role of the Public Defender

The statute providing for the office of public defender sets forth his duties: "Each such public defender shall act as attorney in the defense of any person charged with crime * * * when such person is without funds sufficient to employ counsel for such defense." Conn. Gen.Stats. § 54-80 (emphasis added).

This year, in State v. Hudson, 154 Conn. 631, 228 A.2d 132, the court spelled out the general nature of Connecticut's schematic plan for the protection of the rights of indigent persons accused of crime, as recently amplified to keep pace with constitutional equal protection requirements. The favored place of public defenders in this scheme was emphasized. Only two of the several elements are of special significance here. The first, Conn.Gen.Stats. § 52-259a, was construed by the court, 154 Conn. at 636, 228 A.2d at 135: "Public defenders and attorneys appointed to assist a public defender or to act in his place are, while acting in such a capacity, expressly exempted from the requirement of the payment of jury fees, court fees and the record fee in this court." (Emphasis added). The second is the pertinent portion of the Rules of court⁴ as embodied in the court's opinion at 636, 228 A.2d at 135: "* * * public defenders may be appointed (§ 472B) `in any matter arising out of a detention or prosecution in a criminal case' where a person `is entitled to counsel as a matter of law and is without funds sufficient to employ counsel' § 472D." (Emphasis added.) (Conn.Prac.Book, Supp.1967, effective Sept. 1, 1965.)

Assuming that a petition for a writ of habeas corpus might be construed in isolation to be a "matter arising out of a determination * * * in a criminal proceeding," it is not a proceeding in which the prisoner "is charged with crime" (§ 54-80), cf. Redway v. Walker, 13 Conn.Supp. 240, aff'd, 132 Conn. 300, 43 A.2d 748 (1945), or in which a prisoner "is entitled to counsel as a matter of law." There is no need to call the roll of the many cases, federal and state, which have held that there is no right to counsel as a matter of law in habeas corpus proceedings. The usual rationale is simply that habeas corpus is a civil proceeding and so not within the "criminal prosecutions" language of the sixth amendment, e. g., Flowers v. Oklahoma, 356 F.2d 916 (10th Cir. 1966); Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857, 877, (D.C.Cir) cert. denied, 325 U.S. 890, 65 S.Ct. 1580, 89 L.Ed. 2003 (1945); United States ex rel. Duchin v. Follette, 251 F.Supp. 1006, 1009, n. 7 (S.D.N.Y.1966). Cf. Dillon v. United States, 307 F.2d 445, 446-47, n. 3 (9th Cir. 1962). While the Supreme Court has not spoken directly to this point, there is some indication of its view. In Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362,...