Wiman v. Argo
Decision Date | 10 December 1962 |
Docket Number | No. 19979.,19979. |
Parties | M. J. WIMAN, Warden, et al., Appellants, v. Jimmy ARGO, Alias, Appellee. Jimmy ARGO, Alias, Appellant, v. M. J. WIMAN, Warden, et al., Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
MacDonald Gallion, Atty. Gen. of Alabama, John C. Tyson, III, Asst. Atty. Gen. of Alabama, Montgomery, Ala., for appellant Wiman.
Robert E. Varner, Montgomery, Ala., for appellee.
Before RIVES and GEWIN, Circuit Judges.
Certiorari Denied December 10, 1962. See 83 S.Ct. 306.
Jimmy Argo is in the custody of M. J. Wiman, the Warden of Kilby Prison, Alabama, serving a six-year sentence imposed upon him as a result of his conviction for grand larceny of a shipment of cigarettes and the truck in which they were being carried. After a full hearing on Argo's petition for habeas corpus, the district court concluded, "that the denial of Argo's motion for a short continuance or delay so that his retained counsel, Arthur Parker, could be located and be present, and the appointment of counsel who was not familiar with Argo's case, and the putting of Argo to trial with appointed counsel in the absence of his retained counsel, was arbitrary action on the part of the trial judge to an extent that Argo on March 17, 1960, in the Circuit Court of Jefferson County, Alabama, was denied his due process rights in a constitutional sense." The district court ordered Argo discharged from such custody as was pursuant to the judgment of conviction, but denied his motion to restrain and enjoin the State Authorities from rearresting and reprosecuting him on the same charges. There is no substantial dispute about the basic evidentiary facts which are sufficiently stated in the three orders of the district court.1
Appeals were taken both by the respondent and by the petitioner. On July 31, the writer ordered that Argo's discharge from custody be stayed until the respondents' appeal can be heard and determined. The appeals were submitted on briefs and oral arguments on Wednesday, August 8, 1962. The Court took time for consideration and study of the important questions presented.
Meanwhile, Argo, through his court-appointed counsel, Robert E. Varner, Esquire,2 requested that he be enlarged upon recognizance with surety as is provided in Supreme Court Rule 49, 28 U.S.C.A. and in Rule 33 of this Court, 28 U.S.C.A. in cases where the review is "of a decision discharging a prisoner on habeas corpus." See O'Brien v. Lindsey, 1 Cir., 1953, 202 F.2d 418, 420. We entered an order providing that:
Argo has been unable to furnish such a bail bond, according to the report of his counsel, and is still in custody.
After thorough consideration, we find ourselves in agreement with the findings of fact and conclusions of law of the district court as embodied in its three orders, except that we do not think that its conclusion that "Argo has exhausted the remedies available to him in the courts of the State of Alabama" is sustained by its footnote facts stated, perhaps inadvertently, as follows:
The Attorney General of Alabama, representing the respondent, considers, and commendably so we think, that an understanding of the remedies available in Alabama to test the validity of judgments of conviction of State prisoners is a matter of much importance and he urges us to correct any possible misunderstanding. In response, we state our views on the subject.
Habeas corpus is available in Alabama to attack a judgment of conviction only when its invalidity appears on the face of the proceedings; that is, of the record proper, the indictment, judgment, etc. Vernon v. State, 1941, 240 Ala. 577, 200 So. 560, 563. The remedy where the alleged invalidity appears in the evidence or must be established by parol testimony is the common-law writ of error coram nobis. Johnson v. Williams, 1943, 244 Ala. 391, 13 So.2d 683, 686. That case also declares the rule that when the judgment of conviction has been affirmed on appeal, leave must first be secured from the appellate court to petition the trial court for a writ of error coram nobis. When an appellate court does not actually assume and exercise its jurisdiction to review a judgment by appeal or otherwise, application to the appellate court for leave is not necessary or even permissible, and the petitioner has a right to seek relief in the State circuit court in which he was convicted. Ex parte Williams, 1951, 255 Ala. 648, 53 So.2d 334; Ex parte Smith, 1956, 265 Ala. 60, 89 So.2d 694; Ex parte Terry, 1959, 40 Ala.App. 538, 116 So.2d 615; Allison v. State, Ala., 1962, 137 So.2d 761.
There is no constitutional inhibition to a state's providing for review of a judgment of conviction by coram nobis instead of habeas corpus. Hysler v. Florida, 1942, 315 U.S. 411, 416, 417, 316 U.S. 642, 62 S.Ct. 688, 86 L.Ed. 932; Taylor v. Alabama, 1948, 335 U.S. 252, 261, 68 S.Ct. 1415, 92 L.Ed. 1935. In an unreported opinion denying a certificate of probable cause for appeal (28 U.S.C.A. § 2253), the writer had commented:
Phifer and Shuttlesworth v. Moore, decided February 12, 1962. The Supreme Court vacated that order and remanded the case to the district court "with instructions to hold the matter while petitioner pursues his state remedies (as indicated in the opinion of Judge Rives denying a certificate of probable cause), including an application for bail to state courts pending disposition of petitioner's application for state relief." In the Matter of Shuttlesworth, 369 U.S. 35, 82 S.Ct. 551, 7 L.Ed.2d 548. Thus the Supreme Court followed its usual course of relying primarily upon the local judge for the existence of state remedies. After further study, it appears that the writer may have made too broad a statement in saying that state habeas corpus and coram nobis furnish "remedies under the laws of the State of Alabama as adequate as habeas corpus in the federal district court."
In the federal courts the writ of habeas corpus extends to a prisoner whenever "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2241(c) (3). Whether in any case a prisoner must prove to the satisfaction of the court that he is innocent as a part of his proof that he is in custody in violation of the Constitution seems to the writer an extremely doubtful proposition. Certainly, in many cases that is not required. For example, a prisoner may complain of the severity of his punishment. That the death penalty might not have been imposed if the prisoner's constitutional rights had been observed was included...
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...often is the threshold question of what available and effective remedies remain to the prisoner to pursue in a state court. Wiman v. Argo, 5 Cir., 308 F.2d 674; United States ex rel. Martin v. Murphy, 2 Cir., 319 F.2d 897; Mahurin v. Nash, 8 Cir., 321 F.2d 662; United States ex rel. Emerick......
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...petitions are based upon assertions of alleged facts, which have originated in the fertile minds of cunning criminals.' Wiman v. Argo, 308 F.2d 674 (5th Cir.1962). "`The petitioners take great comfort in the fact that no matter how frivolous their allegations or how utterly deficient their ......
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...that Petitioner was denied due process. 11 The first case which we examine, Argo v. Wiman, 209 F.Supp. 299 (M.D.Ala.), aff'd, 308 F.2d 674 (5th Cir.), cert. denied, 371 U.S. 933, 83 S.Ct. 306, 9 L.Ed.2d 270 (1962), concerned federal habeas corpus proceedings filed by Argo challenging his tw......