Favor v. Henderson , 348 F. Supp. 423 ( 1972 )

ORDER

DAWKINS, Chief Judge.

Petitioner’s habeas application was received by this Court and permitted to be filed and prosecuted in forma pawperis.

March 3, 1972, we directed the State to file the complete record in this matter with this Court and further that the State, through its District Attorney for the Twenty-Sixth Judicial District Court, Bossier Parish, Louisiana, should file a brief of authorities or otherwise plead within the twenty days in response to applicant’s allegations that his conviction was unconstitutionally obtained by perjured testimony of Floyd E. Cumbey; that collusion existed between that State’s witness and the authorities of Bossier Parish; and that he was denied his right to appeal and to have the aid of counsel on appeal.

The record has been received, including the entire transcript of the trial (660 pages) and another volume of 14 pages of rebuttal transcript, and an additional volume with the Minutes of the Court, including motions, the habeas corpus petition of applicant, and judgment denying same. A general denial has been received from the respondent through the Attorney General’s office, but no brief or other pleadings.

Applicant has alleged in hjs petition, through counsel of record, Mr. J. B. Wells, that he was sentenced to life imprisonment on June 19, 1967, after trial, and raises three questions as to the alleged invalidity of his sentence, viz.,

I. Was relator’s conviction had by one sole witness’s perjured testimony?

II. Was there any collusion between “star” witness Cumbey and the Bossier Parish authorities which was not revealed to defense counsel or the jury?

III. Was relator denied his constitutional right to appeal and to have the aid of counsel on appeal?

The record before us shows that applicant had the benefit of most able counsel before and during his trial, through Messrs. Joe T. Cawthorn (now deceased) and J. B. Wells, who were retained and vigorously defended applicant. There is nothing in the record that indicates that retained counsel ever filed in the trial Court any motion to withdraw as counsel because of the indigency of applicant or that applicant desired to appeal. It can only be assumed that applicant and his counsel did not desire to appeal and that an out-of-time appeal at this late date would be of no avail as the habeas corpus application relating to the same questions has been denied by the State District Court and the Louisiana Supreme Court. See Johnson v. Wainwright, 456 F.2d 1200, Summary Calendar (5th Cir., February 25, 1972). The application for writ as to question III above therefore i,s denied.

As to question I presented above, this also is without merit and is denied as the jury heard the testimony of all the witnesses including applicant and the main witness for the State, Floyd E. Cumbey, who was rigorously cross-examined by defense counsel and his entire past and sordid record paraded before the jury.

The record before us i,s wholly silent as to question II. There is no evidence in the record or response from the State, with affidavits or otherwise, so that we can determine if applicant was in any wise prejudiced in his trial. It can no longer be questioned that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215. Moreover, the jury is entitled to know of “any understanding or agreement as to a future prosecution,” Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104, 1972, or as to any quid pro quo for Cumbey’s testimony.

If there was an understanding between Cumbey, the prosecutor, and the Judge, as alleged, which was not communicated to defense counsel or to the jury, then the State Court should determine whether the failure to make the disclosure was harmless beyond a reasonable doubt. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966); Vaccaro v. United States, 461 F.2d 626 (5th Cir., 1972).

It is noted in the record and from judicial notice that the composition of the Twenty-Sixth Judicial District, comprising Bossier and Webster Parishes, Louisiana, has changed substantially since the trial and conviction of applicant: The Honorable O. E. Price, Presiding Judge at the trial now is a Judge of the Louisiana Court of Appeal, Second Circuit; The Honorable Louis E. Padgett, Jr., who was the District Attorney who prosecuted the case of applicant, is now District Judge in said Twenty-Sixth District; The Honorable Monty M. Wyche, who was Assistant District Attorney in applicant’s case, is now a District Judge of the Twenty-Sixth Judicial District; The Honorable Enos C. McClendon, Jr., the sole remaining Judge of the Twenty-Sixth Judicial District, already has rendered judgment denying applicant’s State habeas petition. He did not even address himself to the issues raised by question II. The Honorable Charles A. Marvin is now District Attorney of said Twenty-Sixth District, recently elected, and was and is a partner in the firm with Mr. J. T. Campbell in Minden, Louisiana, Mr. Campbell being associate counsel with Mr. J. B. Wells for applicant herein on his habeas petition in the State Court.

On the allegations of the petition herein an evidentiary hearing must be held.

It is therefore ordered, that the State of Louisiana, through the office of its Attorney General invoke in the State Court an evidentiary hearing within thirty days to determine the veracity vel non of the allegations made by applicant in his petition as to question II herein-above set forth. Cline v. Beto, 418 F.2d 549 (5th Cir., 1969). This Court is not ordering a trial de novo of Favor. We are not concerned with his guilt or innocence but only as to whether due process of law, under the State and Federal Constitutions, was accorded him in the State proceedings which resulted in his conviction and sentence. The inquiry to be conducted by the State Judge according to this Order should be limited to a factual determination as to the existence vel non of collusion between Cumbey, the prosecutor, and the trial Judge; whether it, if such there was, was communicated to defense counsel and the jury; and whether or not failure to reveal, if such indeed occurred as alleged, was harmless beyond a reasonable doubt.

To that end, it is further ordered, that the Attorney General of Louisiana petition the Supreme Court of Louisiana to designate a State District Judge presiding in a district outside of the Twenty-Sixth Judicial District Court to preside over the evidentiary hearing, and to appoint a District Attorney outside the Twenty-Sixth Judicial District to represent the State. It is also ordered, that the State of Louisiana transfer petitioner from the Penitentiary at Angola to the Jail at Benton, Louisiana, ip ample time for retained counsel to prepare for the hearing.

Jurisdiction of this case is retained by this Court pending the final outcome of the State Court evidentiary hearing. A full written transcript of that hearing shall be made, and filed with us, as well as written findings of fact and conclusions of law to be made upon the factual and legal issues on question II presented by petitioner, said findings and conclusions to be made by the State trial Judge who conducts the evidentiary hearing, all of which will be reviewed by us before disposing of this habeas application.

Of course, the State may decide that an evidentiary hearing is not desirable, in which case we shall be entitled to find that the allegations of petitioner’s application are true and the writ of habeas corpus will be granted.

SUPPLEMENTAL ORDER

Pursuant to our order of May 16, 1972, we have received from the office of the Attorney General of Louisiana a copy of the motion he filed with the Louisiana Supreme Court for appointment of a Judge ad hoc, appended hereto as Exhibit No. 1. We also have received from the Clerk of the Louisiana Supreme Court its ruling, copy of which is appended as Exhibit No. 2.

We have obtained the Minutes and Judgments of the Twenty-Sixth Judicial District Court for Bossier Parish, Louisiana; a certificate from the Records Office of the Louisiana State Penitentiary, Angola, Louisiana, showing that Cumbey never was incarcerated in that institution; and a copy of a letter written by the Honorable W. E. Waggonner, Sheriff of Bossier Parish, dated October 22, 1970, showing that Cumbey was released without serving any part of his sentence.¹ Moreover, we have received the State Court Minutes disclosing that Yates, a co-defendant ip this murder trial, after serving four years in confinement at Angola, was returned to the District Court in Bossier Parish where his life sentence was voided, pleaded guilty to two counts of manslaughter, and was sentenced by the District Court to seventeen-year terms on each count, to run concurrently, and concurrently with a federal sentence of twenty years for bank robbery which began in 1964. In the event Yates is paroled by federal authorities, the remainder of his State sentences are to be suspended. All of these documents are appended as Exhibits Nos. 3 through 7, respectively.

Yates filed a petition for habeas corpus in this Court on July 21, 1970. Since he had not exhausted State Court remedies, we directed him to refile his petition and ordered an evidentiary hearing. Upon request of the then .District Attorney, Honorable Louis E. Padgett, Jr., this Court granted a delay for conducting the evidentiary hearing for thirty days from October 27, 1970. Thereafter, once Yates’ sentence was reduced by the State Court as described above, and he was surrendered to the Federal Prison System, we received a handwritten motion by him to withdraw his petition for a writ of habeas corpus in this Court and to dismiss the suit, which motion was granted by us. Copy of this document is appended as Exhibit No. 8.

As heretofore noted in our original order, Favor alleges that there was collusion between “star” witness Cumbey, indicted on the same offenses — murder of an elderly couple in Bossier Parish— and the Bossier Parish authorities which was not revealed to defense counsel or to the jury. We there indicated an earlier habeas application entertained by the Honorable Enos C. McClendon, Jr., was dismissed in a written opinion which did not address itself at all to the “collusion” claim. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), cast serious doubts on the methods used by the Bossier Parish authorities in obtaining jury convictions and two sentences of life imprisonment imposed upon Favor.² Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966), supply the appropriate test for determining whether failure to disclose any understanding in such circumstances violated due process of law and mandated voiding the trial, conviction, and sentences.

The Supreme Court in Fay v. Noia, 372 U.S. 391, 401-402, 83 S.Ct. 822, 828, 9 L.Ed.2d 837 (1962), wrote:

“. . . It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century, but also in America from our very beginnings, and today. Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform wi,th the fundamental requirements of law, the individual is entitled to his immediate release. Thus there is nothing novel in the fact that today habeas corpus in the federal courts provides a mode for the redress of denials of due process of law. Vindication of due process is precisely its historic office.” (Footnotes omitted.)

Of course, federal courts are charged with making final federal constitutional decisions. Those decisions may be based on facts adduced at the federal district court’s evidentiary hearing or on the record as submitted by the State Court or by a State Court’s evidentiary hearing which provides a full, fair, and adequate determination of applicant’s claims. No matter the method chosen, the federal district court makes the independent determination of the facts and measures them against federal constitutional standards. This is not to say that i,n any manner we act as an appellate court or an overlord of the State Court judiciary. As Chief Judge Tuttle wrote in Stickney v. Ellis, 286 F.2d 755, 757 (1961), “The District Court’s review on habeas corpus of a state conviction is not ‘a ease of a lower court sitting in judgment on a higher court. It is merely one aspect of the Supremacy Clause of the Constitution whereby federal law is higher than State law.’ ” ³

This is acutely so when federal constitutional rights have been abused, as here alleged. The responsibility is squarely upon us and we have not shirked and will not shirk it. Indeed, we shall discharge that duty in its fullest measure.

Mindful of the statutory directive, 28 U.S.C. § 2254(c), in the interest of comity, to stay our hand in cases where applicants have not exhausted State remedies, initially we sent Favor back to the State Court, where he was required to present his allegations of constitutional deprivations for State scrutiny. The Court in Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, explained the rationality of exhaustion of State remedies:

“It would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation. . . . Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until a court of another sovereignty with concurrent powers, and already cognizant of the litigation has had an opportunity to pass upon the matter.” (At page 204, 70 S.Ct. at page 590.)

Our sensitivity to this mandate and the federal jurisprudence’s insistence upon it convinces us that State Courts should be given every opportunity consistent with constitutional rights of habeas applicants to right their own wrongs. This common-sense policy does not reflect any reluctance on this Court’s behalf for exercising its duty. Indeed our retention of jurisdiction in this and other similar cases affirms our attention to federal constitutional affairs. Nevertheless, we recognize that federal interference is necessary only after the State allegedly has refused to provide any defendant due process under the federal Constitution. We have directed many applicants to file and refile their petitions for habeas relief in State Courts. Generally, the responses to our Court-ordered hearings have been thorough and fair investigations of the bases for defendants’ applications; and most often we have adopted the findings of fact made by the able State District Courts.

Here, we directed Louisiana's Attorney General to petition the State Supreme Court to assign a State trial judge ad hoc from outside the Twenty-Sixth Judicial District to conduct an evidentiary hearing wherein Favor might use the State’s post-conviction habeas remedy to re-present his claim which had not been disposed of by any of the State Courts. In Milton v. Wainwright, 396 F.2d 214 (5th Cir., 1968), Chief Judge Brown asked a rhetorical question:

“Should we, in the interest of genuine working comity, put the fact-finding responsibility as to this new factual thesis squarely on the . . . Courts where initially at least, it belongs?”

His answer recognizes that State Courts, to the same extent as federal, have duties and responsibilities in the administration of federal Constitutional law:

“We are now committed to the fullest exploitation of the many new and urgently needed State post-conviction remedies. In the long run, time is saved if constitutional rights are better vindicated by assuring that State mechanisms to ascertain and find facts are fully used. We reject again, as we have so many times recently the beguiling appeal of remanding it for the Federal Judge to do what is initially the clear duty of the State Court.

See State of Texas v. Payton, 5 Cir., 1968, 390 F.2d 261 ... . This is not abdication. To the contrary it effectuates the Supremacy Clause in a vivid way to (a) place initial responsibility where it belongs and (b) hopefully by fact ascertainment and finding the constitutional claim will be recognized by the state court or, if not, (c) the Federal Court would have an adequate record on which to make the inescapably independent judgment on the facts.” (At p. 215.) (Emphasis supplied.) ⁴

While we are aware of amazingly glaring refusals by Louisiana’s Supreme Court to apply federal constitutional law⁵ we are bound not only by United States Supreme Court rulings but also by decisions of the United States Court of Appeals for the Fifth Circuit. Recently that Court wrote in Cline v. Beto, 418 F.2d 549 (5th Cir., 1969):

“Upon remand it is not imperative that the District Court itself hold a hearing. The District Court may properly withhold the granting of relief and retain jurisdiction of this cause for a reasonable period of time during which the State may be afforded opportunity to give the appellant an evidentiary hearing and enter appropriate findings. The State Court findings, upon review, then may be the basis for the final order of the United States District Court.

“If no appropriate record of the State Court proceedings are filed within the time proscribed by the District Court, it should then exercise its continuing jurisdiction by directing a new trial within a reasonable time or discharging the appellant from custody.

“It is for the United States District Court to determine whether it should proceed to conduct the hearing itself or allow the State to conduct its own hearing and enter appropriate findings. The State hearing procedure in no way divests the District Court of its full jurisdiction. The District Court may well determine that affording the State the opportunity to exercise its initial, if not primary, right and responsibility, has great merit in the administration of law whjle, at the same time, reserving to the District Court its ‘inescapably independent judgment on federal issues.’ ” (Citations omitted.) (At p. 551.)

With deference, we are compelled at this point to observe that if Justice Bar-ham, on May 25, 1972, in confecti,ng his concurring opinion in the case before us, where he chose to characterize our order of May 16, 1972, as a “contumelious abuse of authority,” had spent as much effort in reading Cline v. Beto as he did in digging through the dictionary to find such a castigating appellation for our order, in which Cline was expressly cited, perhaps his feelings would have been ameliorated to some extent at least, and he might not have used such harsh language.

Our only interest in this matter is to enforce the right of personal liberty when that right has been denied and a person confined. We have been granted wide discretion in determining the facts and disposing of the matter as law and justice require. However, we cannot revise the State Court judgment (sent to us by its Clerk and appended hereto), but can act only on the body of the petitioner. The Supreme Court in Townsend v. Sain, 372 U.S. 293, 319, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1962), wrote:

“. . . We are aware that the too promiscuous grant of [federal] evidentiary hearings on habeas could both swamp the dockets of the District Courts and cause acute and unnecessary friction wi,th the State organs of criminal justice, while the too limited use of such hearings would allow many grave constitutional errors to go forever uneorreeted.”

In light of Louisiana’s Supreme Court ruling herein, we conclude that our original order, which most unintentionally exacerbated the Federal-State friction potentially present whenever the writ of habeas corpus is applied for by state prisoners, should be modified.

Clearly, in light of developments here, we would have the right to release Favor. Fay v. Noia, supra-, Cline v. Beto, supra. Nevertheless, the remedy we fashion is in response to our duty in relation to habeas matters and not in reaction to the State Supreme Court’s opinion. Consequently, we now grant petitioner’s application for the writ of habeas corpus to the extent that the State retry petitioner within a reasonable time, not to exceed thirty days from this date. His convictions and sentences hereby are nullified and set aside.

For the reasons set forth in our first order, we direct that such new trial be conducted in the Tenth Judicial District of Louisiana, in Natchitoches Parish, before one of the Judges of that Court; and that the Louisiana Attorney General assign a District Attorney from outside the Twenty-Sixth Judicial District to serve as prosecutor.

If this is not done, as directed, we shall order his immediate release from the Louisiana State Penitentiary, to be prosecuted no more under the indictments by the Bossier Parish grand jury.

EXHIBIT NO. 1

SUPREME COURT OF LOUISIANA NO.

JACK G. FAVOR, P.M.B. 65386

VERSUS

C. MURRAY HENDERSON, WARDEN •LOUISIANA STATE PENITENTIARY

MOTION TO APPOINT JUDGE AD HOC

Pursuant to an order issued out of the UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, SHREVEPORT DIVISION, in the matter of JACK G. FAVOR, P.M.B. 65386, versus C. MURRAY HENDERSON, WARDEN, LOUISIANA STATE PENITENTIARY, civil action No. 17,628, a copy of which is attached hereto and made a part hereof, the office of the Attorney General of the State of Louisiana, through the undersigned counsel respectfully requests this Honorable Court to order an evidentiary hearing on the question of the veracity vel non of an allegation made by Jack G. Favor to wit:

“Was there any collusion between ‘star’ witness Cumbey and the Bossier Parish authorities which was not revealed to defense counsel or the jury?”

and further in compliance with the said order issued out of the UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF LOUISIANA, SHREVEPORT DIVISION, to designate and appoint a State District Judge outside of the Twenty-Sixth Judicial District Court to preside over the evidentiary hearing.

RESPECTFULLY SUBMITTED,

WILLIAM J. GUSTE, JR.

Attorney General

BY:

s/ Walter L. Smith Jr.

WALTER L. SMITH, JR.

Assistant Attorney General

EXHIBIT NO. 2

SUPREME COURT OF LOUISIANA

JACK G. FAVOR, P.M.B. 65386 V. C. MURRAY HENDERSON LOUISIANA STATE PENITENTIARY

MOTION TO APPOINT JUDGE AD HOC

The motion is denied—

The United States District Judge before whom the application for habeas corpus is pending, and who states in his order that he is retaining jurisdiction of the case, is without authority to order the Attorney General of Louisiana to apply to this Court to appoint a state court judge to conduct an evidentiary hearing in the state court on a claim made by a petitioner in a habeas corpus proceeding pending in the United States District Court. Since the case is pending in the United States District Court, that tribunal has ample authority to conduct an evidentiary hearing of its own; it cannot, and should not, request such a proceeding in the state court, where petitioner has already applied for and has been denied relief. See State ex rel. Favor v. Henderson, No. 52,122 of our docket, La., 256 So.2d 641.

Barham, J., concurs with written reasons.

1 . Sheriff Waggonner volunteered the information that he deliberately left vague the source which directed him to release Cumbey to prevent an embarrassing situation.

2 . As noted, Cumbey was released from custody, but the jury in convicting Favor was told he, Cumbey, would serve a life term in the penitentiary. (State Court Trial, pp. 367, 396-398, 406-409, 622-623, 628.) After the trial, on December 11, 1967, Cumbey was allowed to change his plea from guilty of murder to guilty on two counts of manslaughter, received two twenty-one year sentences, and was released on December 12, 1967, without serving a day on any of his sentences. See Exhibits Nos. 3, 4, and 6.

3 . The Supremacy Clause referred to by Judge Tuttle reads:

“Article 6, Clause 2. This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

Under that Clause, the federal courts’ interpretations thereof are controlling vis d vis State Court decisions, especially where federal constitutional rights of individuals prosecuted in State Courts are involved. The following cases illustrate that a United States Court’s analysis of the Constitution binds the State judiciaries and overrides their notions of federal constitutional law: North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), (due process denied by State by more drastic sentence on second trial); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1870) (Fifth Amendment guarantee against double jeopardy, applicable to States, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; embodies collateral estoppel); Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971) (State must afford indigent non-felony defendant a trial record of sufficient completeness to effect an appeal).

4 . See also Fitzgerald v. Wainwright, 440 F.2d 1049 (5th Cir., 1971); Bryan v. State of Louisiana, 418 F.2d 560, at 561 (5th Cir., 1969); and Savant v. Henderson, 319 F.Supp. 984 (W.D.La., Alex. Div., 1970).

5 . See State ex rel. LeBlanc v. Henderson, La., 259 So.2d 557 (1972). There that Court determined that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), would apply from the effective date of State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971). Justice Barham, dissenting, wrote: “Now comes the most unfathomable legal principle in the opinion. The majority has decided to apply Boykin v. Alabama not upon its effective date, June 2, 1969, but as of December 8, 1971, when we handed down State ex rel. Jackson v. Henderson. Is it reasonable to believe that a state court can ignore and deny effect to a United States Supreme Court pronouncement until it finds it convenient or expedient to apply it to federal issues which are affected by the decision?” (259 So.2d at p. 565.) See, e. g., Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).