Potter v. Dowd ( 1944 )

EVANS, Circuit Judge

(concurring).

I concur in the opinion of Judge Kerner. A brief statement of my position, I trust, will not appear inappropriate.

First, a word as to inconsistency. ' The charge appearing in the dissenting opinion is, so far as I am concerned, well founded. I have not been consistent in my positions in these habeas corpus cases. Alas, consistency in other matters has not always been á shining virtue of mine. And worse still, I expect the future will disclose other inconsistencies and errors. It is my hope, however, that I will be able to admit, and attempt to correct, error, when discovered, even though consistency be thereby violated.

As an explanation of my positions taken on habeas corpus proceedings, I can only say that the guiding light which I have attempted to follow has not always been along a straight line. There have been curves arid retracement of steps. And the light has at times been dim and uncertain. I did not fully appreciate that the scope and functions of writs of habeas corpus varied so greatly in different jurisdictions. Second, I failed to appreciate that, under some circumstances, a judgment or conviction in a state court was reviewable in an inferior Federal court on habeas corpus, when rights guaranteed by the Federal Constitution had been allegedly denied.

The courts, which have followed this moving light which led from United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138, to Ex parte Flawk, 321 U.S. 114, 64 S.Ct. 448, and kept up with the pace, surely need not worry over their lack of consistency. They may, however, with some satisfaction and pride, point to the fact that the highly praised rights guaranteed the individual by the Federal Constitution have moved closer to, if not into the field of reality and actual practice. Perhaps, in the last analysis, consistency is not too high a price, if we have in reality succeeded in transferring these rights from the field of lip tribute to that of actualities, — at least in the Federal courts.

Laboring under the impression that where a prisoner was seeking relief from a state court inflicted imprisonment because of the alleged denial of rights guaranteed in the Federal Constitution, his sole remedy was to proceed through the state courts and ultimately, if necessary, to the United States Supreme Court, it seemed to me that a due regard for comity between Federal and state courts, as well as the logic of the situation, compelled inferior Federal courts to refuse to interfere by habeas corpus with the state court judgments. And this was so, even though the asserted right which had been denied the prisoner was one guaranteed by the Federal Constitution. In accepting this position the writer was not the only court to fail to recognize the proper rule governing the jurisdiction of inferior Federal courts in, such situations which found expression in' the Supreme Court decision for the first time, this year.

The rule which I thought applied, stemmed from the decision in United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138. Not until last January did this earlier pronouncement of the Supreme Court find correction, if not repudiation, by the same Court in the Ex parte Hawk case.

In short, I believed and assumed that the writ of habeas corpus would not issue from an inferior Federal court to review a state court conviction where the basis of this relief was the alleged violation of one of the rights guaranteed by the Federal Constitution.

It might be observed that the general functions of the writ of habeas corpus vary so much in different states that no reflection upon the Indiana courts is involved because that court limited its scope far more than does the United States Supreme Court. Indiana courts, if I am Correctly advised, supplement habeas corpus proceedings, with the writ of coram nobis. Less seldom, or not at all, is this writ of coram nobis used in other states, or in the Federal courts, although no doubt it is an available remedy. It is a rarely used remedy in many jurisdictions, state or Federal.

The correction of my view of the law is traceable to the decision of the Supreme Court in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448.

The Hawk decision is the latest of the Supreme Court on the subject. It was no doubt intended to enlighten the Federal inferior courts so that the rather difficult road which they must travel will have fewer obstructions. Also, the convict who believes he has been denied rights guaranteed him by the Federal Constitution will find the proper judicial haven he is seeking. At the same time, I hope there will be avoidance of conflict with the state courts, an end in itself not lightly to be dismissed from consideration.

Guidance - is to be found in the decision of the Supreme Court in Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, announced January 31, 1944, in the next to the last paragraph on page 118, of 321 U.S., at page 450 of 64 S.Ct. which reads,—

“Where the state courts have considered and adjudicated the merits of his contentions, and this Court has either reviewed or declined to review the state court’s decision, a federal court will not ordinarily reexamine upon writ of habeas corpus the questions thus adjudicated. Salinger v. Loisel, 265 U.S. 224, 230, 232, 44 S.Ct. 519, 521, 522, 68 L.Ed. 989. But where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions raised, either because the state affords no remedy, see Mooney v. Holohan, supra, 294 U.S. [103, at page] 115, 55 S.Ct. [340], 79 L.Ed. 791, 98 A.L.R. 406, or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, cf. Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Ex parte Davis, 318 U.S. 412, 63 S.Ct. 679, [87 L.Ed. 868], a federal court should entertain his petition for habeas corpus, else he would be remediless. In such a case he should proceed in the federal district court before resorting to this Court by petition for habeas corpus.”

Attention is directed to the italicized words appearing in the quotation and also to the last sentence. Here is a direction both to the convict and to the court. In telling the convict where he shall proceed, namely, in the Federal District Court, the Supreme Court is indirectly saying to the District Court that it should take jurisdiction of a petition for habeas corpus if the said petition alleged that in the trial of his case in the state court the convict had been denied protection of the rights guaranteed him by the Federal Constitution, and if he also alleged the facts from which it appears that (a) the state court remedies had failed to afford a full and fair adjudication of the contentions raised, or (b) “because in the particular case the remedy afforded by state law proved in practice unavailable or seriously inadequate.”

The precise question is this: In the particular case of Mr. Potter, were the remedies afforded him by the Indiana law “in practice unavailable or seriously inadequate”? That the Supreme Court of Indiana would not correct the trial court’s alleged errors in petitioner’s case in a habeas corpus proceeding is, I think, clear. Perhaps his remedy was theoretically available through an application for a writ of coram nobis. However, he had sought such a writ. The proceeding was deemed by the Indiana courts to be a civil proceeding and he was not entitled to proceed as a pauper or to the aid of counsel. He was a pauper and more or less illiterate. He attempted to present a sufficient petition for a writ of coram nobis unaided by counsel and his efforts were fruitless, as one might expect. A pauper lodged in the penitentiary and unfamiliar with Federal procedure, was in no position to avail himself of a remedy provided by the Indiana state law in the way of a writ of coram nobis. One could not in fairness say it was an adequate remedy.

So Judge Kerner and I think. Of course, reversing the order of dismissal does not mean that the writ of habeas corpus will be ultimately allowed. It merely holds that the District Court should not deny petitioner a hearing on the facts alleged. The Warden of the state prison and the State of Indiana may be asked, and perhaps required, to answer. If the allegations of Potter’s petition be false or, conceding the verity of the allegations, insufficient to warrant the relief, the petition will be dismissed.

I hardly believe such a course will open wide the flood gates or that Federal courts will be deluged with petitions for habeas corpus in Indiana. That there has been a vast increase in these petitions in this Circuit which have imposed great burdens upon the courts, I can not deny. Even though there were thrice this increase in number, the argument that we are too busy to hear applications like this, leaves me cold. Enforcement or protection of the rights of an individual is surely not adequate if it turns on the amount or increase of the judicial labors in the Federal courts. It may be true that ninety-nine out of every hundred petitions of these convicts, who allege that the rights of the Federal Constitution were denied them, are mistaken, and the applications are without merit. On the other hand, it may be that one in a hundred is entitled to the relief. Clearly, no Federal court may say nay, before hearing, to any petitioner who, in or out of jail, asserts his confinement resulted from a denial of a right so treasured as those found in the Federal Constitution.

No one would more quickly resent the suggestion that judicial ruling should or may turn on the volume or heft of the work of the court to whom such a petition as Potter’s has been addressed, than the writer of the dissenting opinion. It is inconceivable that justice should be denied or refused because the burden of the court is a heavy one — or that a decision in petitioner’s favor would make the court’s labors, heavier.

It may be that the practical and final relief from this situation has not yet been written by Congress. Legislation may be required to relieve the burden of the courts and yet insure protection to the various prisoners who present grievances, many imaginary, but a few, possibly, real ones, through the establishment of a separate quasi-judicial body or a separate court. Until such legislation is enacted, I shall not believe the Federal judiciary will refuse because of extra labor, to meet the plain duty which the mandate of the Supreme Court has imposed upon us.