United States of America Ex Rel. Roger Touhy, Relator-Appellee v. Joseph E. Ragen, Warden, Illinois State Penitentiary, Joliet, Illinois , 224 F.2d 611 ( 1955 )

DUFFY, Chief Judge.

The relator, Roger Touhy, is confined in the Illinois State Penitentiary pursuant to the terms and provisions of two judgments of conviction. On February 24, 1934, the Criminal Court of Cook County, Illinois, imposed upon him a sentence of 99 years for the crime of kidnapping for ransom. On November 30, 1943, the Circuit Court of Will County, Illinois, sentenced him for a term of 199 years for the crime of aiding a prisoner to escape from a penitentiary.

On April 2,1948, relator filed a petition for a writ of habeas corpus in the District Court for the Northern District of Illinois. This petition was later amended and asserted that Touhy’s conviction of kidnapping was obtained by the use of testimony known by the prosecuting officials to be perjured, and that in and during said trial, and in preparation therefor, relator was deprived of the effective assistance of counsel. The petition also alleged that the judgment of conviction of the crime of aiding a prisoner to escape was invalid because the Illinois statute, Ill.Rev.Stat.1953, Ch. 38, § 228, upon which said conviction was based, was and is unconstitutional.

The District Court ordered a hearing on the petition. A large amount of oral and documentary evidence was received. The hearings were interrupted to permit relator to apply for relief under the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat.1953, Ch. 38, §§ 826-832, which became effective August 4, 1949. Touhy filed a petition in the Criminal Court of Cook County, Illinois, asking relief under said Act, with reference to his conviction for kidnapping, but that Court sustained the State’s motion tb dismiss the amended petition, and entered an order of dismissal on December 11, 1950. On May 24, 1951, the Supreme Court of Illinois dismissed a petition for writ of error in the post-conviction hearing matter. On January 2, 1952, the United States Supreme Court denied a petition for writ of certiorari, Touhy v. State of Illinois, 342 U.S. 905, 72 S.Ct. 297, 96 L.Ed. 678. On September 8, 1952 this cause was called for further hearing.

Roger Touhy was arrested in the fall of 1933 and was taken to the State of Minnesota where, with others, he was tried for the kidnapping for ransom of one Hamm. Touhy and his co-defendants were acquitted. One Karpis later confessed to this kidnapping. Touhy was then brought to Cook County, Illinois, and, with others, was tried in the Criminal Court of Cook County for the kidnapping for ransom of one John (Jake the Barber) Factor. The jury disagreed, and on February 2, 1934 the jury was discharged. Eleven days later, Touhy and his co-defendants were again placed on trial in the Criminal Court of Cook County, charged with the kidnapping of Factor, and were convicted on February 24,1934. A sentence of 99 years was imposed on Touhy. The judgment of conviction by the Criminal Court of Cook County was affirmed in People v. Touhy, 361 Ill. 332, 197 N.E. 849.

Touhy’s conviction of aiding a prisoner to escape was based on events occurring in October, 1942. One Ed. Darlak was a prisoner in the same penitentiary where Touhy was confined, and was serving a 199-year sentence. D.arlak’s brother succeeded in smuggling a pistol into the penitentiary and, using said gun, Ed. Darlak, Touhy, Martlick Nelson and others escaped. After recapture, and upon the theory that Touhy and Nelson aided Darlak and others to escape, Touhy and Nelson were each indicted and convicted of aiding Darlak’s escape, and each received a sentence of 199 years. Darlak’s brother who smuggled the pistol into the jail, was prosecuted for aiding Nelson who was serving a lighter sentence, and he was released from prison after serving three years. Ed. Darlak was not prosecuted at all.

Prior to 1927 the maximum punishment that could have been imposed on a charge of aiding another to escape from

an Illinois penitentiary was confinement in a county jail not exceeding one year, or a fine not exceeding $1,000, or both. However, Touhy was prosecuted under § 92, Laws of Illinois, 1927, Ill.Rev.Stat. 1953, Ch. 38, § 228, which provided:

“Whoever conveys into the penitentiary, or into any jail or other place of confinement, any disguise, instrument, tool, weapon or other thing adapted or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or by any means whatever aids, abets, or assists such prisoner to escape or to attempt to escape from any jail, prison, or any lawful detention whether such escape is effected or attempted or not, or conceals or assists any convict after he had escaped, shall upon conviction thereof be given the same penalty as the prisoner whom he aided or abetted, except that in case the prisoner is sentenced to death, the penalty for such aid shall be imprisonment for life in the penitentiary.”

Touhy did not prosecute a writ of error from his conviction in 1943 for aiding a prisoner in a penitentiary to escape. There is nothing in the record to indicate that the prison or other state officials prevented him, in any way, from prosecuting such a writ. The State of Illinois argues, indeed insists, that Touhy may still do so, as that privilege is available for twenty years from the date of conviction. It might be noted that in the petitions filed in the Circuit Court for Will County in the years 1945 and 1948 Touhy did not attack the constitutionality of the statute under which he was sentenced. It is also of interest to note that on the date when Touhy and others escaped from the penitentiary, it was not an offense against the State of Illinois to make such an escape.

After lengthy hearings (the printed record herein contains over 3300 pages) Judge Barnes gave careful consideration to the evidence which had been received. He prepared an extended opinion (611 printed pages) in which he commented, in considerable detail, upon the testimony of almost all of the witnesses.

Judge Barnes concluded that the alleged kidnapping of Factor was a hoax, planned by Factor himself to prevent his extradition to Great Britain; that Touhy’s conviction of the Factor kidnapping was obtained by the use of perjured testimony known by the State prosecuting officials to have been perjured; also, that Touhy was denied effective assistance of counsel. The Court also held that the Illinois statute pertaining to aiding a prisoner to escape from a penitentiary was unconstitutional, and the proceedings against Touhy brought under said statute were null and void. The trial court was of the opinion that the statute was unconstitutional as being in violation of the equal protection of the laws clause of the Fourteenth Amendment to the United States Constitution. Judge Barnes ordered that the relator be discharged from custody.¹

Habeas corpus can be used only to test the lawfulness of the detention. If either of the judgments of conviction under which Touhy is presently serving is valid, there is no need to test the validity of the other. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; United States ex rel. Parker v. Ragen, 7 Cir., 167 F.2d 792.

However, before considering whether the trial court was correct in holding the Escape Statute unconstitutional, we are faced with the serious and fundamental question of whether Touhy exhausted his State remedies. ' The United States Supreme Court has clearly stated “a failure to use a state’s available remedy, , * * * bars federal habeas corpus.” Brown v. Allen, 344 U.S. 443, 487, 73 S.Ct. 397, 422, 97 L.Ed. 469.

Where an application for a writ of ha-beas corpus is filed upon behalf of a person who is in custody pursuant to a judgment of a State Court, the statute² specifically provides that such application “shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”

At the trial where Touhy was convicted of aiding Darlak to escape, he was represented by counsel of his own choosing. In his motion for a new trial relator did state the statute was unconstitutional because “(a) it provides different penalties for like offenses.” Relator’s counsel, in the case at bar, admits “ * * * this was probably the wrong motion under technical Illinois law * * No attempt was made to seek a review in an appellate court. In explanation, relator’s present counsel states in his brief “-■* * * there is nothing to indicate responsibility on the part of Relator, for the fact that his bill of exceptions was not prepared and submitted within the fifty-day period. The proof on this point, admittedly skimpy, is that he was financially unable to go further.”

It stands as a verity in this case that Touhy never sought relief under the Illinois Post-Conviction Hearing Act with respect to his conviction for aiding a prisoner to escape. The effective date of the Act was August 4, 1949. Touhy had three years thereafter within which to commence a proceeding under that Act, and a further period if he could show the delay was not due to culpable negligence. Ill.Stat.1949, Chapter 38, § 826. He did commence a proceeding under the Act in the Criminal Court of Cook County with reference to his conviction for kidnapping, but for some reason unexplained, he did not challenge in the Circuit Court of Will County the validity of his conviction under the Act pertaining to the aiding of a prisoner to escape.

We think Touhy did not exhaust his State Court remedies in two respects. First, by not prosecuting a writ of error to review his conviction obtained in 1943, and second, by failing to pursue the remedy afforded him under the Illinois Post-Conviction Hearing Act.

In United States ex rel. Peters v. Ragen, 7 Cir., 178 F.2d 377, 378, this Court said:

“Counsel here contends that inasmuch as this remedy did not exist at the time of the proceedings in the District Court resulting in the judgment here appealed from, it should not preclude consideration by this court of the merits of the case. We do not agree. The Supreme Court of the United States has always required scrupulous adherence by the federal courts to the doctrine of exhaustion of state remedies, as indicated by a very recent pronouncement of that principle in Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 1074 [93 L.Ed. 1333]. However, as it there said, ‘of course Illinois may choose the procedure it deems appropriate for the vindication of federal rights.’ Until the recent enactment of the statute referred to above, such serious procedural difficulties stood in the way of consideration by the Illinois courts of asserted violations of constitutional rights as to render it doubtful whether any relief could be obtained in those courts. See Young v. Ragen, supra; Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170. It therefore became necessary in many cases for the federal courts to entertain applications for relief which would better have been considered by the state courts. With the new Act, however, this appears to be no longer true. And with the jurisdiction of federal courts circumscribed as it is in the case of prisoners held in custody pursuant to the judgment of a state court, New Federal Judicial Code, 28 U.S.C.A. § 2254, we are of the opinion that if a new remedy is created at any time, such remedy must first be resorted to before it can be said that state court remedies have been exhausted. This is in accord with the action of the Supreme Court on October 10, 1949 in a series of cases involving applications by Illinois prisoners for discharge on writ of habeas corpus: 'The petition for writ of certiorari in each of these cases is denied without consideration of the questions raised therein and without prejudice to the institution by petitioner of proceedings in any Illinois state court of competent jurisdiction under the Act of August 4, 1949 * * Ferguson v. Ragen, 338 U.S. 833, 70 S.Ct. 50 [94 L.Ed. 508].”

In United States ex rel. Lilyroth v. Ragen, 7 Cir., 222 F.2d 654 (decided May 25, 1955), this Court held an out-of-time proceeding under the Illinois Post-Conviction Hearing Act was ineffectual to accomplish an exhaustion of State Court remedies. There the petitioner attempted to file belated proceeding, offering as an excuse, lack of knowledge of the existence of the Act due to an absence from Illinois. Here Touhy, although clearly advised of the Act and, in fact, proceeding thereunder with reference to another conviction, made no move to obtain relief under that Act from this second conviction.

In Brown v. Allen, 344 , U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469, the petitioner was one day late in meeting a state limitation upon a step to be taken in perfecting an appeal. The Court said, 344 U.S. at pages 486-487, 73 S.Ct. at page 422: “Finally, federal courts may not grant habeas corpus for those convicted by the state except pursuant to § 2254. * * * but clearly the state’s procedure for relief must be employed in order to avoid the use of federal habeas corpus as a matter of procedural routine to review state criminal rulings. A failure to use a state’s available remedy, in the absence of some interference or incapacity, * * * bars federal habeas corpus. The statute requires that the applicant exhaust available state remedies. To show that the time has passed for appeal is not enough to empower the Federal District Court to issue the writ.”

In Jennings v. State of Illinois, 342 U.S. 104, at page 109, 72 S.Ct. 123, at page 126, 96 L.Ed. 119, the Court said: “And, if a state provides a post-conviction corrective process, that process must be invoked and relief denied before a claim of denial of substantial federal rights may be entertained by a federal court.”

This Court has repeatedly held that although a petitioner, incarcerated pursuant to a judgment of an Illinois Court, has exhausted all other State remedies, he is not entitled to a writ of habeas corpus until he has also sought relief under the provisions of the Illinois Post-Conviction Hearing Act. United States ex rel. Giese v. Chamberlin, 7 Cir., 184 F.2d 404; United States ex rel. De Frates v. Ragen, 7 Cir., 181 F.2d 1001; United States ex rel. Peters v. Ragen, 7 Cir., 178 F.2d 377, and United States ex rel. Hamby v. Ragen, 7 Cir., 178 F.2d 379.

Seeking to avoid the effect of the authorities heretofore cited, relator attempts to place himself within an exception to the well-established rule herein-before stated. First, he argues that the general rule is not rigid and inflexible, and that District Courts may grant relief in special circumstances, citing Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541. He also points to the habeas corpus statute, § 2254, Title 28, which requires the exháustion of state remedies “or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.”

: Relator places much emphasis, on his contention that a writ of error from the Supreme Court of Illinois would have been futile .because that Court has held the Escape Act constitutional in People v. Nicholson, 401 Ill. 546, 82 N.E.2d 656. This argument is one of hind-sight. Relator was convicted in 1943. At that date the Illinois Supreme Court had not passed upon the validity of the Act. The Nicholson case was not decided until 1948. Furthermore, the possibility or probability of an adverse decision by an appellate court is insufficient reason for not seeking appellate relief.

In Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, the defendants argued that because the state of the law appeared so adverse, it would have been futile for them to appeal. They argued under such circumstances the remedy by habeas corpus should be available to them. The Court disagreed saying, 332 U.S. at pages 183-184, 67 S.Ct. at page 1593: “These registrants had available a method of obtaining the right to defend their prosecutions * * * They did not use it. And since we find no exceptional circumstances which excuse their failure, habeas corpus may not now be used as a substitute.” The Court also said, 332 U.S. at page 182, 67 S.Ct. at page 1593: “If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable.”

Also, in Parker v. Illinois, 333 U.S. 571, 68 S.Ct. 708, 92 L.Ed. 886, the Supreme Court made it clear that in spite of the fact that resort to the highest tribunal of the state may seem futile, that resort must be had where it is available as a pre-requisite to review by the Supreme Court of the United States. The Court said, 333 U.S. at page 575, 68 S.Ct. at page 710: “ * * * There is a suggestion that petitioner deemed it useless to try to take the amended order of January 23 to the Illinois Supreme Court since access to that court had been denied .him when review of the order of January 15, was sought. But even though the attempt may have seemed futile, it was only by first seeking review in the Illinois Supreme Court that he could bring to this Court the constitutional questions raised under the amended order of January 23.”

Another argument made by relator is that inasmuch as he failed to raise the question of the constitutionality of the Escape Statute in the Illinois trial court, and failed to incorporate his motion for a new trial in a Bill of Exceptions certified within a specified time, he cannot now raise the question of .constitutionality of that statute upon the common law record by a writ of error. We think People v. Clardy, 334 Ill. 160, 165 N.E. 638 and People v. Borgeson, 335 Ill. 136, 166 N.E. 451 hold to the contrary. In the Clardy case the Court said, 334 Ill. at pages 163-164, 165 N.E. at page 639: “* * * He therefore had a right to prosecute this writ of error in this court although he had not previously raised any question as to the constitutionality of the act under which the sentence was imposed, and he has by this writ availed himself of the proper remedy to avoid the effects of the unlawful judgment and sentence.”

We hold there were available to relator adequate state corrective processes which he did not utilize and that he was not prevented by any State officials from utilizing sueh processes. We further hold that circumstances did not exist which rendered such State processes ineffective to Protect relator’s rights. We find no such exceptional circumstances as have been referred to in several of the SuPreme Court decisions. We conclude that relator’s petition for a writ of habeas corpus should have been denied because he bad not exhausted his State remedies.

Although we rest our decision herein squarely upon the failure of relator to exhaust his State remedies, we think a brief comment .on the so-called Escape Statute³ might be appropriate. We concede that the authors of this legislation might well be surprised to learn that when several prison inmates make a common escape, they can be prosecuted on the theory that they assisted each other. Also, it shocks the conscience when one considers that under the terms of this Act, one escaping prisoner can be sentenced to 199 years while another of the same group may be sentenced to a year or two. We feel that certain of its provisions are not in accord with enlightened concepts of penology. Nevertheless, the highest Illinois State Court has found this Illinois statute to be constitutional, and has held that it is not repugnant to the equal protection clause of the Fourteenth Amendment. People v. Nicholson, 401 Ill. 546, 82 N.E.2d 656. The Court said, 401 Ill. at page 553, 82 N.E.2d at page 660: “It is within the power of the legislature to provide one penalty for all prisoners who aid one convicted of robbery to escape, and to provide another penalty for all prisoners aiding one convicted of petty larceny to escape. This is not an arbitrary discrimination. The measure of punishment is fixed by the terms of this statute, in accordance with the seriousness of the offense of which the prisoner, who is released or sought to be released from prison, was convicted.”

The decisions of the Supreme Court of Illinois are binding upon this Court on matters of construction of State statutes as distinct from the constitutionality of such statutes. In view of our decision herein we do not reach the question of whether the Escape Statute is repugnant to the equal protection of the laws provision of the Fourteenth Amendment.'

The order of the District Court that relator, Roger Touhy, be discharged from further imprisonment and detention by reason of the writ issued by the Criminal Court of Cook County, Illinois, pursuant to its judgment of February 24, 1934, and the writ issued by the Circuit Court of Will County, Illinois, pursuant to its judgment of November 30, 1943, must be and is,

Reversed.

1 . The State gave prompt notice of appeal. Judge Barnes released Touhy on bail. On motion, this Court vacated that part of Judge Barnes’ order permitting Touhy’s enlargement upon bail, and remanded him to the custody of the respondent, Ragen, pending a decision by this Court on this appeal. The Supreme Court of the United States denied certiorari, United States ex rel. Touhy v. Ragen, 348 U.S. 945, 75 S.Ct. 366.

2 . Title 28 U.S.C.A. § 2254.

3 . Ill.Rev.Stat.1953, Ch. 38, § 228.