Rehearing Denied Aug. 5 1949.: July 5, 1949.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
This is an appeal by George Miller from a judgment of the District Court of the United States for the District of Kansas denying his petition for a writ of habeas corpus and remanding him to the custody of the respondent, R. H. Hudspeth, Warden of the Kansas Penitentiary. A brief statement of the essential facts is as follows:
Appellant was arrested, tried, convicted, and sentenced to death in the District Court of Miami County, Kansas, for the murder of F. M. Churchill, Chief of Police of the City of Osawatomie, Kansas. The homicide occurred on February 3, 1947. Petitioner was arrested on the same day, was arraigned in the Justice of the Peace Court on February 5, 1947, a preliminary hearing was held in said court on February 10, and an information was filed against him in the District Court on February 13. On March 5, 1947, he was called in the District Court for arraignment and plea. He was present in person and was represented by his attorney, LeRoy E. Harris, whom he had employed. At the arraignment, the judge asked the defendant to stand, asked him his name, and asked him whether he was represented by LeRoy E. Harris, to which question he answered in the affirmative. He also told the court that he had had an opportunity portunity to talk to his attorney - that he talked to his attorney that morning. The court informed him that an information had been filed against him charging him with murder in the first degree and what the court was then doing was to arraign him. The court informed him what arraignment meant, advised him that the charge would be read to him by the Clerk, that he should listen to the reading, and that after the information had been read he would be asked to plead, but before he would be required to plead, the court would further talk to him. After the reading of the information, the court advised him that he could stand mute and refuse to answer, in which event the court would order a trial to a jury, or that he could enter a plea of guilty or a plea of not guilty. The court advised him that a plea of guilty to the information charging murder in the first degree meant that he could be imprisoned for life or that he might suffer the death penalty. Having so informed Miller, the court asked him how he desired to plead, whereupon his attorney replied, "Guilty, Your Honor." The court, however, asked what Miller had to say about it, whereupon, Miller answered, "Guilty." The court asked him if he understood what that plea meant and he replied that he did.
The court then informed him that his plea of guilty did not end the matter and that before the court would impose sentence it would hear evidence. The court advised Miller that, "There is no hurry, and the defendant still has his rights to have the evidence presented and heard and considered and he still has the right to offer evidence which he might deem expedient." The court thereupon continued the case to March 11 at 9:30 A.M. On March 11, when the case was called, Miller was present in person and by his attorney, Harris. The State introduced the testimony of eleven witnesses who testified in detail to the circumstances of the killing. All of this evidence is set forth in the two cases before the Supreme Court of the State of Kansas, Miller v. Hudspeth, 164 Kan. 688, 192 P.2d 147, and State v. Miller, 194 P.2d 498, 165 Kan. 228, and will not be repeated at length here. It is sufficient for the purpose of this opinion to say that the record before us shows that Harris, Miller's attorney, cross examined all of these witnesses in detail. At the conclusion of the State's case, the court asked if counsel for Miller desired the defendant to make a statement under oath and if he had any further testimony to offer. After a conference between Miller and Harris, his attorney, the attorney announced that they had no further testimony to offer. Before pronouncing sentence, the court, however, questioned Miller and brought out the fact that Miller had very little education and that what little schooling he had he obtained in Mississippi; that at Osawatomie he did railroad work; that he had never been arrested and had never been in trouble before. The judge developed from Miller himself that since his arrest no one had tried to harm him physically and that he had been well treated by the sheriff's force. He also stated, in response to questions by the court, that no one had made any promises to him before he entered his plea of guilty and that neither the County Attorney nor anyone else had told him how to plead. The court, at the conclusion of this question, again asked Harris, the attorney, whether the defendant had anything more to say to the court by way of informing the court, and was informed that no further statement was desired to be made on behalf of Miller. Thereupon the court imposed the death sentence.
While no timely motion for a new trial was filed, such a motion was filed out of time. The motion was heard by the District Court and was denied, and an appeal was taken to the Supreme Court of Kansas, where the case was regularly docketed. Due to the peculiar nature of the case and the fact that Miller was a Negro and had employed counsel of his own race, the Supreme Court appointed the Honorable Edward Rooney with directions and authority to confer with appellant and his counsel and to do any and all acts proper to present that case to the Supreme Court, and to take such other proceedings as he deemed necessary or proper to have the legal rights of Miller adjudicated.
After a thorough investigation, and pursuant to the mandate of the Supreme Court, Mr. Rooney instituted an original proceeding in habeas corpus in the Supreme Court of Kansas. The Supreme Court appointed a Commissioner to hold hearings and make findings of fact to be presented to the Supreme Court. This was done and a report was filed with the Supreme Court by its Commissioner in which the Commissioner concluded that the writ should be conditionally allowed; that Miller should not be discharged but should be permitted to return to Miami County to withdraw his plea of guilty, and to have such other lawful proceedings as might be just and proper. This suggestion by the Commissioner was founded upon his conclusion that Miller was not adequately represented and that his rights had not been fully explained to him. The Commissioner based this recommendation on his findings that Miller's attorney should have applied for a change of venue; that on March 3, when the plea of guilty was entered, the plea should have been withdrawn and reentered on the day of the sentence; that his attorney should have filed a timely motion for a new trial; that he should have offered evidence to the court of defendant's long record of service and his good character and standing; that if his attorney believed defendant was in fear, he should have made the same known to the District Judge and the court; that if the attorney himself was in fear, he should have made that known to the court; that his attorney should have made a formal investigation of the feeling in Miami County and should have taken more time for consideration of defendant's rights; that he did not fully and completely advise defendant of the distinction between murder in the first degree and murder in the second degree; that at the preliminary hearing he made no objections to defendant's wife testifying against him; that there is nothing in the record to show that the defendant ever had his rights fully explained to him. The Supreme Court, upon a consideration of the report of the Commissioner, is findings and recommendations, concluded that neither his rights guaranteed by the State or Federal Constitution had been violated and entered an order denying the writ.
Thereafter, Miller's appeal from the judgment of conviction was also heard by the Supreme Court and was considered on its merits.The court again reviewed the case at length and found that no reversible error had occurred and the conviction and sentence of the trial court was affirmed. See State v. Miller, 165 Kan. 228, 194 P.2d 498.
Thereafter petitioner instituted this proceeding for a writ of habeas corpus in the United States District Court for the District of Kansas predicated generally on the ground that he was convicted and sentenced in violation of due process of law as guaranteed by the United States Constitution. The basis for this assertion was the claim that appellant was induced to plead guilty through fear of mob violence and threats of mob violence against both him and his attorney; that he did not have his rights to a trial by jury fully explained to him; and that the attorney who represented him was so wholly incompetent that in fact and in law he was not represented by counsel as contemplated by the Federal Constitution. Appellee, the respondent below, filed a motion to dismiss for lack of jurisdiction and also traversed the issue of violation of due process. The trial court, while expressing some doubt as to its jurisdiction, retained jurisdiction and decided the case on the merits, finding that appellant was represented by counsel within the meaning of the constitutional provision and that his constitutional immunities were not violated. Relief was accordingly denied and this appeal followed.
Here, as in the court below, appellee contends that the trial court lacked jurisdiction to entertain the action because appellant did not apply to the supreme Court of the United States for a writ of certiorari from the decision of the Supreme Court of the State of Kansas in his habeas corpus action filed in that court.
Whether application for certiorari to the Supreme Court from an adverse decision of a state court of last resort in a habeas corpus proceeding involving federal questions is in all instances a prerequisite to the right to institute such an action in a district court has received the attention of the Supreme Court in a number of late cases. In Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 450, 88 L. Ed. 572, the court said that,
"Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted."
In White v. Ragen, 324 U.S. 760, 65 S. Ct. 978, 981, 89 L. Ed. 1348, the Hawk decision was cited in support of the pronouncement of the court that,
"Where the highest state court in which a decision could be had considers and adjudicates the merits of a petition for habeas corpus, state remedies, including appellate review, are not exhausted so as to permit the filing of a petition for habeas corpus in a federal District Court, unless the federal question involved is presented to this Court on certiorari or appeal from the state court decision."
In the later case of Wade v. Mayo, 334 U.S. 672, 68 S. Ct. 1270, 1274, 92 L. Ed. 1647, the question was re-examined by the Supreme Court and it was held that certiorari to the Supreme Court was no part of the state procedure for purposes of habeas corpus. Thus the court in the majority opinion said:
"But the reasons for this exhaustion principle cease after the highest state court has rendered a decision on the merits of the federal constitutional claim. The state procedure has then ended and there is no longer any danger of a collision between federal and state authority. The problem shifts from the consummation of state remedies to the nature and extent of the federal review of the constitutional issue. The exertion of such review at this point, however, is not in any real sense a part of the state procedure. It is an invocation of federal authority growing out of the supremacy of the Federal Constitution and the necessity of giving effect to that supremacy if the state processes have failed to do so."
The majority opinion quotes with apparent approval the Hawk case to the effect that "ordinarily" an application for habeas corpus by one detained under a state judgment will be entertained by a federal court only after all state remedies and all appellate remedies, including application for a writ of certiorari, have been exhausted. The Ragen case, holding that a proceeding in habeas corpus in such a case may not be filed in the District Court until all state remedies have been exhausted and until the questions have first been presented to the Supreme Court by certiorari, was not referred to in the opinion. While the dissenting opinion listed the Ragen case in a footnote, it apparently was not cited to support the conclusion that certiorari should be considered as part of the state procedure for purposes of habeas corpus.
An analysis of the Mayo case leads to the conclusion that certiorari is no part of state procedure for the purpose of habeas corpus cases originating in state courts, and that while ordinarily a federal district court should not entertain original jurisdiction in such cases where certiorari has not first been applied for, they nonetheless have jurisdiction and are invested with the exercise of a sound discretion in determining whether such jurisdiction shall be exercised.
We, accordingly, conclude that the court had jurisdiction and did not abuse its discretion in considering the case on its merits.
Neither is there anything in 28 U.S.C.A. § 2254, which requires a contrary conclusion. That section provides that,
"An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court 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.
"An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, ...