POTTER v. DOWD, Warden, 146 F.2d 244

KERNER, Circuit Judge. Appellant is a prisoner in the Indiana State Prison, serving a life sentence for rape, imposed in April, 1939, pursuant to a judgment of conviction of a state court. He petitioned the District Court for a writ of habeas corpus. From an order denying his petition — the court dismissed the petition without an examination into the substance of the causes of his detention and without determining the verity of the allegations of the petition — this appeal, in forma pauperis, is presented.

The contention is that appellant is being deprived of his liberty without due process of law in contravention of the Constitution of the United States.

In his petition he did not allege that he had applied to the state courts of Indiana for a writ of habeas corpus, but he charges that he was “framed”; that his “confession” was obtained by .duress, that is, by threats of violence (the police told him they would “knock your [his] teeth down your [his] throat” if he didn’t sign it) ; that his repudiation of the confession and his statement of the duress, before the trial judge, were ignored; that he was too poor to employ an attorney and was refused counsel by appointment of court; that he was adjudged to be guilty and sentenced without a plea of guilty made by him; and that he has endeavored to obtain relief in the Indiana state courts by coram nobis proceedings.

All of these allegations of fact we must accept as true. It further appears that the court before whom the petition for writ of error coram nobis was filed appointed counsel for him, but upon being advised that there is no constitutional provision nor state law in Indiana that entitles one in such proceeding to counsel furnished at public expense, State ex rel. Cutsinger v. Spencer, 219 Ind. 148, 41 N.E.2d 601, and State ex rel. Jones v. Smith, 220 Ind. 645, 45 N.E.2d 203, 46 N.E.2d 199, the previously appointed counsel was removed, leaving him without legal assistance.

He appealed to the Indiana Supreme Court, where, in his own handwriting, he filed his transcript of the record.

That court refused to entertain the appeal because the transcript was “not in correct form for an appeal case or an original action, therefore the court refuses to consider it until it is in due form.” Perhaps, having in mind the language of the Supreme Court in Ex parte Davis, 318 U.S. 412, 63 S.Ct. 679, 87 L.Ed. 868, that it could not assume that the Supreme Court of Indiana would refuse to use its process to bring before it such parts of the record as might be necessary for a decision of the case, or that, in any event, it would refuse to enter an order finally disposing of the appeal, he filed in the Indiana Supreme Court a petition for writ of certiorari directed to the trial court to send up a proper record.

This petition the Supreme Court of Indiana denied.

True, this court said that it was petitioner’s duty to present his application for relief from an allegedly illegal restraint of liberty because of a conviction for a felony in a state court to the judicial forums of the state in which he was convicted; that federal courts will not ordinarily interfere with the normal course of procedure under state authority, but will leave the applicant to exhaust the remedies afforded by the state for determining whether he is illegally imprisoned; and that federal jurisdiction in such cases is to be exerted only in exceptional cases involving such emergency or great urgency as necessitates action to prevent irreparable injury, Achtien v.

Dowd, 7 Cir., 117 F.2d 989; Botwinski v. Dowd, 7 Cir., 118 F.2d 829; Davis v. Dowd, 7 Cir., 119 F.2d 338; Jones v. Dowd, 7 Cir., 128 F.2d 331; and Kelly v. Dowd, 7 Cir., 140 F.2d 81. We do not recede from what the court said in those cases, rather we reaffirm the principles enunciated.

They apply where the state court remedy proves in practice that it is adequate and available and that it affords a full and fair adjudication of the federal contentions raised, 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, or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, 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 for habeas corpus. Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448. We note that in none of the Indiana cases just cited was there filed a petition for writ of error coram nobis, and in all of them this court was convinced there was no extraordinary case presented, while in the Botwinski case a full hearing was had, witnesses were heard, and the court found as a fact that petitioner had not sustained the burden of the allegations of his petition.

It is true that the Constitution, Art. 1, § 27, and the statutes of Indiana, §§ 3-1901 and 3-1905 Burns Ann.St.1933, recognize the right to the writ of habeas corpus, but § 3-1918 provides that “No court or judge shall inquire into the legality of any jirdgment or process whereby the party is in custody, or discharge him when the term of commitment has not expired, in either of the cases following: * * * Second. Upon any process issued on any final judgment of a court of competent jurisdiction.” In the case of Dowd v.

Anderson, 220 Ind. 6, at page 7, 40 N.E.2d 658, the court said: “It has been provided by statute, and uniformly held by this court from the earliest times, that a judgment of a court of competent jurisdiction cannot be collaterally attacked and overthrown in a habeas corpus proceeding; that failure to accord the defendant constitutional rights is error, but does not render the judgment void.” Continuing on page 8 of 220 Ind., at page 659 of 40 N.E.2d, it said: “Where constitutional rights, state or federal, are invaded or denied there are well known remedies provided, * * *.” See also Goodman v.

Daly, 201 Ind. 332, 165 N.E. 906; Dinkla v. Miles, 206 Ind. 124, 188 N.E. 577; Ingersoll v. Kunkel, 210 Ind. 482, 4 N.E.2d 183; Christian v. Dowd, 219 Ind. 265, 37 N.E.2d 933; State ex rel. Spence v. Worden, 219 Ind. 532, 39 N.E.2d 733. Thus it is clear that in Indiana the writ of habeas corpus is not the appropriate remedy in such a case as we are now considering. However, the writ of error coram nobis is available. State ex rel. Kunkel v. Circuit Court of LaPorte County, 209 Ind. 682, 200 N.E. 614; Ingersoll v. Kunkel, 210 Ind. 482, 4 N.E.2d 183; Swain v. Dowd, 215 Ind. 256, 18 N.E.2d 928; and State ex rel.

Dowd v. Superior Court of LaPorte County, 219 Ind. 17, 36 N.E.2d 765. To the denial of his petition in the coram nobis proceedings, appellant failed, as was suggested by the court in Ex parte Davis, 318 U.S. 412, 63 S.Ct. 679, 87 L.Ed. 868, to take the possible step of applying for a writ of certiorari to the United States Supreme Court, but sought relief in the present petition for habeas corpus. Can it be, that because of that fact, under the circumstances in this case, appellant shall be denied the right to file his petition in a federal court in an endeavor to secure his constitutional rights?

The answer is found in the language of the court in Johnson v.

Zerbst, 304 U.S. 458, 466, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 146 A.L.R. 357, “a prisoner in custody pursuant to the final judgment of a state court of criminal jurisdiction may have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention, although it may become necessary to look behind and beyond the record of his conviction to a sufficient extent to test the jurisdiction of the state court to proceed to a judgment against him.” The purpose of the constitutional guaranty to the right of counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and assure him the guiding hand of counsel at every step in the proceedings, Johnson v.

Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357, but failure to appoint counsel is not of itself a denial of due process, Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. It is, however, a fact to be considered with the other circumstances in the case. Asserted denial of due process is to be tested by appraisal of all the facts in a given case, and if from all of the facts it appears that a petitioner has been denied the substance of a fair trial, he is entitled to relief under habeas corpus. Betts v. Brady, supra, 316 U.S. at page 462, 62 S.Ct. 1252, 86 L.Ed. 1595, and Mitchell v.

Youell, 4 Cir., 130 F.2d 880, 881. True, habeas corpus cannot be used as a means of reviewing errors of law and irregularities—not involving the question of jurisdiction—occurring during the course of trial; and the writ cannot be used as a writ of error. These principles, however, must be construed and applied so as to preserve—not destroy—constitutional safeguards of human life and liberty. Johnson v. Zerbst, supra, 304 U.S. at page 465, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. Appellant is a poor person, a man of little education, with no training in law.

He does not possess the requisite skill or knowledge properly to obtain relief in a coram nobis proceeding and is without means of hiring counsel and of paying for a record for use in perfecting an appeal from the judgment dismissing his petition for writ of error coram nobis. Lacking a helping trial judge, appellant is remediless and seemingly in a hopeless situation. Under such circumstances, how is he to avail himself of the right to gain relief?

If it be true that appellant is remediless, then, as was said in the Johnson case, supra, 304 U.S. at page 467, 58 S.Ct. 1024, 82 L.Ed. 1461, 146 A.L.R. 357, “it necessarily follows that no legal procedural remedy is available to grant relief for a violation of constitutional rights, unless the courts protect petitioner’s rights by habeas corpus.” In such a situation, “A judge of the United States—to whom a petition for habeas corpus is addressed— should be alert to examine ‘the facts for himself when if true as alleged they make the trial absolutely void.’ ” Johnson v.

Zerbst, supra, 304 U.S. at page 468, 58 S.Ct. 1025, 82 L.Ed. 1461, 146 A.L.R. 357. We believe that appellant’s resort to the state court in the coram nobis proceedings proved in practice unavailable or seriously inadequate. In such a case, as was said by Mr. Justice Holmes in the case of Moore v.

Dempsey, 261 U.S. 86, 92, 43 S.Ct. 265, 267, 67 L.Ed. 543, “it appears to us unavoidable that the District Judge should find whether the facts alleged are true and whether they can be explained so far as to leave the state proceedings undisturbed.” Moreover, the judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus, Johnson v. Zerbst, supra, 304 U.S. at page 468.

If the facts alleged in the petition are true—concerning which we express no opinion—appellant has been denied a constitutional right; consequently, the application for the writ was good, and the District Court had jurisdiction to hear and decide that question. A requirement that the District Court should, in this case, inquire into and specifically find the facts, as was done in the Botwinski case, supra, is not a reflection upon the integrity of the Indiana judiciary, nor does it afford an opening by which to inundate the federal courts with petitions for habeas corpus.

Neither is it a holding generally, that habeas corpus iri Indiana is a futile thing and need not be resorted to before coming to a federal court. The case is remanded for further proceedings in conformity with this opinion. Reversed and remanded. Emphasis added.