Appeal from the District Court of the United States for the Northern District of Indiana, South Bend Division; Thomas W. Slick, Judge.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
Petitioner's appeal is from an order of the United States District Court for the Northern District of Indiana, denying his petition for a writ of habeas corpus.
Petitioner is incarcerated in the Indiana State Prison at Michigan City, Indiana, pursuant to a state court judgment based upon conviction on indictments charging him with being an accessory before and after the fact to murder and to burglary. Another count, charging him with conspiracy, was also included.
After conviction on the above-designated charges, on January 4, 1936, he was committed to the state penitentiary for life. At the time of his indictments he was a citizen of Illinois and was twenty years of age. He informed the court that he was without funds, and an attorney was appointed to defend him. He alleges that the appointment of this attorney, one of the negro race, and allegedly inexperienced, constituted a denial of his constitutional right to be represented by competent counsel. Avery v. Alabama, 308 U.S. 444, 60 S. Ct. 321, 84 L. Ed. 377. He also charges that his counsel erroneously informed him that he could not seek a change of venue, but could have a change of judge, and he so petitioned the court. A practicing attorney (provided for by Indiana statute) was appointed, as special judge, to sit and hear his case.
Petitioner pleaded not guilty. His attorney, allegedly without his consent, presented a stipulation of facts; no trial was had nor witnesses heard. He asserted that because of the inexperience of his counsel no appeal was taken within the time provided by statute for taking an appeal.
Petitioner invokes the jurisdiction of the Federal court, because of the lapse of time for appeal in the Indiana court, and because his only redress is in the Federal court, due to the fact that the Supreme Court of the State of Indiana has so curtailed the remedy of habeas corpus that on a state of facts such as above stated, a petition for habeas corpus by him addressed to the Supreme Court of Indiana, would be denied. Its prosecution would be a futile proceeding. Haden v. Dowd, Ind. Sup., 23 N.E.2d 676, 677. He sought no relief in the Indiana State Court through habeas corpus proceedings.
The Indiana statute, Burns Ind. Stats. Ann., 1933, § 3-1901, reads:
"Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of the restraint, and shall be delivered therefrom when illegal."
In the case of Haden v. Dowd, supra (Supreme Court of Indiana, 1939), the petitioner therein sought to be discharged through habeas corpus proceedings, on several grounds, one of them being that "he was not represented by counsel, and was not sufficiently advised of his constitutional right to have counsel; that 'he did not intelligently waive his right to be represented by counsel and did not intelligently enter plea of guilty.'"
The Indiana Supreme Court there held the Indiana Circuit Court had no jurisdiction to entertain the petition for habeas corpus, unless the state court which entered the judgment in the criminal case had no jurisdiction to hear the case. Since it was evident the criminal court had jurisdiction, there was, under the Indiana rulings, no remedy by habeas corpus in the state court for violation of constitutional rights, such as representation by competent counsel. The Supreme Court of Indiana was cognizant of the fact that the Federal Statute might be broader than their state statute, but denied relief. The court said:
"The Superior Court * * * has general jurisdiction to try criminal cases within that county. * * * The Superior Court had jurisdiction to construe the statute and the law, and determine what judgment could be and should be entered against him. It had power and jurisdiction to decide whether he desired counsel, and whether he waived the right to counsel with a full understanding of his constitutional rights. It has often been said that jurisdiction to decide involves the power to decide wrong or erroneously. Since the Superior Court * * * acquired jurisdiction of the defendant's case and of him, no other state court of general jurisdiction can wrest from that court jurisdiction to decide questions arising in that case and no other state court of general jurisdiction has jurisdiction to pass upon and determine whether the Superior Court * * * acted erroneously or abused its judicial discretion. * * * We are concerned only with the jurisdiction of the Circuit Court * * * to decide whether or not the Superior Court * * * was guilty of error or abuse of discretion. That it has no such jurisdiction has been repeatedly decided by this court. * * *
"The appellant relies upon Johnson v. Zerbst, Warden, 1938, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, in which it is held that one federal district court has power to investigate the manner in which another federal court of equal jurisdiction has conducted the trial of a criminal case, and if there was an abuse of discretion in respect to furnishing counsel for the defendant, or if it is believed that the defendant had not intelligently and competently waived the right to counsel, the applicant might be discharged upon the theory that the judgment of the court in which the conviction was had is void for want of jurisdiction. * * * this court has noted that jurisdiction of the federal courts to entertain petitions for habeas corpus has been broadened by statute. This court has not been unmindful of the constitutional provisions, both state and federal, insuring the advice of counsel to a defendant in a criminal case. * * * But we are not here concerned with constitutional rights. Where constitutional rights are invaded or denied by courts of general jurisdiction, there are well-known remedies provided. The sole question with which we are concerned here is one of jurisdiction.
"Assuming that the trial court erred in the sentence as charged, and that the defendant's right to have counsel was not adequately protected, the remedy does not lie within the jurisdiction of the Circuit Court * * * . The Act of Congress broadening the jurisdiction of federal courts with respect to habeas corpus does not affect in any way the jurisdiction of our courts of general jurisdiction."
The question raised by this appeal necessitates its dividsion into two narrower inquiries: (a) The determination of the reviewable facts bearing upon the accused's constitutional right to have competent counsel represent him when charged with a serious felony. (b) The permissible scope of review, of a ...