Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
This is an appeal from a judgment of the District Court, entered on September 27, 1943, discharging upon habeas corpus the appellee, George Foley, from incarceration in an Illinois State Penitentiary located in Will County, Illinois. The writ was directed to respondent. Joseph E. Ragen, warden of the penitentiary, who filed a return thereto. The court heard the testimony of both the relator and the respondent, and also received in evidence a number of written documents and exhibits. The court, in support of its judgment of discharge, entered findings of fact and conclusions of law and also rendered an extended opinion. United States ex rel. Foley v. Ragen, Warden, et al., D.C., 52 F.Supp. 265, 269. Reference to this opinion will obviate the necessity for a detailed narrative of the unusual situation which confronted the trial judge.
Relator was convicted on October 14, 1933 in the Circuit Court of Sangamon County, Illinois, of burglary and larceny and was sentenced, under the Indeterminate Sentence Act, Chap. 38, § 802, Ill. Rev. Stats. 1943, to a term of one year to life. By reason of such sentence, he was confined in the Illinois penitentiary until his discharge in the instant proceeding. He claims that during all of such time he was without funds to employ counsel and without relatives or friends whom he could call upon for assistance. He was permitted to file his petition in the instant matter in forma pauperis, and the court appointed counsel who ably represented him. On respondent's appeal to this court, we, on our own motion, appointed counsel to represent the relator, who has submitted a well prepared brief and argument in support of the judgment.
We are confronted, as often in cases of this character, with the question as to whether relator had exhausted his remedies in the state court so as to confer jurisdiction upon a federal court. The court below recognized the general rule in this respect, but for reasons hereinafter stated concluded that this was "that rare case where exceptional circumstances of peculiar urgency are shown to exist," which removed it from the general rule. It would serve no good purpose to cite or discuss the numerous cases in which this general rule has been announced and applied, in view of the recent decision in Ex Parte Hawk, 321 U.S. 114, 64 S. Ct. 448 (decided subsequent to the opinion of Judge Barnes in the instant case). The general rule there stated (page 116 of 321 U.S., page 450 of 64 S. Ct.) is:
"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." (Citing cases.)
We shall, therefore, first consider the relator's efforts to secure his release through state remedies available, and then the circumstances which the court below thought made this an exceptional case. In doing so, we note that relator's petition itself is devoid of any jurisdictional allegations. Ordinarily we think this would be fatal, but in view of the unusual circumstances we shall consider, as the court below no doubt did, all facts which tend to show jurisdiction, the same as though they had been properly alleged.
The sole proceeding instituted by the relator in an Illinois court, seeking his release, was a petition filed (or sought to be filed) in the Supreme Court of Illinois in the early part of March 1943, in which he asked leave to proceed in forma pauperis. There is some contradiction in the record as to whether this petition was permitted to be filed. In a letter directed to relator, dated May 11, 1943, and signed by the clerk of the Supreme Court, this statement is contained:
"Petitioner was allowed to file this petition for writ of habeas corpus as a poor person. The petition upon consideration was denied."
Notwithstanding this positive statement on the part of the clerk of the Supreme Court, Warden Ragen on March 11, 1943 sent a notice to a relator as follows:
"I am today in receipt of the following letter dated March 9th, 1943 from Edward F. Cullinane, clerk pro tempore, Supreme Court, State of Illinois, Springfield, as follows:
"'Re: No. 27136 ex rel. Foley v. Ragen. The Supreme Court today denied the motion of the petitioner in the above entitled case for leave to sue as poor person and for writ of habeas corpus.'"
It will be noted that the letter from the warden is inconsistent with the letter from the clerk of the Supreme Court and that the former was written almost two months prior to the latter. It seems reasonable to believe that the relator, after receiving the warden's letter, must have written directly to the Supreme Court and in response received from the clerk the letter above mentioned. Without endeavoring to ...