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May 13, 1952


The opinion of the court was delivered by: Platt, District Judge.

Petitioner seeks to obtain his release from the Menard Branch of the Illinois State Penitentiary by a writ of habeas corpus in forma pauperis. By earlier orders of this court leave was granted to file the amended petition, respondent was required to show cause why the writ should not issue, and Attorney Donald L. Merlie was appointed to represent petitioner. Respondent first filed a motion to dismiss, which was withdrawn without objection after a hearing before the court, and subsequently filed a return herein. Briefs have been filed. The court's decision has been delayed at the request of petitioner's counsel for additional time in which to submit his brief.

The only substantial ground urged in support of the petition is that petitioner was not properly represented by competent counsel at his trial and was thereby denied due process of law as required by the Fourteenth Amendment to the Constitution of the United States. Inasmuch as he was charged with a capital offense there can be no question that he was entitled to such representation at all stages of the proceedings. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Potter v. Dowd, 7 Cir., 146 F.2d 244. Article II, Section 9 of the Constitution of the State of Illinois, S.H.A. and Section 730 of Chapter 38, Illinois Revised Statutes, also provide for the right to counsel in capital cases. See People v. Butler, 406 Ill. 189, 92 N.E.2d 752.

A brief résumé of the proceedings resulting in petitioner's present incarceration is necessary. He was indicted on February 12, 1935, by the Grand Jury of Lee County, Illinois, upon the charge of murder. On February 13 the Circuit Court in that county appointed Messrs. Clyde Smith and Harold E. Nimz, attorneys at the bar of Lee County, as counsel to defend him. Mr. Smith was a distinguished member of the Lee County bar who had been practicing since 1889. Mr. Nimz was a young lawyer of some ability. Petitioner was duly arraigned in open court and through his attorneys made a motion, which was denied on February 22, to quash the indictment. A motion for a continuance was allowed after Skinner had entered his plea of not guilty. The trial began on April 15, 1935, before the Honorable Harry Edwards, with Attorney Nimz taking the lead on voir dire and the cross-examination of the State's witnesses. On the afternoon of April 18 Nimz became "extremely nervous" and the court was adjourned until the next day. Nimz was adjudged insane and committed to the State hospital on the 19th. Mr. Smith, who had been present in the courtroom at all times, completed the case alone. On April 20 the jury returned a verdict finding the defendant guilty of murder and fixing his punishment in the penitentiary for his natural life. Motions for a new trial and in arrest of judgment were heard and overruled on April 22, 1935, and the defendant was sentenced on the verdict for the term of his natural life. On writ of error to the Supreme Court of Illinois on the common law record the judgment was affirmed. People v. Skinner, 397 Ill. 273, 73 N.E.2d 427.

The only issue presented by these facts is whether petitioner is entitled to a hearing on the question of whether or not he was represented by competent counsel at all stages of the trail. He has already had two hearings in State courts on this very question. The law is well established that while the doctrine of res judicata does not apply to habeas corpus cases,*fn1 a federal court should not ordinarily re-examine questions which have been considered and adjudicated on the merits by the courts of the State. Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572; House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 89 L.Ed. 739. In Salinger v. Loisel, 265 U.S. 224, at page 231, 44 S.Ct. 519, 68 L.Ed. 989, the Supreme Court of the United States laid down the rule that each application for a writ of habeas corpus must be disposed of in the exercise of sound discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought.

Petitioner's first hearing was held on the 12th day of October, 1949, on a petition for a writ of habeas corpus filed in the Circuit Court of Randolph County. He was represented by court-appointed counsel. Skinner testified, as did other witnesses in his behalf. The State's Attorney who had prosecuted him, the court reporter, and the sheriff and deputy sheriff, both of whom were present during the course of the original trial, also testified. The Honorable Ralph L. Maxwell — now Mr. Justice Maxwell of the Illinois Supreme Court — made findings that petitioner was given a fair and impartial trial and was represented at all times by competent counsel. It is alleged that the United States Supreme Court denied certiorari to review this court's judgment.

A petition for relief under the Illinois Post-Conviction Hearing Act, chapter 38, Ill.Rev.Stat. § 826 ff., was filed on May 3, 1950 in the Circuit Court of Lee County. On the same day counsel were appointed for petitioner at his request. A hearing was held on the petition before the Honorable George C. Dixon on June 12, 1950. Witnesses for both petitioner and respondent testified. Judge Dixon also found that Skinner had been given an impartial trial and was represented by competent counsel and entered an order denying relief. The Supreme Court of Illinois denied a petition for a writ of error and again certiorari was denied by the United States Supreme Court.

In each of these hearings petitioner could have obtained relief had he been able to prove his allegations. The Illinois Supreme Court has held in three cases that when the judgment is void relief can be obtained by a petition for a writ of habeas corpus. People v. Loftus, 400 Ill. 432, 81 N.E.2d 495; People v. Shoffner, 400 Ill. 174, 79 N.E.2d 200; People v. Wilson, 399 Ill. 437, 78 N.E.2d 514. In dicta in these cases the court declared that a writ of habeas corpus was the proper remedy to determine whether a defendant was properly represented by counsel, and thereby accorded due process of law. The difficulty in Illinois has been that no appeal is permitted from a decision of the Circuit Court upon a petition for a writ of habeas corpus. People v. Loftus, supra. The remedy is by certiorari to the United States Supreme Court. Some circuit courts in Illinois have denied a hearing on such petitions and on certiorari the Supreme Court has occasionally found it necessary to remand the cause for a due and proper hearing by the courts of the State. See, for example, Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170.

The Post-Conviction Hearing Act, chapter 38, Ill.Rev.Stat., § 826, specifically provides for relief where a petitioner proves his allegations that:

  "* * * there was a substantial denial of his
  rights under the Constitution of the United
  States or of the State of Illinois or
  both * * *."

And in People v. Jennings, 411 Ill. 21, 102 N.E.2d 824, it was held that the conviction of a prisoner could be set aside where the petitioner's State or Federal constitutional rights had been violated.

A complete transcript of the proceedings in each of these hearings was attached to the return of the respondent herein. Upon a careful examination of these transcripts the court finds that Skinner was given a full and complete opportunity to present the same contentions which he raises here. It is thus clear that petitioner has had two full and fair hearings in forums which might have afforded him relief by way of discharge from respondent's custody. The Supreme Court of the United States did not see fit to review the findings of those courts. This court must and does give proper weight to those findings. Gault v. Burford, 10 Cir., 173 F.2d 813 and cases cited therein. There is no suggestion that furthur evidence could be produced at this time. Unfortunately Judge Edwards and Attorneys Nimz and Smith have since passed away. There is nothing in the petition or record to indicate that a different result would be reached upon another hearing in this court. It follows that this court must, in the exercise of its sound discretion, deny the request for a hearing and dismiss the petition.

In view of the unique and unfortunate circumstances of petitioner's trial this court has not been content to rest its judgment solely on the sound legal principles set forth above. At the court's request the Attorney General of the State of Illinois, by proper motion to the Illinois Supreme Court and without objection by petitioner's counsel, who was given due notice of the motion, procured for this court's examination the trial proceedings in the original prosecution. The record is authenticated by Mrs. Anna M. Moore, the official court reporter, and also by the Honorable George C. Dixon, successor to the judge who presided at the trial, on September 9, 1944.*fn2 The trial transcript was examined to find if there was any basis for petitioner's allegations that:

    "Attorney Clyde Smith a veteran Attorney of the
  Lee county bar * * did not participate in the
    "During the course of the trial, Attorney Nimz
  became nervous and confused, And requested the
  Court to direct Attorney Smith to aid him. Page
  253 of records * * * Smith declines to aid Nimz
  states `I would rather that he did it.', Judge
  Harry Edwards remarked and was made part of the

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