Before DUFFY, Chief Judge, and MAJOR and FINNEGAN, Circuit Judges.
The relator, Roger Touhy, is confined in the Illinois State Penitentiary pursuant to the terms and provisions of two judgments of conviction. On February 24, 1934, the Criminal Court of Cook County, Illinois, imposed upon him a sentence of 99 years for the crime of kidnapping for ransom. On November 30, 1943, the Circuit Court of Will County, Illinois, sentenced him for a term of 199 years for the crime of aiding a prisoner to escape from a penitentiary.
On April 2, 1948, relator filed a petition for a writ of habeas corpus in the District Court for the Northern District of Illinois. This petition was later amended and asserted that Touhy's conviction of kidnapping was obtained by the use of testimony known by the prosecuting officials to be perjured, and that in and during said trial, and in preparation therefor, relator was deprived of the effective assistance of counsel. The petition also alleged that the judgment of conviction of the crime of aiding a prisoner to escape was invalid because the Illinois statute, Ill.Rev.Stat.1953, Ch. 38, § 228, upon which said conviction was based, was and is unconstitutional.
The District Court ordered a hearing on the petition. A large amount of oral and documentary evidence was received. The hearings were interrupted to permit relator to apply for relief under the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat.1953, Ch. 38, §§ 826-832, which became effective August 4, 1949. Touhy filed a petition in the Criminal Court of Cook County, Illinois, asking relief under said Act, with reference to his conviction for kidnapping, but that Court sustained the State's motion to dismiss the amended petition, and entered an order of dismissal on December 11, 1950. On May 24, 1951, the Supreme Court of Illinois dismissed a petition for writ of error in the post-conviction hearing matter. On January 2, 1952, the United States Supreme Court denied a petition for writ of certiorari, Touhy v. State of Illinois, 342 U.S. 905, 72 S. Ct. 297, 96 L. Ed. 678. On September 8, 1952 this cause was called for further hearing.
Roger Touhy was arrested in the fall of 1933 and was taken to the State of Minnesota where, with others, he was tried for the kidnapping for ransom of one Hamm. Touhy and his co-defendants were acquitted. One Karpis later confessed to this kidnapping. Touhy was then brought to Cook County, Illinois, and, with others, was tried in the Criminal Court of Cook County for the kidnapping for ransom of one John (Jake the Barber) Factor. The jury disagreed, and on February 2, 1934 the jury was discharged.Eleven days later, Touhy and his co-defendants were again placed on trial in the Criminal Court of Cook County, charged with the kidnapping of Factor, and were convicted on February 24, 1934. A sentence of 99 years was imposed on Touhy. The judgment of conviction by the Criminal Court of Cook County was affirmed in People v. Touhy, 361 Ill. 332, 197 N.E. 849.
Touhy's conviction of aiding a prisoner to escape was based on events occurring in October, 1942. One Ed. Darlak was a prisoner in the same penitentiary where Touhy was confined, and was serving a 199-year sentence. Darlak's brother succeeded in smuggling a pistol into the penitentiary and, using said gun, Ed. Darlak, Touhy, Martlick Nelson and others escaped. After recapture, and upon the theory that Touhy and Nelson aided Darlak and others to escape, Touhy and Nelson were each indicted and convicted of aiding Darlak's escape, and each received a sentence of 199 years. Darlak's brother who smuggled the pistol into the jail, was prosecuted for aiding Nelson who was serving a lighter sentence, and he was released from prison after serving three years. Ed. Darlak was not prosecuted at all.
Prior to 1927 the maximum punishment that could have been imposed on a charge of aiding another to escape from an Illinois penitentiary was confinement in a county jail not exceeding one year, or a fine not exceeding $1,000, or both. However, Touhy was prosecuted under § 92, Laws of Illinois, 1927, Ill.Rev.Stat.1953, Ch. 38, § 228, which provided:
"Whoever conveys into the penitentiary, or into any jail or other place of confinement, any disguise, instrument, tool, weapon or other thing adapted or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or by any means whatever aids, abets, or assists such prisoner to escape or to attempt to escape from any jail, prison, or any lawful detention whether such escape is effected or attempted or not, or conceals or assists any convict after he had escaped, shall upon conviction thereof be given the same penalty as the prisoner whom he aided or abetted, except that in case the prisoner is sentenced to death, the penalty for such aid shall be imprisonment for life in the penitentiary."
Touhy did not prosecute a writ of error from his conviction in 1943 for aiding a prisoner in a penitentiary to escape. There is nothing in the record to indicate that the prison or other state officials prevented him, in any way, from prosecuting such a writ. The State of Illinois argues, indeed insists, that Touhy may still do so, as that privilege is available for twenty years from the date of conviction. It might be noted that in the petitions filed in the Circuit Court for Will County in the years 1945 and 1948 Touhy did not attack the constitutionality of the statute under which he was sentenced. It is also of interest to note that on the date when Touhy and others escaped from the penitentiary, it was not an offense against the State of Illinois to make such an escape.
After lengthy hearings (the printed record herein contains over 3300 pages) Judge Barnes gave careful consideration to the evidence which had been received. He prepared an extended opinion (611 printed pages) in which he commented, in considerable detail, upon the testimony of almost all of the witnesses.
Judge Barnes concluded that the alleged kidnapping of Factor was a hoax, planned by Factor himself to prevent his extradition to Great Britain; that Touhy's conviction of the Factor kidnapping was obtained by the use of perjured testimony known by the State prosecuting officials to have been perjured; also, that Touhy was denied effective assistance of counsel. The Court also held that the Illinois statute pertaining to aiding a prisoner to escape from a penitentiary was unconstitutional, and the proceedings against Touhy brought under said statute were null and void. The trial court was of the opinion that the statute was unconstitutional as being in violation of the equal protection of the laws clause of the Fourteenth Amendment to the United States Constitution. Judge Barnes ordered that the relator be discharged from custody.*fn1
Habeas corpus can be used only to test the lawfulness of the detention. If either of the judgments of conviction under which Touhy is presently serving is valid, there is no need to test the validity of the other. McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238; United States ex rel. Parker v. Ragen, 7 Cir., 167 F.2d 792.
However, before considering whether the trial court was correct in holding the Escape Statute unconstitutional, we are faced with the serious and fundamental question of whether Touhy exhausted his State remedies. The United States Supreme Court has clearly stated "a failure to use a state's available remedy, * * * bars federal habeas corpus." Brown v. Allen, 344 U.S. 443, 487, 73 S. Ct. 397, 422, 97 L. Ed. 469.
Where an application for a writ of habeas corpus is filed upon behalf of a person who is in custody pursuant to a judgment of a State Court, the statute*fn2 specifically provides that such application "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."
At the trial where Touhy was convicted of aiding Darlak to escape, he was represented by counsel of his own choosing. In his motion for a new trial relator did state the statute was unconstitutional because "(a) it provides different penalties for like offenses." Relator's counsel, in the case at bar, admits "* * * this was probably the wrong motion under technical Illinois law * * *." No attempt was made to seek a review in an appellate court. In explanation, relator's present counsel states in his brief "* * * there is nothing to indicate responsibility on the part of Relator, for the fact that his bill of exceptions was not prepared and submitted within the fifty-day period. The proof on this point, admittedly skimpy, is that he was financially unable to go further."
It stands as a verity in this case that Touhy never sought relief under the Illinois Post-Conviction Hearing Act with respect to his conviction for aiding a prisoner to escape. The effective date of the Act was August 4, 1949. Touhy had three years thereafter within which to commence a proceeding under that Act, and a further period if he could show the delay was not due to culpable negligence. Ill.Stat.1949, Chapter 38, § 826. He did commence a proceeding under the Act in the Criminal Court of Cook County with reference to his conviction for kidnapping, but for some reason unexplained, he did not challenge in the Circuit Court of Will County the validity of his conviction under the Act pertaining to the aiding of a prisoner to escape.
We think Touhy did not exhaust his State Court remedies in two respects. First, by not prosecuting a writ of error to review his conviction obtained in 1943, and second, by failing to pursue the remedy afforded him under the Illinois Post-Conviction Hearing Act.
In United States ex rel. Peters v. Ragen, 7 Cir., 178 F.2d 377, 378, this Court said:
"Counsel here contends that inasmuch as this remedy did not exist at the time of the proceedings in the District Court resulting in the judgment here appealed from, it should not preclude consideration by this court of the merits of the case. We do not agree. The Supreme Court of the United States has always required scrupulous adherence by the federal courts to the doctrine of exhaustion of state remedies, as indicated by a very recent pronouncement of that principle in Young v. Ragen, 337 U.S. 235, 69 S. Ct. 1073, 1074 [93 L. Ed. 1333]. However, as it there said, 'of course Illinois may choose the procedure it deems appropriate for the vindication of federal rights.' Until the recent enactment of the statute referred to above, such serious procedural difficulties stood in the way of consideration by the Illinois courts of asserted violations of constitutional rights as to render it doubtful whether any relief could be obtained in those courts. See Young v. Ragen, supra; Marino v. Ragen, 332 U.S. 561, 68 S. Ct. 240, 92 L. Ed. 170. It therefore became necessary in many cases for the federal courts to entertain applications for relief which would better have been considered by the state courts. With the new Act, however, this appears to be no longer true. And with the jurisdiction of federal courts circumscribed as it is in the case of prisoners held in custody pursuant to the judgment of a state court, New Federal Judicial Code, 28 U.S.C.A. § 2254, we are of the opinion that if a new remedy is created at any time, such remedy must first be resorted to before it can be said that state court remedies have been exhausted. This is in accord with the action of the Supreme Court on October 10, 1949 in a series of cases involving applications by Illinois prisoners for discharge on writ of habeas corpus: 'The petition for writ of certiorari in each of these cases is denied without consideration of the questions raised therein and without prejudice to the institution by petitioner of proceedings in any Illinois state court of competent jurisdiction under the Act of August 4, 1949 * * *.' Ferguson v. Ragen, 338 U.S. 833, 70 S. Ct. 50 [94 L. Ed. 508]."
In United States ex rel. Lilyroth v. Ragen, 7 Cir., 222 F.2d 654 (decided May 25, 1955), this Court held an out-of-time proceeding under the Illinois Post-Conviction Hearing Act was ineffectual to accomplish an exhaustion of State Court remedies. There the petitioner attempted to file belated proceeding, offering as an excuse, lack of knowledge of the existence of the Act due to an absence from Illinois. Here Touhy, although clearly advised of the Act and, in fact, proceeding thereunder with reference to another conviction, made no move to obtain relief under that Act from this second conviction.
In Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469, the petitioner was one day late in meeting a state limitation upon a step to be taken in perfecting an appeal. The Court said, 344 U.S. at pages 486-487, 73 S. Ct. at page 422: "Finally, federal courts may not grant habeas corpus for those convicted by the state except pursuant to § 2254. * * * but clearly the state's procedure for relief must be employed in order to avoid the use of federal habeas corpus as a matter of procedural routine to review state criminal rulings. A failure to use a state's available remedy, in the absence of some interference or incapacity, * * * bars federal habeas corpus. The statute requires that the applicant exhaust available state remedies. To show that the time has passed for appeal is not enough to empower the Federal District Court to issue the writ."
In Jennings v. State of Illinois, 342 U.S. 104, at page 109, 72 S. Ct. 123, at page 126, 96 L. Ed. 119, the Court said: "And, if a state provides a post-conviction corrective process, that process must be invoked and relief denied before a claim of denial of substantial federal rights may be entertained by a federal court."
This Court has repeatedly held that although a petitioner, incarcerated pursuant to a judgment of an Illinois Court, has exhausted all other State remedies, he is not entitled to a writ of habeas corpus until he has also sought relief under the provisions of the Illinois Post-Conviction Hearing Act. United States ex rel. Giese v. Chamberlin, 7 Cir., 184 F.2d 404; United States ex rel. De Frates v. Ragen, 7 Cir., 181 F.2d 1001; United ...