Before MAJOR, LINDLEY, and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
In this appeal we are asked to review the action of the district court in dismissing Peter Stevens' petition for a writ of habeas corpus and its refusal to reconsider that action.
The undisputed facts are set forth below.
On February 24, 1934, in the Criminal Court of Cook County, Illinois, Stevens, Roger Touhy and others were convicted upon a charge of kidnapping for ransom. Each of the defendants was sentenced to a term of 99 years in the penitentiary.
On June 14, 1935, on a writ of error sued out by Stevens and others, the Illinois Supreme Court affirmed the judgment of the Criminal Court. People v. Touhy, 361 Ill. 332, 197 N.E. 849.
On February 21, 1956, the Circuit Court of Will County, Illinois, dismissed Stevens' petition for habeas corpus based upon his incarceration in the Illinois penitentiary pursuant to his sentence aforesaid.
On June 4, 1956, the United States Supreme Court denied a writ of certiorari to review said action of the Circuit Court of Will County, Illinois. People of State of Illinois ex rel. Stevens v. Ragen, 351 U.S. 968, 76 S. Ct. 1033, 100 L. Ed. 1487.
On August 4, 1949, the present Post-Conviction Hearing Act of Illinois became effective, S.H.A. ch. 38, § 826 et seq.
On August 4, 1952, the three-year period in which Stevens' conviction might be reviewed under the said act expired, "unless [he] alleges facts showing that the delay was not due to his culpable negligence," as provided in section one of said act.*fn1
On June 25, 1956, Stevens filed a petition for a writ of habeas corpus in the district court. On July 2, 1956, that court dismissed the petition and, on July 23, 1956, denied a rehearing.
Stevens' petition for a writ of habeas corpus charges that, in violation of his rights under the fourteenth amendment to the federal constitution, he was denied a fair trial with the effective aid and assistance of counsel, that his conviction rests upon the knowing presentation of perjured testimony by the prosecutors of Cook county, who conspired to prevent defendant's witnesses from testifying, that his conviction for kidnapping was the result of a hoax de facto and that the crime of kidnapping charged never occurred.
In his petition for a writ of habeas corpus he contends that, despite the fact tht he did not avail himself of the remedy afforded by the Illinois Post-Conviction Hearing Act, he is not precluded in this proceeding for the reason that he, in fact, did not learn of the many violations of his rights until a decision was handed down by Judge John P. Barnes on August 9, 1954, in the district court, in his co-defendant Roger Touhy's case. Judge Barnes ordered that Touhy be discharged from the penitentiary, which order we reversed on July 20, 1955. United States ex rel. Touhy v. Ragen, 7 Cir., 224 F.2d 611.
1. Stevens contends that the basic question here "narrows itself to whether the allegations" of his petition, "taken as true * * *, render the circumstances complained of to the state remedical process ineffective to protect his rights." He further contends that, under the decisions of the Supreme Court of Illinois (including People v. Dale, 406 Ill. 238, 92 N.E.2d 761, and People v. Jennings, 411 Ill. 21, 102 N.E.2d 824), the Post-Conviction Hearing Act "cannot be employed to obtain another hearing upon the claims of denial of constitutional due process to which full and final hearings had already been entertained by means of prior Illinois remedy." His position seems to be that the affirmance of his conviction (People v. Touhy, 361 Ill. 332, 197 N.E. 849) involved a consideration by the Illinois Supreme Court of the constitutional questions which, he says, he could not thereafter raise in a post-conviction hearing ...