Before DUFFY, KNOCH and SWYGERT, Circuit Judges.
Petitioner, Chester R. Blanton, appeals from a judgment denying his petition for a writ of habeas corpus.
The pertinent facts are as follows. On October 15, 1952 petitioner was convicted in the Criminal Court of Marion County, Indiana of the crime of armed robbery after a jury trial in which he was represented by two attorneys, ostensibly of his own choice. Immediately after sentencing, petitioner consulted his attorneys about the filing of a motion for a new trial. Neither promised to file such a motion. One of them, however, agreed to "look into it and see what the possibilities were of winning on appeal."
Petitioner was held in the Marion County jail until October 21, 1952, at which time he was removed to the Indiana State Prison at Michigan City. Pursuant to a prison rule, then in effect, petitioner was placed in quarantine which prevented him from communicating with anyone unless cleared by local authorities.
Although there is no showing when petitioner's quarantine ended, he was able to forward a letter to his attorney on November 6, 1952, and on November 12 or 13 he received a letter from this attorney indicating that the latter would not undertake to file a motion for a new trial. He received the same information from relatives on the 13th. Sometime during the period in question he personally prepared a motion for a new trial which was timely filed in the trial court on November 13. With regard to petitioner's competency to undertake such a task the District Court stated in its findings:
"Petitioner is a layman with no formal legal education but studied law in the penitentiary and was experienced in the preparation and handling of criminal legal pleadings and proceedings prior to the trial in question. He has been a regular subscriber to the Northeastern Reporter. He had successfully prosecuted proceedings in the year prior to the commission of the crime in Count Two of the charge and secured his release from the Indiana State Prison."
The motion for a new trial was denied. The Indiana Supreme Court affirmed, Blanton v. State, 233 Ind. 51, 115 N.E.2d 122; rehearing denied, 233 Ind. 51, 116 N.E.2d 631. Petitioner was represented by court appointed counsel in the appeal
In 1954 petitioner applied to the tria court for permission to file a belated, and what he termed a "proper", motion for a new trial. The application was denied and the Indiana Supreme Court affirmed. 234 Ind. 142, 124 N.E.2d 382; certiorari denied, 350 U.S. 850, 76 S. Ct. 90, 100 L. Ed. 756. Although the State Supreme Court affirmed on the ground that there was no statutory provision for a supplemental motion for a new trial after the period of time allowed by statute has expired, it noted that "[it] thus appears by the record of this court, of which we take judicial notice, that appellant has had all the remedy the law gives him by way of appeal." (at 384)
In 1956 petitioner filed a petition for a writ of habeas corpus in the District Court. The petition was denied for failure to exhaust state remedies.
Thereafter, in 1957 petitioner filed in the trial court a petition for writ of error coram nobis. Although this petition is not a part of the record in the instant proceeding, petitioner asserts in his present petition for writ of habeas corpus:
"That said petition fully and substantially, reasserted the facts and circumstances alleging a clear denial of 'due process' and 'equal protection' of laws in the proceedings, trial and conviction, and suppression of relator's timely and diligent efforts to prosecute an adequate and effective appeal from his conviction upon his imprisonment at the Indiana State Prison immediately following his conviction and commitment thereto on October 21, 1952."
Moreover, in the hearing before the District Court petitioner testified as follows:
"The best conclusion I could come to from the denial of my habeas corpus petition was on the grounds that I had not exhausted the Petition for Writ of Error Coram Nobis. That is, in effect, what I later did. I filed a motion to vacate and void judgment, or Petition for Error Coram ...