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December 31, 1963


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

This cause comes on to be heard upon the petition of Lloyd Eldon Miller, Jr., relator (hereinafter called petitioner), the return thereto of the respondent, a traverse by petitioner, the record of the trial of petitioner in the Circuit Court of Hancock County, Illinois, the various appeals and further proceedings prior to the petition herein considered, and upon further evidence adduced at the hearing before this court.

The petitioner asserted jurisdiction of this court under Title 28 of U.S.C.A. §§ 2241 and 2251. Petitioner alleged violation of federal constitutional rights secured and guaranteed to him by the 14th Amendment of the Constitution of the. United States.

Petitioner's conviction was affirmed by the Supreme Court of Illinois. People v. Miller, 13 Ill.2d 84, 148 N.E.2d 455 (1954). Thereafter petitioner applied for certiorari from the Supreme Court of the United States which was denied in 357 U.S. 943, 78 S.Ct. 1394, 2 L.Ed.2d 1556, reh. den. 358 U.S. 859, 79 S.Ct. 18, 3 L.Ed.2d 94 (1958). Post conviction petition under Illinois law was filed in the trial court and dismissed. This proceeding was affirmed in an unreported order by the Supreme Court of Illinois; and an application for certiorari from the Supreme Court of the United States was made and denied. Miller v. Illinois, 363 U.S. 846, 80 S.Ct. 1618, 4 L.Ed.2d 1729, reh. den. 364 U.S. 857, 81 S.Ct. 37, 5 L.Ed.2d 81 (1960). Following this petitioner filed a petition under Section 72 of the Illinois Civil Practice Act, Ill.Rev. Stat. 1961, c. 110, § 72 in the trial court; and this proceeding was dismissed followed by an affirmance of the trial court order by the Supreme Court of Illinois in Miller v. People, 23 Ill.2d 420, 178 N.E.2d 355 (1961). An application for certiorari from this order was made and denied in the Supreme Court of the United States, Miller v. Illinois, 369 U.S. 826, 82 S.Ct. 842, 7 L.Ed.2d 790 (1962).

Following these proceedings petitioner filed an application for habeas corpus in the United States District Court for the Northern District of Illinois, Eastern Division, sub nom., Miller v. Ragen, 60 C 1899. The petition for habeas corpus was dismissed, and dismissal affirmed by the Court of Appeals for the Seventh Circuit. Miller v. Pate, 300 F.2d 414 (1962). Following the Court of Appeals affirmance, a petition for writ of certiorari was filed and denied by the United States Supreme Court. 371 U.S. 898, 83 S.Ct. 193, 9 L.Ed.2d 131.

On September 13, 1962, while petitioner was proceeding with judicial remedies available to him, he was found to be a person mentally ill with psychosis; and he was transferred to the Illinois State Penitentiary, Psychiatric Division, Menard, Illinois. On March 4, 1963, the Chief Psychiatrist at Illinois State Penitentiary, Menard, Illinois, concurred in the diagnosis of petitioner that he was a person mentally ill and in need of mental treatment. On June 17, 1963, a sanity hearing was had in Hancock County Circuit Court. On June 20, 1963, a jury in the Circuit Court of Hancock County returned a verdict finding that at the time of the impaneling of the jury petitioner was a person sane.

Pursuant to Illinois law and practice, petitioner asked the Governor of the State of Illinois for a hearing before the Pardon and Parole Board on a petition for executive clemency and commutation of the death sentence imposed on petitioner by the Circuit Court of Hancock County. Upon due notice being given to all parties the Parole and Pardon Board of the State of Illinois conducted a hearing on petitioner's application for executive clemency and commutation of the death sentence. Thereafter, on August 20, 1963, commutation was denied and respondent will proceed to execute the death sentence unless relief is granted in this court.

Petitioner charges that he was arrested by police officers at 8:00 P.M. on November 28, 1955, and that he was interrogated, and that said interrogation was continued intermittently until 12:15 A.M. on December 1, 1955, when he signed a purported confession which he immediately repudiated.

Petitioner alleges that at all times during petitioner's arrest and incarceration and interrogation, petitioner suffered from a definite psychiatric illness characterized by a competent psychiatrist as an inadequate personality type, emotionally unstable who would sign any confession or statement to get out of an immediate predicament such as the arrest, incarceration and interrogation which began on November 28, 1955, to and including December 1, 1955. In support of this allegation petitioner attached to his petition as Exhibit B the Affidavit of Donald L. Sweazey, M.D.

Petitioner alleges that during all of the judicial proceedings in this cause, including the petition for writ of habeas corpus heretofore described, neither petitioner nor his attorneys knew of certain facts which, if presented to the court, would show that the confession used to obtain petitioner's conviction in the Circuit Court of Hancock County was involuntary and coerced. Petitioner detailed a number of instances of what he charged was new evidence not heretofore available to him and alleged that because thereof the prosecuting attorney and the agents of the State of Illinois knew said purported confession that petitioner had signed was false and that notwithstanding said knowledge they caused said purported confession to be introduced as evidence against him at the trial in Hancock County, Illinois.

Petitioner further charges that the States Attorney of Fulton County prior to petitioner's trial, did say to all persons who had evidence for petitioner's defense that they, the said witnesses, had a constitutional right not to answer any questions asked of them by petitioner or his attorneys; that the said States Attorney of Fulton County well knew the fact to be that there were no provisions of the federal constitution or of the Constitution of the State of Illinois which gave any witness the right to refuse to answer any question of the defendant or those put to them by petitioner's attorneys; that as a result of the said representations known to be untrue made to the said persons by the said States Attorney of Fulton County, the said persons refused or failed to give any statements for and on behalf of said petitioner at his trial. The petitioner thereupon alleged certain examples of the foregoing charge.

Petitioner further alleges that there was certain hearsay evidence admitted at his trial concerning the identity of the blood of the victim as being "Type `A' positive blood."

Petitioner charges that he was represented by inexperienced counsel in his trial and that his trial was impeded by the States Attorney's action in obtaining a citation against one of his attorneys for contempt of court during the trial and that he was thereby denied due process of law under the 14th Amendment and that he was further deprived of due process by suppression of evidence by the States Attorney who was prosecuting him and that the new evidence would establish that the prosecuting officials knew the purported confession and other evidence against him was not true and that some of the evidence was perjured testimony.

Petitioner charges that certain witnesses called the States Attorney and informed him that they had been talking to petitioner's attorney and were told that they had a constitutional right to refuse to talk to petitioner's attorney, and that in making such statement the States Attorney deprived petitioner of due process and interfered with his attorney preparing his case for trial in an adequate manner and deprived him of certain witnesses.

The petitioner prays the court to issue a writ of habeas corpus directing respondent to ...

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