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
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 ...