Duffy, Senior Circuit Judge, and Kiley and Fairchild, Circuit Judges. Duffy, Senior Circuit Judge (dissenting).
This is an appeal from the district court's judgment dismissing Cotner's habeas corpus petition challenging the constitutionality of the Indiana Sodomy Statute under which he had been convicted. The court dismissed on the grounds that Cotner had not exhausted his state remedies and that his petition had no merit.
We reverse because we have concluded that Cotner has no adequate method for raising his constitutional argument under Indiana procedural rules and because we have also concluded that there is a substantial question as to the constitutionality of the Indiana Sodomy Statute as applied in this case which Cotner was not informed of prior to his plea of guilty, thereby rendering his plea of guilty void as not understandingly made.
Cotner pleaded guilty in the Jasper County, Indiana, Circuit Court in July, 1965, to his wife's charge that in May of 1965 he had committed "the abominable and detestable crime against nature" with her in violation of the Sodomy Statute.*fn1 He was sentenced to not less than two nor more than fourteen years in the state reformatory. The petition before us was filed in June, 1967.
Inadequacy of State Remedies
We think the district court erred in dismissing Cotner's petition for failure to exhaust his state remedies.
The petition challenges the Indiana Sodomy Act as being unconstitutionally vague, and an unwarranted invasion of marital privacy, under the Fourteenth Amendment. A state prisoner, to obtain habeas corpus relief, is required, under 28 U.S.C. § 2254, to exhaust available state remedies unless there is no "available State corrective process" or circumstances which make the process ineffective to protect his rights. If Cotner had the right under Indiana law to raise by "any available procedure" the point he urges here, he has not exhausted his state remedies and is not entitled to relief. Jones v. Dowd, 7 Cir., 128 F.2d 331.
The State argues that Cotner has not complied with Sec. 2254 because he did not present his constitutional challenge to the Indiana courts either by way of appeal, coram nobis, belated motion for new trial under Indiana Superior Court Rule 2-40, or motion to vacate the conviction and withdraw his plea of guilty. Cotner argues however that these remedies "are absolutely ineffective" for his purpose.
Since Cotner pleaded guilty, he was in no position to appeal, Snow v. State, 245 Ind. 423, 199 N.E.2d 469, and coram nobis was abolished in Indiana in 1963 by amendment to Rule 2-40. Id. Since the conviction was upon the plea of guilty, "he cannot properly file a motion for new trial, as there never was a trial, within the meaning of the statute * * *." Pritchard v. Indiana, 246 Ind. 671, 210 N.E.2d 372, 373.
Despite ambiguous language in Koepke v. Hill, 157 Ind. 172, 60 N.E. 1039, 1041, the Supreme Court of Indiana in Dowd v. Grazer, 233 Ind. 68, 116 N.E.2d 108, held that habeas corpus is not available to a prisoner to test the constitutionality of a statute because a conviction, even on an unconstitutional statute, is merely erroneous and is not a jurisdictional defect.
There remains the suggested remedy of motion to vacate the judgment and withdraw the plea. But the Supreme Court of Indiana holds that this motion must be made within the term at which the plea is entered. Snow v. State, 245 Ind. 423, 199 N.E.2d 469, 471; Sessler v. State, 222 Ind. 608, 56 N.E.2d 851; Kuhn v. State, 222 Ind. 179, 52 N.E.2d 491. The term at which Cotner's plea was entered has ended.
Indiana argues that Cotner should be precluded now from claiming he has exhausted his Indiana remedies because he has made no attempt to seek post-conviction relief in the Indiana courts. It is possible that, despite the present state of Indiana law, had Cotner sought relief in Indiana he would have been permitted to challenge his conviction in the manner that he does in this habeas corpus petition. We think, however, that we must ...