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UNITED STATES EX REL. MILLER v. PATE

April 30, 1969

UNITED STATES OF AMERICA EX REL. LLOYD ELDON MILLER, JR., PETITIONER,
v.
FRANK J. PATE, WARDEN OF THE ILLINOIS STATE PENITENTIARY, JOLIET BRANCH, JOLIET, ILLINOIS, RESPONDENT, PEOPLE OF THE STATE OF ILLINOIS, BY ROGER W. HAYES, SPECIAL ATTORNEY, INTERVENOR.



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

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter coming on to be heard on intervenor's motion for a Rule 60(b) hearing, petitioner's answer thereto, and intervenor's reply to said answer, the parties having filed their briefs and the court being fully informed in the premises, the Court hereby enters the following findings of fact supplementing the findings of fact entered March 20, 1967.

Findings of Fact

1. On December 24, 1963, this Court entered judgment granting petitioner's habeas corpus petition and ordering the discharge of the petitioner from custody unless he was tried within four months. He was not retried within four months. The respondent filed notice of appeal from this Court's order on January 17, 1964. On April 10, 1964, the State moved to stay the order of this Court and stay was granted by the Seventh Circuit Court of Appeals on April 22, 1964. On February 15, 1965 the Court of Appeals reversed this Court, but on February 13, 1967, the Supreme Court reversed the Court of Appeals and affirmed this Court. The mandate of the Supreme Court was issued on March 10, 1967.

2. On remand to this Court on March 20, 1967, the Court freed petitioner and barred his retrial. At this hearing the Attorney General of Illinois, by his duly authorized representative, indicated his intent to abide by the order of this Court and not to appeal therefrom. He did not appeal therefrom.

4. On January 29, 1968 the United States Court of Appeals for the Seventh Circuit directed this court to permit intervenor to intervene for the purpose of challenging the authority of the District Court to enjoin the People of the State of Illinois from further prosecution of petitioner.

5. On November 14 and December 12, 1968 this court entered orders in conformity with the order of the Court of Appeals. Thereafter intervenor filed a motion for hearing under Rule 60(b) of the Federal Rules of Civil Procedure. Said motion asked the Court to vacate the portion of its order of March 20, 1967 barring further prosecution of petitioner. It did not designate any specific one of the six grounds set out in Rule 60(b) as the ground for the motion.

6. Petitioner filed an answer and a brief. Intervenor filed a reply.

7. The Honorable William Malmgren was defeated for re-election as State's Attorney of Fulton County in the November, 1968 general election. His successor, the Honorable Robert A. Downs, was duly sworn into office on or about December 2, 1968. Such successor has had no connection with the case at bar and is not disqualified from acting.

8. In consequence of a 1956 conviction set aside by this court in 1963, petitioner was incarcerated for over eleven years (1955-1967). He was under death sentence for over ten years. Seven execution dates were fixed, and ten stays granted. On two occasions petitioner became mentally ill and was transferred to a psychiatric unit. In 1967, when the Supreme Court reversed his conviction, it held that the prosecution had deliberately misrepresented the truth regarding certain evidence.

Conclusions of Law

These conclusions of law supplement the conclusions of law entered March 20, 1967:

1. Because of change in circumstances since the January 29, 1968 Court of Appeals order, grounds no longer exist under Ill.Rev.Stat. (1967) c. 14, ยง 6, for the ...


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