Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Civil 73-S-3 George N. Beamer, Chief Judge.
Swygert, Chief Judge, Cummings, Circuit Judge, and Matthes, Senior Circuit Judge.*fn*
MATTHES, Senior Circuit Judge.
This appeal from an order of the district court denying habeas corpus relief poses a unique question -- whether the escape of appellant following his state conviction constituted a deliberate bypass of state remedies so as to disentitle him to relief under the equitable principles governing habeas corpus.
In May of 1971, appellant, Neal Ruetz, was convicted by a jury in the LaGrange County, Indiana, Circuit Court of first degree murder. He was sentenced on June 3, 1971, to life imprisonment. At sentencing, appellant indicated his desire to file a motion to correct errors, a state procedural requisite to filing an appeal. The trial judge promptly instructed Ruetz's trial attorney to file such a motion on his client's behalf within the statutory 60 day period. Defense counsel's request that appellant be allowed to remain in LaGrange County to assist in the preparation of the motion was denied, and appellant was remanded to the custody of the sheriff for transportation to the Indiana State Prison.
Two days after sentencing, appellant "walked away from the LaGrange County Jail through an open garage door." State ex rel. Ruetz v. LaGrange Circuit Court, 258 Ind. 354, 281 N.E.2d 106, 108 (1972). He was apprehended and returned to LaGrange County more than three months later, on September 27, 1971. In the meantime, his lawyer timely filed a motion to correct errors. The trial court did not act upon the motion until September 30, 1971, after Ruetz had been returned to custody. At that time, in the presence of appellant and his attorney, the motion was overruled. The court further ordered that "the defendant having been a fugitive from justice during the statutory period for filing motion to correct errors in this cause he has waived his right to appeal, and his request for an appeal is now denied by the court."
Appellant sought a writ of mandamus from the Supreme Court of Indiana ordering the trial court to allow appellant to perfect an appeal. The state supreme court denied relief, saying:
"In the case at bar the relator was not within the jurisdiction of the court at the time his motion to correct errors was filed. The time permitted by the rules of this Court for the filing of such a motion had long expired at the time the relator was captured and returned to the jurisdiction of the court. Under the above authority, the relator had no standing in court during the period in which the motion to correct errors could be filed. By so voluntarily absenting himself from the court's jurisdiction, the relator has effectively and knowingly waived his right to a timely appeal to this Court."
State ex rel. Ruetz v. LaGrange Circuit Court, 258 Ind. 354, 281 N.E.2d 106, 107 (Ind. 1972).
A vigorous dissent was filed by Justice DeBruler, arguing that the record did not show a voluntary, knowing, and intelligent waiver by appellant of his constitutional and statutory right to appeal. In addition, the dissent asserted, the supposed rationale for the "escape rule" -- the non-enforceability of a court order against a fugitive -- was inapplicable to this case since Ruetz was back in court at the time the trial court ruled on the motion to correct errors. Id. at 107-109.
On January 5, 1973, appellant filed a petition for habeas corpus in the United States District Court for the Northern District of Indiana. The district court, however, refused to consider appellant's claims on the ground that appellant had forfeited his right to habeas corpus relief by deliberately bypassing his state remedies. While acknowledging that "the State court's determination does not 'bar independent determination of the question [of waiver] by the federal courts,'" the court concluded that "this is one of the few types of cases in which the voluntariness of petitioner's waiver has been held to be determinable by the petitioner's actions without an inquiry into the subjective intent of the petitioner himself." In so holding, the district court relied upon a 1958 decision of this circuit stating that an escape by a defendant during the time allotted for filing a motion for a new trial constituted an abandonment of the remedy. Irvin v. Dowd, 251 F.2d 548, 553 (7th Cir. 1958), rev'd on other grounds, 359 U.S. 394, 3 L. Ed. 2d 900, 79 S. Ct. 825 (1959).
As the district court recognized, "waiver affecting federal rights is a federal question." Fay v. Noia, 372 U.S. 391, 439, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963). Nevertheless, the district court, in the instant case, concluded that the act of escape, by definition, constituted waiver under the federal standard as well as under the state standard. The district court was of the opinion that this result was dictated by our case of Irvin v. Dowd, supra. As Irvin v. Dowd concerned the same Indiana "escape rule" at issue in the present case and as the procedural history is rather complicated, we pause to describe the case in some detail.
On January 18, 1956, Leslie Irvin escaped following his conviction for murder in the Gibson County, Indiana, Circuit Court. On the day following his escape, his counsel timely filed a motion for a new trial. The motion was promptly overruled on the ground that Irvin was a fugitive. Irvin was apprehended after the expiration of the period for filing a motion for new trial. He appealed from his conviction, challenging only the overruling of his motion for new trial. The Supreme Court of Indiana affirmed, stating:
"If a prisoner escapes he is not entitled during the period he is a fugitive to any standing in court or to file any plea or ask ...