United States v. Handy (130 F. Supp. 270, 1955)

MURPHY, District Judge.

This case is here on remand, a majority of the Court of Appeals having ruled that opportunity must be afforded relator to prove the allegations in his petition for habeas corpus, insofar as they relate to the alleged atmosphere of hysteria and prejudice prevailing at his trial, including any issues raised by Judge Boyer’s asserted visits to the court room. After a hearing was scheduled respondent moved to dismiss contending that the court lacked jurisdiction and judicial power to conduct the inquiry or to grant the writ. The motion is without merit. Similar questions were disposed of contrary to respondent’s position in an opinion by Judge Goodrich speaking for the full court in United States ex rel. Elliott v. Hendricks, June 2, 1954, 213 F.2d 922. See Id., at page 929. “We cannot have any doubt, even were the question a new one, that the federal power is ample, under the Constitution, to authorize the use of habeas corpus procedure to test the question whether one confined under state process is, in that confinement, deprived of his rights under the Constitution of the United States. Nor have we doubt that the power may be assigned to all the federal judiciary or part of it. If the authority of federal courts is to be more limited than that provided by the present statute, that limitation must be made by the Congress.” And see Mr. Justice Reed in Brown v. Allen, supra, 344 U.S. at pages 460, 464, 478, 486, 73 S.Ct. at pages 408, 409, 411, 418, 422, and Mr. Justice Frankfurter, Id., 344 U.S. 443, at page 508, 73 S.Ct. 437, at page 447, “Congress has the power to distribute among the courts of the States and of the United States jurisdiction to determine federal claims. It has seen fit to give this Court power to review errors of federal law in State determinations, and in addition to give to the lower federal courts power to inquire into federal claims, by way of habeas corpus”. Id., 344 U.S. 510, 73 S.Ct. 448, “Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a ease of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the .Supremacy Clause of the Constitution whereby federal law is higher than State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted.”

See Mr. Justice Black, 344 U.S. at page 549, 73 S.Ct. at page 431, “I agree with the Court that the District Court had habeas corpus jurisdiction * * * including power to release * * * if [the prisoner is] held as a * * * violation of constitutional rights. This I understand to be a reaffirmance of the principle embodied in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543.”

Has the applicant met the burden of showing that he has exhausted the remedies available in the state courts within the meaning of 28 U.S.C.A. § 2254; Darr v. Burford, 339 U.S. 200, at page 218, 70 S.Ct. 587, 94 L.Ed. 761; Brown v. Allen, 344 U.S. at pages 448-450, 486, 487, 73 S.Ct. at pages 402-404, 422, supra? Respondent argues that the Pennsylvania Supreme Court did not directly meet and dispose of the question of hysteria and prejudice. See Commonwealth ex rel. Darcy v. Claudy, April 10, 1951, 367 Pa. 130, 79 A.2d 785.

The Court of Appeals, however, found contra. See opinion C. J. Biggs, supra, 203 F.2d at page 411, describing the opinion in 367 Pa. 130, 79 A.2d 785, as “passing on every substantial ground alleged in the petition.” See and cf. Brown v. Allen, supra, 344 U.S. at page 458, 73 S.Ct. at pages 407, 408; United States ex rel. Smith v. Baldi, February 9, 1953, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549; Commonwealth ex rel. Elliott v. Baldi, April 14, 1953, 373 Pa. 489, 96 A.2d 122, certiorari denied June 8, 1953, 345 U.S. 976, 73 S.Ct. 1125, 97 L.Ed. 1391.

A remedy may be exhausted by affirmative use thereof and failure therein or by inaction or failure to resort thereto.

Assuming arguendo there was some evidence of hysteria and prejudice before or at the trial, the law of Pennsylvania affords a number of methods of raising the question and spelling it out on the record and in the event of an adverse decision reserving it for review on appeal to the Supreme Court of Pennsylvania and on certiorari to the United States Supreme Court. Pre-trial, by challenging the array, see Commonwealth v. Zell and Herr, 81 Pa.Super. 145, at page 150, or by motion for continuance, Commonwealth v. Balles, 160 Pa.Super. 148, 150-151, 50 A.2d 729, or change of venue, Commonwealth v. Karmendi, 328 Pa. 321, 339, 342, 195 A. 62. The Pennsylvania Supreme Court itself could upon proper showing remove the indictment to another county for trial, Commonwealth v. Ronemus, 205 Pa. 420, 54 A. 1095. At trial, by motion for withdrawal. of juror, Commonwealth v. Mehlman, 163 Pa.Super. 534, 544, 63 A.2d 400. Post-trial, by motion for new trial, Commonwealth v. Deni, 317 Pa. 289, 293, 176 A. 919. Finally, on appeal and on petition for certiorari to the United States Supreme Court.

No such question was suggested either before, during or after the trial. See Rel.Ex.Nos. 4, 5, 10, 115, 116, 137; the motion for a new trial and opinion deny-' ing same; the assignments of error and statements of question involved on appeal, see paper books Supreme Court of Pennsylvania, 362 Pa. 259-286; Commonwealth v. Darcy, May 26, 1949, 362 Pa. 259, 66 A.2d 663, rehearing refused June 24, 1949.

The petition for certiorari (No. 96 Misc.), denied October 1949, 338 U.S. 862, 70 S.Ct. 96, 94 L.Ed. 528, raised only questions as to the jury view of the locus in quo and the charge of the court on presumptions from the use of a deadly weapon.

August 1, 1949, relator petitioned the Supreme Court of Pennsylvania for a writ of habeas corpus complaining that at the trial, over objection, the jury heard testimony as to offenses committed by defendant other than that’named in the indictment. Petition denied without opinion August 12, 1949 (not reported); certiorari denied (No. 102 Misc.) October 23, 1949, 338 U.S. 862, 70 S.Ct. 96, 94 L.Ed. 528.

The question was not raised until after the relator failed in his attempt to have the Pennsylvania Board of Pardons commute his sentence to life imprisonment. (April 1950, denied May 5, 1950; application for reargument granted June 1950, continued to March 20, 1951, rejected March 21, 1951; again on March 29, 1951, rehearing denied March 30, 1951). April 2, 1951, relator’s petition to the Supreme Court of Pennsylvania for certiorari to the Court of Oyer and Terminer of Bucks County, and for re-argument nunc pro tunc, claimed denial of due process of law alleging that his trial counsel did not permit him to testify at his trial, (cf. opinion Biggs J., 203 F.2d at page 410, Maris J. at page 420); did not produce witnesses as to his background, good behavior, character or reputation although they were available; the proximity of the two trials; jurors’ letters and opinions; hysteria; Judge Boyer’s commendation and participation; and failure to continue the case. Denied without opinion April 3, 1951 (No. 429 Misc., Docket No. 9). Relator did not seek certiorari from the United States Supreme Court.

April 3, 1951, the present petition was filed in the district court. We withheld ruling thereon to afford relator an opportunity to seek a writ of habeas corpus from the Supreme Court of Pennsylvania, raising the precise questions and, if he failed therein, to seek certiorari from the United States Supreme Court. The petition filed April 9, 1951, was denied April 10, 1951, Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785.

Application for certiorari filed June 12, 1951; denied October 8, 1951, 342 U.S. 837, 72 S.Ct. 61, 92 L.Ed. 632.

In his petition for certiorari filed June 12, 1951, relator’s counsel at p. 7 states “All these facts were ascertained as a result of investigation by present counsel of the Petitioner and were presented to the Supreme Court of Pennsylvania for the first time in the Petition for Writ of Habeas Corpus which it refused on April 10, 1951.” And at p. 3, “* * * former counsel of petitioner either failed to set forth said additional reasons or were unaware of the said additional reasons which for the most part were the result of investigation by present counsel”. And see Id. p. 12, “ * * * former counsel, employed after the petitioner’s conviction and prior to the employment of present counsel, either failed to include * * * or perhaps were unaware of the facts. * * *»

Res adjudicata does not apply, Salinger v. Loisel, 265 U.S. 224, at page 230, 44 S.Ct. 519, 68 L.Ed. 989, see and cf. Brown v. Allen, supra, 344 U.S. at page 458, 73 S.Ct. at pages 407, 408, and Price v. Johnston, 334 U.S. 266, at page 291, 68 S.Ct. 1049, at page 1063, 92 L.Ed. 1356, “If for some justifiable reason he was previously unable to assert his rights or was unaware of the significance of relevant facts, it is neither necessary nor reasonable to deny him all opportunity of obtaining judicial relief.” But cf. Id., 334 U.S. at page 289, 68 S.Ct. at page 1062, Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999, and see dissent 334 U.S. at pages 296, 297, 68 S.Ct. at pages 1065, 1066; Darr v. Burford, supra, 339 U.S. at page 203, 70 S.Ct. at page 589; Brown v. Allen, supra, 344 U.S. at page 461, 73 S.Ct. at page 409, “Liberal as the courts are and should be as to practice in setting out claimed violations of constitutional rights, the applicant must meet the statutory test of alleging facts that entitle him to relief.”

A majority of the Court of Appeals rejected relator’s claim of inefficient representation by trial counsel. This being so, if the situation were as obvious as relator now contends it must have been equally obvious to his trial counsel.

“This is not the case of an accused who has been denied counsel and who has failed to assert his constitutional rights at the proper time because of ignorance, but of one who has had the assistance of able counsel who knew how to raise and would have raised upon the original trial the questions that he is now raising, if there had been any substance to them.” Crowe v. United States, 4 Cir., 1949, 175 F.2d 799, at page 801.

“The writ of habeas corpus in federal courts is not authorized for state prisoners at the discretion of the federal court. It is only authorized when a state prisoner is in custody in violation of the Constitution of the United States. 28 U.S.C. § 2241. That fact is not to be tested by the use of habeas corpus in lieu of an appeal. To allow habeas corpus in such circumstances would subvert the entire system of state criminal justice and destroy state energy in the detection and punishment of crime.” Mr. Justice Reed, Brown v. Allen, supra, 344 U.S. at page 485, 73 S.Ct. at page 421.

“If defenses may be omitted at trials, rights of review omitted, and yet availed of through habeas corpus, the whole course of criminal justice will be deranged, and, it may be, defeated.” Ex parte Spencer, 228 U.S. 652, at page 661, 33 S.Ct. 709, at page 711, 57 L.Ed. 1010, and see In re Wood, 140 U.S. 278, at page 290, 11 S.Ct. 738, 35 L.Ed. 505.

“Evidence in state criminal proceedings to support objections on federal constitutional grounds, known' to state defendants and their counsel, or easily ascertainable, cannot be withheld or neglected at the state trial and used later to support habeas corpus. State criminal proceedings would be unreasonably hampered.” Brown v. Allen, supra, 344 U.S. at page 480, 73 S.Ct. at page 419, footnote 24.

Mr. Justice Reed, “Failure to appeal is much like a failure to raise a known and existing question of unconstitutional proceeding or action prior to conviction or commitment. Such failure, of course, bars subsequent objection to conviction on those grounds.” Id., 344 U.S. at page 486, 73 S.Ct. at page 422, and see Id., 344 U.S. at page 487, 73 S.Ct. at page 422. “ * * * failure to use a state’s available remedy, in the absence of some interference or incapacity * * * bars federal habeas corpus.”

As to the “broad reach” given to federal habeas corpus by recent cases, see Mr. Justice Jackson in Brown v. Allen, supra, 344 U.S. at pages 532, 533, 73 S.Ct. at page 423. “Once upon a time the writ could not be substituted for appeal or other reviewing process but challenged only legal competence or jurisdiction of the committing court. We have so departed from this principle that the profession now believes that the issues we actually consider on a federal prisoner’s habeas corpus are substantially the same as would be considered on appeal.” Id., 344 U.S. at page 540, 73 S.Ct. at page 427.

“Most states, and with good reason, will not suffer a collateral attack such as habeas corpus to be used as a substitute for or duplication of the appeal. A state properly may deny habeas corpus to raise either state or federal issues that were or could have been considered on appeal. Such restriction by the state should be respected by federal courts.” Id., 344 U.S. at page 541, 73 S.Ct. at page 427.

As to the scope of review and possible relief on habeas corpus generally, see Commonwealth ex rel. Elliott v. Baldi, supra, 373 Pa. 489, at pages 492, 495, 96 A.2d 122; Commonwealth ex rel. Carey v. Montgomery County Prison Keeper, 370 Pa. 604, 88 A.2d 904; Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 24 A.2d 1. See and cf. Woods v. Nierstheimer, 328 U.S. 211, 66 S.Ct. 996, 90 L.Ed. 1177; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215; Bowen v. Johnston, 306 U.S. 19, at pages 23, 24, 59 S.Ct. 442, 83 L.Ed. 455; finally, Waley v. Johnston, 316 U.S. 101, 104-105, 62 S.Ct. 964, 86 L.Ed. 1302.

Mr. Justice Frankfurter, Brown v. Allen, supra, 344 U.S. at page 503, 73 S.Ct. at page 444, “Of course, nothing we have said suggests that the federal habeas corpus jurisdiction can displace a State’s procedural rule requiring that certain errors be raised on appeal. Normally rights under the Federal Constitution may be waived at the trial. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, and may likewise be waived by failure to assert such errors on appeal. Compare Frank v. Mangum, 237 U.S. 309, 343, 35 S.Ct. 582, 593, 59 L.Ed. 969.”

“When a State insists that a defendant be held to his choice of trial strategy and not be allowed to try a different tack on State habeas corpus, he may be deemed to have waived his claim and thus have no right to assert on federal habeas corpus. * * * However, this does not touch one of those extraordinary cases in which a substantial claim goes to the very foundation of a proceeding [Italics supplied], as in Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543. Cf. Ex parte Lange, 18 Wall 163, 21 L.Ed. 872; Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed 868.” Id., 344 U.S. at page 503, 73 S.Ct. at page 444. Is this such a case?

In view of the mandate we of necessity deferred answering this question until relator was afforded an opportunity to present evidence in support of his allegations. The burden of proving facts inconsistent with judicial records in all proceedings of this kind is heavy. Brown v. Allen, supra, 344 U.S. at page 507, 73 S.Ct. at. page 446. Petitioner must “allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that * * * the state so departed from constitutional requirements as to justify * * * intervention to protect the rights of the accused.” Darr v. Burford, supra, 339 U.S. at page 218, 70 S.Ct. at page 597; Johnson v. Zerbst, 304 U.S. 458, at page 468, 58 S.Ct. 1019, 82 L.Ed. 1461; Hawk v. Olson, 326 U.S. 271, at page 279, 66 S.Ct. 116, 90 L.Ed. 61.

A hearing was held with relator present on March 11, 12,' 13, 16, 17, 18, 19 and 20,1954. Relator called 22 witnesses and offered 137 exhibits; respondent 11 witnesses, 6 exhibits: In addition we have before us the record of proceedings in the state and federal courts.

Although afforded opportunity by the court to testify relator declined to do so. N.T.-H. 614-617. Next day relator’s counsel took exception to the questions propounded by the court, alleging relator was compelled to make statements he was not required to make by the United States Constitution. See Id. 723, 725. The exception is without merit. A habeas corpus hearing is not a criminal proceeding. See United States ex rel. Sholter v. Claudy, 3 Cir., 1953, 203 F.2d 805, 806, 807.

About 11:25 P.M., December 22, 1947, David Darcy, 22, Harold Foster, 23, Harry Zeitz, 18, and Felix Capone, 16, arrived at the Feasterville Tavern located at the junction of Churchville-Newtown-Bustleton Roads, in the Village of Feasterville, Lower Southampton Township, Bucks County, Pennsylvania. Darcy, Foster and Zeitz, each armed with a revolver, entered the tavern while Capone acted as a “lookout” in an automobile parked nearby with the engine running for a quick getaway. During the course of the robbery Darcy fired two shots and then engaged in a scuffle with Allen Hellerman and Edward Wunsch. During the scuffle Darcy, Zeitz and Foster fired shots. Hellerman fell to the floor, shot in the base of the neck and paralyzed in both lower extremities. Two shots struck Wunsch causing arm and shoulder injuries. After taking the money from the cash register, Foster demanded that everyone produce their wallets. Darcy said he felt “like shooting someone”, and again, “Where is the police? I feel like shooting some of them”. N.T.-T. 304. Darcy then threatened several patrons with his gun, lined them up against the wall with their hands up and demanded their watches. While Foster was “covering” those present, Darcy and Zeitz reloaded their guns. After robbing the proprietor and some 18 patrons, with Hellerman lying on the floor “apparently dead” they fired shots into the mouthpiece of the telephone, warned those present not to move for a long time, and departed, Foster returning momentarily as a warning and to wish them all a “Merry Christmas”.

Meanwhile, a Mrs. Leutwyler. got out a rear door, ran across the road to the Buck Hotel and gave the alarm. At the hotel she found the bartender and two other persons, William Kelly and Frank J. Walter. They followed her outside and stood at the road intersection. While there Horace Patterson, a friend of Kelly, drove out of Churchville Road and stopped to talk with him and Walter. They noticed the automobile, with the engine running, standing in front of the Feasterville Tavern headed toward New-town. Darcy, Foster and Zeitz ran from the tavern, got into the car and started off with Zeitz at the wheel. Just then, one of Zeitz’ companions said: “Someone is coming out the door”. Zeitz fired two shots, from a gun held in his left hand, from the front window of the driver’s side in the direction of Kelly who was then some ten or twenty feet away. One of the bullets struck Kelly in the back of the head causing his death within two days.

A half hour after Zeitz fired the shots, Darcy and his three companions committed another armed robbery of the proprietor and three or four patrons of the Deacon Inn near Penndel, eight miles away from the Feasterville Tavern. Darcy said, “Stop the fooling around. This is a stickup. We just killed a couple of guys.” N.T.-T. 685. Capone, with gun in hand, said, “You guys ought to try this sometime, it’s fun.” N.T.-T. 688. Three shots were fired, two of them into the telephone booth; no one was injured. Upon their return to Philadelphia at 1:17 A.M. December 23, 1947, they were apprehended by Philadelphia police.

That same day all four made a statement to the police voluntarily admitting their participation in the Feasterville Tavern and Deacon Inn robberies (CX-69, N.T.-T. 814), and statements as to having committed seven other robberies since November 30, 1947, using the same automobile and guns and a plan, pattern and scheme similar to that used on December 22, 1947 — three in New Jersey, four in the Bucks-Philadelphia Counties area. Altogether seven patrons were shot or otherwise injured.

Because of Kelly’s death on Wednesday, December 24, all four were held without bail December 26 by Magistrate William Hogan in Philadelphia. Meanwhile their transfer to the Bucks County authorities was delayed by weather conditions. At the hearing Lt. John Hanlon of the Philadelphia police testified as to their admissions.

Monday, January 5,1948, all four were brought to Bucks County, charged with murder and committed without bail by Justice of the Peace Horace A. Cooper at Langhorne to the Bucks County prison to await action by the Grand Jury February 9, 1948. The Commonwealth was represented by Assistant District Attorney Willard Curtin; Zeitz by I. Louis Rubin, Esq. Coroner’s physician Dr. John C. Simpson testified as to the cause of death; Chief County Detective Anthony Russo as to signed statements by the defendants. The possible penalty was not mentioned.

Tuesday, January 27, 1948, a coroner’s inquest, upon hearing testimony of Dr. John C. Simpson, coroner’s physician, decided that death was caused by a gun shot wound; Pvt. Kenneth R. Dane, Pennsylvania State Police, testified that Zeitz admitted firing two shots in Kelly’s direction. The possible penalty was not mentioned.

January 29, 1948, transcript filed, Clerk of the Courts office, Ex. Nos. 1 and 4; Rel. Ex. No. 10, Oyer and Terminer Criminal Docket, p. 320; Ex. No. 115 Criminal Minutes, Docket 1948 to -, p. 7; Ex. No. 137, Criminal Minutes, Docket 1943 to -, p. 379.

February 6, 1948, the District Attorney was reported as stating that the murder case was scheduled for action by the Grand Jury February 9, 1948, but the trial would in all probability be continued until the May term.

February 10, 1948, defendants being present (Zeitz represented by I. Louis Rubin, Esq., Darcy by Webster S. Achey, Esq., Capone by Frederick Smith, Esq.) Judge Keller charged the Grand Jury for ten minutes and approved submitting the case to the Grand Jury for action. Six witnesses appeared. 10:55 A.M. all four defendants were jointly indicted to No. 37 February Sessions 1948 for murder. Rel.Ex.No. 2.

The District Attorney then moved for a continuance until the May Term because of the critical condition of Allen Hellerman (a Commonwealth witness) and because Harold Foster was without counsel. The continuance was granted. Rel. Ex. Nos. 116, 137, p. 379.

March 1,1948, Webster S. Achey, Esq., on Darcy’s behalf and Frederick Smith, Esq., for Capone, moved for a severance and separate trials. It was reported that the court commented “Separate trials * * * will mean that it may take a year to dispose of the cases”, and suggested to counsel the advisability of a combination trial as to all defendants, but counsel insisted on their legal rights. Judge Keller granted the motions. Rel. Ex. Nos. 1, 4, 10, p. 320.

March 3, 1948, Judge Boyer appointed Donald B. Smith, Esq. and William Freed, Esq., as counsel for Harold Foster. Rel.Ex.No. 10, p. 321. Id. Ex. Nos. 1 and 4. Id. Ex. No. 45.

There were only two attorneys in the District Attorney’s office in Bucks County at that time, Edward G. Biester, and his assistant, Willard S. Curtin. While both were engaged in murder cases other cases could not be disposed of without difficulty. The murder cases had already been continued from the February term. Allen Hellerman, a witness, was in serious physical condition. The District Attorney decided in the interests of justice that the cases should be tried as promptly as possible.

At a conference in early March 1948 defense counsel were advised that the Foster-Zeitz case would be called first for trial; the Darcy case the following week; then Capone. May 17, 1948, the Capone case was continued; the trial list prepared for the May term and counsel for Darcy again notified that the Darcy case would be called for trial the week following the Foster-Zeitz trial which was first on the list; the precise date of commencing the Darcy trial depending upon the date of completion of the Foster-Zeitz trial. Subpoenas for the Darcy trial were sent out the end of the week of May 24 or early in the week of June 1.

April 12, 1948, a venire was ordered, Rel. Ex. No. 8, for the empaneling and summoning of 120 jurors for service “At the term * * * commencing on the 17 day of May * * * 1948 * * to serve for the term (sic) thereof commencing on the 24 day of May * * *" 1948”. Simultaneously Rel.Ex.No. 9‘ called for 120 “ * * * to serve for the term (sic) *' * * commencing on the 1 day of June 1948”. On-the return of the writ the sheriff certified, ReL Ex. Nos. 6 and 7, that the persons named were summoned to appear in court at 9:45 A.M. on May 24 and June 1, respectively. Ordinarily the jurors, unless-previously excused by Judge Keller, would report on the date directed. However, when it became apparent that the Foster-Zeitz trial would continue into the week of June 1, the court directed the sheriff’s office to notify verbally all who had been summoned for jury duty as of Tuesday, June 1, 1948, not to appear until Monday, June 7, 1948. They were so notified and did not appear for duty until June 7 as directed.

In each trial jurors waiting in the