awarding a new trial when the petitioner was “denied his right of full appeal due to no fault of his own . . . and because of a condition not created by the state and which it is powerless to remedy”
How later courts described this case
- awarding a new trial when the petitioner was “denied his right of full appeal due to no fault of his own . . . and because of a condition not created by the state and which it is powerless to remedy”
- directing the state circuit court to “vacate the judgment of conviction and [] grant petitioner . . . a new trial.”
- directing State court to vacate conviction and grant a new trial
Written by the judges who cited it.
The opinion
SCHNACKENBERG, Circuit Judge
(concurring).
I concur in Judge HASTINGS’ opinion reversing the order of the district court and remanding this case to that court with instructions. I also concur in the reasons expressed by Judge HASTINGS for said reversal and rensandment.
I do not agree with his views in regard to the availability to petitioner of a bystander’s bill of exceptions.
It is well to point out that the court in Griffin v. People of State of Illinois, 351 U.S. 12, 20 , 76 S.Ct. 585 , 100 L.Ed. 891 , said that bystanders’ bills of exceptions or other methods of reporting trial proceedings could be used in some cases. In the case before us, the prisoner was of course present during his trial in the state court. His numerous and voluminous court petitions and documents, prepared by him personally for use in the many court proceedings which he has instituted since being incarcerated following his conviction, impress one with his alert mental attainments and his familiarity with court procedure. Lacking a stenographic transcript of the proceedings at his own trial, he has been at all times in a peculiarly advantageous position to prepare a bystander’s bill of exceptions for use in an appeal from his conviction. There is not the slightest evidence that he made any effort to prepare and obtain certification of a narrative of the substance of the proceedings against him at his trial. What the result of such effort would be cannot be predicted. If he had presented such a bill of exceptions to the trial judge it could have been considered, together with objections, if any thereto, by the state, and settled by the trial judge. He has not exhausted his state remedies in this respect nor has he excused his failure to make such an effort.
The facts stated in the foregoing paragraph would justify a reversal of the district court’s order with a direction to that court to enter an order dismissing the petition for habeas corpus. However, I am agreeable to the disposition of this appeal in the manner stated by Judge HASTINGS.