Petition for Writ of Certiorari — Henry v. Cotner

SUPREME COURT: Us &

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a Court of nee ere

cone Oorozzr Tze, 1968 .

JzRoME Henry, as SUPERINTENDENT OF THE

Inpruana State Rerormarory, .

Petitioner, © —

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CHARLES Q, Cornzn, m

; S | Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

"UNITED STATES COURT OF APPEALS |

FOR THE SEVENTH CIRCUIT

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ees _ ns : ee

ane ain ets | Attorney General of iblens

Doucuas B. McFappew

: Assistant Attorney General

Rex P. Kus .

Deputy Attorney General

| Attorneys for Petitioner

219 State House ~ |

‘Indianapolis, Indiana

633-5512 —i

C. E. Pauley &Co., Inc., Indianapolis

JUL 26 1968

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Jurisdiction tec . 4 ee z Si Le

Questions iselabia en . : vee : 2

Conatitutional Provisions and ‘Statutes Involved... 2

Sirteamaat tt Oitie ce ee Sie , to 4

Reasons os dinates Writ nares Av o 4

I. The Court Of Appeals: Has Decftted A Federal.

Question In A Way In Conflict: With Applicable

Decisions Of This Court On The Exhaustion Of .

- State Court Remedies Requirements Of The

Federal Habeas Corpus Statute seating 4

II. The Court Of Appeals Has Decided An Impor-

' tant Question-of Constitutional Law Which Has"

- Not Been But Should Be Settled By This Court, -

ie. The Application Of The Right To Privacy

Doctrine To The Indiana Sodomy Statute ........° 7

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CITATIONS AND AUTHORITIES

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__ Brown v; Allen, 344 U.S. 443 (1953) cr ecciennn 5

~ : Case v. Nebraska, 381 U.S, 336 (1965) ......... 5 oe:

- Commonwealth v. Poindexter, 133 Ky.. 720, 418 S.W. . |

+ 948 (1909) ne pce ance

.. Estesv: State, 244 Ind. 691, 195 N.E.2d 471 (1964)... 5

= Griswold v. Connecticut, 381 U.S. 479 (1965)......-7,8,10 =”

iat ra v. Florida, -315 U.S: ‘ety (1942) : wcces * § -

‘ . Koepke v. Hill, 157 Ind. 172, 60 N.E. 1089 ner oF

_ ':, Lane v. Brown, 372 U:8. 472 (1963) ..... | : ie

or — v. State, 236 Ind. 688, 143 N.E.2d 290 (1957)... 9

eople v. Elder, 382 Il. 388, 47 N.E.2d 694 (1943).. aie ae.

Phillips v. State, — Ind. —, 222 N.E.2d 821 (1967).. Seer 5 sg

‘Pritchard ’y. State, 246 Ind. 671, 210 N.B.2d~a72

(1965) ; 5, 6

Reg. v. Jellyman, 8 Car. & P. 604 ............... sites

Snow v. State, 245 Ind. 423, 199 N. K.2d 469 (1963). -..... 6

State v. Langelier, 136 Me. 320, 8 A. 2d 897 (1939)........ . 9

State v. Pfeiffer; 277 Mo. 202, 209 S.W. 925 (1918)... 9

State v. Weitzel, 157 Or. 334, 69 P.2d 958 (1937)......... - .

"United States v. Walker, 176 F.2d 564 (2nd Cir. 1949)..

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STaTurEs AND a Provisions:

‘Constitution of the United a

Amendment 4 ........------- i 3 ;

> Amendment 9 cveseoo:soccceeecelee . 3

_. Amendment 14 3

. Habeas Corpus Act, 28 U.S.C. § 2254 .... on

. Sodomy Statute, Burns Ind. Stat. Ann. § 10-4221... 8

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' OITATIONS AND AUTHORITIES—Cont’d.

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Treatises, and Miscellaneous: )

4 Blackstone, Commentaries 216 ....... Sed ANT RE, =

Bishop, Criminal Law § 1193 (9th ‘a. 1923) eine

20 Am. & Eng. Ency. of Law 1146 (new ed. } ercimeoseseinn:

Russell, Law of Crimes 977 (7th Eng. ed. & 1st Ca-

nadian ed. 1910). ;

1 Russell, Crimes: and Misdemeanors 939 (ath ed. :

1923)

2 Wharton, ‘Criminal Law and Procedure § 154

.(1957) ee

2 Wigmore, Evidence 6488 | ban -10-

Uniform Rules of Evidence 28( 2)

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oe Supreme Court of the Bnrited States

OcrosEr n Tan, 1967

No.

J EROME Henry, AS SurEninrexvENt OF THE .

InpIaNa STATE REFORMATORY, ~ - ating Ret,

| Petitioner, i

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‘VS.

. é . aap 1@ us , - \

CHantesQ.CoTNER, = ~~ « Sem \ :

Respondent. ay

sPETITION FOR WRIT OF CERTIORARI TO ‘THE

cen UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

a Petitioner prays that a writ of certiorari issue to review |

the judgment. of. the. United States Court of Appeals for

the Seventh — entered in - above case on April 17, ~ -

| 1968. , _s

! _ OPINIONS BELOW

The opinion of the Court of Appeals is as yet siinetiieliit

9 Such’ opinion of, the District Court is unreporteds Such .

opinions are appended hereto (Appendix p. se

J URISDICTION

| “Tie ‘spitgnent of the Court of Appeals was made and

- entered on April 17, 1968. The petition for rehearing was

denied .on May 29, 1968. The jurisdiction of this Court +i is ;

sat tcc under 28 U.S.C: § ee ¥

2

QUESTIONS PRESENTED

7 4 Whether the Court of Appeals erred in reversing the

District Court and holding that the respondent Cotner had

exhausted. his state court remedies under 28 U.S.C. § 2254.

ee oe the respondent Cotner may by-pass the

mandates of 28 U.S.C. § 2254, requiring exhaustion of state

remédies, by alleging that the sodomy statute, under which

he alleges to be unconstitutional, has already been held

constitutional by the highest court of Indiana:

b. Whether a motion to vacate the conviction and

withdraw the plea of guilty would be available to respond-

ent Cotner in the state, trial court thereby constituting an

‘‘available State corrective process’’ under 28 U.S.C. § 2254.

2. Whether the conviction of respondent Cotner for

sodomy upon his wife, where the affidavit was signed by his

, - violated his constit@tional right to privacy.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

. — IND. STAT. ANN. § 10-4221, provides:

_ **Whoever commits the abominable and detestable

crime against nature with mankind: or beast; or

whoever entices, allures, instigates or aids any per-

son under the age of twenty-one (21)- years to com-

mit masturbation or self-pollution, shall be deemed

‘guilfy of sodomy, and, on conviction,’ shall be fined

not less than one hundred dollars ($100) nor more

than one thousand dollars ($1,000), to which may be

added imprisonment in the state prison not less than

¢ two (2) years nor mgre than fourteen 4); years.”’

28 U.S.C. § 2254 provides:

‘*An application for a writ of habeas corpus in

' ‘behalf of a person in custody pursuant to the judg-

ment of a State court-shall not be granted unless it

appears that the applicant has exhausted the reme-

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3: , A

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dies available in the courts of the State, or that there “~~

is either an absence of available State corrective ‘

b “3 process or the existence of circumstances rendering

such process ineffective to protect the rights of the

- prisoner.

“An applicant shall not be nee to have ex- —

hausted the remedies available in the courts of the _ ©

State, within the meaning of this section, if he has ™~.”

‘the right under the law of the State to raise, by any

"= — available procedure, the question presented.”” - :

Amendment 4 to the Constitution of the United States, ot

provides: .

° - “The right of the people: to’ be secure in their

-persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no warrants shall issue, but upon prob-

; . _ able cause, supported by oath or affirmation, and

? particularly describing the place to be searched; and,

the persons or things to be seized.” . te

hanes 9 to the Constitution « the ‘United States,

provides : ,

~ ‘The enumeration in the constitution of certain .

rights, shall not be construed to deny or isparage

others retained by the people.”’’

Amendment .14 to the Constitution of the United States,

provides; —

| | ‘‘All persons born or naturalized in the United ae

States, and subject to the jurisdiction thereof, are , .

- Ritizens of the United States and of the state where-

in they reside. No state shall make or. enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any state

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person with-

- in its jurisdiction the equal protection of the laws.’’

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STATEMENT OF CASE

This action was brought in the United States District

Court for the Southern District of Indiana on a Petition

for Writ of Habeas Corpus for Charles O. Cotner’s release

from custody, for alleged violations of his federal con- __

. stitutional rights, against the: Superintendent of the In-- -

diana State Reformatory. ;

The habeas corpus petition was filed on June 7, 1967.

The Superintendent of the Reformatory on June 22, 1967,

filed a Motion to Dismiss or in the Alternative for Sum-

mary Judgment. The District Court on August 25, 1967,

entered an order dismissing the petition. (Appendix p. 25).

An appeal was perfected by Cotner from that decision. The

court of Appeals on April 17, 1968; reversed the decision of

the District Court. (Appendix p. 17).

The exhibits that were attached to the habeas corpus

petition reveal that Cotner was charged by criminal affi-

davit with sodomy im the Circuit Court for Jasper County,

Indiana, on July 24, 1965. The affiant was Jeane Cotner,

wife of the accused. The transcript of.the arraignment, ,

also attached as an exhibit, reveals that Cotner entered a

plea of guilty to the charge after being fully advised of

his rights. The Circuit Court sentenced him to a term of 2- : 4

14 years in the Indiana State Reformatory and a firie of wt

$5.00 and costs. 7

REASONS FOR GRANTING THE WRIT bigs.

— .Z

THE COURT OF APPEALS HAS DECIDED A FED-

ERAL QUESTION IN A WAY IN CONFLICT WITH

_ APPLICABLE DECISIONS OF THIS COURT ON

THE EXHAUSTION OF STATE COURT REMEDIES

REQUIREMENTS OF THE FEDERAL HABEAS

CORPUS STATUTE

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Cotner never made an attempt to present his- alleged

federal questions in this case to the Indiana courts. Instead

they were first presented to a federal district court. The

* District Court held as one of the grounds for dismissing the

petition that Cotner had/failed to exhaust his state court

remedies. The Court of Appeals however reversed the

District Court on this point.

“The two-fold exhaustion question leis involves issues of

such magnitude as to merit review by this Court on the

merits.

One of the grounds relied pon by Cotner for not present-

ing his contentions to the Indiana courts was because al-

legedly the Supreme Court of Indiana had already passed

upon the questions surrounding the constitutionality of

Indiana sodomy statute and any presentation would be

futile. While it is true that the Supreme Court of Indiana

has on two different occasions sustained the statute against

charges of vagueness, Phillips v. State, —Ind.—, 222 N.E.2d

821 (1967) and Estes v. State, 244 Ind. 691, 195 N.E.2d 471

(1964), it does not mean that it would not be susceptible

to more direct. argument on: the qnestion in a subsequent

case or to a charge of unconstitutionality on some other

ground, i.e., right to privacy. |

This Court has held that constitutional conteitions of a

habeas corpus. petitioner must be presented once to the

states courts under 28 U.S.C. _— Brown v. Allen, 344

U.S. 443 (1953). :

The Court of Appeals decision however did not-turn on

this point but upon the question of whether Cotner could —

have presented: his contentions by way of a motion to vacate: |

the judgment and withdraw his plea of guilty under Pritch-- P

ard v. State, 246 Ind. 671, 210 N.E.2d a ( 1965).

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The District Court held that the rfotion to vacate was

available to Qotner under Pritchard. The Court of Appeals

said that the motion: must be presented within term time

under Snow v. State, 245 Ind. 423, 199 N.E.2d 469 (1963) -

and the term at which Cotner’s p’ea was-entered has‘ended.

Judge Duffy however &nswers thig,argument in his dis- |

_ senting opinion by pointing out that the language of the Su-

“preme Court. of Indiana in Koepke v. Hill, 157 Ind. 172, 60 |

N.E. 1039, 1041 ¢1901), reflects Indiana ’s lack of hesitancy

to follow decisions of this Court in providing, post-convic-

tion means of reviewing federal constitutional questions.

Indiana has, particularly since Lane v. Brawn, 372 U.S. 477

(1963), made a good faith effort at providing adequate

means by which prisoners can present federal constitutional

questions subsequent to conviction and direct appeal. This

is borne out when Indigna Supreme Court Rules 2-40 and

- 2-40A are viewed in light of Case v. Nebraska, 381 U.S. 336

(1965). Further it must not be forgotten that the States are

free to adopt their own easures of post conviction review,

if they are constitutionally ired to do so at all. Hyslerv. _

Florida, 315 U.S.-411- (19. ; But: to inject this receptive

- attitude, the Indiana Supreme Court must first be given the

opportunity of reviewing petitioner’s constitutional conten-

tions and this cannot occur if he is not required to present

those contentions before the state court.

The language in Pritchard ‘indicates that the motion to

vacate and withdraw the guilty plea may be made after

term timé has passed. —

‘‘This court has held on numerous instances, with-

.out exception, that when a defendant pleads guilty

in a criminal case and a judgment is rendered on the

plea, he cannot properly file a motion for new trial,

as there never was a trial, within the meaning of the

statute, and such ‘motion is ineffectual, the proper |

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\ Bot, Puree e ae |

rémédy being a motion to vacate the judgment and .

withdraw the plea. cites omitted]. :

‘<Tt logically follows that.s-belated motion for new

. trial is not an appropriate remedy for errors preced-

ing a judgment rendered .on a plea of guilty, since

there never was a trial. Rather, under such circum-

stances the appropriate remedy would be‘a petition

to set aside the judgment and plea of guilty.’’ 246

Ind. 673-674. .

. The key words in the foregoing language are ‘‘would

be’’.. The reference is to prospective use of the motion to

vacate thereby indicating its availability after,term time

has passed. if )

In ‘the final analysis the question is whether Cotner

should have attempted to present his constitutional ques-

tions by a motion to vacate the judgment and withdraw the .

guilty plea. The Court of Appeals said no on the grounds

that he did not have to speculate on future changes in Indi-

ana law. But should not an applicant first make an attempt

to-present his position to the courts and even if necessary

attempt to change the law? May an applicant by-pass the

requirements of 28 U.S.C. § 2254 yt eos current status '

of state law may not appear favorahle'o his contentions ?.

These are important questions which deserve the atten-

tion and clarification of this Court.

THE COURT OF APPEALS HAS DECIDED AN

IMPORTANT QUESTION OF CONSTITUTIONAL

LAW WHICH HAS NOT BEEN BUT SHOULD BE

SETTLED BY THIS COURT, LE. THE APPLICA-

_ TION OF THE RIGHT TO PRIVACY DOCTRINE TO

- THE INDIANA SODOMY STATUTE

The Court of Appeals also erroneously held that the right

to privacy doctrine of Griswold v. Connecticut, 381 U.S. 479

.—«@8 ee

(1965) applies’to the ietien: sodomy statute : being Burns

IND. STAT. ANN. § 10-4221.

. Griswold involved a statute making the use of eitiin:

. euptives: unlawful. The.majority decision of the Court of

Appeals is a far reaching extension of Griswold that is

unwarranted by the facts of the case at bar. -

The Court of Appeals is now suggesting that the crime.

- of sodomy, the-establishment of which finds its roots deeply

embedded in common law and ‘the constitutionality of

which, when committed d between other than married persons, |

would surely not ‘be questioned by this Court, should now

__—-rovide an exception whenxhe offense is committed between-

married persons in the privacy of the bedroom. If the views

of the Court of Appeals are followed, married persons

would bé shielded from prosecution of an age old crime

while others committing the very same activity would be

subject to prosecution. Following-this rationale, what other

- erimes would the constitutional right to privacy make in-

“applicable to married persons? Where would courts draw

the line? Whether’a man beats his child, a stranger or his

wife, the activity still constitutes the crime of assault and

battery. Whether a man shoots his child, a stranger or his -

wife, the activity still constitutes the crime of murder.

Likewise whether a man commits the crime of sodomy with

his child, a stranger or his wife;the activity still constitutes

the crime of sodomy. A husband and wife’s,right to pri-

vacy, should not shield them from what would soenichmens

ae a‘criminal act.

Pervading the majority opinion of the Court of diibiate :

.is the idea that force and consent ‘are essential factors in

reaching their decision.- They concede that only private,

consensual marital relations are protected under Griswold

and that the Indiana courts might hold Griswold inappli-

cable upon a showing that the marital relations were ac-

3

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complished by force. They farther note with apparent sig-

nificance-that Cotner was not charged with using force, the

statute does not mention force and Cotner was not given

notice of a defense of consent. As Judge Duffy notes in |

dissent, these theories are unwarranted.

The Indiana court has defined the crime of siting’ as

‘the abdominable and detestable crime against nature with = -

mankind or beast’’ which includes both common law sod-

omy and acts of a beastial character whereby degraded and

perverted sexual desires are sought to be gratified contrary

to nature. Murray v. State, 236 Ind. 688, 143 N.E.2d 290

(1957). The crime of sodomy as set forth in tlie Indiana

statute is essentially a codification of the common law crime

as outlined i in 4 Blackstone Commentaries 215.

7 Since Indiana has adopted the common | law. ara in °

essence, ‘we must look to that source to ascertain its ele-

ments. At common law, force was not an element of the

-offensé and consent was no defense. Consent simply made

the consenting party an accomplice. Bishop, Criminal Law

§ 1193+ (9th ed. 1923); 20 Am. & Eng. Ency. of Law 1147.

(new ed.); Russell, Law of Crimes 977 (7th Eng. ed. & 1st

Canadian ed. 1910); 1 Russell, Crimes and Misdemeanors —

939 (8th ed. 1923) ;2 Wharton, Criminal Law and Procedure _

§ 754 (1957). In Bishop, supra, it is also recognized that _

sodomy may be committed between married pores. (citing :

Reg. v. Jellyman, 8 Car. & P. 604). a ;

Other state supreme courts have seiterated these common —

law rules when confronted with similar statutes. Common-

' wealth v. Poindexter, 133 Ky. 720, 118.S.W. 943 (1909);

People v. Elder, 382 Til. 388, 47 N.E.2d 694 (1943) ; State

v. Langelier, 136 Me. 320, 8 A.2d 897 (1939) ; State v. Pfeif-

fer, 277 Mo. 202, 209 S.W. 925 es State v. Weitzel, 157

Or. 334,69 P.2d 958 (1987). = tC‘ tC

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Based on the above analysis, the Court of Appeals’

. emphasis on force and consent is definitely unwarranted and

' should compel a re-evaluation. Sending the case back to the

Indiana courts would be of no avail in light of the above.

. here is still another reason why the constitutional right

to privacy’ should not be applicable to this case.. Unlike

Griswold, the prosecuting witness in this case is the defend-

ant’s wife. The area of privileged marital communicati ons |

. and testimony i is analogous to the marital right. to oritiby.

_ Exceptions to these privileges have existed since common

ee cover any crime committed by one spouse agains

‘(2 the other. The exception was ably stated by Judge Learned ©

/Hand in United States v. Walker, 176 F.2d 564, 568 (2nd

| / Gir. 1949): ah : st

! ‘‘We do not forget. that a wife from the sittin’ ;

* eats times was: competent to testify against her husband,

- m when the crime was an offense against her person

.... The same exception probably extends ‘to the

oN privilege against the admission of confidential com-

‘munications. Jest

See 2 Wigmore, Evidence, § 488, 8 id, §§ 2939, 2240; Uni-

form Rule.of Evidence 28 (2).

Privileged communications between husbarid and wife i is

- nothing more than a protection of the right to privacy be-.

tween husband and wife. As the privilege breaks down

when a. spouse is the injured party, so too should the right

to privacy when the spouse is the injured.party.

| In the final analysis the majority opinion-of the Court of

Appeals constitutes what that court considers the law

: should be, as reflected by its reference to the Model Penal.

— Code, rath3? than what the law i is. The question of whether

-acts of sodomy committed in private by consenting adults

should be a\crime i is a matter for the legislature and not one

with any constitutional underpinnings.

CONCLUSION

The Court of Appeals has decided federal saith ina

way in conflict with decisions of this Court as well as impor-

"tant questions of constitutional law not heretofore decided

by this Court. These constitute sound basis under Rule 19

of this Court to grant a writ of certiorari. . A

» Further, the Court of Appeals’ decision ‘has significant

impact upon Indiana criminal. law. Indiana should there-

fore be given an opportunity as one of the soverign mem- .

bers of the Union to — its legal — to this vee

for review. 3

WHEREFORE, for the foregoing reasons, ssiiliaiail

prays that this Court grant a writ of certiorari to review

‘ the decision of the United States Ooart of veiaeen for the

-- Seventh —

Respectfully submitted,

J ound. Ditton ©

| Attarney General of Indiana

; Doveras B. McF appzn

Assistant Attorney General |

Rex P. Kran 3

p Deputy Attorney General

| Attorneys for Petitioner

219 State House : | ) |

Indianapolis, Indiana

633-5512

;° >... INDEX TO APPENDIX

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Poe ee

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Opinion of Court of Appeals efieairainfenicocoaeps WE

Opinion of District Court . eee Le | ie

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