# Petition for Writ of Certiorari — Henry v. Cotner > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0003%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 393 U.S. 847 ## Text SUPREME COURT: Us & a a Court of nee ere cone Oorozzr Tze, 1968 . JzRoME Henry, as SUPERINTENDENT OF THE Inpruana State Rerormarory, . Petitioner, © — _ vB CHARLES Q, Cornzn, m ; S | Respondent. PETITION FOR WRIT OF CERTIORARI TO THE "UNITED STATES COURT OF APPEALS | FOR THE SEVENTH CIRCUIT ~ 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 . € . 2 \ , e - ‘ ‘*. » e (ey ’ oe Page Cian oe | ar = oe se . so > 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 ene scceisisommsisuainioelis ~ ; ea eae CITATIONS AND AUTHORITIES xe \ ‘ \ ° . \_ ‘. \ ee ae __ 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).. ee a 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 ii\ 2 ore t Pa) . a t. + , - ‘ : ° ee _ ' OITATIONS AND AUTHORITIES—Cont’d. . 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) i : ae ie Qo s . © *. * ‘ e e : ” a3 ——— . ‘ ad ~~ . ; 1 eal : \ \ . oe . = : e , . . ed ve od “s F . i ° . m* 3 rae \a e ak . ' “6 ~~ 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 : f ‘ ‘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- . *, “ 3: , A . 2 ‘ 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.’’ “~ , ' , . — ‘ - 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 - 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). a | 6 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 | A — i> \ Bot, Puree e ae | rémédy being a motion to vacate the judgment and . withdraw the plea. cites omitted]. : ‘... INDEX TO APPENDIX &° Poe ee . ie ne © ba . i ™~ ; f . “. 0 Opinion of Court of Appeals efieairainfenicocoaeps WE Opinion of District Court . eee Le | ie j ears 4 i . ' e ° 4 & --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0003%3A1. Public record. Not legal advice.