Appendix — Henry v. Cotner

| had no merit. *

2

IN THE 2

- onteep STATES COURT OF APPEALS -

eed ne For the Seventh Cireuit

. _* -

No. 16601 Serremstr Term, 1967 January Session, 1968

2”

Cuanizs O. Corner,

Petitioner-Appellant, [Appeal ob hg

2 v. °. trict Court for the

Southern District

,

' Jznome Henry, as Superintendent, of Indi cal

Indiana State Reformatory, age oe Foca:

Respondent-Appellee. apolis Division.

Avau.17, 1968". &

A : ae

Before Durry, Senior Circuit Judge; Kny and Fam.

CHILD, Circuit Judges. ‘

Kray, Circuit Judgé. This is an appeal foie the

district court’s judgment dismissing Cotner’s habeas

corpus petition challenging the constitutionality of the

Indiana Sodomy Statute under which he had been con-

victed. The court dismissed on the grounds that Cotner

had not exhausted his state remedies and that his petition

We reverse. because ‘we have concluded that Cotner

has no adequate method for raising his constitutional

_ ‘argument under Indiana procedural rules and because

we have also concluded that there is a substantial ques-

tion as to the constitutionality of the Indiana Sodomy

17

; rien 18

Statute as applied in this case which Cotner was not -

informed of prior to his plea of guilty, thereby rendering

his plea of guilty void as not understandingly made.

Cotner pleaded guilty in the Jasper County, Indianape

Circuit Court in July, 1965, to his wifd’s \charge that in

May of 1965 he had committed ‘‘the “abominable and

detestable crime against nature’’ with her in violation -

of the Sodomy Statute. 1 He was sentenced to not less

than two, nor more than fourteen years in the state.

reformatory. The petition before us was _ in June,

© 8. .

ad Snatieenens of State Remedies ~ P

| " [Was kth Gis Geeta coast cane bo Glainntng Cotane’s

petition for failure to exhaust his state remedies.

The petition challenges the Indiana Sodomy Act as

- being unconstitutionally vague, and an unwarranted in-

vasion of marital privacy, under the Fourteenth Amend-

ment. A state prisoner, to obtain habeas corpus relief,

is-required, under 28 U.S.C. 2254, to exhaust available state

remedies unless there is no ‘‘available State corrective

process’? or circumstances which make the process in-

‘effective to protect his rights. If Cotner had the right

under Indiana law to raise by ‘‘any available procedure’

the point he urges here, he has. not exhausted his state

remedies and is not entitled to relief. Jones v. Dowd,

128 F.2d 331.

eo |

1 Boas Inp. Sar. Ch. 169 See. 10-4221 : ied

may be added imprisonment in the state

(2) nor more than fourteen (14) years.

19

The State argues that Cotner has not complied with

‘Sec. .2254 because he did not present his constitutional

challenge to the Indiana courts either by way of appeal,

coram: nobis, belated motion for new trial under Indiana |

Superior Court Rule 2-40, or motion to vacate the con-

viction and withdraw his plea of guilty. Cotner argues

' however that these remedies ‘‘are | abactutely ineffective”

for his purpose.

Since Cotner pleaded guilty, he was in no position to

appeal, Snow v. State, 199 N.E.2d 469, and coram nobis

was abolished in Indiana in 1963 by amendment to Rule

2-40. Id. Since the conviction was upon the plea of

guilty, ‘“‘he cannot properly file a motion for new trial,

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

statute. . . .’’ Pritchard v. Indiana, 210 N.E.2d 372, 373.

ai ambiguous language in Koepke v. Hill, 60

N.E. 1039, 1041, the Supreme Court of Indiana in Dowd

». Grazer, 116 N.E.2d 108, held that habeas corpus is not

available to a prisoner to test the constitutionality of a

statute because a conviction, even on an unconstitutional |

statute, is merely erroneous and is not a oes ea

defect.

There remains the suggested remedy Of mothe to

vacate the judgment and. withdraw the plea. But the

Supreme Court of Indiana holds that this motion must

be made within the term at which the plea: is entered.

Snow v. State, 199 N.E.2d 469, 471; Sessler v. State, 56

N.E.2d 851; Kuhn v. State, 52 N.E.2d 491. The term at

which Cotner’s plea was entered has ended.

Indiana argues that Cotner should be precluded now .

from claiming he has exhausted his Indiana remedies

because he has made no attempt to seek post-conviction

relief in the Indiana courts. It is possible that, despite .

the present state of Indiana a had Cotner sought

- . - ; J

f

20

relief in Fidiana he would have been permitted to clial- —

lenge his conviction ‘in the, manner that he-does in this

habeas corpus petition. We think, however, that we must.

base our decision upon the law as it stands today, rather

than on conjecture about future changes in that law.

Constitu Soest Questions .

Cotner attacks the Indiana. Sodomy Statute .on ‘the |

ground that it violates Article I, Sec..12 of the Indiana

Constitution, and the Fourteenth Amendment of the ~

United States Constitution, because it is vague and be-

cause, as applied, it violates his right of privacy under —

the Supreme Court decision in Griswold v. Connecticut,

381 U.S. 479.2 In Griswold the Supreme Court recognized

a constitutional right to marital privacy and held that

the right is- violated by the imposition of criminal. sanc-

tions for the-use of birth control devices by married

couples. The import of the Griswold decision is that

private, consensual, marital relations are protected from

regulation by the state through the use of a criminal

penalty.’ :

No appellate peer in Indiana has’ had the. opportunity

to interpret the Indiana Sodomy tatute’ i in light of its

potential application to the i of married couples. _ |

Under Griswold Indiana courts could not interpret the |

statute constitutionally as making private consensual

2We think that Cotner has standing to complain about Indiana’s

‘intrusion into the privacy of Cotner’s marriage relation, even’ though

his wife has made the complaint against him.. It is essential to the ~

_ ‘preservation of the right of privacy that.a husband have standing to pro-

tect the marital bedroom against unlawful intrusion.

8 The American Law Institute Model Penal Code adopts the view.

* that consensual private sexual conduct between adults should not

ordinarily be subject to criminal sanction,, Illinois, as well as many “&

other states, has ~— this approach, although Indiana has not as yet

joined the trend.

ial alana : : - | sa | '

21

23 9

physical relations between married persons a crime absent

a clear showing that the state had an interest in preventing

such relations, which outweighed the constitutional right

to marital privacy. The Indidma courts might, however,

construe the statute as being- inapplicable “to~ married

- couples or as outlawing such physical relations between

married couples only when accomplished by force. Under

the latter interpretation, the’ protection of the Griswold

rule would not be available to-Cotner if there was a a showing

that Cotner employed force.

Cotner was charged by his ‘wife, in an affidavit, with

the commission of an act of: sodomy. The affidavit con-

tained no charge that he used force. He was proseeuted

under a statute which prohibits sodomy but which does

not explicitly mention force and which no Indiana court

has construed as requiring force when applied to married

couples in the privacy of the bedroom. The circumstances

revealed by the present record show that Cotner was

not given adequate notice of any allegation, or any need

of an allegation, of force, or of a defense of consent.

The charge was merely read to him. !

He was allowed to waive hig right to counsel and to

plead guilty without being informed that there was a sub-

stantial question, later revealed by Griswold, whether cer-

tain acts by married people with mutnal consent ‘can con-

stitutionally be prohibited by the state. -

Because of these circumstances, Cotner’s conviction must

be vacated as based on a plea of guilty which was not made

witha full ‘understanding of the charge against him.

_. The decision of the district court is reversed and the

cause is remanded with instructions to grant the writ and

order that Cotner be released from gustody unless the

state ‘proceeds with ‘prosecution of its charge within a

_ reasonable: time.’ This . procedure could, if . prosecution,

pw

conviction and appeal followed, give the: Indiana courts

an opportunity to resolve thé substantial constitutional

questions which may be involyed in Cotnér’s case. _

Judgment reversed and cause remanded with directions.

Bb Fae @

v

No. 16601

o Durry dissents: I respectfully dissent. Cotner aid have

the opportunity to withdraw his plea of guilty and move

that the judgment be vacated within the term at which

the plea was entered. He failed to exercise that remedy.

Faced with a similar problem, the Fourth’ Circuit, in

Whitley v. Steiner, 293 F2d 895, 898, 899 (1961), stated:

. Where a state prisoner, asserting a denial of con-

stitutions rights in connection with his conviction, has

a remedy in: the state court but fails to avail himself

of it, and later finds himself without a state remedy, he

may not haye redress through federal habeas corpus.”’

_— See also Brown v. Allen, 344-U.8. 443, 482-487 (1953).

To grant Cotner relief as the majority opinion does,

would seem to assert that federal courts have broad . |

supervisory powers over the manner in which state courts ~ |

handle criminal prosecutions for violations of state laws. a

I disagree... ‘

In Koepke v. Hill, 60 N.E. 1039, 1041, an Indiana case,

the court said: ‘‘If a federal question were duly pre-

sented, we would. be constrained to follow the decisions

of the Supreme Court of the United States.’” But Cotner

ever gave the "ees courts any opportunity to pass .

on the issue. .

The majority opinion concedes that it is possible that

‘ if Cotner sought relief in the Indiana courts, he would

have been petmitted to challenge his conviction in the

—

manner in which he dos in the instant habeas corpus

. petition. |

The majority opinion injects the idea that the state

should have shown that Cotner used force. r think =

a theory i is entirely unwarranted.

T take it that if Cotner had shot his wife in the privacy

of their bedroom, the majority of the panel which heard

this appeal would not proclaim that there is a difference

~ between a crime committed in the bedroom and otherwise.

I take it that in such a case there would be no claim of

*‘, . . an unwarranted invasion of marital privacy under

_ the Fourteenth Amendimént.’’ I also assume that under

‘such circumstances there would be no claim that Cotner’s

conduct could not be questioned because, as the majority

states ‘‘it is essential to the preservation of the right of

privacy that a husband have standing to protect the marital

er against unlawful intrusion.”’

' I would affirm the District Court.

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| UNITED STATES DISTRICT COURT

. SOUTHERN DISTRICT OF INDIANA

“INDIANAPOLIS DIVISION »

&

CHARLES O. Corner . coed

¥ ce a ; > No. IP 67-C-248 =

JEROME Henry, as Superintendent

of the I ndiana State pa Cnet

. 6

ENTRY ON MOTION TO DISMISS OR IN THE

ALTERNATIVE FOR ‘SUMMARY JUDGMENT

Petitioner was convicted of sodomy entered upon a plea .

of guilty by the Jasper County Circuit Court in vacation

before the September term of 1965. He has petitioned for

habeas corpus alleging violations of his right to counsel

and the unconstitutionality of the Indiana sodomy statute.

Phe Attorney General of Indiana has moved to dismiss the ~

petition on the grounds that the petition fails to state a-

claim upon-which relief can be granted, and that state court

remedies have not been exhausted. :

The petitioner ’s allegation of a denial of the assistanee

of counsel are defeated by the transcript attached as an

exhibit to his petition. Court-appointed counsel was offered

_ and refused. The trial court found the waiver of counsel to

be valid,“and there is no nine in the petition to cast

doubt upon that ruling. |

The Indiana sodomy statute reads i in 1 pertinent part as.

follows :

‘Whoever peabl the abominable and detestable

crime against nature with man or beast. . . shall be

guilty of sodomy. ’? Ind. Ann. Stat. § 10-4221,

Petitioner first challenges the statute on the grounds of

vagueness.

eget

rd Sy Spee eee

“The test is whether the language conveys sufficiently

definite warning as to the prescribed conduct when meas-

‘ured by common understanding and practice.” Jordan v,

DeGeorge, 341 U.S. 223, 231-232 (1951). The present statute

does put men of common understanding upon notice of what .

is prohibited, and this is true notwithstanding. the variety =

of activities the artful mind of counsel is able to list as being

_ within the statute ’s scope. Furthermore, specificity hasbeen

enhanced by case law interpretations, e.g., Sanders v. State,

25 N.E.2d 995 (1940), and the requirement of proof of mens —

rea mitigates the danger of any remaining vagueness.

‘Screws v. United States, 325 U. S. 91 (1945).

Petitioner also attacks the statute’s constitutionality as

5 applied to the present case. The prosecuting witness was

- ‘petitioner’s wife, and it has been contended that such. fact

results in a violation of a right of marital privacy. Peti-

tioner’s reliance. upon Griswold v. Connécticut, 381 U.S. °

479 (1965), is misplaced.’ In that case the state instituted

the criminal processes. The present case proceedings began

‘with a complaint made by one of the parties to the marital.

relationship. ‘Privacy is not infringed when one of the

: parties comes forward with the information and makes com-

‘The Setition Sede a failure to. exhaust init scinttbin :

as required by 28 U.S.C. § 2254. Contentions have been —

made challenging the constitutionality 6f Indiana post

conviction remedies by way of-habeas corpus and motions

for new trials. Were {here merit in petitioner’s claims, his

proper state remedy would be a motion fo vacate the judg-

ment and withdraw his a of ed Pritchard v. State, -

oa 210 N.E.2d 372 ae

3 or

/ Poe ee a j Soe

Pi ee ee

The petition is disminsed as being without merit aad for.

failure to exhaust state remedies. :

»

PCN

IT 18 80 ORDERED. ‘

_ Dated this 25th day of August, 1967. \ | 7 ame

Winam B) Srecxuzr

Judge, United States District Court

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