# Brief for Petitioner — Young v. Ragen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386406_0152%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitioner - **Published:** January 1, 1949 - **Citation:** 337 U.S. 235 ## Text ; ee = ee. ” Be ‘SUPREME ‘COURT 0 OF “THE ont ae eC 12 ‘ o a Cah \x . . sah 7% oo j ae te, gee UR Se Oe Oe ye a En RAGEN, Wine, Tuunyo1s Sara oe z= A Lait) _ Prumeruny, Toutes sores : . Frank v. Mangum, 237 U. 8. 309 (1915) .. ~ Harris vy. The People, 1281. 585, 594 (1898): Hawk.v. Olson, 326 U.S. 271, 278 (1945) . . ees _ Hedgebeth v. State of North Caroline, 334 U. 8: ae (Preliminary Print) 806'(1948).-......-02. tered 12 - Herhv. Pitcairn, 324 U. S.117, 127 (1945) . io eer =A - House v. Mayo, 324.0. S. 42, 45 (1945)... .. ie So eegdecedy (Seen . Johnson v. Zerbst, 304 U.S: 458, 460 (1938)... =. 9, 16, 19 - ‘Knewel v. Egan, 268 U. S. 442 at 445 966). 8: : Loftus v. Minots, 334 U. ‘Ss. (Preliminary Print) 804 __ (1948)-- Le PE PPO TPATE Ny mE ONS ace 20, 22-° yee Marws% Ragen, "332 U. 5. (Preliminary Print) 561, - « ; _ 962, 566 (1947) ...' eee co Sree Sea 10, 19; 20, 22 -, Mooney v. Holohan, 294 U. S. 103, 143 £1935)... os NS _Morhouse v. New Fork Supteme Court, 293 N..Y. a3], =: FE ye cic Bee Ee eS eT Cae 20° . Palko v. Connecticut, 320 U.S. 319, 327 (1937) ope ays | i ae * People ex rel. Barrett v. Brailey, 391, il. 169, 170, > es (3 aS EO Ee ener OL Ey WEE Cot em ae TR ee | . People ex rel. Ruckslery. Rages: 397 Ul. 515 (4947) ee People. ex -rel. Georgetown v. Murphey y; 202 Hl. 493 ego ens (1993) ...:... ee aan a ia ee ie gee a ee se ae © ee -People-ex rel. Maglori v. Simon, 284 TH:-28, 32 (1918) 13,17. - - Peopleex rel. Melton v. Whitman, 243 Th 7i (1910) . . e People ex rel. Swenson v. Fisher, 340 TH, 259, 257 ae People ex rel. Magee v. McAnnally, 221 24 9 (1906). 2, 17 ‘1. People ex Fel Swanson v. Kelly, 352. Tl. 567 (1933) ony 47. People ex rel. Swolley v. Ragen, 390 Il. 106 (1945)... )) 17 oe People bax rede ateassies v. Montgomery, 365 Til: 487° og RS es ne “1 : People ex rei. Wayman \ v. Simmer, 252 I. 9 (agi) ee - People v. Bain, 358 Til. 177, 198 (1934) *: yar e ae tai Ss ee “People v. Evans, 397 Tl. 330, 333 gtial aoe Ses | Syl People v. Green, 281 Til. 52. (RT. 5 eter ery ki 4 @: . antes a 5 eee Miaees = « ‘ , a eearnmre "4 ° a *.. ; Page - Peapis v. Kreeasky, 296 th. Apa 211 (1938) cea Peoplev. Kym ‘358. IT]. 448 (1943)>... we: = ae | ae . People v. Schuedter, 336 IN. 244 (1929) a ss : Peoplg v. Skoffner, 400 Mil. 14, Ts, 177, 178 (1948), 10; 13, 17,20, 2 2:3 \ People v. Siitio an, 339 Hl. 146 (1930) e os 4 24 | People v. Utterback, 385 Il. 239 (1944). aoe * FR. _ People v. W iliams, 293 Il. pp 92 (1937) . meer se Se People vy. W ilaon, 399 Til. 437, 441, 448, 450, 451, ed Ss a eee ee Th ode eee , 19, 20, 23 People v. Wos, 395 Tl. 172 (1946) .. WET tea eee — New York. ex. rel. -W alia v. W ilson, 318 U. Ss, 688 3 MENS al atone eR ees Sara eh ne ae Rice v. Otson;324 US. 786 (1945) —- eae 5 Smith v. O'Grady, 312 U.S. 328, 331, | 334 (1941) : 7,10; 19 Sunal v. Large, 382 U. 20% See (te) wes _ Thompson v. The People, 398 Il. 366 (1947) .. Cpa) Ge Tomkins v:. Missouri, 323 U. S. 485, 488 (1945) oes oo ae ” Townsend v. Burke, 334 U. Ss Le PoaAty Print) 736° NE ee ee oh 2,13 + Wade.v. a 334 U.S. (Preliminary Print) 672, ___684, 1276,1270 (4938) Fe ie ae Me eo eee. White v. Ragen, 324 U. S. 760, 763, 764, 766, 767 7 EMR ai in eat ae (Ff 10, 17, 19, 22. ' Williams v. Kaiser, 393 U. s. 471, 477 (1945) = eae F Woods v. Nierstheimer, 328 U.S. 211, 214 (1946). 19, 22°.- *. Constitutional Provisions Cited: o | | ‘Section 7 vy Article Two—Iinois Constitution’ ro oe Section’ 9, Article Two:—Hllinois Constitution of 1870. 3] 2 , - Statutes Cited: : a Bostion! / 1, Chapter é5--inois Revised Statutes : | (1945) Fi Gee Be hae aie ae Lattewercnt ay me 15 ' Section 2, Chapter 65—Iilinois Revised Statute’ ‘ (194BY Eau kee REL oo eee oe $= _, Seetion 84, Chapter 38—IIlinois Revised Statutés = eer: vas Tiber = se NS OS Ss Lo ee “SUPREME COURT OF THE UNITED ‘STATES. 7 ee OCTOBER TERM, 1948 : > = @ackowe youre," F es i : bat oe Ne ae | ee Petitioner, : | = 8. cote 0.2, \3 , JOSEPH 1 KE. RAGEN, Warpen, Tuxogf STaTE of Ree _Pentrentiary, J oLter, Tuxoy/ 2 go is fe Respondent ah ‘COUNTY, STATE OF ILLINOIS on WRIT OF CERTIORARI TO THE rat COURT ‘OF taboo. ; aa, in,” LD ‘ Fe = ic: + - BRIEF FOR PETITIONER - ? > This case ‘is before the Court on‘ a elt of certiorari ~ granted to review the decision of the Circuit Court of Ran- , dolph County denying a petition for wri it of*Rabeas was “Opinion Below, The Cireuit Court of Randolph unis did not aiaie any opinion. The order of the Circuit Court reads ‘‘Peti- tion for Writ of Habeas. Corpus denied for the reason ‘that - Mme Se i: aoe. os said “potitio on is inaofllcient -in law arid -pubetenee.’ Leav e. ; ranted t ‘to withdraw geasony upon request”. (Ri. 21. eae ; “Jurisdiction re | ‘The judgment of the Cirenit Court of Randolph County. was,entered on. October 6, 1947. The petition for writ, of. certiorari. was filed on: November 28, 1947, and granted | oak Nay 3, 1948 In Illineis, the denial of a petitioner for | habeas corpus is not reviewable by the Illinois Supreme ~ _ Court. People. ex tel. Magee’ v. McAnally, 221 fil. 66 (106) ; ae see White v. Ragen, 324 U. 8.’766, 767 (1945). The judg- ment below’is a final judgment rendered by the highest court of the State i in which a decision could be had: . The a arisdiction of this Court is invoked under Section 237 qb) - of ‘the Judicial Code. (Title 28, Section 1257 7 (3). of the. Lae New. Federal J udicial Code.) eee | - Questions Presanted. "The caestions ‘presented are: -(1) whetha™@he allegations. of the petition for writ of habeas | corpus are sufficient to show that petitioner has been deprived of his liberty without due => process of law, where the facts alleged show a os sre of the | request for counsel‘in a non- -eapital case under*special .cir- evlmstances showing petitioner was prejudiced and taken. advantage of; (2). whether the writ of habeas corpus in - -Tilinois is the appropriate state remedy for. relief from a‘” ‘judginent. of conviction which is void for lack of due process; so that no 1ion- federal ground adequately. — the denial of relief by the’ Court below. =» | Constitutional Provision Involved : Section 1 of the Fourteenth Antendment to the Const 2 tution provides, so far as is matorish tere: te “ee 8 nor, shall i any State —_ e any. person of : ea: = S ae life, liberty, or * property, without due Process of law : os * ¥ #®. 3 2 Statement =. 8 : Pétitionar Jack O’Lee Yourg filed a petition for a writ of | habeas: corpus on October 6, 1947, in the Circuit Court of -: | _.Randolph County,' Llinois. - The. petition alleged that-on August 17, 1946, petitfoner and his wife, Emma Katherine . Young, ‘‘were arrested at’ St. Mary 8, Missouri without warrant,’’ and ‘‘were held ov er night. in the county jail at Perryville, Perry Coun y,. Missouri”? (R. 2-3). ‘‘On a verbal : . promise that justice would be done,”’ the petitiéner and his -wife waived extradition and, on Sunday, August 18, 1946,. _were ‘‘taken to the Randolph County Jail, at Chester, Iili-- _ nois’’ by the sheriff of Randolph | County (BR. 3). — 3 (R.3) Petitioner was ‘‘held a Sites Ms ROSY a’ ees . oy © \ id Pd 3 : aS - > : 3 Baa joa ‘ \ Fs : “counsel tor petitioner. 3 cant Specification bf Errors to ) Be Urged “ | “ i ° o ie -, bee oa Se ae i , 3 3 = : ‘ f+ : - oe 3 2 7 - , . 2 -_ i : : ay Bit = peta TRIS fa. ,s f BBE Pa pega S ! Pg re ate “Argiment BE MS nn P mas SUP oc ; . “ - KE The petition for the writ of habeas corpus suficiently o | leges. undenied facts showwi ung petitioner s been denied due process, within the eens ws the Fautteenth. Amend- ment. The petitioti for ths ext of adeas! corpus, prepared by the petitiover himself, is. notskillfully drawn. . Yet it alleges, witli sufficient clarity té be“understood, a number of facts © | which taken-together amount to a denial of federal due — process. These. facts have not been denied.. The respond- _ent filed no answer. to “the petition.: The Circuit Court of. , Randolph County denied the petition on the day ‘it was filed, | without affording petitioner any hegring, ‘because the peti- tion was ‘‘insufficient in: law and substance’”’ (R. 2r). an > 4 allegations,’ therefore, must be taken as true. White ¥.. _ © Ragen, 324 U, S. 760, 763, (1945) ; House v. Mayo, 324 U.S. -\ 42, 45 (1945)§ Smith v. O’Grady, 312 U. 8, 399, 331. (1941). : The outlinés of the picture presented are clear. Peti- - troner and his wife were arrested in Missouri on August 17, - 1946, held in the county jail for-one night, and then taken to. the Randolph Coanty jail in TA Illinois, where tlie peti- tioner was held ‘‘incommuni do’ for at | ast fifteen days | until September: 3, 1946. (R. 3). Petitioner was not taken before any examining magistrate. Petitioner was not :pér- mitted t6 secure counsel. (R. 3). ‘Meanwhile his wife, on ‘August 20,-1946, w convicted and sentenced: to ong 3 rear’ 5 3 imprisonment i ing e é Reformatory for Women. On Septem- ‘ber 3, he was indicted: on two charges, tried and sentenced. Petitioner dsked for - -eounse] and was denied.” (4). ‘Not - only was. petitioner | denied counsel, but he was also deriied aecess to. witnesses? “the petitionér’ s wife had been sent to tfieformatory: ‘(ahead of time’’ so that Khe would not be available to appear in petitioner’s behalf. (R. 8). Peti- tioner entered no a at the trial ; he stood ‘‘mute”’ after &. a, 4 - Ce > ; : havi ing g, unsigeessfully oer for éstipeet (R. 4). He did not waive his right, to a‘jury trial; he was not given a copy of the indtctments urifil after he had, been. sentenced. (R.-4).. He had not been givey time and. opportunity to ‘prepare his defense. (R. 5). The Cotirt sentenced him to the penitenti- — ary as though ora a plea of guilty. The indictments charged * two serious 6ffenses 0 of burglary for which the punishment | in Illinois‘ can be life imprisonment. (III. Revised Stat. 1945; ehap. 38, See. 84). Petitioner received two concurrent sentences of from five to seven years imprisonment. Thus the petitioner asserts in part that_he-was ¢ enied the right to counsel in a non-eapita case. The assertion is one which requires an examination. of the “totality: of . facts’? which go to make the gireumstances of the ‘‘par- — ticular'situation’’. Betis'v. Brady, 316 U.S. 455,462 (1942) ; .- Foster v. People of. State of Illinois, 332 U. S. 13%, 137 | . (1947). ‘But unlike the petitioner in Betts v. Brady. the at petitioner here has received no hearing whatsoever on his claim that the denial of coutisel, in the context of a particular situation, constituted Ya denial) ‘of fundamental fairness -- oe violative of. the Fourteenth Amendment. The. awkw ard language of the petition ‘‘of a. common man... not ) versed in legal matters’’. (KR. 9), yet undoubtedly believing - that leval words of art.are required, is not the most felici- | tons basis for determining whether due process has been violated. Particular circumstances” can best. be. explored only ina. hearing. See Betts v. Brady, 316 U: 8. 455, > ae 462 (1942) ; ‘Wade-v. Mayo, 334 U. S. sec ny Print) - 672, 684 (1948). S : | One of the circumstances ‘gurrounding. the denial of. counsel to petitioner is that’ petitioner specifically ‘(asked for counsel’. (R. 4). “See Wade v. Maye, 334. 0.°S.-(Pre- liminary Print) 672, 683 (1948). He did so at his trial, when the request was denied, but he had been-denied pre- V iously ‘this rights of sic counsel’’ while he was held , e \. v . ae | ‘ P : ‘ 9 a ‘ * -morrand fundamental ideas of fairness and right, then judg- ments of sere deataiacte are 2 void... 2. Habeas Corpus Is the Appropriate State Rimsdy for * ' *~ Petitioner and the ‘Denial of the Petition for the Writ by the Court. Below ws the Denial to Petitioner. of Rights Protected by,the Fourteenth Amendment of the Federal Constitution - NG ‘The court below, which denied the ss alisha as “insufficient ~ in law and substahce’’ determined, without 'a hearing, that ‘petitioner had no federal right to counsel and was not denied due -process of law. This: determination was the commis- ° ‘sion of federal error and a denial to petitioner of his con- _ stitutiona? rights. It was also the only thing to be ‘decided in. determining | whether or #t to grant the petition. ~Habeas . COvpus 4s available in Illinois when a petitioner alleges that. .. the denial of counsel has made a judgment of conviction void as lacking in. aug process of law. This i is made per- fectly: clear by the récent per curiam announcement of the — Hlinois Supreme Court,in Peoplev. Loftus (1948). See Ap- _ pendix D of this brief. The Announcement stands as a sum- ‘mary ef the scope of the Illinois remedies of. habeas corpus, _ writ of error and corantenobis when due process questions. g a) are’ raised. It directly « answers the poreee of the avail- ability of habeas corpus when ‘denial of counsel, together with other circumstances nov appearing in- the record, has “resulted in a\ yoid conviction. . The. Announcement is de- cisive. In additior the Announcement i is consistent with the prior Illinois dev elopment of the. writ of. habeas corpus. The writ of habeas corpus is, provided for both in the -Mlinois Constitution and-in the Statutes of Illinois. Hil. Constitution, Art. 2. See. 7; Ill. Rev. Stat. (1945), ¢. 65, § 1. - When the writ is sought by a prisoner. held in custedy by virtue of process from any court legally constituted, the . Illinois Habeas Corpus Statute poses the question as to ‘ under circumstances where the law. does not allowprocess. * whether the court “has exceeded the limits of its jurisdic- tion’’ or whether the process ‘‘has been issued in a case or or orders for imprisonment to issue’*, Ill. Rev. Stat. (1945), . .¢. 65, § 22.: The Illinois Supreme Court, in ‘its interpreta-_ "tion ef the scope of the writ of habeas corpus, has made it — clear that habeas corpus is not a substitute for the writ of © error.’ People ex: rel. Georgetown. v. Murphey,.202 Il.. 493 (1903); Sitice habeas’ corpus cannot do service for a writ of error, habeas corpus is proper. only when the judg- ment attacked can be said to be void and subject to collateral — | attack. Therefore’ the inquiry in linois eases has usually been: Whether the writ should issue because there has been an original defect in-or a subsequent loss of jurisdiction i in, the court issuing the order of conviction or sentence under: which the petitioner is held.’ Jurisdiction’has become a word of art in most Illinois habeas Corpus Cases ; ; the word “‘juris- diction”’ as used in tese cases means an .inquiry - -inté” * whether the judgment of conviction is void and collateral attack possible: People ex rel: Wayman v. Zimmer, 252 Ill. 9 (1911); People v. Green, 281 Ill..52 (1917); Jeu ex rel. Maglori v. Sima, 284 I. 28 (1918). - eee nr a8 a ee Se This is not an unusual devel pment.’ ‘The United States - = * Supreme Court has similarly stated that habeas corpus _ ‘+will not’ be allowed to do: service for-an appeal’: Sunal _ ss Large, 332 U. S. 174,178 (1947). ‘The problem in habeas corpus cases has been ut in terms of whether .the ‘court issuing the order. of confinement had jurisdiction. “Ex parte Watkins, 28 U. S.’ 119, 126 (1830). Mr. Justice Stone, speaking for the Court, stated: ‘It is the settled rule of _ this Court that Mrabeas corpus calls in question only the | jurisdiction of ‘the court whose judgment is challenged’’. _- Knewel v. Egan, 268 U.S. 442 at 445 (1925). A distinction “has been drawn between orders erroneous and orders that are void. Ex parte Siedold, 100_U. S. 371 (1879). It has _been said that more than jurisdiction over the person and eS subject matter niight be required; there would have to be | jurisdiction, to issue the particular order entered. Ex parte: rs _ Lange, 85 U. 8.163: (1873); Ex parte Reed, 100 YW. 8. 13 ~. (1879). Given the power to look behind the face.of the. judgment, such a formulation leads to an inquiry into the - seriousness of the alleged defect. Defects sufficiently : serious make orderg void and collateral attack possible. . Johnson v. Zerbst, 304 U. S. 458 (1938), and see ‘Frank vy. — : _. Mangum, 237 U. 8. 309. ¢1915) ‘and the dissenting opinion at 347 where Mr. Justice Holmes refers to the loss of juris- . diction as not general ‘‘but particular and proceeds from the control of a héstile influence’. As a matter of history, the use of the jurisdiction concept in, connection _with fedéral habeas corpus cases has been a part of the expended _ use of the writ due to the increased scope of the Fourteenth © Amendment of. the Federal Constitution. “The development of the writ of habeas corpus in Tllinois has’ been’ similar, although impeded because the Illinois | ‘Supreme Court does not review the denials of petitions in lower Illinois courts, and will not itself conaider petitions . * wh ee Oe gee which raise questions. of fact. People ex. rel. “Magee ¥. Me- ae - Anaily, 221 Ill. 66 (1906); People ex rel. Swolley v: Ragen, 390 Ill. 106 (1945) ‘see: ‘White v. Ragen, 324 U: S. 160, 766 (1945). ° : a The Illinois Supreme Court ‘al orented the writ hen oo: 7 ‘Appears that the conimitting court had no jurisdiction over the subject matter. People ex rel. Melton v, Whitman, 243 | =“ Teh. 471 ( 1910). ‘It has. recognized that “jurisdiction in a . particular case is not, only the power of the court to hear’ _ and determine but also the power to. render the particular “ judgment entered, and every act of, the court beyond its» jurisdiction i is, void’. People_ex rel. aglori v. Siman, 284 .. - Tl. 28, 32.(1918). In the Maglori casé, Mr. Justice Carter, in his dissenting opinion, 284 Il, -28 at 37, stated ‘‘If juris-. diction should be defined as it Jias been in the opinion, then every act of the court that goes.beyond the authority of the as | : court to enter it is void’. The writ of habeas corpus in | - THinois can be used to. search behirfd the face of the judg- / “ment: and to” matters not appearing on the: ‘record. ‘People toy, Loftus, Appendix D (1948); see People v: Shoffner, 400 . Hi-174, 178 (1948); People v. Wilson, 399 Illy 437, 450-451 (1948). In developing the writ, the THinois Cnt’ has distinguished between orders merely erroneous and safe from collateral attack, and those. that are void. People ex rel. Wakefield v. Montgomery, 365 Ill. 487 (19387) ; People e ~ ex rel: Swanson'v. Kelly, 352 Ill. 567 (1933) \ People ex rel. Buchalter +. Ragen, 397 Tl. 515 (1947). Be DO ak Because this line of i inquiry necessarily leads to a. weigh. ‘ ing of the seriousness ‘of the allezed defect; he Tilinois. } Court has discussed in terms of: jurisdiction; t ness of alleged constitutional: violations. The Court has considered whether the constitutionas protections fforded ‘aré so major they may not be wai ved. In hoiding\that a- a jury baie not be waived, the Minois Supreme Court s ated: serious: - ee A oa “The: late J Fuigh MeAllister, i in a case. bronght before him "on habeas corpus; where the defendants had been tried‘ and convicted of a felony by the court, a ju having been\waived _ by their consent, delivered an able and satisfactory opinion - holding the conviction was void, and the defendants were ilkegally imprisoned - thereundér’’. Harris vy. The. People, * 128 Til. 585, 594 (1898). Later times: have. brought a differ- ee (> ent result ;.the jury may now be- waived and. jurisdiction is said not to be involved. ‘People ex rel. ‘Swanson v. Fisher,- he tutional. 340 Ill. 250 (1930). But the: important-pointis that-when the protection of the jury. was considered so major that waiver was not ‘permitted, then jurisdiction was involved - and the writ would lie.“ In People. v. U ttetback, 385 Ill: 239 _ (1944), on a writ of. error, the: ‘petitioner. claimed he had been denied a: ‘constitutional : ‘right to a. speedy. trial,.and urged that this was a right which he could not waive. The . ‘Court translatéd the contention into, the problem of .the. seope of habéas:corpus, and stated: “to hold, as plaintiff _ in error contends, that fhe lapse of the four months’ period - ousted the trial court of jurisdiction, would be to go counter | to many rulings of -this court . made on original petitions - for writs-of habeas corpus’’, 385 Til, 239 at 243. In People ex rel. Barrett v. Bradley, 391 Ill. 169, 170, 171 (1945), the — Minois Cy uirt posed. the problem of habeas corpus in terms -. of jurisdit: ion ‘and ‘power to enter the order -questicned and thep ¢ considered the contention, raised on‘a petition for habeas corpus, that a septence to the penitentiary of: from one year. to life for. the crime of. manslaughter was so out of. proportion to the nature of the offense as. to be unconsti- a) Thus despite’, e language of jurisdiction, the very in- | quiry posed by a\petition for habeas corpus in Illinois; namely, whether’ the judgment complained of is voidand . > collatéral attack ps ieseccer users imports into * \ \ ee 3 whether thvre has been a denial of° ‘major . federal rights. A judgnient obtained in violation | ‘of the fair hearing re- _ : | quirements of the Fourteenth Amendment is vulnerable to “eollateral attack in. the Yederal courts if nowhere else. See — White v. Ragen, 324 U, S. 760, 767 (1945). This. vulner- ability. to collateral attack. should ° by itself answer the jurisdictional question posed by Illinois habeas corpus pro- ceedings. But beyond that the duty_ to enforce the federal er right rests on the state court, and this is recognized by the \Hlinois Supreme Court.’ People v. Wilson,.399 Tl. 437, 448 "(1948) ; Mooney v. Holohan, 294 U. '9.°108,. 113 1935). A ‘judgment ‘obtained i in violation of procedural guaranties —. protected against state invasion through the Fourteenth | Amendment’ is void. Smith v. O’Grady, 312 U.S. 329, ‘334 (1912); ef, Johnson v. Zerbst, 304 U. S. 458 (1938). Such a judgment can hardly be considered not void and not subject to collateral attack in Illinois habeas corpus pro- - : proceeding a ‘determination of the federal question “a as to — ceedings once the ‘‘duty of a State court to ‘enforce the re- \ \ . quirements’’ of the Fourteenth ‘Amendment has been rec- ognized. People.v. Wilson, 399 Tl: at. 448. The response of © the writ of habcas corpus to this duty i is recognized by the Attorney. General of Illinois by his Confession of Error in Marino ¥. “Ragen, 332 U. = Hidicrasmey dd ‘Print) 561, 566° (1947). ! To be stire, this Conrt has’ previously stated, in:a case _ involving the right to effective assistance of counsel, that. the denial.of relief by the Illinois Courts could have restéd, on.the ground that, habed 3 corpus is not the’: proper remedy. - Woods v. Nier§theimer, 28 U. S. 211, 214. (1946). Ad- mittedly the question of. the scope to be given to an ancient writ intended to. safeguard liberties presents. unusual diffi- culties when the. determination must be made by’a federal aS court about the status of the writ as it exists ina state sys- ee eee, fo aa a. Sere ° é : - : + oe ten. For while the writ undoubtedly’ has the eapacity to ~~. safeguard rights as new meaning is given’to the Fourteenth -. Amendment,‘there may be doubt as to whether. the power .y has been red ized. Cf. Matter of Morhouse v. Xt, Y. Supreme ° 203 N-Y- 731, 140 (1944). Events, since the Woods ; . - ease, howe ever, make clear that the writ of habeas corpusin -‘Tilinois. has achieved full status as a ‘remedy for relief from a judgment void for. want of due process. First, the | “Bute and Foster cases have shown, the limited -nature of review by writ of error in Illinois’. Bute v. People, 333 U.S. 640 (1948) : ; Foster v. People, 332 U.S. 134 (19474. Second, - thie Confession: of Errer i in the Marini case, showed. that habeas corpus could hot be: considered confined te a limited . ” ‘number of jur isdict"onal questions but was available to aise the broad question of ‘a judgment void for -want- of due process. Marino v. ‘Ragen, 332 U.S. (Preliminary. Print) el (1947). . Third, the Illinois Supreme @ourt in the. Wilsod - case explicitly recognized the duty of the State court to en- force. thg, due process requirements of the _ Fourteenth “Anieydment, and distinguished between the review limited to 2 the: eommon law record available on: writ of error and. the. _ issues presented it -right to counsel cases on habeas corpus. - People v. Wilson, 399 Il. 437, 448, 450 (1948). ‘Then in the. ~ - Shaffher case, the Illinois Court took occasion ‘io again emphasize the’ distinetion plainly drawn by the cases. be- pw een. stions reviewable | on a writ-of error-and questic. cof fact that may be tried on a petition for writ of “habeas corpus where’ it is. claimed due process has been denied’’.’ ” People: v. Siro ff ner, 400 Hi. 174,178 (1948) ; see Loftiis.v. | Tinois, 334 U. 8. (Prelimiriary Print) 804 (1948). ae - Rinally, “the availability’ of: habeas corpus as-a proper = remedy: in Tilinois | for relief from’ imprisonment under. a judgment of conviction void for lack of due!process of law eo has been made parfectly Aleat by Announcement of. the + Minois Supreme Court m People ® v. on —— D, Sti aoe Sane os ce & \ gb | ‘made. in - Rintonhes, 1948. In ‘Pods v. Loftus, ‘the ‘peti- Ationer claimed that the denial of counsel, in the context of a. particular sitifation, resulted in a want-of due process. The - Mliniois Supreme Court said that a number of grounds-for the ‘issuance of. the writ of habeas corpus ‘‘may be. found in Chapter 65 of the fllinois Statutes but the sole pertinent : ground here would be confinement in the penitentiary urider .” a judgment of sgenviction which is void. Such ground has -* Been fr equently oe q Illinvis aahed LOR shen 33 of this "1 efiels 3 | «> The Illinois Coast Feet that ‘the tailute to appoint cae counsel, if violative of the Fourteenth Amendment, would | render-a judgment void. . The Court, said ‘In the instant case the contention ofthe plaintiff i in erkor is that under the particular circumstances, the court shout] have appointed counsel to defend him. If the circumstarives are’ such to” merit ‘such duty, and. the court failed in that duty,. the Supreme: Court of the United States has held the: gudamient . js void fordack of due process of. law.” Page 35 of this Brief. “The constitution of the United States. andjthe . decisions of the United ‘States Supreme Court are: the _ ‘supreme law of the land, ‘binding up every court in the , land’’. ° More: specifically ‘habeas corpus is applicable — to a. -situation, among others, “where the e judgment is void by reasons of matters, not appearing in thé record. The | ec Boerae claims’ of the pétitione> must’ be presented to the court, _. whether ‘the circuit oy supreme, by a proper petition a ing facts. Which, if true, would render the iedenient -void’’. “. “Page 3 34 of this Brief. he =e aa a mr ‘Wines facts shania. ‘that. the aeeieuke of. conv iction a ~are void by reasons of sane not appearing in the com- . fmon law reeord. The detial of counsel; in the context of * a. particular ‘situation, resuited in convictions lacking. iy — fundamental fairness and therefore void for lack. of due process of law. This is the precise situation. where the _ Illinois: Supreme Court has stated that habeas corpus is . applicable. Tllinois v. Loftus itivolved the right to counsel ina | _non- capital casé. ‘Seé Loftus v. Illinois, 334 U.S. (Prelimi: © “nary Print) 804 (1948). Thus there can be no doubt that - ‘In Ulinajs the appropriate remedy for such ° a complaint, is habeas cokpus. | Seer | a 2° 8. No state Hine oi than the writ of eikeas corpus . 1s available to petitioner. i098: ¢ a full: consideration: of his ; ; aliegations. | : The av ailability of | some ‘other state ‘Sie has been urged before this Court in a number of. Illinois cases in explanation of the denial. hy courts below of relief to peti- tioners claiming a violation of Federal due process. ‘ See Confession” of Error i in Marino v. Ragen, 332 U-S-(Prelim- inary Print) 561 (1947) ftug ye-tinois, 334 U.. S. _(Prelinfinary. Print) 804 (1998)» Tae Paorte OF THE State oF Tuuso1s SR RE vs. Br ACK Youne. --as the same appears from the. records and files: now in this office remaining.” aioe ” My say 3 29 In. testimony whereof, T have hereanto set.my hand and affixed the OffickakSeal of said Court, at.my office in € ster, Illinois, this 21st day of July, A. D: 1948. ‘Harold Hatin, Clerk of the Cireuit Court. eal.) é ‘ ; ' Ts ‘ en quiittinnts =,” ~ & eae ee APPENDIX B S Ilinois Habeas Corpus: Statute; mi. Rev. Stat. 1945, ©. 65 See. 1. Bevit enacted by the People of the State of Minois, | ne sented in the General’ Assembly: That every person jmprisoned or otherwise restrained of his liberty, except as herein oth -rwise prov ided, may ue a wr it of habeas. ;« law ful. See. 2. - Application for the writ. shall be maie- to the court or judge authorized to issue the same, by petitign signed by the person for whose relief it is intended, or by some : person’ in his behalf, and verified by affidavit; ‘provided, that sych _ application shall be made to the Supreme. Court or to a court of competent jurisdiction of the city or of the county - in which the prson in whose behalf the application is made, is imprisoned or restrained, or to a gourt of competent — jurisdiction of the city from whieh said person was sentenced \ - or,committed or of the coutity from which said: ‘person was sentenced or committed. Rigas See, 21. No jierson. shall e dinthaveod indor the prov oe sions of this’act, if he is in custody either— _. 1.’ By virtue of process by any court or POF of ‘the: United States, in a case where such court or judge has exclu- sive jurisdiction ; or, vote ; : 2. By virtue of a final suiluenianst: or decree -of any com- ~ petent court of- civil or .criminal jurisdiction, or of any: execution issued upon such judgment or decree, unless the time during which such eer may -be legally detained has expired; or, 3 "3 For any treason, bin or other crime committed in % ‘eal a 2 _ Sea - aii ied . ™e> oe Propiy StaTe or ILirnols; efendant i in Brror, ; Vv, : . Bide ¥ _ Donatp Lortos, Plaintiff i in Error /The following per curiam announcement i is miade pursuant Ao the suggestion of the United States Supreme Court on June 14, 1948, in cause No. 59, October Term 1947, which i is to be filed, with the Clerk in said cause: Donald Loftus, defendant, was convicted in the circuit - court of McHenry County, Illinois; on four’ indictments, two- for armed robbery, and two for burglary, On writ of error the judgments of conviction were affirmed in 395 Ill. 479. Defendant applied for certiorari to the Supreme Court of ‘the United States, which was allowed, and on June 14, 1948, . gaitl eourt made an announcement in Cause No. 59 to the _ October term, 1947, of said court, the purport of which. amounts te an Inquiry as to. the correct’ Illinois practice - as to the manner in which lack of due process of law under the fourteenth amendment. thay be raised in courts of ap- pellate jurisdi¢tion, reviewing a convi¢tion shown only by the common-law record. ' The particular lack. of due process in the present‘case j is. ; claimed to arise froma failure of the triai court to appoint . counsel to defend plaintiff in error. The inquiry of the. \ \d . a «\ : - >> be *? A \ 7 ; ‘ ‘ dered,-and an examination of the’ general modes afforded by thie Tlinois law to test ihe 9 saliity of the conviction of a. cr ‘iminal*offense. Ss \ : - ecurt requires an apn ot of the. dgiaion originally ren- | In general three. methods! are provided: (1) review by : weit of. error; which:is-allowed in-all felony cases, to the a Supreme Court; (2) by: petition for writ of. habeas corpus; | and (3) by the application for a writeof error coram nobis, or, as i. is now designated, a motion under section 72 of - ¢ the Civil Practice Act. And each ‘of: these méthods has/a distinct application, depending upon the . circumstances of . each particuffr case... = :*- A wfit of error is of aircient origin, and soak the. record a made i in the case by: the trial court. The’ record in the-trial ‘ ‘court may consist only of the mandatory. record, vié., indict- | .. ment, arraignment, pléa, trial and judgment. (Cullen: a : Stevens, 389 Til. 35.) This appears in the clerk’s record in _ every case, whether there is a plea of guilty ora trial... The . record may include also a bill af: Pxceptions; which consists ° - of all of the motions and rulings of the trial court, evidence heard, instructions, and other nidtters which do not come: directly within the clerk’s: mandatory record. This may be only a part of the record on review when a bill of excep- _tions is prayed and allowed, and certified by the court. “When this is done, the record consists of all proceedings i in —the case from the time of the’ convening of the court until the termination of the trial. . In the instant case the record consists of the mandatory proceedings only. The statute provides also that it is the duty of. the court to appoint counsel for the accused. when he states upon. oath that he is unable to procure counsel. (Ilk. Rev. Stat. ’ 1947; chap. 38, par. 730.) To this provision the exception is that j in capital. cases it is mandatory for the court. to ap- . point counsel. Therefore, when the review is had upon the eommon-lav ‘reeord, the sole matter only that may be con- sidered by the court is error appearing upon the face of the record, and matters may not be added by argument, — affidavit, or othérwise, to supply. or expand the record. The case must ‘stand or fall upon the errors appearing in. the record. Of course, where there‘is a bill of exceptions, which , error. No bill of exceptions was saved in the present case. - 33 includes motions, evidence, rulings on evidence, instructions, and the like, and such bill of exceptions is made a part of the record, errors mayebe reached by the reniedy of writ ot The second method of reviewing a\conviction of a crime, where the prisoner is under confinement, is by application . for writ of habeas corpus. A nuniter of grounds for the issuance of such a writ may be found in chapter 65 of the IL. linois Statutes, but the sole pertinent ground here Would be confinement: in the penitentiary under a judgment’ of conviction which is void. Such ground has been frequently ade upheld by Illinois law, (People ex rel. Georgetown v. Murphy, 202 Ii. 93; People ex rel. McGee vy. Hill, 350. In, 129; People ex rel, ‘Maglort v. Siman, 284 Ill. 28; People Cx rel. Melton v. Whitman, 243 Jil. 471), and by the Supreme Court of the United States. House v. Mayo,.32% US. .42, 89 L. Ed. 739; Rice v. Olson, 324 U.S. 786, 89 L. Ed. “43367. The. netition for writ of habeas corpus may-be. filed origi- nally in the Supreme Court. The usual procedure has been .to form an issue of law by demurrer, or motion to strike | | the petition, or like action, directly to-the return of the’ officer. In either event the demurrer admits the. matter’ well pleaded, and thus, either the faets of the petition or the return being admitted, the question of law is presented. The issues of.fact cannot be determined in the Supreme . Court because the law does not. afford a. yleans for the court to take testimony, so recourse must be “had to, the appointment of a commissioner, although no method for compensation for such commissioner has been provided by - law. This omission for hearing evidence an habeas corpus ‘in the Supreme Court’ is compensated for “partially by - granting original jurisdiction to the circuit-courts to hear habeas ‘corpus cases upon petition, ahd to hear evidence, and the judgment of such circuit court is a final order, but is not appealable: to the Supreme Court of the State, ex-: * cept in extraditign cases. No habeas corpus. cay operate asa writ of error. People ex rel. Morris v, Hazard, 356. -. Tl. 448; People ex rel. Thompson w. Nierstheimer, Warden, 395 Til. 572. ‘The third method of review is commonly designated as ou ‘= o e Cee, U8 F a a oe. whit of error coram nobis, Sithaded a Meroeiy red to as ¢ . motion,.in section 72 2 of the Civil Pracfide Act. (Ill. Rev. Stat.. 1947, chap. -110, par. 196.) The procedure is an. ancient one, and was a process at common law used for tlie « purpose of correcting errors of fact occurring in the trial court; which facts, if known to the court, would try e resulted | | in a, different judgment: The errors sufficient for’ the issnance of !sueh writ have been cited many simes, ‘and generally includéd death of one of the parties prior to the Hike ya infancy, coverture, insanity, fraud in procurimg jurisdiction, etc. (People v. Gieitsman; 39641. 499.) _ From the earliest time the writ, has been used in Illinois, for we find a reference to it ‘in Stoo v. State Bank of Illinois, ° a ‘Scam. 428, where it is declared to bea settled remedy to: correct mistakes -of fact; and as late as Schoets' v. ° = > “People, 399 Ill: 428, when it was used where the evidence ee Sa. ‘tended td show the accused ‘was insane at the: time ef eee ie -eanyiction; .a fact’ which was unknown to the trial court; -,and had it been ‘known | a different result would have followed, 9. | gee Eee i : We do not, see. any. great complexity in the application . of these various. remedies to different states of facts which . may. occasion ger | use... A writ of error séarches. the record as it is Made: in court, without any aid of extrinsic __eirenmstances..- Thus, if theres is- mmorndaw Ww récord, ~ nothing: ‘ut what is contained in the common- law re record, may be examined..- If the common-law record is supplemented "by a bill of exceptions, so that the.entire trial. proceeding * is recorded, any error. shown: by the ‘complete record may | he reached, by a writ of error. Habeas COrpUS 1S applic able to a. situation, among others, where the judgmetit. is’ void. “by reason of matters not appearing jin the record. The athe claims of the petitioner | must be presented to the court, - whether the cireuit or suprenie, by a proper. petition showing facts. ‘which, “if