# Amicus Curiae Brief — Illinois ex rel. Marino v. Ragen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2571%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1950 - **Citation:** 339 U.S. 921 ## Text IN THE DEC 1 7 1949 Supreme Court of the United States, ,,... -..-.: Ocrosper Term, 1949. Nos. 221 and 222, Misc. PEOPLE ex ret. TONY MARINO, Petitioner, vs. JOSEPH E. RAGEN, Warpey, etc., Respondent, and TONY MARINO, Petitioner, vs. STATE OF ILLINOIS, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS, BRIEF AND ARGUMENT OF AMICUS CURIAE IN OPPOSITION. / Roserr R. CANFIELD, State’s Attorney of Winnebago County, Illinois, Amicus Curiae. Date F. Conner, Assistant State’s Attorney, Winnebago County, Illinois, Joun S. Guent, Assistant State’s Attorney, Winnebago County, Illinois, Of Counsel. INDEX PAGE SGN TE nc ana acca ctuceaéatecenacned 1 i ns hos een ene vkbeneahhokeneuen 3 PEE a nuic 44054 x00r4nnseeh os haben eenasne 5 I Tr OE, oo 5 ann 6-danekancnecnsacnnsnces 7 | PPPVETTTTUT TTT eT CLT eT rer eter ee 8 EN -x.00 04500404 4062060 GEEKE ETOCS LEER A EEO EAS 13 SEEN Sh Noack dn ccdanucbecesdiwcens) Ocetenkannees 15 TasBLE oF Cases CITED. Allman v. Aldredge, 65 Ga. 269 ................000. 8 Sean 'W. GRUNT, TOG TF. TE Ge oon cscs ccicncntavces 10 SUE Ci UR, De Bee NE eho e cc valke ceveanece 12 Demaurey v. Swope, 95 F. 2d 839 .................. 9 Due OW. GER, RE Ws GN UE hve vent asecscdcvecenst 10 ee Pe Teer eee 8 mem parte Moan, BAR Hs SD vic icc c cde i ence cicceceds 9 Ex parte Tremper, 126 N. J. Eq. 276 ................ 9 weeeemar w. Wma, GE Be WO on wick cic des cds 12 mn Wy SA, GE RO GR van hove ces ctck do cedawades 9 Magniglia v. Commander of the Guisseppe Verdi, 5 F. Be GD a vucetenucedudceweiubescaeeabiacesukecwe 9 Pagett v. McCauley, 95 F. 2d 839 .................. 8 eee Wi Ghee Ue Te, Ge in cans anecnccacsedcncs 13 ee Wi. SPONGY I OE nos ca cedencachdaccaucn 12 People v. Jordan, 292 Ill. 514 .............. eer 13 ii People v. Lieber, 357 Til. 438 2.1... ccc ccccccccccens 12 People v. McCauley, 256 Ill. 504 .................. 12 PORES VW. EUG, SO Ti BE onc sc cncccccecnsnces 12 People ex rel. Niemoth v. Traeger, 339 Ill. 356 ...... 9 People ex rel. Titzel v. Hill, 344 Ill. 264 .............. g People ex rel. Wakefield v. Montgomery, 365 Ill. 478 .. 9 Remaley v. Swope, 100 F. 2d 31 ............0ccceees + Salinger ee Ss Se errr 8,9 Sander v. Johnston, 11 F. 2d 509 ................2.. . Sealfon v. United States, 332 U.S. 474 .............. ll State v. Hensley, 27 Wash. 2d 938 .................. 12 United States v. DeAngelo, 137 F. 2d 466 .......... ll United States ex rel. Bergdoll v. Drum, 107 F. 2d 897 8 United States ex rel. Innes v. Hiatt, 50 F. Supp. 756 10 United States ex rel. Mills v. Ragen, 77 F. Supp. 15 9 United States v. Oppenheimer, 242 U. S. 85 ........ ll Voigt v. Mahoney, 10 Wash. 2d 157 ................ 9 Wells v. United States, 318 U. S. 257 .............. ll Wells v. United States, 158 F. 2d 833 ................ ll Wheeler v. Kaeser, 45 F. Supp. 937 ................ 8 Williams v. Lawrence, 193 Ga. 381 ................ 8 Wilson v. United States, 166 F. 2d 527 .............. ll Wong Doo v. United States, 265 U. S. 239 .......... 8 Wong Sun v. Fluckey, 283 F. 989 .................. 10 ee SA ah. Ge. IE, TIO GT nn a an es cccccnnccdecs ll IN THE Supreme Court of the United States Ocroser Term, 1949. No. 221 Misc. No. 222 Misc. PEOPLE ex ret. TONY MARINO, Petitioner, vs. JOSEPH E. RAGEN, Warnden, Etc., Respondent, and TONY MARINO, Petitioner, vs. STATE OF ILLINOIS, Respondent. N PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS. BRIEF AND ARGUMENT OF AMICUS CURIAE IN OPPOSITION. '0 the Honorable Fred Vinson, Chief Justice of the United States, and Associate Justices of the Supreme Court of the United States: PRELIMINARY STATEMENT. This brief is submitted as amicus curiae by the State’s ittorney of Winnebago County, representing the County f Winnebago, a subdivision of the State of Illinois. 2 The State’s Attorney of said County was amicus curiae in the lower court decisions sought to be reviewed by this petition. The State’s Attorney, however, was not officially notified of this petition and does not have a copy of the Abstract of Record filed in this Court. The Attorney Gen. eral of the State of Illinois has consistently confessed error in every step of the many legal proceedings involving this petitioner, and in substance did not oppose the petitioner in the cases sought to be reviewed in this petition. As a matter of fact, the position of the State’s Attorney was the one adopted by the Supreme Court of Illinois in their deci- sions on these cases. The State’s Attorney of Winnebago County, Illinois has been the only one to oppose this peti- tioner at any time. The case arose in Winnebago County and that County is vitally concerned. In order to insure that there will not be another ‘‘confession of error’’ in this Court this brief has been prepared and is submitted. STATEMENT OF FACTS. Due to the fact petitioner’s statement of the matters ‘nvolved does not accurately state what has occurred and is largely argumentative, the following statement is sub- mitted: The petitioner was indicted April 17, 1925 by the Grand Jury for the April, 1925, term of the Circuit Court of Winnebago County, Illinois, on a charge of murder. On April 21, 1925, he appeared in open court, was arraigned, furnished with a copy of the indictment, and a complete list of witnesses and jurors. On April 23, the record shows that the Court explained to Marino through two inter- preters, Daniel Torrisi and Joe Marino, the meaning and effect of a plea of guilty, and the punishment that the Court could render in the case. After such explanation, Marino filed a written waiver of trial by jury and entered a plea of guilty to the indictment. On April 24, 1925, Marino was in Court in person, and the Court on its own motion heard evidence in Mitigation of the offense. On April 25, 1949, with Marino in court in person, judgment and sentence of the court was passed and Marino sentenced to life impris- onment. The record includes the signed jury waiver which includes a plea of guilty. After twenty-two years of incarceration without com- plaint that he was innocent or that he did not have a fair trial, petitioner filed a petition for writ of habeas corpus in the Cireuit Court of Winnebago County, Illinois. The petition was heard and the writ ordered quashed on the grounds that the Court had no jurisdiction to grant said writ on the facts disclosed. Thereafter, the petitioner filed a petition in this Court for a writ of certiorari. The peti- tioner’s petition was granted and the judgment, upon a confession of error by the Attorney General of the State + of Illinois, vacated and the cause remanded to the Circuit Court of Winnebago County for further proceedings in accord with this Court’s mandate. (Marino v. Ragen, 332 U. S. 561, 68 S. Ct. 240, 92 L. Ed. 170.) Subsequently, this Court was petitioned to clarify its opinion and mandate, and in Marino v. Ragen, 333 U. S. 852, 68 S. Ct. 729, 92 L, Ed. 1133, this Court declined to do so, thereby approving the interpretation of the Mandate by the Circuit Judge of Winnebago County who had ordered a full hearing. The Circuit Court of Winnebago County thereupon con. ducted an extensive hearing into the merits of the peti- tioner’s contention that he had net had a fair trial, and the Court found that petitioner’s contentions were without merit and that his constitutional rights were not violated; the petition was again denied. The petitioner then peti- tioned this Court on Writ of Certiorari to review the action of the Circuit Court of Winnebago County. This Court denied the petition in No. 30 Misc. Marino v. Ragen, 93 L. Ed. 862; rehearing denied, 93 L. Ed. 1038. The findings and order of Honorable William R. Dusher, Judge of the Circuit Court of Winnebago County, Illinois, which were sought to be reviewed in the above petition for Writ of Certiorari, is incorporated in this brief as Exhibit ‘‘A’’. In the meantime, petitioner had filed in the Supreme Court of Illinois a petition for writ of mandamus, a peti- tion for a Writ of Certiorari, a petition for Writ of Habeas Corpus, and a petition for writ of error. The petition for writ of mandamus and certiorari were denied, but the peti- tioner was allowed to file the petitions for Writ of Habeas Corpus and for Writ of Error. After consideration of the above, the Supreme Court quashed the writ of habeas corpus in People ex rel. Marino v. Ragen, 404 Ill. 35, and on the writ of error, in People v. Marino, 404 II. 37, affirmed the Circuit Court of Winnebago County, Illinois. Jt is the above two decisions which are sought to be reviewed in this action. ISSUES INVOLVED. This petition for writ of certiorari is to review the action of the Supreme Court of Illinois in the refusal to grant a writ of habeas corpus and in affirming the original judg- ment of conviction on the writ of error. In the petition for writ of habeas corpus filed in the Supreme Court of Illinois as an original action, the Court held that since nothing new was presented in the petition that had not been finally determined in the petition for writ of habeas corpus filed in the Circuit Court of Winne- bago County, Illinois, upon which certiorari was denied in this Court, and since that was a final determination when this Court refused certiorari that the matter was res judicata, and therefore the Court quashed the writ. The only issue before this Court is whether the Supreme Court of Illinois erred in so disposing of the petition. The petition for writ of error is somewhat more involved. There the Supreme Court of Illinois held that the constitu- tional questions involved in the original proceeding had been passed upon in the Circuit Court of Winnebago County in the petition for writ of habeas corpus, which decision was subject to review only by this Court, and this Court having refused to grant certiorari that those matters were res judicata and the Supreme Court of Illinois would not review them further. That left the contentions by petitioner that the Grand Jury had not been drawn accord- ing to Illinois law, and that the State’s Attorney instead of the judge charged the grand jury, and that two officers instead of one were sworn to be in charge of the jury. The Supreme Court of Illinois held that the above objections as to the assembly, selection and conduct of the Grand Jury were without merit, and affirmed the judgment of the Cir- 6 cuit Court of Winnebago County. The issue before the Court is whether the Illinois Court erred in their decisions, The petitioner has in his petition and brief and argument attempted to interject into this appeal another review of the action of the Circuit Court of Winnebago County in quashing the petitioner’s writ of habeas corpus. Petitioner has dwelt at length on the proceedings in the hearing before Judge Dusher on that writ. But it is obvious that that matter does not properly come into this petition because — here it is the action of the Supreme Court of Illinois that is concerned (a) in their quashing a writ of habeas corpus filed as an original action, and (b) in affirming the 1925 judgment of the Circuit Court of Winnebago County on the writ of error. SUMMARY OF ARGUMENT. Previous denial of a petition for writ of habeas corpus may be considered and given controlling weight in deny- ing a subsequent petition. The petition for writ of habeas corpus now under con- sideration alleges identical grounds as a previous petition upon which a complete hearing was had and final decision made quashing the writ. Therefore, it was proper for the Supreme Court of Illinois in its judicial discretion to quash this writ. The principle of res judicata applies to criminal cases as well as civil cases. In the petition for writ of certiorari now under consider- ation, identical contentions are made which were previ- ously finally disposed of, and that disposition is res judt- cata as to those contentions. Under Illinois law objections to the assembly of the Grand Jury can only be taken by a challenge to the array or by motion to quash the indict- ment. The fact that the State’s Attorney instead of the Judge charged the Grand Jury does not affect the validity of the indictment, nor does the fact of more than one officer appointed in charge of the Grand Jury. Matters concerning the assembling, and proceedings of the Grand Jury are matters of Illinois state law with which this Court has no interest. ARGUMENT. I. We are first considering the petition for writ of certi- orari on the quashing of the petition for writ of habeas corpus by the Supreme Court of Illinois (lower court opinion, People ex rel. Marino v. Ragen, 404 Ill. 35). Although the law of res judicata has not been strictly applied to successive petitions for writ of habeas corpus (except in two cases, Allman v. Aldredge, 65 Ga. 269, 18 S. E. 2d 478, Williams v. Lawrence, 193 Ga. 381, 18 S. E. 24 463), the law is well settled that a denial of a previous similar petition for writ of habeas corpus may be con- sidered and may be given controlling weight in denying a subsequent petition. (Salinger v. Loisel (1924), 265 U.S. 224, 68 L. Ed. 989, 445 Ct. 519; Wong Doo v. United States (1924), 265 U. S. 239; Sander v. Johnston (1926 CCA 9th Cal.), 11 F. 2d 509; Pogett v. McCauley (1938 CCA 9th Wash.), 95 F. 2d 839; Remaley v. Swope (1938 CCA 9th Wash.), 100 F. 2d 31; United States ex rel. Bergdoli v. Drum (1939 CCA 2d NY), 107 F. 2d 897.) In determining whether such a prior determination should be controlling, the cases hold that it is important to consider whether the grounds of the prior petition are the same as alleged in the subsequent petition, the full- ness of consideration which had been given the prior peti- tion, and the character of the Court to whom the first petition was addressed. (Salinger v. Loisel, supra, ex parte Cuddy (1889:CC), 14 Sawy. 171, 40 F. 62; Wheeler v. Kaeser (1942; DC Mo.), 45 F. Supp. 937.) In the present case the petition for writ of habeas corpus now under consideration alleges identical grounds for — 9 relief as did the petition for writ of habeas corpus which was addressed to the Circuit Court of Winnebago County, [llinois. After a complete hearing the writ was quashed, and upon petition for certiorari direct to this Court, such certiorari was denied. Under Illinois law habeas corpus proceedings are not reviewable in the Illinois courts. (Peo- ple ex rel. Titzel v. Hill, 344 Ill. 264, 176 N. E. 360; People ex rel. Niemoth v. Traeger, 339 Ill. 356, 171 N. E. 548; People ex rel. Wakefield v. Montgomery, 365 Ill. 478, 68 N. E. 2d 868; United States ex rel. Mills v. Ragen, 77 F. Supp. 15.) Therefore, when this Court denied certiorari, the judgment of the Circuit Court of Winnebago County, Illinois became final and not subject to review. Since the judgment of the Circuit Court was final, and was based on identical grounds as the one in the Illinois Supreme Court, it is entitled to great weight in the subse- quent petition. In Magniglia v. Commander of the Guis- seppe Verdi (1935 DC Mass.), 5 F. 2d 680, the Court was faced with a petition for a writ of habeas corpus which was similar to one previously adjudicated and the Court dismissed the petition stating that while the decision of the New York Federal Court ‘‘may not be res judicata, it has long been the established practice that one Court will not allow a writ when some other judge has refused it unless a substantial change in the circumstances has intervened.”’ To the same effect is Demaurey v. Swope (CCA Wash.), 95 I’. 2d 839; Ex parte Tremper, 126 N. J. Eq. 276, 8 A. 2d 279; Voigt v. Mahoney, 10 Wash. 2d 157, 116 P. 2d 300; In re Clyne, 52 Kan. 441, 35 P. 23. In Ex parte Moebus (1906 CCA N. H.), 148 F. 39, the petitioner had made two prior applications for the writ, one to a justice of the Supreme Court and another to the District Court for New Hampshire, and finally the instant one to the Circuit Judge, and the Court said in denying the writ that as a practical matter of administration no judge should allow a, 10 a writ when some other judge has refused it. See Beard v. Bennett (1940), 72 App. DC 269, 114 F. 2d 578; Wong Sun v. Fluckey (1922 D. C. Ohio), 283 F. 989 (aff'd in 265 U. S. 239) ; United States ex rel. Innes v. Hiatt (1943, DC Pa.), 50 F. Supp. 756. In Dorsey v. Gill (1945 88 PP. DC 9), 148 F. 2d 857, the entire subject is thoroughly considered reviewed and the Court held that the fact that the same issues had been decided in a former proceeding should as a matter of judicial discretion be given controlling weight. In the case a. bar, the hearing in the first petition was exhaustive and detailed. The findings of the Honorable William R. Dusher, Circuit Judge of Winnebago County, Illinois, which are attached to this brief as Exhibit ‘A”, show that there was a full and complete examination of the same grounds that are made in this petition and those grounds were found to be without merit. Certainly that should be deemed sufficient that in the sound judicial dis- cretion of the Supreme Court of Illinois when faced with another petition alleging the same facts it was proper to quash the writ deeming the previous adjudication to be of controlling weight. Il. As to this petition for writ of certiorari to review the Supreme Court of Illinois for their action in affirming the 1925 judgment of conviction of Marino (People ex rel. Marino v. Ragen, 404 Ill. 37), the petitioner has again brought up the same contentions decided in the petition for writ of habeas corpus decided against this petitioner in the Circuit Court of Winnebago County, Illinois. (There are some other contentions to be considered later.) As to the contentions of constitutional violation by the al- leged failure to appoint counsel and the alleged absence of a plea of record, those matters were decided in the — 11 aforementioned petition for writ of habeas corpus and are now res judicata, which doctrine applies to criminal cases as well as civil cases. (Sealfon v. United States, 332 U. S. 474, 92 L. Ed. 180, 68 8. Ct. 237; United States v. Oppenheimer, 242 U. 8. 85, 61 L. Ed. 161, 37 8S. Ct. 68; United States v. DeAngelo (CCA 3d N. J.), 137 F. 2d 466; Wells v. United States (CCA 5th 1946), 158 F. 2d 833.) This doctrine operates to settle matters conclusively which were determined in the habeas corpus hearing, which find- ings are incorporated in this brief as Exhibit ‘‘A’’. A case which is directly in point on this question of res judicata is Wilson v. United States (CCA 8th 1948), 166 F. 2d 527. The appellant was convicted on a plea of guilty and sentenced to ten years’ imprisonment. He had filed three substantially identical motions in the District Court to vacate the sentence and correct the judgment. A full hearing was had in the District Court and his first two motions overrnled. This case arose when appellant appealed from a third order denying his motion and the Cireuit Court of Appeals held that the former judgments denying the motions were res judicata and it would be presumed that every issue of law involved in it had been tried and decided. (See 50 C. J. S. Judgments, Sec. 837.) Also in Wells v. United States, supra, the appellant had previously made a motion to vacate his sentence which had been appealed to this Court (Wells v. United States, 318 U. S. 257, 87 L. Ed. 746, 63 S. Ct. 582) and denied, and the appellant had unsuccessfully prosecuted two habeas corpus proceedings of which the Court took judicial notice. In the second habeas corpus proceeding there was a full hear- ing and the Court made findings of fact against the appel- lant. The Circuit Court said: ‘‘We see no reason why the doctrine of res judicata should not apply to this second attempt to relitigate the same matters.” The case above cited is very similar in its facts to the 12 petitioner’s case. Here there has been a previous final determination of constitutional questions involved and under the doctrine of res judicata the petitioner is pre cluded from relitigating the same matters by writ of error to the Supreme Court of Illinois. See also State v. Hensley, 27 Wash. 2d 938, 181 P. 2d 828, where defendant’s con- tentions relative to vacation of judgment and sentence were fully considered on a prior appeal from a decision denying a petition to withdraw a plea of guilty, and the Court held the defendant could not have the same contentions recon- sidered on a motion of coram nobis. There is no question but what the petitioner has had his day in court. In fact, he has been to the Circuit Court of Winnebago County, Illinois twice; he has been to the Supreme Court of Illinois in four cases, and to this Court on three previous occasions, not including the petition for a rehearing. Certainly, there must be an end to this matter, and since petitioner’s contentions were finally de- termined once, it is res judicata. As for the contention of the petitioner that the Grand Jury was improperly assembled, such objection under Illinois law can only be taken by a challenge to the array or motion to quash the indictment. (Bruen v. People, 206 Ill. 417; People v. Liber, 357 Ill. 423, People v. McCauley, 256 Ill. 504, People v. Munday, 293 Ill. 191, People v. Green, 329 Ill. 576.) It will be presumed unless the contrary is shown that the persons summoned by the Sheriff for Grand Jury duty were duly qualified; and were selected from the County; and that the Sheriff did his duty accord- ing to the Statute. (Fletcher v. People, 81 Ill. 116, Bruen v. People, supra.) Where there is no showing of a chal- lenge to the array nor a motion to quash the indictment, and there is no showing that the people constituting the Grand Jury were not from the County and duly qualified to act, the indictment cannot be later attacked. 13 As for the contention that the State’s Attorney charged ne Grand Jury instead of the Circuit Court Judge, that oes not affect the validity of the indictment unless the etitioner could show that he was prejudiced thereby. People v. Jordan, 292 Ill. 514; People v. Gould, 345 Ill. 88.) The petitioner has not shown that he was prejudiced n any manner in this regard. The petitioner’s allegation f error that there was more than one officer appointed n charge of the Grand Jury contrary to the Statute has o merit whatsoever. (People v. Gould, supra.) In any case, these matters are strictly an interpretation f local Illinois law with which this Court has often stated hey have no interest since there is no constitutional ques- ion involved. Conclusion. It is important that it be kept in mind that this peti- ion involves a request to review original actions in the Supreme Court of Illinois. It does not and cannot involve review of the action of the Circuit Court of Winnebago Younty, Illinois in denying the petitioner’s application of . writ of habeas corpus filed in that Court. That case s finally determined and only comes into this case to show hat the matters here involved have been litigated once and settled. Note incidentally, it is the petitioner who has ,dvanced the record of the Circuit Court of Winnebago County, and he can hardly deny its authenticity. If it were felt that that action was erroneous, there were two opportunities to act—once when this Court was netitioned to clarify its opinion and mandate (Marino v. Ragen, 333 U. S. 852, 68 S. Ct. 729, 92 L. Ed. 1133), and a second time when a petition for certiorari was filed and denied. (Misc. 30, Marino v. Ragen, 93 L. Ed. 862, re- hearing denied, L. Ed. 1038.) This Court’s opinion in Marino v. Ragen, 332 U. S. 561, was predicated on a con- 14 fession of error by the Attorney General of the State of Illinois without any facts having been found and without the Attorney General being cognizant of the true facts in the case. As a consequence, it was necessary in obedience to the mandate of this Court to have a full hearing in the matter. That hearing in the Circuit Court of Winnebago County, Illinois, was a minute investigation of the alleged constitutional errors and found them to be baseless. That decision stands as a final determination on this matter and the petitioner does not allege any different facts or any change in the situation or any reason why this case should be any different now. We submit that the petition for writ of certiorari in each case should be denied. Rosert R. CanFiep, State’s Attorney of Winnebago County, Illinois, Amicus Curiae, Date F.. Cone, Assistant State’s Attorney, Winnebago County, Illinois, Joun S. GHENT, Assistant State’s Attorney, Winnebago County, Illinois, Of Counsel. 15 EXHIBIT ‘‘A’’. Findings and Decision of the Honorable William R. Dusher. People of the State of Illinois, ex } rel. Tony Marino, Petitioner, Ng vin No. 54874,. Joseph E. Ragen, Warden, Illi- nois State Penitentiary, etc. The Court: This cause comes on for hearing on the mandate from the United States Supreme Court filed in this court on January 26, 1948 wherein it is stated: ‘‘Tt is further ordered that this cause be, and the same is hereby remanded to the circuit court of Win- nebago County, of the State of Illinois for appropriate proceedings, in the light of the confession of error filed by the Attorney General of the State of Illinois.’’ I have construed that mandate to mean that this court should have a full and complete hearing of what tran- spried in the case of the People of the State of Illinois against Toni Marino, No. 5963 in this court, which I will hereafter refer to as the Murder case. Under the law of Illinois, as the court interprets it, this court has no power to do anything other than remand the petitioner to the custody of the Warden of the Illinois State Penitentiary or to discharge him. There is no alter- native power in the court. Under Habeas Corpus Act, Chap. 65, Pg. 1901, it states: ‘‘No person shall be discharged under the provi- sions of this act, if he is in custody either— By virtue of a final judgment or decree of any com- 16 petent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree, unless the time during which such party may be legally de- tained has expired.’’ It doesn’t appear in this case that the time of sentence has expired. The court therefore finds, under the law of Illinois that this court has no power to discharge the peti- tioner. However, it is the court’s interpretation of the opinion of the United States Supreme Court that the court should inquire fully into and determine whether or not the peti- tioner received a fair trial in the Murder case, or if he was deprived of any of his constitutional rights. The common law record, as I understood it, at the time I first went into this case, included only the record of the clerk. While it was pending before me, the Supreme Court of Illinois, in the case of People v. Nierstheimer, 396 Ill. 193, Pg. 197 said that in considering the common law record and what happened, the court should take into consideration the trial judge’s docket. Taking into consideration the trial judge’s docket in the case of the People vs. Toni Marino the court finds the trial judge made the following entry: “April 23, 1925. ‘‘Defendant in Court in person. Court explains fully to said defendant thru interpreters Daniel Tor- risi & Joe Marino meaning & effect of entry of plea of guilty & punishment Court can render in a case of this character. After such explanation, defendant files written waiver of trial by jury & enters plea of guilty to charge in the indictment.’’ On certiorari, in the United States Supreme Court, that court said in part: ‘