Opposition Brief — Illinois ex rel. Marino v. Ragen

Statement of the Case.........--.eeeseeeeeereeeees 1

ARGUMENT:

I. The circuit court’s quashal of its writ of

habeas corpus and remandment of petitioner

was an adjudication upon the merits with

respect to which this court denied certiorart 6

II. In the writ of error case the Illinois Supreme

Court did not decide, but on the contrary re-

fused to decide, any Federal constitutional

question ....... 6. cece eee e cree e eee eeees 7

III. The Illinois Supreme Court did not review, but

on the contrary declined to review, the rec-

ord made before Judge Dusher. Therefore

its decision rests upon an adequate State

BPOUNA 22... cecccccccsceeenccsencsccncs 8

Ce. cic ccwen ciwasbunncdaccsensncccuetsasct 10

TaBLE OF CASES.

Marino v. Ragen, Vol. 9 Sup. Ct. Bul. No. 30 Mise..... 3

Carter v. Illinois, 329 U.S. 173. .........--e eee e eens 3

Loftus v. Illinois, 337 U.S. 935............. eee ee ees 3

White v. Ragen, 324 U.S. 760. ..........-.. ee eee eee 7

People v. Carter, 391 Ill. 594. .......... cece eee eeees 3,8

People v. Loftus, 395 Ill. 479. ..........0e eee eeeee 3,8

People v. Siman, 284 Ill. 28.............:eeeeeeeeeee +

People v. Loftus, 400 Ill. 482. .............e eee ee eee 9

Ill. Rev. Stat. 1949, ch. 38, pars. 826-832.............- 9

IN THE

Supreme Court of the United States

Ocroser TERM, 1949.

Nos. 221 &°222 Misc.

PEOPLE ex rel. TONY MARINO,

Petitioner,

vs.

JOSEPH E. RAGEN, Warden, etc.,

Respondent,

and

TONY MARINO,

Petitioner,

vs.

STATE OF ILLINOIS,

Respondent.

On petition for writ of certiorari to the Supreme Court

of Illinois.

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI.

STATEMENT OF THE CASE.

In 1925 petitioner pleaded guilty in the circuit court of

Winnebago County, Illinois, to the crime of murder. After

a statutory hearing on aggravation and mitigation, peti-

tioner was sentenced to imprisonment in the Illinois State

Penitentiary for the term of his natural life.

Petitioner, assailing his conviction as a denial of due

process of law, seeks nullification of the sentence upon

which he is now incarcerated in the Illinois State Peni-

tentiary.

In the two cases now before this Court, the Supreme

Court of Illinois

(1) denied petitioner’s original application for a writ of

habeas corpus, and

(2) affirmed on writ of error the petitioner’s conviction,

only the common law record being before the court

on this writ of error.

The habeas corpus proceeding before Judge Dusher,

and this Court’s review of those proceedings.

In 1947, petitioner, asserting that his conviction was

without due process of law, filed pro se his petition in the

cireuit court of Winnebago County for that court’s writ of

habeas corpus. The circuit court of Winnebago County,

overruling the State’s objection that habeas corpus was

not an appropriate means of collaterally attacking peti-

tioner’s conviction, issued the writ, heard petitioner’s evi-

dence, and at the conclusion of petitioner’s evidence,

quashed the writ and remanded him to the custody of the

warden.

Petitioner sought this Court’s writ of certiorari to re-

view the circuit court’s judgment of quashal of the writ

and remandment.

The predecessor of the present Attorney General, con-

ceiving that the granting of the writ adjudicated the pro-

priety of the remedy on State grounds not reviewable here

3

and conceiving that on the evidence then in the record, due

process had been denied, confessed error.

This Court, acting solely on the evidence then in the rec-

ord and on the confession of error, vacated the judgment

and remanded the cause to the circuit court of Winnebago

County ‘‘for appropriate proceedings in the light of the

confession of error filed by the Attorney General of the

State of Illinois.”’

Thereupon Judge Dusher had a full hearing, at which.

he not only entertained petitioner’s evidence but received

evidence in rebuttal offered on behalf of the respondent

warden.

On the basis of this full and complete hearing, Judge

Dusher reached the conclusion, supported by evidence that

was adduced at the full hearing but that had not been

adduced at the prior hearing. that petitioner had had legal

counsel, voluntarily confessed after conferring with coun-

sel, intelligently pleaded guilty, threw himself upon the

mercy of the court in an effort to escape the death penalty

and achieved that object when he received a sentence of

life imprisonment.

This Court denied certiorari. (Marino v. Ragen, on May

2, 1949. Vol. 9, Sup. Ct. Bul. No. 30 Mise.)

In the instant writ of error case, the Illinois Supreme

Court merely followed its inveterate rule that it will not

upon a common law record determine whether the right to

counsel was intelligently waived at the time of a plea of

guilty. People v. Carter, 391 Ill. 594, writ of certiorart

granted, but dismissed, Carter v. Illinois, 329 U.S. 173. Peo-

ple v. Loftus, 395 Ill. 479, certiorari granted, but dismissed,

Loftus v. Illinois, 337 U.S. 935. Of course petitioner’s as-

signment of error with respect to the mode of impanelling

the grand jury that indicted him raised no Federal question.

+

In the instant habeas corpus case, the Dlinois Supreme

Court stated that the granting of its writ of habeas corpus

is discretionary, that it will not entertain contested ques-

tions of fact, and declined to review Judge Dusher’s find-

ings, conclusion and judgment. To have employed the

Illinois Supreme Court’s writ of habeas corpus as a means

of reviewing the record made before Judge Dusher would

have violated the well settled Illinois rule that the record

of a trial court’s decision in habeas corpus is not reviewable

by the Supreme Court of Illinois. People v. Loftus, 400 Ill.

432; People v. Siman, 284 Ill. 28. It would also have vio-

lated the equally well settled rule that the Illinois Supreme

Court will not on habeas corpus resolve contested issues of

fact; for Judge Dusher’s opinion rested upon his resolu-

tion of direct conflicts in the evidence.

Thus no substantive constitutional question was decided

by the Supreme Court of Illinois; for refusal to review

another court’s decision does not import decision, but on

the contrary, imports refusal to decide the merits of the

ease. Hence no substantive constitutional question is jus-

ticiable now.

The Question Presented.

The Question presented is:

Did the Illinois Supreme Court decide, or did it

refuse to decide, any Federal constitutional question,

resting that refusal upon adequate grounds of State

law?

SUMMARY OF ARGUMENT.

I.

The circuit court’s quashal of its writ of habeas corpus and

remandment of petitioner was an adjudication upon the

merits with respect to which this court denied certiorari.

Il.

In the writ of error case the Illinois Supreme Court did not

decide, but on the contrary refused to decide, any Federal

constitutional question.

IIl.

The Illinois Supreme Court did not review, but on the con-

trary declined to review, the record made before Judge

Dusher. Therefore its decision resolved no Federal ques-

tion and rests upon an adequate State ground.

ARGUMENT.

I.

The circuit court’s quashal of its writ of habeas corpus and

remandment of petitioner was an adjudication upon the

merits with respect to which this court denied certiorari,

Judge Dusher’s opinion commences as follows:

‘*T have construed that mandate”’ [i. e., this Court’s

original mandate] ‘‘to mean that this Court should

have a full and complete hearing of what transpired

in the case of the People of the State of Illinois against

Tony Marino, No. 5963, in this Court, which I will here-

after refer to as the Murder case.”’

Although Judge Dusher did express the view that under

the law of Illinois he ‘‘had no power to discharge the peti-

tioner’’ because ‘‘it doesn’t appear in this case that the

time of sentence has expired’’, he immediately adds:

‘‘However, it is this Court’s interpretation of the

opinion of the United States Supreme Court that the

Court should inquire fully into and determine whether

the petitioner received a fair trial in the Murder case,

or if he was deprived of any of his constitutional

rights.’’

Thus Judge Dusher explicitly declared and squarely held

that he had authority to decide this question upon the

merits. He did actually decide it upon the merits. It is not

material that he conceived his jurisdiction to emanate from

this Court’s mandate and not from the Illinois Habeas

Corpus Act. The point is that Judge Dusher deemed him-

self vested with jurisdiction to decide the Federal consti-

tutional claims of petitioner. His adjudication as to his

jurisdiction, whether correct or not, and if correct, whether

_7"—"

7

conceived upon the right grounds, was of course not re-

viewable here.

Therefore when this Court denied certiorari, it did so

upon a record in which Judge Dusher had remanded peti-

tioner to the penitentiary after an adjudication upon the

merits.

If a lower Federal court should not ordinarily reexamine

Federal constitutional claims where the merits have once

been adjudicated below and this Court has denied certio-

rari (cf. White v. Ragen, 324 U.S. 760) a State court, even

though it be a State Supreme Court, need not reexamine

such claims after such denial by this Court.

II.

In the writ of error case the Illinois Supreme Court did not

decide, but on the contrary refused to decide, any Fed-

eral constitutional question.

The Illinois Supreme Court held on the writ of error

ease that petitioner had resorted to habeas corpus in the

cireuit court of Winnebago county as means of asserting his

claims of constitutional rights, that those claims had there

been adjudicated upon the merits, and that the judgment of

that court in that proceeding precluded independent review

by the Supreme Court of Illinois of the contentions there

litigated. This holding embodied only a principle of IIli-

nois’ law of appeals and error. It therefore raises no Fed-

eral question.

Furthermore, the Illinois Supreme Court has always held

that it cannot upon a naked common law record determine

whether a convicted person intelligently waived the right

to counsel when he entered a plea of guilty or (in a non.

capital case), went to trial without a lawyer. !

Of course petitioner’s attack upon the mode of impanel.

ling the grand jury that indicted him raises no Federal

question.

Therefore this Court should deny certiorari with respect

to the judgment affirming petitioner’s conviction on writ

of error.

Ill.

The Illinois Supreme Court did not review, but on the con.

trary decline! to review, the record made before Judge

Dusher. Therefore its decision resolved no Federal ques-

tion and rests upon an adequate State ground.

Petitioner sought upon an original habeas corpus pro-

ceeding issued by the Supreme Court of Illinois to obtain a

collateral review of the record, findings and judgment in

the habeas corpus proceeding entertained by Judge Dusher.

*In People v. Carter, 391 Il. 594, Carter pleaded guilty to murder

without counsel. The Supreme Court of Mllinois, ha before it only the

right to seek a full hearing in an appropriate p . Carter later

sought and obtained such a h » received a full consideration of his

constitutional claims upon his evidence dehors the record, suffered an

adverse adjudication on the questions of fact and obtained review by the

a Soe of Illinois. (People v. Carter, 403 Il. 567.)

error rested upon a classical ground of Illinois a: llate procedure that

has been approved by this Court. ” -

| —

9

Of course no such review is permissible under the well

settled canons defining the scope and office of habeas corpus.

The Illinois Supreme Court said, in denying habeas

corpus :

‘Under Illinois practice any petition which raises

question of fact cannot be considered in this Court.’’

See People v. Loftus, 400 Ill. 432, to this effect.

It is true that petitioner tendered to the Illinois Supreme

Court a transcript of record of evidence heard before Judge

Dusher. But this record presented questions of fact. Of

course the Supreme Court did not defeat its own rule pre-

cluding it from entertaining questions of fact by collaterally

considering such questions upon a record made in another

court. Moreover, to have reviewed Judge Dusher’s judg-

ment collaterally would have set at naught the Illinois rule

that it cannot review a circuit court’s judgment in a habeas

corpus proceeding.

Because earlier phases of this litigation have focused

attention upon the procedural remedies available in Illinois

to review the constitutional validity of the proceedings upon

which prisoners were convicted, it is deemed appropriate

to indicate to the Court the present situation with respect

to the Post Conviction Remedies Statute adopted by the

General Assembly of Illinois. (Ill. Rev. Stats. 1949, ch.

38, pars. 826-832.)

In one of the cases instituted under this statute, the

Chief Justice of the Criminal Court of Cook County,

Illinois, sustained the contention of the State’s Attorney

and held the statute invalid upon the supposed ground

that it invades the sphere of the judiciary, contemplates

collateral attack in lower courts upon judgments of the

Supreme Court, denies due process in that it permits the

10

use of affidavits instead of testimony taken in open court 4%

and unconstitutionally discriminates in favor of those in |

penitentiaries and against those in other penal institutions, 7

It is the position of the Attorney General that the in. ~

stant act is clearly constitutional in all its aspects and —

phases and should be sustained. This act was designed ©

in accordance with this Court’s dictates to afford a com- |

plete remedy to Illinois prisoners and eliminate difficulties =

which have occurred in the past.

The question of the constitutionality of the act, appro.

priately raised by a prisoner represented by counsel pro- q

vided by the Chicago Bar Association, is standing to the 5

March term of the Illinois Supreme Court. The Attorney ~

General, as well as amici curiae appearing on behalf of the —

Illinois and Chicago Bar Associations, will urge the con-

stitutionality of this remedial legislation.

Conclusion.

This Court should, we submit, deny the instant petition

for certiorari.

Respectfully submitted,

Ivan A. Exiortt,

Attorney General of the State of Illinois,

Suite 900, 160 N. La Salle Street,

Chicago 1, Illinois, FInancial 6-2000,

Attorney for Respondents.