In RE SCRUGGS v. Rhay

425 P.2d 364, 70 Wash. 2d 755, 1967 Wash. LEXIS 1128

• Court: Washington Supreme Court
• Decided: March 17, 1967
• Docket: 37930
• Status: Published

Opinions

Finley, C. J. —

This is an application for a writ of habeas corpus by Elzie Scruggs, who is presently incarcerated at the Washington State Penitentiary at Walla Walla.

The factual and procedural background of the instant petition is somewhat complex. Thus, a somewhat lengthy factual narration is necessary for an understanding of the problem involved and the reasons underlying our decision to issue the requested writ of habeas corpus.

On June 7, 1962, the petitioner was convicted on a charge of shoplifting and sentenced to serve 20 days in the Seattle City Jail. He was assigned to a cell with four other prisoners: George Birch, Less Roberts, Guy Hill and Nick Sampson. Shortly after being placed in the cell, the petitioner was awakened and ordered to stand in the hallway while the police conducted a routine shakedown of several jail cells and the inmates. The search was precipitated when, according to the police, one inmate was discovered to be “high” from the use of narcotics. During the course of the officers’ search, the petitioner was ordered to remove his clothes. When he did so, one of the officers found a red capsule in the petitioner’s pocket and a yellow capsule in the cuff of his trousers. Upon subsequent analysis, the red capsule was found to contain heroin and the yellow capsule was found to contain Nembutal.

On August 23, 1962, the petitioner was charged by information with the crime of unlawful possession of narcotics. After being called for arraignment, petitioner was granted time to plead. On August 27, 1962, Mr. Bradford A. Caffrey was appointed by the court to represent the petitioner. The petitioner subsequently entered a plea of “not guilty,” on August 31, 1962. He was tried and found guilty as charged by a jury on March 5, 1963, before The Honorable James W. Mifflin, Judge of the Kang County Superior Court. On March 7, 1963, the petitioner filed a motion for a new trial, supported by three affidavits. The affidavit of his court-appointed counsel indicated that a diligent effort had been made by the affiant to locate Nick Sampson, cellmate of the petitioner and a witness of the events involved, at the Seattle City Jail; but that counsel had been unable to locate this witness until after the case went to the jury. The affidavit further indicates that Mr. Sampson would have testified to the effect that he saw the petitioner “beat up” by the police during the course of their search for narcotics. Counsel’s affidavit also indicates that the defendant would take the stand in his own behalf if granted a new trial, and would testify as to the alleged beating. The second affidavit, one filed by Mr. Scruggs, indicates that he would testify as averred in the affidavit of his counsel. A third affidavit — another by Nick Sampson — indicated that he would freely testify to certain events which would corroborate substantially Mr. Scruggs’ allegation of police brutality.

The motion for new trial was denied by the trial judge. On March 8, 1963, the petitioner was sentenced to a maximum term of not more than 20 years in the state penitentiary. The Parole Board fixed the minimum duration of confinement at 10 years, and petitioner is presently serving his sentence in the Washington State Penitentiary. It should be noted that there was no notice of appeal from the original judgment and sentence.

The petitioner first applied for a writ of habeas corpus in this court on December 23, 1963, alleging, inferentially, that the narcotics had been planted on his person by a police officer; and further stating, as grounds for the petition, that the absence of material witnesses who would have allegedly testified to the “non-existent” crime necessitates a new trial for the petitioner. The respondent, the state of Washington, demurred to this first petition on the ground that the petition did not state facts sufficient to constitute a claim for relief in habeas corpus proceedings. This demurrer was sustained by an order of this court dated March 9,1964.

The petitioner filed a second application for a writ of habeas corpus in this court on April 17, 1964. In a letter dated May 20, 1964, the Clerk of the Supreme Court informed the petitioner that, on the same date, the Chief Justice had denied his petition to proceed in forma pauperis in seeking a writ of habeas corpus for the reason that the second petition raised the same issues as the first petition, which had been denied by the court.

On May 28, 1964, the petitioner filed- a new application for a writ of habeas corpus in the United States District Court for the Eastern District of Washington. The principal ground stated in the application is the denial of petitioner’s constitutional right to have witnesses appear in his behalf. The return and answer by the state of Washington indicated that the Washington State Supreme Court had considered all aspects of petitioner’s case in Cause No. 37439, and on that basis had sustained the state’s demurrer and denied the writ. On August 28, 1964, after a hearing, the United States district judge entered an order holding the petitioner’s federal application in abeyance until the Washington State Supreme Court could have an opportunity to consider the factual issues raised by petitioner Scruggs. Obviously, the federal judge concluded that our two prior adverse rulings on applications for writs of habeas corpus by Elzie Scruggs were not based upon the same considerations raised by the petition then before his court.

The petitioner then made a third application for a writ of habeas corpus to this court on September 26, 1964, requesting that a writ be granted; or, in the alternative, that Cause No. 37439 (the original application for a writ of habeas corpus in which we sustained the state of Washington’s demurrer on March 9, 1964,) be re-opened. The grounds for relief are stated as follows:

IV. Further your petitioner deposes and says:

A. that there is pending in the United States District Court for the Eastern District of Washington, Southern Division, a petition for Federal Habeas Corpus, H. C. 1965.

B. that upon the suggestion of the Honorable Judge Charles Powell, your petitioner is requesting the State Courts to determine the Federal constitutional issue in this cause.

C. that the issues raised in this petition are:

1. whether your petitioner was denied compulsory process of witnesses in his trial

2. whether a coerced confession was introduced at petitioner’s trial in King County, State of Washington, in violation of petitioner’s rights secured by the Fifth and Fourteenth Amendments to the United States Constitution. And Petitioner alleges that de facto such a confession was introduced.

An “Amended Petition in Forma Pauperis,” filed on November 9, 1964, states as grounds for relief substantially the same matters as those quoted above.

Initially, there is some question as to whether we can or should reach the merits of petitioner’s contentions. Basically, the question is whether the assumption of jurisdiction by a federal district court in a habeas corpus matter is exclusive, and preempts any power on the part of state courts to hear and determine, in a habeas corpus context, any aspect of a matter then before the federal courts.

We are convinced that it was not the intent of Congress, in enacting the federal statutory provisions governing habeas corpus procedure, 28 U.S.C.A., § 2241, et seq., to create exclusive jurisdiction in the federal district courts once a state-convicted defendant initiates federal habeas corpus proceedings. The pertinent portion of 28 U.S.C.A., § 2254, reads to the contrary:

An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedures, the question presented. (Italics ours.)

It would be an abnegation of the constitutional and statutory responsibility of this court to refuse to consider questions raised by petitions for habeas corpus which have not been previously determined. Const, art. 4, § 4, and RCW 7.36.140. Furthermore, federal issues have always been litigated in state tribunals as well as in the federal courts, subject, of course, to the paramount authority of the United States Supreme Court. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1824); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816). Fay v. Noia, 372 U.S. 391 (1963), is indicative of conviction on the part of the United States Supreme Court that Congress intended the jurisdiction of United States District Courts to be concurrent with the jurisdiction of state courts at all stages of the state criminal process:

In thus extending the habeas corpus power of the federal courts evidently to what was conceived to be its constitutional limit, the Act of February 5, 1867, clearly enough portended difficult problems concerning the relationship of the state and federal courts in the area of criminal administration. Such problems were not slow to mature. Only eight years after the passage of the Act, Mr. Justice Bradley, sitting as Circuit Justice, held that a convicted state prisoner who had not sought any state appellate or collateral remedies could nevertheless win immediate release on federal habeas if he proved the unconstitutionality of his conviction; although the judgment was not final within the state court system, the federal court had the power to inquire into the legality of the prisoner’s detention. Ex parte Bridges, supra [2 Woods 428, 432 (Cir. Ct. N.D. Ga. 1875)]. Accord, Ex parte McCready, supra [1 Hughes 598 (Cir. Ct. E.D.Va. 1874)]. This holding flowed inexorably from the clear congressional policy of affording a federal forum for the determination of the federal claims of state criminal defendants, and it was explicitly approved by the full Court in Ex parte Royall, 117 U.S. 241, 253, a case in which habeas had been sought in advance of trial. The Court held that even in such a case the federal courts had the power to discharge a state prisoner restrained in violation of the Federal Constitution, see 117 U.S., at 245, 250-251, but that ordinarily the federal court should stay its hand on habeas pending completion of the state court proceedings. This qualification plainly stemmed from considerations of comity rather than power, and envisaged only the postponement, not the relinquishment, of federal habeas corpus jurisdiction, which had attached by reason of the allegedly unconstitutional detention and could not be ousted by what the state court might decide. (Italics ours.) 372 U.S. 417-418.

We are persuaded that the federal habeas corpus authority or jurisdiction is concurrent, not exclusive. Of course, we could decline to exercise such authority, power, or jurisdiction, if the same constitutional or factual issues had been previously raised, and determined, by this court.

Our decision to reach the merits in the instant case does not require an overruling of In re White v. Rhay, 65 Wn.2d 711, 399 P.2d 522 (1965). Only four judges of this court, at that time, subscribed to the theory that the federal court has exclusive jurisdiction, once it assumes jurisdiction by entertaining a petition for habeas corpus. 65 Wn.2d at 711-720. (Donworth, Hill, Weaver and Ott, JJ.) As an alternative ground, these same four judges felt that, even assuming arguendo the existence of concurrent jurisdiction with the federal court, this court should decline to exercise its jurisdiction as a matter of comity. 65 Wn.2d at 720-725. The concurring opinion by Hamilton, J., likewise rests on comity principles, but expressly notes the existence of concurrent jurisdiction. 65 Wn.2d at 725-26. The remaining four judges (Hale, Rosellini, Hunter and Finley, JJ.) found this court to have concurrent jurisdiction, but they reached differing conclusions on the merits of petitioner’s case.

Turning now to the merits in the instant matter, petitioner’s application asserts: (1) that his clothing was removed, and he was forced to lie naked on his stomach on the floor of a hallway in the city jail; (2) that his feet were spread apart, and that police officers stamped on his ankles in an attempt to make him confess to the crime charged; (3) that a Mr. Sampson, a fellow inmate, witnessed this, and would have so testified if he had been available at the trial; (4) that petitioner requested his attorney to compel the attendance of witness Sampson at the trial; (5) that this was not accomplished, and resulted in denial of constitutional rights and prejudice to petitioner at his trial. An affidavit of Mr. Bradford Caffrey, court-appointed counsel for the petitioner, is inconclusive on this latter point. On information and belief, it states that an oral motion was made respecting compulsory attendance of witness Sampson, but that affiant’s memory is unclear as to whether such motion was made and was pertinent to the trial or was made thereafter in connection with a motion for a new trial.

Petitioner’s application further asserts, as indicated hereinbefore, that a confession to the crime charged was obtained under duress and involuntarily given by him, and that such confession was used against him at the trial of the cause. The Attorney General’s office demurs to petitioner’s alleged denial of constitutional rights by averring that no written or oral confession was elicited from petitioner, and by further averring that the record does not indicate that any such confession was introduced or used at the trial. But, even if the alleged coerced confession was not used at the trial, petitioner’s constitutional rights might still have been violated, since the existence of such a confession could well have been the principal factor motivating the petitioner’s decision not to take the stand in his own behalf.

At any rate, on the face of the record before us, petitioner’s allegations raise serious questions of fact as to denial of his constitutional rights to a fair trial which have not hitherto been passed upon by this court. We are convinced that the record before us is inadequate for an appropriate determination to be made of the factual issues involved. We think that this case should be remanded to the trial court for a full, factual hearing, affording the petitioner a fair and reasonable opportunity to call witnesses in his behalf, and to produce documentary or other evidence in support of his claims, if such evidence exists. A record should be made of such proceedings, with findings of fact made and entered by the trial judge. Thereupon, the case with a record of the proceedings and the findings of the trial court should be returned to this court for a final disposition.

It is so ordered.

Hill, Weaver, Hunter, and Hamilton, JJ., concur.