Painten v. Massachusetts

254 F. Supp. 246, 1966 U.S. Dist. LEXIS 7637
CourtDistrict Court, D. Massachusetts
DecidedMay 19, 1966
DocketMisc. Civ. No. 64-78-C
StatusPublished
Cited by7 cases

This text of 254 F. Supp. 246 (Painten v. Massachusetts) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Painten v. Massachusetts, 254 F. Supp. 246, 1966 U.S. Dist. LEXIS 7637 (D. Mass. 1966).

Opinion

CAFFREY, District Judge.

Petitioner, Donald M. Painten, was convicted in the Massachusetts Superior Court of armed bank robbery, masked and disguised, and related offenses. His conviction was affirmed sub nom. Commonwealth v. Binkiewiez, 342 Mass. 740, 175 N.E.2d 473 (1961).

After the Supreme Judicial Court of Massachusetts denied his application for a writ of error Painten petitioned for habeas corpus in this court where, after a full evidentiary-type hearing, his contentions based on Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), were upheld and an order was entered, 252 F.Supp. 851, directing the Commonwealth to either re-try him within sixty days or discharge him from custody. This court certified that there was probable cause for an appeal by the Commonwealth, which promptly filed notice of appeal, but denied a motion by the Commonwealth for a stay of the order pending appeal. Thereafter, a stay of this court’s order was granted by the Court of Appeals and on motion of Pain-ten the Gourt of Appeals remanded the case to this court “for the limited purpose on motion of admitting petitioner to bail pending this appeal in an amount to be determined by said district court after hearing.” The Court of Appeals expressly retained jurisdiction of the case in all other respects.

A hearing was held at which counsel for Painten produced three witnesses. One of these, Painten’s father, testified that he owned a nine-room house in South Boston of which he is presently the sole occupant, and in which there is room for Painten to live if released. He did not testify or give any indication that Paint-en himself had expressed any intention or willingness to reside with his father and it is significant to note that in a summary of Painten’s criminal record, filed with this court by agreement of counsel, Painten, who is single, is listed by the office of the Commissioner of Probation as having had nine different addresses in Boston.

Another witness was Painten’s sister-in-law who testified that her husband is employed by a furniture mover in Boston and that arrangements have been made by her husband for employment for Painten as a movers’ helper on the staff of her husband’s employer. She did not testify that Painten had indicated any intention or willingness to accept this employment.

[248]*248The third witness called on behalf of Painten was Professor Walter Clark who teaches psychology and theology at the Andover Newton Theological School. He testified that he had seen Painten seven or eight times a year since the spring of 1962, occasionally alone but usually in a group ranging from two to ten prisoners. Professor Clark testified at some length as to his opinion that Painten has been substantially rehabilitated while in state prison, and made it clear that his opinion is primarily based upon a “remarkable religious experience” that Painten underwent in 1962. On cross-examination the Commonwealth brought out that this “remarkable religious experience,” which was otherwise not explained in the testimony, occurred during a six-month period when Painten was participating in experiments with psychedelic drugs, including LSD, under the supervision of Dr. Timothy Leary who was then on the Harvard faculty. Professor Clark expressed the opinion that although he considered Painten to be a shrewd character, he did not believe he would abscond, and were he in a position to do so (which he is not) he would give employment to Painten in a position which entailed access to substantial amounts of money. He also said that he believed Painten to be a truthful person.

The Commonwealth presented no evidence at the hearing but obtained an agreement from counsel for Painten that instead of waiting until certified copies of each of his many convictions could be procured and filed with the Clerk, in lieu thereof a summary of Painten’s record, prepared by the Massachusetts Department of Probation, would be substituted. Subsequently the Clerk was advised that counsel for Painten had read this summary of his record to Painten over the phone and Painten agreed that the summary was a substantially accurate account of his record. The summary is appended to this Opinion as Exhibit A.

A threshold question as to what ground rules are to cover the determination of Painten’s admissibility to bail pending appeal must be resolved prior to a determination of the basic question of his eligibility for discharge on bail. Supreme Court Rule 49 regulates the custody of prisoners pending review in habeas corpus proceedings. The order entered herein by this court does not fall within any of the categories of orders enumerated in Supreme Court Rule 49, and consequently this application for admission to bail falls outside the operation of Supreme Court Rule 49. O’Brien v. Lindsey, 202 F.2d 418 (1st Cir. 1953).

It has been settled in a long line of cases that when upon habeas corpus it is concluded that the detention is unlawful, the outcome is not necessarily an order directing the immediate discharge of the prisoner. In re Medley, Petitioner, 134 U.S. 160, 10 S.Ct. 384, 33 L.Ed. 835 (1890); In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149 (1894); Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951).

The Court of Appeals for this Circuit has held that a state court prisoner seeking admission to bail after obtaining a favorable ruling in the district court of Massachusetts on a petition for habeas corpus is not entitled as of right to be discharged on bail pending the appeal. Obviously having in mind that a petition for a writ of habeas corpus filed in a Federal district court complaining of detention pursuant to a judgment of a state court involves a collateral attack upon a final judgment of the Supreme Court of the state involved, and further having in mind that until the correctness of the district court’s decision is decided on appeal the prisoner is still in state custody pursuant to a final judgment of the state Supreme Court, the Court of Appeals for this Circuit observed in O’Brien v. Lindsey, 202 F.2d 418, 420 (1953):

“[I]t is by no means clear that as a matter of right and routine a state prisoner should be set at large pending review in a court of appeals of a federal district court order discharging the prisoner on habeas corpus.”

The Court further said, with specific regard to Supreme Court Rule 45 (now Su[249]*249preme Court Rule 49), “[Discharge of the state prisoner pending this appeal is certainly not mandatory.” (Id. at p. 421.) This decision of the Court of Appeals for the First Circuit was adopted by the Seventh Circuit in United States ex rel. Calhoun v. Pate, 341 F.2d 885 (1965), where the Court applied the same ruling to an application for bail under present Supreme Court Rule 49(3). In denying Calhoun’s emergency application for release on bail pending review, Mr. Justice Clark cited O’Brien v. Lindsey.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Smith v. Caldwell
339 F. Supp. 215 (S.D. Georgia, 1972)
Commonwealth Ex Rel. Ford v. Hendrick
257 A.2d 657 (Superior Court of Pennsylvania, 1969)
United States ex rel. Covington v. Coparo
297 F. Supp. 203 (S.D. New York, 1969)
Wansley v. Wilkerson
263 F. Supp. 54 (W.D. Virginia, 1967)

Cite This Page — Counsel Stack

Bluebook (online)
254 F. Supp. 246, 1966 U.S. Dist. LEXIS 7637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/painten-v-massachusetts-mad-1966.