United States of America Ex Rel. Charles Westbrook v. Ross v. Randolph, Warden of the Illinois State Penitentiary, Menard, Illinois

259 F.2d 215

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 18, 1958
• Docket: 12109
• Status: Published

Opinions

HASTINGS, Circuit Judge.

Respondent, Ross V. Randolph, Warden of the Illinois State Penitentiary, Menard, Illinois, appeals from an order of the district court discharging relator, Charles Westbrook, from custody on his petition for writ of habeas corpus.

The underlying facts as they appear from the pleadings and record and as found by the district court are not in dispute. Westbrook (petitioner-appel-lee) was convicted of armed robbery on April 22, 1948 by a jury in the Circuit Court of Christian County, Illinois, and sentenced for an indeterminate period with life as the minimum and the maximum duration of imprisonment. He was represented in that trial by two court appointed attorneys, and filed a timely notice of appeal, asking for and receiving several extensions of time aggregating about eight months in which to file his bill of exceptions. He sought to obtain, and offered to pay for, a stenographic transcript of the testimony and trial proceedings from the official court reporter, Robert E. Halligan. Halligan had become seriously ill shortly after the trial and was unable to prepare the transcript as requested. Following this illness the shorthand notes of Westbrook’s trial were lost or destroyed and petitioner’s repeated efforts to obtain the transcript for his use in filing a bill of exceptions failed. On June 27, 1949, the United States Supreme Court denied his petition for a writ of certiorari. Westbrook v. Ragen, 1949, 337 U.S. 960, 69 S.Ct. 1523, 93 L.Ed. 1759.

On December 11, 1950, an entry was made in the minutes of the Circuit Court of Christian County showing that on November 30, 1950 Westbrook filed his petition for a complete certified copy of the common law record and transcript of all evidence and proceedings without cost to himself, and that, on motion of the State’s Attorney, the petition was denied.

Appearing pro se, Westbrook prosecuted a writ of error to the Illinois Supreme Court in 1951, and on January 21, 1952 that court held the sentence imposed by the trial court to be improper and remanded the cause for imposition of a proper sentence. People v. Westbrook, 1952, 411 Ill. 301, 103 N.E.2d 494, 29 A.L.R.2d 1341. On remand to the Circuit Court of Christian County, Stuart J. Traynor was appointed by the court to represent Westbrook, and under date of March 18, 1952 the following entry appears on the court minutes: “Counsel for Petitioner requests this court for a complete certified copy of the common law record and all evidence of proceedings in this cause. This request having been previously made by this defendant on November 30, 1950, and on Motion of State’s Attorney same be denied as being passed upon by this Court heretofore on December 11, 1950. Motion is denied. Defendant excepts.” Thereafter, on April 3, 1952, Westbrook was resenteneed to 30-50 years imprisonment.

Under date of April 24,1952, the court reporter Halligan made the following affidavit:

“Affiant states that he is an Official Court Reporter, and during the course of his employment as such, he took, in shorthand, the testimony at the trial of the above entitled cause in the Circuit Court of Christian County, General No. 762, at Taylorville, Illinois, on April 21-22, 1948; and that said notes were not transcribed from shorthand.

“Affiant further states that shortly after this trial, the affiant became ill, and has been incapacitated continuously since that date, to and including the present; and that, as a result of such incapacity, the affiant has been unable to follow his profession as an Official Court Reporter.

“Affiant further states that in the confusion of his business affairs as the result of his illness, the shorthand notes above referred to have been misplaced or lost; and that at this date affiant is unable to locate them, and he has no knowledge as to whether they are even in existence, but well and truly believes that said record is lost or destroyed.”

Westbrook’s counsel, Traynor, made an affidavit to the effect that during 1952 he filed a motion for a new trial on behalf of Westbrook, setting out that the court reporter’s notes of the 1948. trial were lost and claiming a consequent, denial of petitioner’s constitutional rights, and that such motion was denied.

On April 17, 1953, Westbrook filed a petition in the Circuit Court of Christian County for a hearing under the Illinois. Post Conviction Hearing Act (Ill.Rev. Stat.1953, Ch. 38, §§ 826-832), alleging a violation of his constitutional rights in that he was deprived of his right to a full and complete review of the trial court. proceedings by the Supreme Court of Illinois “due to the fact that the court reporter’s shorthand notes were either lost or destroyed”, as set out in Halligan’s affidavit. This petition was dismissed by that court as being insufficient in fact and in law. The Supreme Court of Illinois affirmed the action of the circuit court, and the United States Supreme Court denied certiorari without opinion on June 6, 1955. Westbrook v. People of State of Illinois, 1955, 349 U.S. 957, 75 S.Ct. 886, 99 L.Ed. 1280.

In 1956 Westbrook filed a petition for a writ of habeas corpus in the Circuit •Court of Randolph County, Illinois, as■serting the denial of his constitutional rights which assertion was based on Halligan’s missing notes. This petition was dismissed on motion by the State and certiorari wTas denied by the United States Supreme Court in Westbrook v. Randolph, 1957, 352 U.S. 973, 77 S.Ct. 366, 1 L.Ed.2d 326. It is to be noted that Westbrook filed other unsuccessful habeas corpus proceedings, not set out in the record, in various courts of Illinois.

The district court in this instant proceeding properly found that West-brook had exhausted his state remedies thereby giving that court jurisdiction to entertain a petition for a writ of habeas corpus under Title 28 U.S.C.A. § 2254. “The precise question” determined by the trial court was that “relator was denied due process of law under the provisions of the 14th Amendment because he was unable to obtain a transcript of record for use in perfecting his appeal from the conviction in the original trial.” In so holding, the court relied on Griffin v. People of State of Illinois, 1956, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891.

The Griffin case, which is cited and relied on by both parties as well as the district court, involved defendants who were unable to perfect their appeal from conviction in Illinois state courts because of their financial inability to pay for a transcript of proceedings had in the trial court. The Supreme Court, with four Justices dissenting, held that the failure of the State of Illinois to furnish an indigent person with a transcript essential to perfect an appellate review was a violation of the due process and equal protection clause of the Fourteenth Amendment in view of the fact that Illinois law grants to every person convicted in a criminal trial a right to review by writ of error. In that case the stenographic notes were available, but, with Griffin having no means to pay for the transcript, Illinois refused to furnish it to him without cost. In this case Westbrook’s indigency had nothing to do with his failure to obtain the transcript because it was not possible to furnish it to him under any circumstances. In fact, he offered to pay for the transcript in the first instance.

We have here the unusual situation in which Westbrook has been denied his right of full appeal due to no fault of his own (since he promptly attempted to perfect his appeal), and because of a condition not created by the state and which it is powerless to remedy. We are faced here with the question of whether West-brook’s inability to appeal from a conviction on grounds which only a transcript of the proceedings would reveal, entitles him ipso facto, as the district court ruled, to absolute freedom rather than a new trial or some other relief. Since the day of his conviction he has been in the courts repeatedly seeking a new trial, and his plea for discharge is based on the denial of this requested relief.

On motion of the Illinois Attorney General, the district court certified that probable cause for appeal existed in this case, 28 U.S.C.A. § 2243. However, despite the request of the attorney general that prisoner be not released pending this appeal, the district court ordered respondent, the warden of the penitentiary, to discharge him from custody and this was done. In so far as the record shows Westbrook is now at liberty.

We hold that under the facts in this case it was the duty of the district court not to disturb the custody of the prisoner, but to remand him to the state court which tried him originally with instructions to vacate the judgment of conviction and to grant him a new trial. In reaching this conclusion we are not unmindful of the possibility that West-brook may never be apprehended, or of the probability of his acquittal upon a second trial because of the absence of material witnesses or for other reasons. If the order of the district court were to stand, there must also be considered the possible effect of such a decision on many other prisoners who may see a fertile field for the use of habeas corpus where the death or incompetency of court reporters occurs or where their stenographic trial notes are lost or destroyed.

There is ample authority for the district court to dispose of this case in the manner suggested, instead of releasing the prisoner from custody in the first instance. It has been held that in habeas corpus the court has the power to enter an order of remandment. Chessman v. Teets, 1957, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253; Tod v. Waldman, 1924, 266 U.S. 113, 45 S.Ct. 85, 69 L.Ed. 195; Mahler v. Eby, 1924, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549.

The habeas corpus act, 28 U.S.C.A. § 2243, provides in part:

“The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.”

In Mahler v. Eby, supra, 264 U.S. at page 46, 44 S.Ct. at page 288, in an opinion by Mr. Chief Justice Taft, the Court said:

“Under this section, this court has often delayed the discharge of the petitioner for such reasonable time as may be necessary to have him taken before the court where the judgment was rendered, that defects which render discharge necessary may be corrected. In re Bonner, 151 U.S. 242, 261, 14 S.Ct. 323, 38 L.Ed. 149; Medley, Petitioner, 134 U.S. 160, 174, 10 S.Ct. 384, 33 L.Ed. 835 ; Coleman v. Tennessee, 97 U.S. 509,. 24 L.Ed. 1118; United States v. McBratney, 104 U.S. 621, 624, 26. L.Ed. 869; Bryant v. United States, 8 Cir., 214 F. 51, 53. * * *

“Accordingly the judgment of the-District Court is reversed with directions not to discharge the petitioners until the Secretary of Labor shall have reasonable time in which to correct and perfect his finding on. the evidence produced at the original hearing, if he finds it adequate, or to initiate another proceeding against them.” (Our emphasis.)¹

In Tod v. Waldman, supra, the Court held that, in a habeas corpus proceeding in which aliens, refused admission to the country and held for deportation, were denied their proper right of appeal to the Secretary of Labor they should not, therefore, be discharged from custody and their bail released, but that the order should secure them their appeal and remand them to custody of the immigration authorities pending decision; by the Secretary. The court further ordered: “Failing the granting and hearing of the appeal within 30 days after the coming down of the mandate herein, the relators and their bail are to be discharged.” Tod v. Waldman, supra, 266 U.S. at page 120, 45 S.Ct. at page 88.

Chessman v. Teets, supra, involved a question of reconstruction of the transcript from the notes of a deceased official court reporter by a substitute reporter, who had worked in close collaboration with the prosecutor. Defendant was. not represented in person or by counsel when the trial record was settled, and it was used over his objection on his appeal, in which his conviction was affirmed. In an opinion of the Supreme Court by Mr. Justice Harlan, the court held that the ex parte settlement of the record violated petitioner’s right to procedural due process under the Fourteenth Amendment. With reference to the relief to be granted, the court said in 354 U.S. at pages 165-166, 77 S.Ct. at page 1132:

“We have given careful consideration to the nature of the relief to be granted. Petitioner’s discharge is not to be ordered without affording California an opportunity to review his conviction upon a record the sufficiency of which has been litigated in proceedings satisfying the requirements of procedural due process. * * * The task of affording petitioner a further review of his conviction upon a properly settled record is necessarily one for the state courts. * * * We conclude, therefore, that our proper course is * * * to remand the case to the District Court, with instructions to enter such orders as may be appropriate to allow California a reasonable time within which to take further proceedings not inconsistent with this opinion, failing which the petitioner shall be discharged. Cf. Dowd v. United States ex rel. Cook, 340 U.S. 206, 209-210, 71 S.Ct. 262, 263-264, 95 L.Ed. 215.” (Our emphasis.)

Respondent urges that the so-called Illinois “bystanders’ bill of exceptions,” or a bill of exceptions prepared from someone’s memory in condensed or narrative form and certified to by the trial judge, was available to petitioner in his attempted appeal from his conviction. In view of the rather obscure nature of such a bystanders’ bill in Illinois,² and the practical difficulty facing a prisoner in obtaining it,³ we would not feel justified in holding that petitioner has failed to exhaust his state remedies in this respect.

For the reasons expressed, the order of the district court releasing petitioner from custody is reversed and this cause is ordered remanded to that court with instructions that it remand petitioner to the Circuit Court of Christian County, Illinois, with directions to the latter court to vacate the judgment of conviction and to grant petitioner, Charles Westbrook, a new trial; and that upon the failure of the Circuit Court of Christian County, Illinois, to vacate said judgment of conviction and to grant said new trial within six months after the date of the actual physical delivery of petitioner to the custody of said circuit court, the petitioner shall be finally discharged from custody. In order to accomplish the foregoing the district court should take such proper steps as will cause the arrest of petitioner and his return to the custody of the Warden of the Illinois State Penitentiary, Menard, Illinois, where he shall remain until the district court orders said-Warden to deliver, him to the custody of the Sheriff of Christian County, Illinois, for a new trial as herein set forth.

1 . The court was there referring to the language in § 761 of the Revised Statutes of 1878, which is in substance the same as the language in § 2243 of Title 28 U.S.C.A.

2 . Mr. Justice Black in a footnote to his opinion in the Griffin case pointed out that “In oral argument [in that case] counsel for Illinois stated: ‘With respect to the so-called bystanders’ bill of •exceptions or the bill of exceptions prepared from someone’s memory in condensed and narrative form and certified to by the trial judge — as to whether that’s available in Illinois I can say that •everybody out there understands that it is but nobody has heard of its ever being actually used in a criminal case in Illinois in recent years. I think if you went back before the days of court reporting you would find them but none today. And I will say that Illinois has not suggested in the brief that such a narrative transcript would necessarily or even generally be the equivalent of a verbatim transcript of all of the trial.’ ”

3 . With respect to this, Justice Schaefer, in his opinion in People v. Joyce, 1953, 1 Ill.2d 225, 230, 115 N.E.2d 262, 264, observed: “Defendant also alleged that he had been unable to secure a transcript of the testimony upon his trial and would therefore have been unable to present on direct review his claim as to the coerced confession. The trial court ruled that defendant could nevertheless have presented his claims in a constructed or ‘bystander’s’ bill of exceptions * * * (citing) and therefore held that defendant’s claim had been waived by his failure to present it upon a direct review. We think, however, that in view of defendant’s incarceration and his uncontroverted allegation of indigence, this alternative method of bringing up the record for review was not, as a practical matter, available to him. We hold that the defendant did not waive the claim.” (Our emphasis.)