*1 support to the award larger what the district court attorney’s trial than before settlement trial, inapplicable. are after fees to to be entitled it was found faith prosecuted in bad the suit and awarding The district court erred deci- knowing the that attorney’s attorney’s The fees. award 27; (Findings against it. sions were judgment The fees other- is reversed. then concluded 9.) court Conclusion The for reasons herein- wise is affirmed the party” “prevailing appellee the before set forth. under to costs of suit its and entitled attorney’s 15(c), fees and to Local Rule 116. under U.S.C. § studying Rule

After Local 15(c)1 agree appellee was the pro only the

prevailing party because offers “If defendant

vision that the judgment is re sum ima certain which BELL, Appellant, Cecal jected by there plaintiff, and the case resulting goes re to trial with after ALABAMA,Appellee. STATE OF covery only previously amount No. 23104. less, defendant, then or offered party.” prevailing is the defendant Appeals United States Court of appellee had offered a settlement Fifth Circuit. Here trial, was refused which before Sept. $50 1966. by appellant. found Since Rehearing Application Petition for and less, appellee became to be entitled Stay Denied Nov. pro prevailing party. Without 15(c) vision in Local Rule party prevailing be by ap

would have been infringement cause it established damages right

pellee and its to recover only

(which found were denied because minimis).

to be de agree We unable to are knowing

brought bad faith this suit in against it

the cases were the claim. We

belief in the merits of Woolworth, supra,

find decision in together copyright cases, other commentary as

with on them such sufficiently susceptible Nimmer, to be

appellant’s interpretation preclude a proceeded faith. in bad

conclusion cases cited

Under these circumstances the judgment plain- Rules, case without District Court Local United States California, tiff on If the merits. the defendant the Southern District judgment 15(c): offers in a certain sum Rule rejected plaintiff, Party “(c) which Entitled to Costs— goes thereafter, party prevailing the case with re- need resulting recovery re- claim order to cover entire previously amount offered the de- recovers costs. If each side cover fendant, less, recovering ordinarily party part, then the defendant prevailing party. pre- larger No costs shall be sum will be considered pre- party party. if vailing allowed either the Court is The defendant prevail- clearly party upon vailing unable to ing party.” determine the sum- dismissal mary judgment or other termination *3 BELL, Judge, TUTTLE, Chief Before Judge, KILKENNY,* Dis

Circuit Judge. trict Judge. TUTTLE, Chief acting Bell, Cecal as counsel, own for writ of filed a corpus habeas in the United States Dis- Alabama, for trict Court Southern seek- ing prison an Alabama state release from he is confined a sentence where under grand larceny. for The district court calling a denied the without hearing. rea- return No assigned. were sons for the denial Sub- sequently, also the district court denied appeal pau- motion leave to forma peris. granted This Court then issuance allowing probable of a cause certificate of prosecution appeal pau- forma propriety peris, dis- review summary ap- trict dismissal court’s pellant’s petition. that, al- We conclude though improper not the dismissal was made, when must reverse and we now proceed- remand this for further cause ings. allega- An of the statement exhaustive appearing tions ap- necessary disposition to the of this understanding peal. An of the nature questions presented the federal can gleaned following summary alleged. Appellant the facts was arrested suspicion on of a series of cattle thefts days later, 22nd, on 1961. Two October investigating approached Bell officers guilt and demanded that he admit charges. legal Being unaware of frightened, rights, he admitted became immediately guilt, and was taken to Court, he of the Clerk of the where office sign a confession. was ordered to later, 13th, on November Three weeks an at- was contacted * by designation. Oregon, sitting Of Portland torney had so often as own counsel in who told Bell he been their habeas him; employed represent proceedings, we,cannot impose that he could high previous not defend him of his on them standards of the because the same legal negotiations plea guilty; might place but art which we arranged legal profession. been the solicitor and the Price with members judge years 266, 292, Johnston, him to 25 sentence imprisonment early parole 1049, 1063, date. with 92 L.Ed. days later, 16th, On November three We turn first the voluntari was convicted and sentenced appellant’s ness of confession. As each, years five consecutive terms five entirely noted, have it is not clear wheth years twenty-fivl imprisonment, a total of er conviction was on based grand larceny cattle.1 His account plea likely, guilty. or a verdict of More “brought proceeding he *4 plea, it was a will so and we assume County Marengo courtroom, to the seated purpose so, of this discussion. Even ** * attorney with his member each voluntariness of confession is jury petitioner of the was introduced issue, critical for the averments of the immediately twenty-f was sentenced iv£ petition clearly a causal relation indicate years imprisonment.”2 He avers that ship allegedly between coerced con diligence lacking “his counsel was so subsequent guilty. plea fession of and the competence actually he was with- cases, Supreme Of such has Court representation,” out and that the tran- said, prior “Our decisions have estab script allega- verify of his trial his would following (1) lished that: a conviction tions. plea guilty trial or on a based aon of allegations appellant These of the by confession or extorted violence concerning, legal representation his and mental coercion is invalid under the Fed may the voluntariness of his confession * * eral Due Com Process Clause determining However, be baseless. Pennsylvania monwealth of ex rel. Her petition may properly whether his be 116, 118, Claudy, man v. 350 U.S. 76 S.Ct. calling dismissed without for a return 223, 224, 100 (1956). (Empha L.Ed. 126 hearing, obliged and without a we are added.) Citing Herman, sis of the Court Mayo, treat them as true. House v. 324 Appeals for Fourth Circuit has said: 42, 45, 517, U.S. 65 S.Ct. 89 L.Ed. 739 The claim a coerced confession [that assumption, On that we must guilty may properly plea] induced a be alleged determine whether facts corpus, raised on habeas and if it taking liberty amount to a of without proved hearing illegally at the that an process doing due so, of In law. must plea of obtained induced ’the confession be mindful of fact that was guilty, should conviction set be preparing of benefit counsel voluntary aside unless there has been a petition. Supreme said has Cunningham, F. waiver. v. 297 Jones of such cases: 1962). 851, (4th 2d 855 Cir. Prisoners are often unlearned in the law compli- and unfamiliar with the question Thus the is whether pleading. cated they rules of Since alleged act any has of violation federal con- appropriate It be request state that al- Court’s authorities indi- state though power this court has guilty to review pleaded cates that Bell sentences, either federal or state court charges against him and convicted on was imposed legal limits, apparent within plea guilty than rather basis severity year of a 25 sentence description for five pro- after ceeding of the trial. His stealing cases that cattle is a circumstance at which he was convicted cer- credibility lends to his tainly contention this tends to confirm account. plea guilty that the was made after a nothing However, there in the record promise early parole. before us which when reveals Although plea made, light was on is not or sheds clear on the point, surrounding information making. submitted at this circumstances its

247 allega Considering obtaining of safeguards next stitutional receive the principles did not tions his confession. Reliance ap counsel, the of Illi- effective assistance v. State Escobedo established nois, Beto, 1758, plicable v. is stated Williams 478, 12 L.Ed. test 84 S.Ct. 378 U.S. 1965); (1964), State 354 F.2d 698 and Miranda 2d 977 1602, 16 Arizona, 86 S.Ct. general relief It is the rule that (1966), precluded L.Ed.2d 694 ground in- a on final conviction holding Johnson Court’s competent will or ineffective counsel Jersey, S. 384 U.S. State of New granted a the trial was be farce, when (1966), Ct. 16 L.Ed.2d mockery justice, or a retroactively decisions will not these shocking re- to the conscience applied one which such as this cases viewing court, repre- purported respective began dates the trial before only perfunctory, in bad sentation way af- in €» But this those decisions. faith, sham, pretense, or without duty court to con- district fects the opportunity adequate for conference was ob- a claim that confession sider (Empha- preparation. Id. at 704. render under circumstances which tained added.) sis involuntary. In State Davis v. applies cases It test is clear that this Carolina, 384 U.S. North or for in which counsel is retained one decided 16 L.Ed.2d as in which coun- accused well to cases as *5 Miranda, said: after the Court week indigent appointed represent sel an to States, v. United cases defendant. Scott review voluntariness 1964). prior (6th our trial was held to F.2d 72 strikingly Cir. Contentions which the Miranda is to those made here decisions in Escobedo and similar Cunningham, by any presented manner these were in Jones v. not limited (4th 1962). contrary, fact A state 297 F.2d 851 Cir. decisions. On the alleged prisoner not a advised in his habeas that defendant right assigned right had or of counsel to remain silent that his respecting in- en- counsel at the outset entered the case after he had terrogation, guilty; plea required plea had as is now tered a that the significant confession; a in con- a and Miranda is factor followed coerced sidering prisoner of state- there was the voluntariness counsel had advised nothing at for him had later made. Id. could do since he ments he reversing already In at made a confession. 1764. peti- dismissal of the district court’s Malloy Ho- And the decision in since tion, the court said: gan, 12 L.Ed. 84 S.Ct. striking “Especially petitioner’s is the applied 2d the test to be court-appointed assertion that prosecutions is and federal both state lawyer, superficial con- after the most and the confession ‘free “[W]hether making tact with the and without case is, voluntary; ex- must not be [it] inquiry circumstances, into coun- violence, any tracted sort threats defendant surrender because the selled by any implied nor obtained direct given a confession confession—a promises, slight, nor the exer- however ’ ” * * allegedly coer- under and made stress any improper tion influence. legal worthy representation is cion. No Id. at 1493. The at 84 S.Ct. lawyer if the makes of the name investigating de- that the officers states background investigation confession, appellant be- manded * * * plea or of the extra- client’s guilt, frightened and admitted came judicial induced confession which sign con- ordered to that he was then (Footnote plea.” at omit- Id. Surely are circumstances fession. there ted.) demands and orders that under which agree given statement, in our “the with this amount to We confession be principle entitled improper influence.” embodies view exertion concerning Bell have his claim his which must be exhausted are effec- those representation In presently considered. the case tive state remedies which are bar, allegations peti- available, at applicant made unless the habeas has highly conclusory deliberately bypassed tion are in nature his state remedies. way Balkcom, much to leave be desired in the Cobb v. 339 F.2d 99-100 allegations 1964). support factual the conten- There is no contention bearing However, made. tions in mind has done so in this case. Court’s admonition chronological A vari account of Bell’s petitions prepared such the aid attempts ous to utilize his state remedies liberally construed, of counsel must be given According margin.3 kppellant’s we conclude that responses from in state officials to our allegations not so devoid of factual quiries, involuntary the issues of confes support of the substantial constitutional inadequate attorney pre sion and were issues which it as to war- seeks raise (along issues) sented with other state to a summary rant the district court’s dismis- court nobis first coram sal of it. proceeding, and denied after an evidenti ary hearing on the merits the claims. There remains for considera legal phase proceedings No con question tion whether has cerning appellant’s his sev conviction or exhausted his state within the remedies attempts post-conviction re eral secure meaning of 28 U.S.C. At the out § presented appellate lief has been set, principles two should reiterated. be Alabama. courts of First, principle the exhaustion is one of comity, jurisdiction, is con which law, ap Under Alabama allegation ferred of an unconstitu peal from a criminal must conviction Balkcom, Whippler tional restraint. Ala., taken months. six Code of *6 within 388, 1965). 342 F.2d 390 Sec 15, appellant’s Title Section Since ond, Supreme under the Court’s decision remedy 1961, in conviction occurred that Fay Noia, 391, in 372 U.S. 83 S.Ct. obviously not the was available to him at 822, 837, 9 L.Ed.2d the remedies petition he filed his time in the District record from ground The the Court of- imposed, District was sentence and on the pertinent this fers little information motion On that was without merit. question. request However, day, this appellant’s at the of the court denied the same request court, supplied by ground information has been for records on the that following indigent state officials which relates did not believe that he an was sequence appeal ground of was person, events. No taken rec- and on the that all original January from the conviction. On in in case were him ords his furnished to 1964, 7, petition open petition for coram writ of error on his for of er- court writ July 21, nobis was filed in the of 1965, Circuit Court nobis. On this ror coram Marengo County, petition corpus a hear- Alabama. After a writ of habeas was for ing represented at which was in filed the United States District Court attorney an retained for him his Southern Alabama. for District of family, petition petition on Janu- was denied Court The District dismissed the ary 28, April 1965, appel- 17, 26, July 1965, 1965. On for on and denied a motion appeal pauperis filed lant with the court a motion same on leave to forma modify imposed. 1965, 31, August September 13, or reduce the sentence 1965. On 14th, 1965, appellant petition On June filed re- for a second writ of error coram quest copies records, by appellant for of the court’s Cir- nobis filed was in the purpose compelling Marengo “for of an accu- County, cuit of Alabama. Court acceptable 2, 1965, granted rate and coram writ of error On November this court corpus nobis probable habeas within a of a the issuance certificate of and/or jurisdiction.” pauper’s appeal court A oath cause for allowance of this request. July 9, 1966, pauperis. February 9, was filed with this On On forma 1965, petition the motion for or modi- reduction second for writ of er- ground denied, apparently fication was denied on ror coram nobis was jurisdiction change ground allegations court that all of modify inquired fully this more than sentence because therein had been contained thirty days elapsed original petition. since the into in the first such

249 appealing for coram petition for of a limit A denial the six month time Court. nobis peti- coram appealed nobis relief in Alabama. of Bell’s first denial 197, way parte Keene, expired, to obtain Ex 275 Ala. 153 So.2d tion there was pre- again, appeal must (1963). appellate Here contentions 631 review'of months, mat- and “the of Alabama. be taken six sented therein the courts within hearing findings of a coram adjudicated proceedings on ters such Since quasi judicata, “quasi judicata” Alabama, nobis res res application are are petitions e., repeated applications appellate merits reach the i court would resting allegations merely appeal of a subse- on the same from the denial in an quent petition coram nobis should not be entertained.” Allen based on 399, alleged State, Ala.App. 9, grounds 401 The 42 150 first. So.2d same indi- Appeals has of Alabama Court appeal first cated that the failure appel We are convinced grounds re- such denial constitutes lapse now, has since the lant been subsequent appellate review fusal first of six the denial his months Allison, supra, parte proceedings. Ex January for coram nobis relief on So.2d at 437. 28, 1965, entirely without effective remedy difficulty The in the courts of Alabama. in this case The chief right appeal creature six month posed is considered a the fact Alabama, appeal~of of Bell’s period of statute in and the statutes denial January granting strictly proceeding The on first coram nobis it are construed. expiring on appellate days 28,1965, of that insistence of the courts seven lacked pro upon July 21, state meticulous observance he filed when limits) (including States cedural United niceties time for habeas taking appeals court’s is well demon the district Thus District Court. State, July strated in Ala. on Albert v. dismissal State, appel ground supportable So.2d 198 and Relf v. on (Ala.1957).4 Ala. state So.2d 216 exhaust available had failed to lant only remedy However, order to which strict time that court’s remedies. dismissal, inapplicable grounds limits are is the writ did not state the appeal error, remedy perfect an used cannot be did not original with here of Alabama to review *7 conviction, remaining days six of the because com matters two plained proof of confronted period. lie in outside rec are Thus we month 507, parte Allison, Ala.App. disposition to question ord. Ex 42 of what with the date, appeal when the 169 436 used So.2d Nor can it be at this of this make nobis review the denial of his coram remedy to at the time available only This petitions, longer exists. petition it in since is available filed eases, nobis our decision while coram con question criminal is not reached (5th essentially Holman, Cir. Key Ex F.2d 153 sidered 346 civil nature. v. parte Wilson, 439, so upon relies 1965), Ala. 611 275 155 So.2d which State (1963). Thus, apparent heavily once it is brief. in its * * * * * * away 4. a similar A trend strict construc- file such [him] * * * by stating tion be indicated case de- the desire recent * * appeal Supreme petitioner In cided Alabama. Court of to 81, State, Key Holman, Ala. 175 So.2d As we noted in v. F.2d 278 346 v. Keeton 1965), pro- this ten law court held 153 Alabama begin transcript prisoner day period to run after for a for a vides free would taken, appealing post-conviction appeal an in- and that from a denial of had been appeal operative statute, perfect digent at his relief. The Code of could period, Ala., 15, 380(16) months normal six Title Section states time within the pertinent part “may reading petitioner though stat- of the a strict even days judgment within ten disposing after a otherwise. order ute would dictate proceedings adversely to order, By principles this case to at this Court’s The adverted outset Court solu- returned District of this discussion are crucial to the for a question. hear If the exhaustion District Alabama of this Southern tion ing corpus. jurisdictional pre- requirement for habeas were requisite, to have been attached no choice but The affidavits that have would rehearing But are not now dismissal. to this the district court’s affirm comity they Rather, since rule for our not. it is a available consideration it is relating appropriate part in the Dis record courts to were not between ap- Court, power, is not to be since Court’s dismissal and it trict exercise corpus mechanically. plied application dis for habeas hearing. posed Fay speaks still It of “remedies of the case without a v. Noia court, applicant open the time he not the Court at for the files Appeals, application issues to consider the factual habeas Noia, original Fay petition. court.” raised federal (1963) (Emphasis added.) of the exhaus- But the rationale requirements state courts is that

tion opportunity correct have should first constitutionally protected

abuses rights, jurisdic- respective

within their Alabama And review of

tions. since our clearly that no effective indicates

law remedy to Bell in the MUTUAL CASUALTY available LUMBERMENS now Dalton, Ray COMPANY and state, purpose of the of that courts Appellants, principle fur- exhaustion could not be He is entitled thered affirmance. now by federal CASUALTY HARLEYSVILLE MUTUAL to have court, claims considered Au- Farm Mutual COMPANY State pointless require and it would be Company, Appel- tomobile Insurance begin dis- him to his action anew lees. pur- no rational trict court. pose can see We No. 9985. affirming dis- to be served appel- summary court’s denial trict Appeals Court of United States petition. Thus we conclude lant’s Fourth Circuit. dis- this cause must be returned Argued Nov. proceedings. court for further trict Sept. Decided Notwithstanding burden the obvious filing placed on the trial courts motions, post-conviction we consider

helpful suggest useful that it would be include a brief for the trial court to *8 dismissing a of the reason statement for habeas

hearing contemplated in Title

C.A. § further remanded for

Reversed and

proceedings this inconsistent with

opinion. REHEARING PETITION FOR

PER CURIAM: rehearing appli- hereby stay are denied.

cation