*1 Pеtitioner-Appellant, COTNER, O. Charles Superintendent, HENRY, In
Jerome Reformatory, Respondent- diana State Appellee.
No. 16601. Appeals States Court of
United Circuit. Seventh
April
Rehearing Denied May 29, 1968.
Rehearing 29, 1968, May Denied en banc.
874 prior plea
not informed of to his of rendering guilty, thereby his of understandingly guilty not made. void as Jasper guilty pleaded in the Cotner Indiana, July, County, in Circuit Court May in to his wife’s 1965 he “the abominable had committed against crime nature” and detestable Sodomy with her in violation of to not less Statute.1 He was sentenced years than two nor more than fourteen reformatory. petition in the state June, before us was filed in Inadequacy Remedies State in court erred We think the district dismissing petition for failure Cotner’s to remedies. exhaust his state Erbecker, Indianapolis, William C. Ind., appellant. challenges petition the Indi McFadden, Dillon, Douglas John J. Sodomy ana Act as unconstitutiоn Atty. Ind., Indiana, Indianapolis, Gen. of ally vague, invasion an unwarranted appellee. privacy, of marital under the Fourteenth prisoner, A Amendment. state obtain DUFFY, Judge, Before Senior Circuit relief, required, corpus habeas undеr FAIRCHILD, and KILEY and Circuit 28 U.S.C. to exhaust available § Judges. no there is “avail state remedies unless process” able corrective or circum State KILEY, Judge. process ineffec stances which make the appeal This is an from thе district rights. had his If Cotner tive judgment dismissing court’s Cotner’s to raise under Indiana law corpus petition challenging habeas “any point procedure” available constitutionality Sodomy Indiana urges here, exhausted his he has not Statute under which he had been to re and is not entitled state remedies victed. The court dismissed on the Cir., Dowd, F.2d 128 lief. Jones v. grounds that Cotner had not exhausted petition state remedies and that his argues not that Cotner has State had no merit. cоmplied he did 2254 because with Sec. We reverse because we have concluded present not his constitutional adequate that Cotner no method for by way of the Indiana courts either raising argument un- constitutional procedural nobis, appeal, motion coram belated der Indiana rules and because Superior Court under Indiana new trial we have also concluded that is a there 2-40, the con- Rule or motion vacate questiоn substantial as the constitu- guilty. plea of viction and withdraw tionality Sodomy of the Indiana Statute argues reme- applied that these however in this case which Cotner Cotner was Burns’ mankind detestable Whoever allures, tion, shall be deemed commit masturbation Ind.Stat. Oh. instigates or commits age crime beast; twenty-one or the abominable or whoever 169 Sec. 10-4221: aids or nature with any person [21] self-pollu sodomy, entices, years and, less than nor more than prisonment [$1,000] [14] than one hundred years. two conviction, to which [2] nor more one thousand may shall prison dollars than be added be fined fourteen not less dollars [$100] im- absolutely does in this for his tion the manner that he ineffective” dies “are petition. think, corpus habeas ever, how- purpоse. must our decision that we base pleaded guilty, Since Cotner today, upon rather the law as it stands position was no appeal, Snow v. changes conjecture than on about future State, N.E.2d and in that law. *3 coram nobis in was abolished in Indiana by
1963
amendment to Rule
Id.
2-40.
Questions
Constitutional
upon
plea
Since the conviction was
the
guilty,
properly
of
“he cannot
file a
Indiana
the
Cotner attacks
trial,
motion for new
as there never was
ground
Sodomy
it
on' the
that
Statute
trial,
meaning
а
within the
of
stat
the
I,
12 of the
Sec.
Indiana
violates Article
* *
Indiana,
ute
210
v.
Pritchard
Constitution,
Fourteenth Amend
and the
372,
N.E.2d
Constitution,
of
ment
the United States
because,
vague
ap
as
is
and
because it
Despite ambiguous language Koeр-
in
right
privacy
plied, it violates his
of
1039,
Hill,
172,
ke v.
Ind.
60
157
N.E.
Supreme
decision in
Court
1041,
Supreme
the
of
in
Court
Indiana
Connecticut, 381
of
Griswold v. State
Grazer,
68,
Dowd
233
116
v.
Ind.
N.E.2d
1678,
479,
L.Ed.2d
14
U.S.
85 S.Ct.
108,
corpus
that
is
held
habeas
not avail-
Supreme
the
Court
510.2 In Griswold
prisoner
able to a
tо test the constitu-
right
recognized
to mari
a constitutional
tionality of a statute because a convic-
right
privacy
is
that
the
and held
tal
tion,
statute,
even
an unconstitutional
imposition of criminal
violated
the
merely
jurisdic-
is
not a
erroneous
control
the
of birth
sanctions for
use
tional defect.
import
couples.
devices married
private,
is that
of the Griswold decision
suggested
There remains
the
pro
are
consensual,
relations
remеdy
marital
judgment
of
to
motion
vacate the
regulation by the state
from
plea.
Supreme
tected
through
the
withdraw the
But
penalty.3
criminal
use
a
the
of
Court of
holds that
motion
Indiana
this
must be made within the term at which
appellate
in Indiana
court
No
plea
State,
the
is entered. Snow v.
interpret
opportunity to
the
had
has
the
423,
471;
469,
199 N.E.2d
Sessler
light
Sodomy
its
in
Indiana
Statute
State,
851;
v.
222 Ind.
N.E.2d
privacy of
potential application
the
to
State,
Kuhn v.
222 Ind.
52 N.E.2d
Indi
couples.
Griswold
married
Under
plea
491. The term at which Cotner’s
interpret the statute
courts could not
ana
was entered has ended.
making private
constitutionally
con
as
argues
mar
physical relations between
Indiana
that
sensual
Cotner
persons
show
precluded
claiming
absent a clear
ried
ing
a crime
should be
now from
an interest
he
had
has
his
the
exhausted
Indiana remedies
that
state
relations,
attempt
out
preventing
he
which
because
post-conviction
has made no
such
to seek
right
weighed
mari
relief
constitutional
in the
the
Indiana
might,
privacy.
courts
possible that, despite
Indiana
courts.
present
It is
the
tal
however,
law,
as
statute
state
construe the
of Indiana
had Cotner
couples
sought
or as
inapplicable
relief in
to married
Indiana
would have
be-
permitted
outlawing
physical relations
been
his
such
convic-
standing
Penal
Institute Model
think
Law
that Cotner
has
American
consensual
the view that
adopts
into
about
Indiana’s
intrusion
Code
complain
marriage
between
adults
conduct
rela-
sexual
privacy
private
the
of Cotner’s
subject
crim-
though
be
ordinarily
tion, even
his wife has made
should
agаinst
many
as
Illinois,
well
him.
It
inal
sanction.
complaint
is essential
adopted
approach,
has
privacy
states,
preservation
other
joined
although
standing
yet
not as
Indiana
a husband have
that
in-
the marital
bedroom
unlawful
trеnd.
trusion.
only
couples
respectfully
when accom-
I
tween married
Cotner did
dissent.
plished by
opportunity
the latter
Under
force.
have the
to withdraw
interpretation,
judg
protection
plea
and move that the
not be аvailable
Griswold rule would
ment be
term at
vacated within the
showing
that
was a
Cotner if there
which the
He failed
was entered.
employed
remedy.
force.
Cotner
to exercise
a
that
Faced with
problem,
Circuit,
similar
the Fourth
wifе,
charged by
Cotner was
Whitley
Steiner,
293 F.2d
affidavit,
“* * *
an
with
commission
(1961),
stated:
Where a
sodomy.
an
con
act of
The affidavit
asserting
prisoner,
con
a denial of
He
tained no
force.
used
rights in
stitutional
connection with
*4
prosecuted
was
under a statute which conviction,
remedy in the state
a
prohibits sodomy but which does not
it,
court
but fails
avail himself of
explicitly mention force
no
and which
a
and later finds himself without
requiring
Indiana court has construed as
remedy, may
through
redress
have
applied
couples in
force when
to married
corpus.”
also Brown
federal habeas
See
privacy
circum
the
of the bedroom. The
Allen,
443, 482-487,
73 S.Ct.
v.
U.S.
present
stances revealed
the
reсord
(1953).
397,
marital bedroom Peckham, Pittsburgh, Critchlow, Flick & sion.” Pa.; Philip Russell Fos- and T. Wilmeth ter, C., brief) appel- Hartsville, District Court. on
I affirm S. would
lants. Pittsburgh, Blenko, Pa.
Walter J. (Frederick Ziesenheim, Arland T. Stein, Buell, Blenko, Leonard & Pittsburgh, Roddey, Pa.; T. John Hill, Roddey, Carpenter, Rock Sumwalt & brief) C., Henry S. and Wm. Venablе appellee. COMPANY, Appellee, BLAW-KNOX HAYNSWORTH, Judge, Before Chief *5 BUTZNER, and BRYAN and Circuit MILL and the French OIL HARTSVILLE Judges. Company, Machinery Appellants. Oil No. 11680. BRYAN, Judge: ALBERT V. Appeals Court of United States extracting Means and oil methods Fourth Circuit. soybeans cottonseed, by from use Argued Feb. solvents, subject patent are 2,840,459 No. June April issued Decided assignment George Karnofsky, B. Company, Pittsburgh,
to Blaw-Knox Pennsylvania. Under it Blaw-Knox (BK) manufactured the Rotocel extractor Machinery and sued Frеnch Mill Oil infringement Company, Ohio, Piqua, by product pat- French’s from fashioned by 3,021,201 procured ent No. Charles Upton, February 13, The Dis- 1962.1 upheld patent trict Court BK’s validity French’s on its counterassault infringer. and also French an found finding disagree only on the infringement. plaintiff not con- did patent Upton. tend that Reli- read on its put solely ance was on the doctrine of equivalents, Upton’s equivalence of but Karnofsky proved. was not principally in
Oil of kind is used margarine, salаd oils the manufacture of shortenings. solvents Extraction commercially about successful was first begun against installation tract sale and Hartsville suit was Hartsville, for Hartsville. French an extractor Oil Mill at South Carolina. stipulated French shall It has been intervened fulfillment French patent protection provision be the real defendant.