Edward Morgan MacKenna v. O. B. Ellis, Director, Texas Department of Corrections

A payer benefits tion.6 some controls deduction admits the retains effect right interest, escrow, liability. existence of as the Here (2) taxpayer simultaneously If dividends, it de increment. asserts and liability, nies sound, amount were the entire the whole existence of deductible; just deposit adjudica not which was in doubt until final should (3) litigation. judgment. Ac- tion of the the amount of the ceptance To allow Texas argument Railway allow Mexican would to accrue and deduct surety hav- taxpayer party, judgment a third amount of Bunn’s in 1953 give ing claim, completely determine would no intcrst reflec distorted report- accounting, taxpayer’s tax tion year. the ing, taxability. of the railroad’s that income for doctrine escrow The application to of relation back has judgment The is escrow, party one is not who government Reversed. administer- much less to the ing tax law. temporary loss deposit characteristics of

of a and other do not lessen the fact

some escrows liability taxpayer’s in contested, uncertain, this case contingent dur- final until escrow and term of the litigation. adjudication of the claim in Commissioner As Court said Morgan MacKENNA, Appellant, Edward Ex- Southeastern Internal Revenue v. press, Cir., 1932, 600: “A 56 F.2d Director, ELLIS, Department contingent claim, especially a con- O. B. Texas mere Corrections, Appellee. may gain, one, loss tested whether realized; is too No. 17213. it never be sustained making up considered uncertain to be United States Court of an income return”. tax Fifth Circuit. say may taxpayer We do not Jan. 1959. liability unless admits accrue a Rehearing 1959. Denied March may excep- absolutely. There be some contingencies liability when is tional reasonable limits and

calculable within liability highly is so

the existence of

probable the reasonableness of govern

expectancy should accrual.5 this case.

That inquiry basic is whether taxpayer’s accrual of the

presents a or a distorted true reflection To for 1953. obtain a deduc

of income

tion, taxpayer has the burden of he is entitled a deduc-

proving that Argument Griswold, against & Lumber An 5. See Tie Co. see Continental But States, 1932, Doctrine Deductions Should be S. United Leg- narrowly aas matter construed Ct. Grace, 56 Harv.L.Rev. islative (1943). Morgan MacKenna, pro. Edward per. Atty. Gen., Shivers,

Linward Asst. Atty. Gen., Timmins, Wilson, B. H. Will Atty. Gen., appellee. Jr., Asst. HUTCHESON, Judge, Chief Before WISDOM, and RIVES and Circuit Judges. Judge.

RIVES, Circuit appéal This is from a final declining grant either to the Writ of Corpus or to Habeas enter an order to judge, The district show cause. believ- Ap- merit, de- affirmed Criminal peals opinion reported in proceed in forma of Texas in an it to to allow clined 1915, 28 MacKenna v. S.W.2d 657. On Title pauperis under Section 14, 1957, Supreme October of U.S.C.A., the to issue a cer- also declined and the probable United States denied the defendant’s under Section of cause tificate petition certiorari, 851, However, April for U.S. of said Title. 2253 4, rehearing consisting 70, 55, Court, denied panel L.Ed.2d of this Jones, Judges Rives, 2 L.Ed.2d 116. Tuttle, and of Meanwhile, July 30, 1957, granted probable cause the court of a certificate of original right jurisdiction had, pauper- appeal hear- in forma without the ing, petition corpus. denied for habeas is. On October the Court of Crim- 5, 1955, indictment On December an permission inal refused of Texas returned in Criminal District the corpus, to file writ of habeas without Texas, charging County, of Dallas opinion. appears written It Mac- in substance: Kenna has the exhausted remedies avail- “ * * * Edward Mor- that one able in the the Courts of State of Texas gan 18th MacKenna on or about the required by as 28 U.S.C.A. § year of October in of our the peti- On December he filed his Lord One Thousand Nine Hundred corpus tion for habeas in the United County and in the State States for District Court the Southern aforesaid, unlawfully did and fraud- of In District contrast Texas. to most ulently camera, take of the value one petitions se, pro pau- filed in forma $225.00, case, of of and one the value peris, extremely this one was well writ- $25.00, all is of the of which total considerable, though ten and evidenced a aggregate the value $250.00 faulty inaccurate, knowledge times at fifty dollars, value the same explanation probably of law. The lies being corporeal personal proper- transcript in facts disclosed ty Squire pos- from Haskins upon evidence taken crim- MacKenna’s Squire session of the said Haskins proved inal trial. There it was that he consent the said man, years Tulane, is an educated two at Squire Haskins and with the intent years graduat- Northwestern, and two at deprive Squire the said Haskins ing from Northwestern and since thereof, value and with the then, working for a number of news- appropriate intent to it to the use papers becoming a feature writer for him, and benefit of Morgan said Edward periodicals. Also, several on cross-ex- Against MacKenna. amination, MacKenna admitted peace dignity of the State.” long had a record of no less than seven previous jury convictions for crime. Asked On October in said finding on re-direct examination whether he Court returned its verdict explain jury guilty charged would care the rea- in the in- crimes, assessing son for punishment the commission of those dictment and eight (8) years MacKenna peni- answered: confinement in the tentiary. Upon verdict, judgment “Yes; Overindulgence. alcohol. day. conviction was entered on the same 1953 I been a Since have member of November On said Court overruled the expected A.A. two the members defendant’s motion for new trial and up today. of A.A. to be here Unfor- sentenced him then confined tunately, they here, not able penitentiary less than two to be here.” eight (8) years. more nor than consistently guilt He has denied Acting pro se, perfected the defendant camera and theft case. His judgment testimony upon convic- trial was April 3,1957, substantially On tion. accord with the more pocket, opened petition took the locker and statement succinct Pope the case. Officer then corpus, out viz..'

habeas case, exposed opened camera 1955, petitioner in- October, “In petitioner told he would advertently came into ‘ * * * go have downtown which, deter- camera an encased explain it.’ acquisition, subsequent mined City prior “Petitioner was taken to com- apparently stolen charge peti- of theft Jail booked on a possession. The into his camera, camera.” nor the stole the tioner neither ac- when was stolen did he know it conviction The evidence to sustain his peti- left quired. camera was The possession consisted of his recent acquaint- by possession an tioner’s property. stolen discovery the ance, upon and being peti- Upon presented with the com- Dallas of a name and address court, corpus, tion for habeas the district photographer the bottom mercial citing Ellis, Cir., 1952, 194 Baker F. v. case, petitioner realized of the requiring 2d an order entered the property hands. on his stolen respondent file a full and detailed an- to thirty giving days the swer within petitioner and petitioner than 2 weeks “For more opportunity reply to that way an to attempted return to find a to filing respondent’s rightful owner, answer. After the to its camera the petitioner’s reply, after answer considering jeopardy For himself. to of the the record thus made petitioner adequate was reason— answer, petition, reply, district the pardon Texas from the a Governor’s Penitentiary grant the court declined writ petitioner at the time— cause order. enter a show camera in a return could the open to one unen- grounds manner upon normal handicap. by substantially such a corpus cumbered seeks habeas may briefly four, two of which dis- thought searching days of “After posed of as without merit. finally the petitioner to see decided safely in its owner’s back camera (1) Appellant that his claims by placing rental in a it conspiracy conviction resulted from a mailing key the the locker and prosecution. His sole contrived ground owner. expressed claim in a that is petition his “Putting plan action, pe- “Note” to follows: into this brought camera and titioner signifi- “(Note: feels Petitioner into Bus Terminal the Union case point call at- cant to the morning of Novem- in Dallas on of this Court the both tention fact 3, 1955, placed the case contain- ber assigned by Court, counsel locker, the camera in a rental days Octo- the trial of within key locker, pocketed locked the 2,1956, work in ber went to the office drug- stepped adjacent into an Attorney District Dallas buy special delivery stamp. store County district attor- as assistant neys.)” drug- “Upon emerging from the That, course, petitioner of a averment store confronted and suspicion comply policemen— mere and does not stopped two Dallas 9(b), Pope, Rule Federal Rules of Pro- Civil civilian clothes Officer U.S.C.A., requiring off-duty, Wise, cedure, the cir- and Officer uniformed constituting any assigned claimed bus cumstances man terminal. particularity. Pope, petitioner by stated with to be who knew fraud Officer name, petitioner of the examination record dis- sight full Our told ground suspicion arrest, him, no substantial closes under searched conspiracy, any key petitioner’s and we have from removed integrity and Salinas 159 Tex.Cr.R. either to the doubt as attorney coun- MacKenna of defense S.W.2d 388.” prosecuting State, 1957, sel. he was (2) Appellant that claims If we assume the arrest key lock- illegally illegal, arrested and search were are nevertheless we illegal person an his opinion er removed admission evi- objec- overruling search, dence in a State the fruits court of finding illegal camera pre- tion to the Officers search State testify him to locker forced sents no substantial federal constitution- subjected to cross- defense, own question. People al Wolf v. of State long disclosing previous examination Colorado, 1949, 25, 69 record, thereafter and that 1359, 93 L.Ed. 1782. foregone conclusion. conviction was grounds remaining two of Criminal The Texas Court as follows: which have are: more substance answered that contention appellant, trial court forced the “ * * # having Appellant, ad- objection, accept representation the camera mitted court; appointed by (4) counsel position com- was in no given oppor that he reasonable was and admission plain of the search tunity presence to secure the and testi Soble in evidence. the articles Tex.Cr.App., mony of his witnesses.1 petition: alleges petitioner quiet Appellant in Ms ordered to be Cormack “Now, petitioner committed to was and to down. sit County “Shortly thereafter, young March Jail on two men Dallas on the indictment, supra. charge petitioner in came over to where sat in the following during courtroom, six times themselves as Col- Three months—once introduced April, May, they in each had been lier and and stated Tucker appeared represent petitioner’s appointed name him. the court to June — official just They they of the Criminal Dis- court docket were out of also stated ap- County they for of Dallas and that had trict Courts SMU Law School jury pearance in to answer said indict- had a they trial. As a never before mat- every only fact, Each and time the sched- handled ment. had one ter postponed guilty appearance plea prior was the week uled case—a explana- request prosecution; no before. petitioner petitioner, minutes, none was offered to could tion “For about boys obtained. talked in the courtroom. these two hand touched on case at was days “Finally, after 6 and 18 months superficially. Petitioner indicated in no County petitioner Jail, was in the Dallas verbally writing, way, or in either appearance again for in court slated once willing accept them as counsel. September 28, date, (cid:127) —on 1956. On this petitioner talk, the brief was taken After petitioner time, first taken for the County Jail. back to the jail to Criminal District from the Court day later, on October “One court 3.No. slightest 1956, without the word of warn- ap- “Tlie sum and substance of this ing, petitioner was summoned from the Judge pearance was as follows: Mc- County Jail, taken back to Court and bench, ascended the beckoned Cormack tried advised he was to be forthwith. petitioner forward and asked if he had immediately protested “Petitioner there represent Mm. counsel to Petitioner re- notice been no advance whatsoever had stating plied affirmatively, that he was trial, so that the defense witnesses (sic) negoiating with a Dallas attor- Petitioner be notified. asked the could Henderson, ney, Mr. Ben to handle the assigned continuance, counsel to move for ado, Without further the Court case. ground defense on the were witnesses petitioner appointing it was informed notified, present and had not been represent him. counsel they petitioner reply, in advised objection raised “Petitioner immediate already done so and that the had action, protesting Court’s had refused the motion. The trial had assignment counsel, asked they added, neither nor held, because another assigned. Judge orginally date, want did he counsel Mc- scheduled for that judg- September 28,1956, Upon “On scheduled appearance conviction, presented District in MacKenna Criminal ment again, Exception after stated to Court No. once ten formal Bills County days conformity up months Jail, in with the and 17 be “drawn provisions was taken to court of the Code of Article 760 Tex- time. the first Criminal Procedure of the State as,” upon entered the the court (Dwight L. McCor- “The Court following order: mack, Judge,) if he asked defendant represent De- had counsel to him. foregoing formal Bills “The ten negotiating replied fendant he was presented Exception me were to choice to with counsel of his own writing by defendant, Edward handle case. The Court then Morgan MacKenna, person, on informed it was defendant that January, A.D. the 25th this counsel, protest, pointing and- having ex- and the same been proceeded to do so. having amined me and Court, there, open “Then and me State, counsel for submitted to exception the defendant took cor- are found to be the same action.” hereby allowed, ap- rect and are strongly exception signed sus- proved, That filed as tends and ordered designat- ground part tain the which we have record case. apparent (3). reason, , ed For some Brown Joe B. “/s/ Ap- us, “Judge, to peals Texas of Criminal District Criminal exception in did deal with that (301 657). opinion County, 3, S.W.2d In “No of Dallas urges: appeal, appellant on this brief Texas.” “ * * * Appellant neither de- I, Exception found to be correct so Judge sired, asked, nor McCormack court, approved reads allowed assign counsel; appellant to defense follows: himself. would have defended rather “Exception I least, appellant defended At committed to the “Defendant was himself, would have been certain 12, County March Dallas Jail present defense were witnesses 1956, numbered indictment on the for the trial!” ensuing months, de- In 6 above. The defendant was entitled to appeared offi- name on the fendant’s opportunity fair to secure counsel of three times—once cial court docket Here, however, than choice.2 more own May July April, each in —for months after his arrest and when six appearance in District Criminal prevent was no claim that he was there ,3, answer said indict- No. to communicating counsel, ed from apparent reason ment. Without negotiating stage. had reached explanation, defendant was without proceed was not error for the It court any to court on not taken such counsel.3 without any occasions, other oc- noted states, exceptions during The bill 6 the stated month casion period. court, however, protest, pro- that the Alabama, 1932, post- American, 2. Powell v. State of 287 had been of a Latin that poned - 55, 158; inability 53 S.Ct. due to the Court 979, p. petitioner’s § Criminal Law 318. interpreter, 23 C.J.S. and that find up.’ ‘moved Petitioner had been trial 1941, States, App. Neufield v. United 73 very for continuance —the asked himself 174, 375, 383; 118 F.2d Harris v. D.C. petitioner request in this made first 1957, 612, States, Cir., 5 239 F.2d United 615; Court re- for continuance —but case States, v. United 95 Moore jury request and ordered the fused U.S.App.D.C. 92, F.2d selected. trial was launched.” “And the ceeded ant. The mentally competent, on his own assistance duct sel on the defendant Clearly, the services refuse to truth or Walker v. tion of due petent self as follows: also “found to be correct allowed entitled to pointment of who wished to was to be tried forthwith. fendant has never theretofore asked ment of another ber been ‘moved had for a continuance in the ant was taken back to court on Octo defense counsel Court advised defendant Johnston, 1942, justified in mentally competent, to defend and, instead, require for habeas “Defendant him to Exception which the trial court counsel, asked for time process we (and) approved defense appoint defendant, “Two court permit the Johnston, 1941, 312 U.S. falsity skill think, to contact the counsel; L.Ed. 1302. “Exception II and advised his trial had hearing up’ inexperienced and incom- as is corpus. counsel, above, imposing appear protested II, counsel a continuance. De- because of law it would appointed by the trial, had a person being alleged ability accused, L.Ed. against his will.4 days to ascertain in his for the assigned coun- * * cause. he had not sui right be a and to witnesses 830; Waley postpone after they allegations. defense, court defend juris sui * * * defend- accept denial ap juris peti- him- con- rely was pleading disposed ticle none of the cedure) were met Continuance that, “Appellant ence of a (of the Texas Code of Criminal Pro- not shown therein. Pena v. proceeded tinuance’, The Texas Court the witnesses who wished to Tex.Cr.App., plication in his defense and asked for a con- 27 S.W.2d 217 and Chavez v. liams v. certifies that on the ed 147 Tex.Cr.R. his residence is not known. to state: defendant for for a be account authorized and it shall not be considered suffi- cient shall and his “While subpoena, in cases where the law "Art. “In the first “2. The “1. The name of the witness reads: he had not issued, application appellee used be diligence the Court’s failure to residence, 5A3. necessary, witness, State, requirements Bill the absence of a or to have an attachment procure insists in brief diligence order to secure the exception ^[608] bill is had time to contact to have caused to 115 Tex.Cr.R. for continuance is application by * * of Criminal for the reason that appellant Exception if if the same be on ^[597] continuance, known, insufficient as precluded S.W.2d of Article 543 applied for, as follows: 1095; attendance; which has First to issue. ‘protest- witness, or that That No. appear (page 9) State, grant 85.” Wil- pres- II Ar- continuance, moved for but that the expected The facts which “3. had overruled the motion. proved witness, and it appear they there, open to the court must “Then excepted.” are material. defendant Compton v. Tex.Cr.R. United Adams v. States ex Mc rel. 582; Cann, 23 C.J.S. Criminal 148 S.W. 979, p. 317; Am.Jur., 268; Law Crim- § United States 169; Annotation, Brands, Law, Cir., 1957, inal § Private A.L.R. 250 F.2d Simpson 554, 557; State, 1941, 853; Tex.Cr.R. “That he have testified ab- would is not the witness That “4. trial of said in the behalf defendant procurement of consent sent issue, had there been of the above defendant. of the tri- notice of such sufficient advance application is not That the “5. arrange deponent his busi- al delay. made ap- so as to be able to ness matter pear reasonable is no That there “6. testify in behalf said of the expectation attendance defendant. during the secured be witness can the trial “That advancement of post- of court present term 2, 1956, on the date to October some future ponement of trial to morning 1956, pre- of October day The truth term. of said deponent appearing and cluded application, any subsequent first, or testifying in behalf of said defend- ground merit of as the as well * * * ant, sufficiency and its therein set forth deponent “That believes such tes- dis- the sound addressed to shall be timony might have offered would pass" called of the court cretion weight jury have carried with the same, upon not be and shall trial, testimony at said and that the right. If granted matter of as a would affected have the verdict application be for continuance jury. said overruled, con- and the defendant deponent testify in “That will be- upon victed, appear the trial if it defendant, half of said if said de- witness evidence that the granted fendant a new application named in the witnesses the above-entitled issue.” character, and of a material was facts forth in said set Davenport’s Madonna Orth affidavit true, probably plication a new were following effect: granted, and the trial should day “That on the 18th of Octo- postponed to a cause continued ber, 1955, legally-wed- she the same term.” future having defendant, ded wife of said theretofore, married said defendant re and technical detailed Such marriage being with said recorded continuance, quirements motion for of a County Clerk, Office in the salutary purpose doubt, serve County, McKinney, Collin Texas. justify case, proper cannot but when he putting to trial deponent did, “That on each and given opportunity fair through has been every workday, Monday witnesses. the attendance his secure during Friday, inclusive, the month going any event, record outside the In October, 1955, drive to 2218 contradicting the record are and even Street, Dallas, Harwood North flimsy grounds justify a denial to too employed said where defendant was important constitutional Printing Company, Wholesale at the 5 rights. ranging from 5:00 at times to 5:30 PM, pick up said defendant and him- record MacKenna shows that home, then drive said defendant at testified witness who was the self Street, Dallas, Texas, 5328 Rowena on the trial. defense in his they shared. new de- his motion for With deponent “That and said presented defend- of sever- the affidavits fendant together spend witnesses, ant did each and all but one of which affi- al evening during every following the month of effect: were to the davits opinion Massey dissenting Moore, 137, Ashe, 1951, 134, 5 v. 342 U.S. Palmer 5. 665, 671, Cir., 1953, 154; 191, 205 F.2d reversed L.Ed. Johnson 96 S.Ct. 72 145, 105, 468, 458, 464, Zerbst, 1938, 75 S.Ct. 99 348 U.S. L.Ed. 135. 304 U.S. 1019, also 82 L.Ed. 1461. See 58 S.Ct. ber, (R. 64, Appendix specifically ‘C’ October, and this 19.) p. evening October includes the “Dr. Anderson, Jr., John F. Pas- tor, Presbyterian deponent defend- Church, and said First “That Dal- go las, being together, could ant, did not and would have testified calling as to on even- Bruner, Fair Grounds the State Fred then Chief 1955.” October Assistant District Attor- ney of County, Dallas to demand succinctly brief, appellant sum- In his polygraph obtain a ap- test for have been claims would what he marizes pellant. Further, he could and witnesses, testimony he had if of his would he, have testified Dr. given produce opportunity Anderson, subsequently notified them: Mr. Bruner that Chapman, bookkeeper at “June successfully passed lie said detector Printing Company, Wholesale Further, test. Dr. Anderson could Dallas, Street, Harwood 2218 North and would have offered favorable appellant’s time on the basis testimony appellant’s as to charac- 18, 1955, Tuesday, card of October ter, (R. his home and church life. payroll records of that 64, Appendix ‘C’,p. 16.) company, have tes- could would “Major Moss, Kenneth E. Volun- appellant was work at tified that tary Supervisor Parole P.M. on A.M. to 4:35 from 8:00 County Dallas, Army Salvation Tuesday, 18, 1955, date October Dalton, and Mr. William Parole alleged theft. County Officer in and for the Chandler, Editor B. “Mr. Ward Dallas, could and would have offered would company, could same testimoney (sic) vital and material testimony from vital offered have identity as to the existence and personal records the individual who the stolen left corrobating (sic) knowledge, appellant’s possession. camera in during work, appellant was at fact Further, they could and would have above, on the period noted time testimony appellant’s offered character, as to theft, alleged October date home life Further, Mr. Chandler 18, 1955. adjustment society. (R. 64, Ap- offered (sic) have would have could pendix ‘C’,p. 18.)” testimony as favorable is, course, fundamental character, It and social work pellant’s ‘C’, process with 64, Appendix there can be no due (R. relationships. hear reasonable notice and a fair 17-18.) out pp. Twining Jersey, ing. v. State of New (now MacKenna, Orth “Madonna 78, 111, 211 U.S. S.Ct. Davenport), 301 Orth Madonna 97; Snyder v. Commonwealth of L.Ed. Texas, ap- Garland, Drive, Wallace pellant’s Massachusetts, 1934, time, could wife at 674; Oliver, In re and ma- vital offered have would showing testimony she that terial Judge Biggs said for the L.Ed. 682. As place up of at his picked Hague in v. Committee for Third Circuit Harwood North 2218 employment, Organization, 1939, 101 Industrial F.2d afternoon Street, work on after 774, 782: 1955, 18, her un- as was October of “ * * * op- He custom, must have the failing she drove him portunity heard and to call spent home, the remainder she evening him, in own defense. This witnesses with very process go (sic) essence due specifically they did not by prescribed grounds, the Fourteenth law as the scene Fair State State of alleged theft, Amendment. Powell v. 18th of Oeto- on the 44

Alabama, 68, 45, 287 U.S. 53 are continue to hold to our federal 55, 158, 527; system, they 84 A.L.R. cannot in law and ex- fact Snyder They by making v. Commonwealth of Mas- ercise. do this habeas sachusetts, corpus proceedings brought U.S. by 54 S.Ct. persons 330, 575; custody pursuant L.Ed. 90 A.L.R. in judgment to a aof Ballard, D.C., court, United States v. state serve the office of a second F.Supp. 321, appeal. Only 325.” this time the is to the federal courts to be considered and Appellant judicial is entitled hear- by determined there exercise of falsity to ascertain or the truth supervisory kind of super appellate allegations process as to denial due jurisdiction gov- over state courts not designated ground (4), in what we have erned clear and settled rules ground (3). as well as Walker John- personal standards opinion but ston, Waley supra; Johnston, supra. particular reviewer, whether in a judgment is therefore reversed particular provisions instance he thinks pro- and the cause remanded for further governing prose- state laws criminal ceedings opin- with this inconsistent cutions, proceedings had in state ion. respect thereto, courts in do do Reversed and remanded. up measure proc- to what he thinks due requires ess the state under HUTCHESON, Judge (dissent- Chief vague, very conception obscure fluid ing). process of due thus stated in Betts v. Brady, page 316 U.S. at S. brought by proceeding If this were page 1256, Ct. at 86 L.Ed. 1595: custody of a one in under corpus habeas federal to obtain “Asserted denial is to be tested my differences with Sec. 2255 relief and appraisal totality colleagues whether, my out of as given arose facts in a case. That which they appellate court, had taken may, a federal setting, in one constitute appellant’s merits a view denial fairness, fundamental agree, claims, I shocking could not I with which to the universal sense of con- not feel disturbed. would justice, may, would circumstances, in other stating myself simply dis- light tent and in the of other considera- that, plainly appears tions, from the sent as fall short of such denial.” Cf. opinion, them in statement of Crooker v. California, State of merely er- claims asserted are claims of page 441, at page ror which under settled law at 2 L.Ed.2d 1448. and elsewhere must circuit be asserted statement and It is this the flood of ac- grounds by appeal, that, for the asserting decisions tivist federal under extraordinary corpus, relief of habeas jurisdiction it federal over state court they wholly insufficient, are indeed are judgments in criminal cases which is at patently This, however, frivolous. is not feeling legisla- the root of the of state such a case. tures, judges prosecu- state and state contrary, tors, judges On the it is usurping another of the federal growing authority jurisdiction they number of cases in which fed- do not courts, appellate asserting and, eral a kind of and makes them have wonder won- legal superiority respect dering, moral and these, ask on what meat have legislatures provisions judges, made state our federal fed that have regarding great. pro- grown Burford, trials and the so Cf. Darr v. ceedings respect pages 210, state courts they trials, have, particularly such do not seek suzerainty hegemony quotation a to exercise in the note from statements which, by Judge them under the late lamented the Constitu- John J. tion, they have, and, Parker, serving do not now if we made while as Chair- Preliminary precise Cor- to a consideration on Habeas man of the Committee pus presented questions the of the to and de- of of the Judicial Conference by court, point opposition cided the in United States: majority’s statement, to the that the de- “ * * * thing mind in in persistently fendant asserted his inno- drafting was to of section the provide this cence, appears to first fact that it the court of state that review from the record defendant took that the only possible far as action had so the on stand the trial of the case to by Supreme of the United the testify on his and there ad- own behalf States, action of whose review such mitted that he was a recidivist with basis, and review has historical long criminal record of no less than by federal be had the lower previous too, point, seven convictions. I courts, power of whose exercise explain to the fact to that when asked likely unseemly breed of cam- recent the stolen dangerous jurisdiction. of conflicts era, patently he made the false state- ” * * * “Limiting Parker, the days that, 13th, on ment October five Corpus”, of 8 F.R.D. Abuse Habeas prior when, 18th, to October the 171, 176-177. undisputed evidence, under the the cam- of the the views disappeared deference to With era from car the of case, clear majority it seems parked in this owner had who it near the State they have jurisdiction Fair in Grounds had at the Dallas—he me that they company fair the in the of an unnamed sought the decision exercise and penitentiary acquaintance of his who in facts upon claims the have made carrying camera; the and that when keeping the with not in are camera, departed he left this man the above, but principles set out views picked up the and the defendant it with thereto, also this repugnant as is returning of owner. intention it to its require- opinion of the in the criticism holding that, after He further stated: Texas Code ments Art. weeks, of his for about two because Procedure: Criminal governor’s out record—he was bad re- and technical the pardon detailed a former conviction “Such going po- quirements for con- a motion his fear of to the time—and salutary tinuance, doubt, put lice, serve a it in a locker no decided to case, proper anonymously owner, purpose but in a whose send justify putting camera, key a defendant there- cannot the the was on name given making journey that, to; he has been when while to trial opportunity apprehended locker, to secure at- he was fair to the police. of his witnesses.” tendance acting committee, claiming courts, concert consti-

1. This federal Attorney rights denied them the United had been General tutional only although representatives courts, and with state States peti- insignificant number of these of Chief Justices Conference an successful, they States, im- of States At had been of the Association tions unnecessary torneys General, posed burden on the of the Section of an greatly inter- American courts Judicial Administration federal pro procedure Association, state later submitted fered with Bar posed 2254, Title amendment Sec. courts.” provided bill, therefore, U.S.C., developed by committee with committee’s things among representatives, approval de- that “an order other application Proceedings reported nying a writ the 1954 corpus by person meeting Conference, cus- habeas of the Judicial Sec. pursuant tody p. a state 22: 22-24 at many be reviewable shall found that “The committee Supreme persons writ certiorari state courts are convicted (Em- seeking penal United States.” release from state in- phasis supplied.) corpus writs of habeas stitutions court, objection, appoints the record also shows that over his The perfected appeal from the counsel to sit as- took and confer with and and applied Certainly sist of him. conviction and none of the cases majority the support to of certiorari in of its view denied a writ cites Court, They recognize Supreme that, so hold. the all while United States though repre- right that, a not defendant he stated he was has a conduct his to complain counsel, judge compe- own not case if sented he did the him thinks Appeals so, judge tent do either in the of Criminal to the has wide determining Supreme action wise in the Court of the discretion whether appoint providing him, to with court in him the counsel the to assist sug- not gested, held, he had assistance of counsel and that one them has or even injury appointment that suffered therefrom. the mere counsel, showing of harm carefully judge, consid- district therefrom, ground is a of error. light record, ering, all his in the of the think, relief, correctly, point, I claims for de- The second the made ma- and, jority, them all merit is no nied correctly, regarding as without better is taken. This that present- the denial of them all as his motion for continuance ground extraordinary re- comply because of its provisions to failure with the corpus, lief of habeas a certificate denied Art. 543 of Texas Code probable cause. Criminal Procedure was a denial of process. majority, due Here the with- contrary, majority, is pointing any authority out supporting incorrectly think, that two opinion, I view, say seems think that present put forward claims of grounds prevents fourteenth amendment or cir- is of these relief. One for such right Legislature cumscribes the though appealed that, he prescribe of Texas to Texas of Criminal in the was decided prescribed proce- courts to follow the Texas, with cases, may dure criminal and that it United States denied certiorari deprived held that defendant has been though and, Court, he not did Supreme process procedure due when state any he was that claim on make regard requirements with to the for mo- ap- prejudiced court’s action tion for continuance does not conform to of his action pointing or the counsel majority process what the thinks due re- conducting case, the fact counsel in quires. appointed judge had coun- alone that him Again, with assist sel confer with with deference but com- process. plete conviction, of due denial assert law is ab- solutely pointed settled othei’wise. As entirely deference, clear it seems With Brady, in Betts v. out 316 U.S. majority position of the to me that many anything pointing to that, without cases cited it which have held so from which interfered did counsel adoption, and since the Fourteenth doing he prevented him what require Amendment does state courts done, can, merely because of wanted adopt procedure prescribed judge that he said to the fact for or in use federal courts. See also counsel but wanted con- want did Gallegos Nebraska, State case, now that he own assert duct 141, 96 L.Ed. 86. thereby deprived process, is of due was patently assuming provisions However, prime untenable. One though it on that, he failed assert Texas statute is when continu- sought witnesses, peal, on habeas cor- is for absence of he can now assert it ance cited, expected proved I have are pus, has been found the facts which no case suggest- by witnesses must it has even been be shown in which “and it none appear held, ed, must much less merely process deprived because material.” due such a make did The defendant now. showing, make he does not puts forward those The affidavits of vague general and state testify to matters could

would aid defendant. case, send facts of this Under the try the judge to to the district it back complete is, think, presented I issues rejection principle basic sphere, is

state, own in matters subject sovereign, federal supervision and control

courts. be af- should

I think the

firmed, respectfully dissent

its reversal. HUTCHESON, denied;

Rehearing dissenting. Judge,

Chief A. STACKPOLE MOTOR

W. TRANS- PORTATION, INC., Defendant,

Appellant,

MALDEN DYEING COM- & SPINNING al., Appellees. PANY et A. STACKPOLE

W. MOTOR TRANS- PORTATION, Defendant, INC., Appellant,

Raymond SCHUBERT, Plaintiff, T. Appellee.

Nos. States Court

United First Circuit.

Dec.

Case Details

Case Name: Edward Morgan MacKenna v. O. B. Ellis, Director, Texas Department of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 20, 1959

Citation: 263 F.2d 35

Docket Number: 17213_1

Court Abbreviation: 5th Cir.