Hawk v. OlsonHawk v. Olson
Mr. Robert A. Nelson argued the cause, and Walter R. Johnson, Attorney General of Nebraska, and H. Emerson Kokjer, Deputy Attorney General, were on the brief, for respondent.
MR. JUSTICE REED delivered the opinion of the Court.
This writ of certiorari brings before us the judgment of the Supreme Court of Nebraska which affirmed a judgment of a district court dismissing a petition for habeas corpus to inquire into petitioner‘s detention for want of merit and failure to state a cause of action. Hawk v. Olson, 145 Neb. 306, 16 N.W.2d 181.1 Petitioner was in the penitentiary after conviction for murder. The writ was granted because a substantial federal question as to restraint without due process of law under the
As no response was filed or evidence received in the district court, we accept as true all well-pleaded allegations of the petition and, in the exercise of the duty which lies on us as well as the Nebraska courts to safeguard the federal constitutional rights of petitioner, examine for ourselves whether under the facts stated the petitioner is now entitled to a hearing on the claimed violations of the due process clause in his conviction for murder in the first degree. Lisenba v. California, 314 U.S. 219, 237; White v. Ragen, 324 U.S. 760.
In its opinion the Supreme Court of Nebraska carefully considers a number of claims of denial of due process. It is said that some of the grounds for release are pleaded in the form of conclusions and that Nebraska procedure requires in habeas corpus proceedings that the applicant must set forth the facts from which it must appear that he will be entitled to discharge. Hawk v. Olson, 16 N.W.2d 181, 183, l. c. We assume, since such grounds appear in the petition, that one of these pretermitted grounds is that “Conviction was obtained by the use of perjured testimony knowingly used by the Prosecuting Officials and the Trial Court.” See Ex parte Hawk, 321 U.S. 114, 116. Whatever Nebraska may require in the way of further specification may be furnished, if available, and permissible under the law of Nebraska (see Hawk v. Olson, supra, 183, r.c.), by petitioner on a new hearing. Cf. Tomkins v. Missouri, 323 U.S. 485, 487. On the issues of the sufficiency of the evidence and the interference with the right of appeal, we accept the decision of Nebraska that the first cannot be raised by habeas corpus (Hawk v. Olson, 16 N.W.2d 181, 183) and that the second is not supported by the facts stated by petitioner.2 Other objections
Petitioner contends that his conviction violates the
Since Frank v. Mangum, 237 U.S. 309, 331, this Court has recognized that habeas corpus in the federal courts by one convicted of a criminal offense is a proper procedure “to safeguard the liberty of all persons within the jurisdiction of the United States against infringement through any violation of the Constitution,” even though the events which were alleged to infringe did not appear upon the face of the record of his conviction. This opportunity for an examination into the “very truth and substance of the causes of his detention” was said in the Frank case to have come from the adoption in 1867 of a statute which empowered federal courts to examine into restraints of liberty in violation of the Constitution of the United States. 14 Stat. 385, c. 28.3 The legislation enlarged
This liberalization of habeas corpus required federal courts, when the issue was presented, to examine whether a conviction occurred under such influence by mob spirit as to deny due process. Frank v. Mangum, supra, 331, 335, dissent 347. The power was called into play a few years later to examine a state conviction under alleged community coercion; and this Court said that, if the facts set out were true, the trial would not support a conviction. Moore v. Dempsey, 261 U.S. 86. In Mooney v. Holohan, 294 U.S. 103, 112, it was declared that the knowing use of material perjured testimony by a state prosecutor would make a trial unfair within the meaning of the
When the absence of counsel at a trial was urged as a ground for a federal writ of habeas corpus, we held that in federal courts a felony conviction without benefit of counsel is subject to collateral attack because a violation of the accused‘s constitutional right to the services of an attorney unless he has intelligently waived that privilege.
In state prosecutions a conviction on a plea of guilty, obtained by a trick, Smith v. O‘Grady, 312 U.S. 329, 334, or, after refusal of a proper request for counsel, because of the accused‘s incapacity adequately to defend himself, Williams v. Kaiser, 323 U.S. 471, will not support imprisonment. Such procedure violates the
Petitioner, a layman, set out the following allegations in his petition. On March 16, 1936, at 4:15 p.m., the petitioner, who had previously had a preliminary hearing, was brought to Omaha from the federal penitentiary at Leavenworth, Kansas. He was held incommunicado in the Omaha jail except for a visit of fifteen minutes that evening, 11 to 11:15 p.m., by the Public Defender and his assistant. These officials tried to intimidate the petitioner to plead guilty. This petitioner refused to do, “. . . at which time the two Public Officials left your Petitioner and at the time said they would have nothing
“Your Petitioner had no consultation whatsoever with either of the aforesaid Public Officials regarding his defense, they picked the jury and testimony was adduced and a continuance or recess taken until the following morning March 18 (Wednesday), 1936.” Petitioner claimed the protection of the
These facts, if true, we think, set out a violation of the
As the Supreme Court of Nebraska considered the motion for continuance on the merits,6 no question of state procedure for the reexamination of criminal convictions arises. As to the issue on the motion for continuance, our duty requires us to determine only whether or not the denial under the facts alleged violates due process. We think there was an allegation that no effective assistance of counsel was furnished in the critical time between the plea of not guilty and the calling of the jury. Continuance may or may not have been useful to the accused, but the importance of the assistance of counsel in a serious criminal charge after arraignment is too large to permit speculation on its effect. We hold that denial of opportunity to consult with counsel on any material step after indictment or similar charge and arraignment violates the
Petitioner states a good cause of action when he alleges facts which support his contention that through denial of asserted constitutional rights he has not had the kind of
Petitioner carries the burden in a collateral attack on a judgment.7 He must prove his allegations but he is entitled to an opportunity.
Reversed and remanded.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.