decided as amended march 28 1953: March 24, 1953.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
The majority of the court is of the opinion that the relator must be afforded the opportunity to prove the allegations set out in his petition for habeas corpus insofar as they relate to the alleged atmosphere of hysteria and prejudice prevailing at his trial, including any issues raised by Judge Boyer's asserted visits to the courtroom during Darcy's trial, since the undisputed and incontrovertible facts as shown by the record do not countervail the allegations of hysteria and prejudice. See Walker v. Johnston, 312 U.S. 275, 284, 61 S. Ct. 574, 85 L. Ed. 830.
The court has considered the allegations of the petition concerning the conduct of Darcy's counsel and the entire record upon this issue. It is the opinion of a majority of the court that the District Court was justified in deciding against the petitioner on this issue without taking testimony.
All members of the court are of the opinion that the affidavits of members of the jury must be stricken from the relator's petition.
The respective views of the members of the court are set out in the opinions which follow this per curiam opinion.
The judgment of the court below will be reversed with the direction to enter an order staying Darcy's execution until the disposition by the court below of the instant case on remand on the issue of alleged hysteria and prejudice. The court below will be directed to strike from the petition for habeas corpus the jurors' letters attached thereto. The stay order entered by this court will be vacated.
The question presented by the instant case is whether the Commonwealth of Pennsylvania denied to the relator, Darcy, due process of law as guaranteed to him by the Fourteenth Amendment during his trial for first degree murder. Darcy was charged with murder in the first degree because a bystander, Kelly, was shot and killed by one of Darcy's companions in the course of the armed robbery of the Feasterville Tavern, near Doylestown, Pennsylvania. Two of Darcy's co-actors in the robbery, Foster and Zeitz, were tried just before Darcy by the same court which later tried him. Foster and Zeitz were found guilty of first degree murder and the penalty was fixed at death. Darcy also was found guilty of first degree murder and was sentenced to death.
A history of the proceedings prior to this appeal follows. Darcy was tried, convicted and sentenced in the Court of Oyer and Terminer of Bucks County, Pennsylvania, at No. 37 February Term 1948. A petition for a new trial was filed and was denied by that court, Darcy's conviction and sentence being affirmed. An appeal was taken to the Supreme Court of Pennsylvania and the judgment of the court below was affirmed, Mr. Justice Jones dissenting. See Commonwealth v. Darcy, 362 Pa. 259, 66 A.2d 663.An application for certiorari to the Supreme Court of the United States was denied. See 338 U.S. 862, 70 S. Ct. 96, 94 L. Ed. 528.
Darcy next filed a petition for habeas corpus to the Supreme Court of Pennsylvania.This was the first petition for habeas corpus filed to the Supreme Court of Pennsylvania. It was denied without opinion. An application for certiorari to the Supreme Court of the United States was denied. See 338 U.S. 862, 70 S. Ct. 96, 94 L. Ed. 528.
Darcy then applied to the Supreme Court of Pennsylvania for certiorari to the Court of Oyer & Terminer of Bucks County and for reargument nunc pro tunc. In this application Darcy raised all the grounds set forth in his instant petition save one, viz., that Darcy's counsel would not permit him to take the stand. The application was denied by the Supreme Court of Pennsylvania without opinion. The relator did not apply for certiorari to the Supreme Court of the United States from this denial.
On the same day on which Darcy's petition to the Supreme Court of Pennsylvania for certiorari to the Court of Oyer & Terminer of Bucks County and for reargument nunc pro tunc was denied by the Supreme Court of Pennsylvania, Darcy filed his petition for habeas corpus in the court below.
The petition came on for hearing on April 5, 1951, on an order so directing*fn1 which also stayed Darcy's execution until the final disposition of the petition by the court below. The Commonwealth moved orally to dismiss the petition as insufficient in law. Leave to file an answer nunc pro tunc was granted to the Commonwealth and an answer was received by the Clerk on April 17, 1951 and was filed by him as of April 3. It will be noted that the answer was filed six days after the court below entered its final order.
The grounds raised by the petition for habeas corpus filed in the court below were not set up in the first petition for habeas corpus filed to the Supreme Court of Pennsylvania. Because of this the court below further stayed Darcy's execution*fn2 but indicated that it would have to dismiss the petition because Darcy had not exhausted his State remedy. The court below, however, retained jurisdiction of the cause purportedly to permit Darcy to exhaust his State remedy by filing a new, a second, petition for habeas corpus to the Supreme Court of Pennsylvania, setting up all the grounds raised by the instant petition. The Supreme Court of Pennsylvania denied the second petition for habeas corpus filed to it, sub nom. Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785, passing on every substantial ground alleged in the petition.
The instant case then came on for further hearing on April 10 and 11, 1951. Darcy moved orally in the alternative for (1) the writ, or (2) for an additional stay pending application by him to the Supreme Court of the United States for certiorari. On April 11, 1951, the court below dismissed the petition, pointing out that by the terms of the orders the stay of execution was at an end. The order of dismissal included a provision denying any further stay of execution. The court below filed an opinion reported sub nom. United States ex rel. Darcy v. Handy, D.C., 97 F.Supp. 930. At the time of the hearing of April 10 and 11 Darcy, as indicated, had not yet applied to the Supreme Court of the United States for certiorari from the denial by the Supreme Court of Pennsylvania of the second petition for habeas corpus. After the dismissal of the petition and the denial of further stay by the court below application for certiorari was made to the Supreme Court of the United States and the application was denied. See Com. of Pennsylvania ex rel. Darcy v. Claudy, 342 U.S. 837, 72 S. Ct. 61, 96 L. Ed. 632. Darcy meanwhile had appealed to this court.*fn3
While it is clear that the court below denied any further stay and dismissed the petition, the route by which the court below reached its final conclusion is not entirely certain. As has been said the court below issued an order in the nature of a rule to show cause on the petition*fn4 and a motion to dismiss the petition as insufficient in law was made orally by the Commonwealth. The court below at this point apparently was following the technique laid down by the Supreme Court of the United States by Mr. Justice Roberts, in Walker v. Johnston, 312 U.S. 275, 284, 61 S. Ct. 574, 578, 85 L. Ed. 830. Mr. Justice Roberts stated that "* * * if, upon the face of the petition, it appears that the party is not entitled to the writ, the court may refuse to issue it. Since the allegations of such petitions are often inconclusive, the practice has grown up of issuing an order to show cause, which the respondent may answer.By this procedure the facts on which the opposing parties rely may be exhibited, and the court may find that no issue of fact is involved. In this way useless grant of the writ with consequent production of the prisoner and of witnesses may be avoided where from undisputed facts or from incontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting the writ exists. On the other hand, on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge. This practice has long been followed by this court * * * and by the lower courts. * * * It is a convenient one, deprives the petitioner of an substantial right, if the petition and traverse are treated, as we think they should be, as together constituting the application for the writ, and the return to the rule as setting up the facts thought to warrant its denial, and if issues of fact emerging from the pleadings are tried as required by the statute."
It will be observed that under the ruling of Walker v. Johnston in order to dismiss a petition for habeas corpus on a rule to show cause there must be no substantial issue of fact involved and undisputed and incontrovertible facts must afford an insufficient basis for the legal relief sought. We adhered to this view in the case of United States ex rel. Master v. Baldi, 3 Cir., 198 F.2d 113. The court below in the instant case at the instance of the Commonwealth, received in evidence, at the time of the first hearing, April 5, 1951, the transcript of the proceedings of Darcy's trial in the Court of Oyer and Terminer and numerous other records relating to the appeals to the Supreme Court of Pennsylvania and to the Supreme Court of the United States and the various applications and petitions filed to those courts. These documents were properly received in evidence as pertinent both to the issue of exhaustion of State remedy by Darcy and in relation to the allegations of the petition to the issue of whether Darcy had been denied due process of law. See our decision in United States ex rel. Master v. Baldi, supra. But the court below, as will be pointed out in more detail hereinafter, treated the matters contained in the transcript of the proceedings of Darcy's trial in the Court of Oyer and Terminer as contradicting completely the allegations of the petition when in fact the record of the proceedings cannot be construed properly to have such an effect. The petition contains allegations not met by the record of the proceedings in the Court of Oyer and Terminer. The Court below committed reversible error in this respect.
The first part of the opinion of the court below, 97 F.Supp. at pages 932-934, advances a number of grounds why the writ and the stay were denied. The principal reasons explicitly advanced were that there were no extraordinary circumstances of peculiar urgency which required the issuance of the writ,*fn5 that a further stay would have made void under 28 U.S.C. § 2251, the proceedings against Darcy in the State Court, and that the issuance of the writ would have disturbed needlessly that delicate balance of power which must be maintained between the State and Federal sovereigns. At the time the final order was entered in the case, April 11, 1951, and at the time the opinion was handed down by the court below, May 17, 1951,*fn6 Darcy, as has been said, had not yet applied to the Supreme Court of the United States for certiorari from the order denying the second petition for habeas corpus filed to the Supreme Court of Pennsylvania. The application for certiorari was made on June 12, 1951, and the Supreme Court denied certiorari on October 8, 1951. It is clear therefore that at all times when the case was before the court below Darcy had not exhausted his State remedy. See Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761. No explicit reference is made to this fact in the opinion of the court below and it is not clear that this was a deciding or a potent factor in causing the court to refuse to grant either the writ or the stay. But it should be noted that the court in its opinion, 97 F.Supp. at page 934, quoting from Morgan v. Horrall, 9 Cir., 175 F.2d 404, 407, said: "'If some rational balance is to be preserved in the matter of handling petitions for writs of habeas corpus in Federal District Courts it is proper that petitioners should be required to exhaust available remedies under the present liberal procedure which seems wholly adequate to meet a situation of the character here presented.'" It is probable that this quotation was intended by the court below to support the proposition that Darcy had not secured a stay of execution from either the Supreme Court of Pennsylvania of from the Supreme Court of the United States on the presentation of his second petition for habeas corpus to the Supreme Court of Pennsylvania. The reference, however, may be directed to the fact that when the instant case was before the court below on April 10 and 11, Darcy had not made an application for certiorari to the Supreme Court of the United States from the denial of his second petition for habeas corpus to the Supreme Court of Pennsylvania. Having decided, however, for the reasons thus stated or implied in the first part of its opinion, 97 F.Supp. at pages 932-934, the court below then stated, mid-opinion: "For the foregoing reasons, we refused to grant either the writ or the stay."
The court then went on to say: "What of the motion to dismiss?", and quoted from the concurring opinion in United States ex rel. Auld v. Warden, 3 Cir., 187 F.2d 615, 621, as follows: "'* * * judicial power to dismiss a petition on its merits is not destroyed by the statutory limitation on the granting of affirmative relief.'" See 97 F.Supp. at pages 934-935. The court below seemingly construed the words just quoted to the effect that if a United States district court cannot grant the relief sought by a petition for habeas Corpus or even entertain it because it is insufficient in law it nonetheless possesses the jurisdiction, the power, to dismiss the petition. This doctrine is sound, of course, but inherent in its application is the principle that the grounds alleged in the petition, viewed in the light of the undisputed or incontrovertible facts shown by the record of the proceedings in the State trial court, must be insufficient in law to afford the relief sought by the petitioner.
The court below concluded its opinion by stating, 97 F.Supp. at page 942: "Since it appears that petitioner is not entitled to a writ and that his petition is without merit * * * we have no alternative but to dismiss." It would appear from the opinion and from the transcript of the record of the proceedings before the court below on April 5, 10 and 11, 1951, that the court below was basing its final conclusions on the position that the allegations of the petition were improbable and unbelievable in the light of the record of Darcy's trial in the Court of Oyer and Terminer, as contended by the Commonwealth. But the undisputed and incontrovertible facts demonstrated by the Oyer and Terminer record do not contradict some of the pertinent allegations of the petition as will be shown hereinafter. The court below erroneously believing that the uncontrovertible and undisputed facts showed that Darcy was not entitled to the relief sought dismissed the petition without affording petitioner the opportunity to support the allegations by evidence. The court below seemed to be of the view that it was proceeding strictly in accordance with the rebric of Walker v. Johnston, but it was not. See 97 F.Supp. at page 941. The entire picture is rendered all the more cloudy and obscure because the court below seemed to be proceeding, at least to some degree and on occasion as if upon final hearing.*fn7 It is desirable to repeat here the language of Mr. Justice Roberts in Walker v. Johnston, 312 U.S. at page 287, 61 S. Ct. at page 579: "The Government's contention that his [the petitioner's] allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence. On this record it is his right to be heard." It is necessary therefore to analyze briefly the petition for habeas corpus and the record of the proceedings of the Court of Oyer and Terminer filed in the instant case.
The allegations of the petition may be summed up as follows: (1) that the relator was tried in an atmosphere of hysteria and prejudice, the newspapers in the vicinity by their accounts of the crime and of the trials, including that of Foster and Zeitz, having rendered the impaneling of a fair and impartial jury impossible, Darcy having been put to his trial almost immediately after that of Foster and Zeitz, the judge at the earlier trial, who allegedly had already demonstrated prejudice against all the robbers, having appeared on the bench during Darcy's trial making a comment adverse to Darcy on a critical issue of evidentiary law, and apparently participating in the consideration of the ruling made immediately thereafter adverse to Darcy's position;*fn8 and (2) that Darcy was defended by counsel so lacking in diligence and competency*fn9 that his trial was no trial at all, no change of venue having been requested and Darcy not having been permitted to testify in his own defense or to call witnesses as to his "background, personal history, mental condition, prior good behavior, character and reputation. * * *"
Some of the allegations of the petition - those which are referred to specifically in item "(1)" of the foregoing paragraph - would, if proved, justify the issuance of the writ, State remedy being exhausted. If Darcy's trial was conducted in an atmosphere of hysteria and prejudice, Darcy was deprived of the rights guaranteed to him by the Fourteenth Amendment. See Shepherd v. Florida, 341 U.S. 50, 51, 71 S. Ct. 549, 95 L. Ed. 740. Even if these allegations are "improbable" or "unbelievable", to employ the words of Walker v. Johnston, 312 U.S. at page 284, 61 S. Ct. 574, Darcy cannot be deprived for the opportunity to support them by evidence again assuming exhaustion of State remedy. The difficulty in affirming the decision of the court below lies in the circumstance that the "undisputed" and "incontrovertible" facts which appear from the record made in the Court of Oyer and Terminer are insufficient to controvert the broad allegations of the petition.
For example as to item "(1)" set out in the last preceding paragraph but one of this opinion, the incontrovertible fact that Darcy's counsel was allowed wide latitude in examination of veniremen on voir dire is insufficient to overcome the allegations that Darcy's trial was conducted in an atmosphere of hysteria and prejudice for the allegations are very broad ones; nor can these allegations be refuted by reference to the newspaper articles attached to the petition which the court below deemed insufficient of themselves to show an atmosphere of hysteria or prejudice. The court seemed to reach this conclusion again because of the latitude allowed Darcy's counsel on voir dire examination. On remand the court below must allow Darcy an opportunity to support his allegations by evidence and appropriate findings of fact and conclusions of law must be made. Cf. the circumstances alleged in United States ex rel. Daverse v. Hohn, 3 Cir., 198 F.2d 934.
I point out also that the conclusion expressed by the trial court as to "(2)", as set out in a preceding paragraph of this opinion, viz., that Darcy's counsel conducted his trial in the Court of Oyer and Terminer in a reasonably competent manner cannot be sustained on the present record. The allegation is that Darcy's counsel did not properly prepare his case and was guilty of such negligence and incompetency as to render the trial a sham.*fn10 Neither the court below nor this court can do more than speculate as to the course followed by Darcy's counsel at the trial. Speculation cannot serve in lieu of findings.
There is another most difficult problem in respect to the conduct of counsel in this troublesome case. Was the failure of Darcy's counsel to present evidence of his alleged previous good character and as to his mental condition due to incompetency or lack of preparation, or was it a part of a well thought out plan of defense? It was suggested by Judge Murphy in the court below and by the present writer in the argument before this court that perhaps the reason why Darcy's counsel, a lawyer of long experience at the bar, did not call Darcy or other witnesses on his behalf at his trial in the Court of Oyer and Terminer was because had he done so he would have lost the benefits of the Act of July 3, 1947, P.L. 1239, amending the Act of March 15, 1911, P.L. 20, 19 P.S.Pa. § 711. To state the matter baldly and perhaps to oversimplify it, if the Act of July 3, 1947, was constitutional and Darcy and other persons had been called as witnesses in his defense, as to the matters hereinbefore referred to, Darcy's counsel could have concluded that Darcy thereby would have lost the benefits of the Act of 1947. It must be borne in mind that Darcy's counsel had already concluded that the Court of Oyer and Terminer had committed error in admitting in evidence testimony as to the armed robbery perpetrated by Darcy and his companions shortly subsequent to their robbery at the Feasterville Tavern. Darcy's counsel had saved an exception to the ruling of the Court of Oyer and Terminer admitting such evidence and had moved for the withdrawal of a juror. If the Act of 1947 was constitutional and Darcy went on the witness stand or others did on his behalf, Darcy might have lost the benefit of what Darcy's counsel may have considered a valid exception. Darcy's counsel also would have lost ...