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UNITED STATES EX REL. STARNER v. RUSSELL

November 7, 1966

UNITED STATES of America ex rel. Donald E. STARNER, Petitioner,
v.
Harry E. RUSSELL, Supt., State Correctional Institution, Huntingdon, Penna., Respondent



The opinion of the court was delivered by: FOLLMER

 Donald E. Starner, an inmate at the State Correctional Institution, Huntingdon, Pennsylvania, has filed a Petition for Writ of Habeas Corpus, in forma pauperis, in this Court. The grounds on which he bases his allegation that he is being held in custody unlawfully are as follows: (1) On a previous Petition for Writ of Habeas Corpus, he was given a new trial, which relief he did not request; (2) Certain evidence should have been excluded at his second trial *fn1" and (3) The second sentence was harsher for no discernible reason.

 Petitioner filed a Petition for Writ of Habeas Corpus in the Court of Common Pleas of Cumberland County, Pennsylvania, in relation to his second trial, on the same grounds raised here. On January 11, 1966, that Petition was dismissed. The Pennsylvania Superior Court *fn2" and the Pennsylvania Supreme Court affirmed the dismissal. Petitioner has exhausted his available State remedies.

 In the instant case, Rule to Show Cause issued, Answers were filed by the Respondent and the District Attorney of Cumberland County, Petitioner filed a Traverse and this Court has had the benefit of the records of the State criminal proceedings and the State habeas corpus proceedings.

 Petitioner's allegations are essentially as follows: On or about April 14, 1963, he was arrested on multiple charges of forgery and burglary. After his preliminary hearing he gave certain samples of his handwriting to postal inspectors and a policeman. On May 17, 1963, Petitioner was sentenced to a term of imprisonment of two (2) to six (6) years on his plea of guilty to eight (8) counts of forgery and two (2) counts of burglary.

 Subsequently, he submitted a Petition for Writ of Habeas Corpus to the Court of Common Pleas of Cumberland County. By opinion dated March 4, 1964, that Court granted the Petition, vacated the conviction and sentence, and granted a new trial.

 On October 6, 1964, Petitioner was tried by jury on the eight (8) counts of forgery and the two (2) counts of burglary. He was convicted on the eight (8) counts of forgery. Subsequently, he received a sentence of imprisonment for three and one-half (3 1/2) to seven (7) years. It is this sentence which he is now contesting in this Petition for Writ of Habeas Corpus.

 The first ground which Petitioner alleges concerns the granting of a new trial. He claims that since he was seeking release from his first sentence that the Court of Common Pleas of Cumberland County could not "impose" a new trial upon him, but had to release him when it granted his Petition. He is also upset over the fact that he did not receive appointment of counsel during this first State habeas corpus proceeding.

 Failure to appoint counsel in a habeas corpus proceeding does not violate a person's constitutional rights since a proceeding in habeas corpus is a civil proceeding, not a criminal proceeding. Moreover, there were no unusual circumstances present to require counsel. In fact, it is impossible to see what further services counsel could have performed for petitioner since his Petition was granted. Thus no constitutional right of Petitioner was infringed by the failure to appoint counsel in the State habeas corpus proceedings. Rider v. Crouse, 357 F.2d 317 (10th Cir. 1966); Douglas v. Maxwell, 357 F.2d 320 (6th Cir. 1966).

 The remainder of his argument on this first ground is spurious. There is no automatic right to release simply because a Petition for Writ of Habeas Corpus is granted, and the granting of a new trial does not depend upon the Petitioner's request for it. He was still subject to custody under the indictments filed by the Commonwealth of Pennsylvania and the granting of a new trial was within the discretion of the Pennsylvania Court. See Irvin v. Dowd, 366 U.S. 717, 728-729, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). Thus there is nothing to the first ground raised by Petitioner.

 The second ground raised by Petitioner concerns the admissibility of certain evidence at the second trial. The primary question which is raised is whether his privilege against self-incrimination under the Fifth Amendment was violated when handwriting specimens, given to the authorities before his first plea, without the assistance of counsel, were introduced at the trial.

 "It is a well-established principle of law that a habeas corpus proceeding cannot be used as a substitute for an appeal." Buder v. Bell, 306 F.2d 71, 74 (6th Cir. 1962); United States ex rel. Washington v. Cavell, 251 F. Supp. 779, 780 (M.D.Pa.1966). However, it must be ascertained whether the allegations are just matters of error to be determined on appeal or whether they rise to the level of a denial of a constitutional right.

 The main allegation concerning the handwriting specimens and the self-incrimination claim will be considered first. The privilege against self-incrimination has been discussed recently by the Third Circuit in connection with lineups. In Rigney v. Hendrick, 355 F.2d 710, 713 (3d Cir. 1965), it is stated, as follows:

 
"* * * The privilege against self-incrimination was analyzed by the Supreme Court in a classic opinion by Mr. Justice Holmes, Holt v. United States, 218 U.S. 245, 31 S. Ct. ...

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