concurrence">BARHAM, Justice,

concurring.

A federal district judge has here, in his exercise of jurisdiction over a federal writ application, tried to exercise supervisory jurisdiction over a state court, in fact, over the Louisiana State Supreme Court. If that federal district court believes under its consideration of a federal writ application that an evidentiary hearing is required before a judge other than the trial court judge (who is the only judge designated by state law to consider this if it were a state writ), it should comply with the federal law which mandates the federal court to hold such a hearing. The federal district court has neither the right nor the power to order a state district court to conduct the hearing for the federal district court under a federal writ application. It is especially inappropriate to ask a state district court to hold such a hearing when that federal court states its concern is with alleged collusion between the state trial judge and other state officials effectuating a denial of due process for thé applicant. If the federal court has such a strong conviction about the need for an evidentiary hearing to determine the merits of the application before it, that court cannot absolve itself of its obligation by threatening a state court to release the convict if the state court does not act pursuant to the federal court’s order. The federal court cannot wash its hands of the blood of this deed through this contumelious abuse of authority. The federal law does not grant to the federal court the right to make the assumption that the allegations are true without having an evidentiary hearing. Nothing permits a federal court to threaten that convicted state prisoners will be turned loose if the state court does not act as requested by the federal court when that request is neither authorized by law nor even contemplated. A reasonable request for cooperation may often be, and it should be, responded to by courts in both systems, and respect and reciprocity are to be sought between the systems. Here, after this state has determined through its highest tribunal that there was no merit in relator’s claims, a contrary federal determination should not shift to the state the expense of special counsel and the cost of assignment of special court personnel including the judge. This is a gross encroachment upon the assignment of separate functions between the two systems. There is authority for an adequate disposition to be made of the matter in federal law and in the federal court. It should exercise that authority if it is so persuaded. It should not usurp authority not granted and totally unneeded. Again, respect between the systems depends upon restraint. See State ex rel. McNeely v. Henderson, 256 La. 869, 239 So.2d 364.

*432

*433

*434

*435

*436

*437Vol S. Dooley, Jr., Chief Criminal Deputy. James H. McKellar, Chief Civil Deputy and Deputy Tax Collector

EXHIBIT NO. 6

W. E. WAGGONNER

SHERIFF AND EX-OFFICIO TAX COLLECTOR

For Bossier Parish

Telephone 965-2203

Benton, Louisiana 71006

October 22, 1970

Mr. Jack McBride

P.M. B.84966-132

Leavenworth, Kansas 66048

Dear Mr. McBride:

In reply to your letter dated September 29, 1970, I am enclosing the following listed documents :

1. A copy of the Bossier Parish Sheriff’s Department Daily Prisoner List, dated August 6, 1965, since Floyd Cumbey was incarcerated after the daily prisoner list had been typed on August 5, 1970.

b. The arresting officer was Chief Criminal Deputy Vol. S. Dooley, Jr.

2. A copy of the Bossier Parish Sheriff’s Department Daily Prisoner List, dated December 12, 1967, which shows Floyd Cumbey released.

This department does not have any written order signed by Judge O. E. Price or District Attorney Louis H. Padgett, Jr., regarding the release or transfer of Floyd Cumbey, however, the Court instructed this department to release Floyd Cumbey.

I am returning your U. S. Treasury Check No. 97,369,649 in the amount of $10.00, as there is no charge for the copies I have furnished you.

Sincerely yours,

(s) W. E. Waggonner W. E. Waggonner, Sheriff

WEW :ert Enclosures

*438

*439

*440

*441EXHIBIT NO. 8

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT, LOUISIANA

DONALD LEE YATES,

Petitioner pro se. February 1, 1971.

versus

C. MURRAY HENDERSON, Warden et al

Respondent Civil Action No. 15875-S

U. S. DISTRICT COURT WESTERN DISTRICT OF LOUISIANA FILED

Feb 1-1971

ALTON L. CURTIS, CLERK By T. W. Thompson

Deputy

Motion to Withdraw Petition For Writ of Habeas Corpus, without Prejudice

Your Petitioner, Donald Lee Yates, respectfully requests this Court to withdraw petition for writ of habeas corpus, entitled, Civil Action No. 15875, said petition having become mute by reason of State District Court relief to your petitioner. Also your petitioner respectfully requests petition be withdrawn without prejudice.

Respectfully submitted

Donald Lee Yates

Petitioner pro se

I, Donald Lee Yates, do swear and aver the above is true and correct, on this the 1 day of February, 1971. Submitted from the Bossier Parish Jail, Benton, Louisiana.

Respectfully

Donald Lee Yates

Pro se

2-1-71

Motion granted and this suit is dismissed.

Ben C. Dawkins, Jr.

Chief Judge

*442ORDER DIRECTING THAT RECORD BE SUPPLEMENTED BY ADDING THE FOLLOWING EXHIBITS TO CERTIFIED COPIES OF DOCUMENTS ATTACHED TO ORDER OF JUNE 2, 1972

Since entry of our Order of June 2, 1972, we have obtained from the Clerk of Court, Twenty-Sixth Judicial District, Bossier Parish, Louisiana, the following certified copies of documents pertaining to this habeas case, which should be appended as exhibits to that Order to complete the record upon which our Order was based:

EXHIBITS A and A-l: Minutes of Court, dated April 25, 1967, showing Cumbey pleaded guilty to murder without capital punishment, on the day after Favor’s trial began, while the jury which tried him was being selected. (See Exhibit C.)

This also shows that on December 11, 1967, some four months after Favor’s conviction, Cumbey was allowed to withdraw his plea of guilty, with no reason being given; and on the same day pleaded guilty to two counts of manslaughter, receiving two 21-year sentences. (See Exhibits Nos. 3(a) and 3(b), appended to our Order of June 2, 1972.) On the next day, December 12, 1967, Cumbey was released, without serving a day of any of his sentences. It is common knowledge that two days later he murdered two women in Tulsa, was later convicted, and now is serving a life sentence in the Oklahoma Penitentiary. See also Exhibit No. 5 — Memorandum from Records Clerk, Louisiana State Penitentiary; Exhibit No. 6 — Letter from W. E. Waggonner, Sheriff, dated October 22, 1970; Exhibit No. 6-B — Bossier Parish Jail Day Book — showing original entry under date of “12-12-67,” originally reading “Transferred to Angola,” being stricken through, the word “Released — • W. E. W.,” being the Sheriff’s initials, being written thereon above the entry stricken. This also is referred to at Page 426, and Footnote 2 on Page 427, of our Order of June 2, 1972, wherein we stated “ . . . but the jury in convicting Favor was told he, Cumbey, would serve a life term in the penitentiary”, citing five places in the State Court trial transcript; Exhibits B and B-l, Minutes of the Court showing Cumbey as having pleaded guilty to two counts of manslaughter, on December 11, 1967, and receiving two 21-year sentences. See, also, Exhibits Nos. 4-A and 4-B, being written judgments of sentence, signed by Judge O. E. Price, on December 11, 1967;

EXHIBIT C — Minutes of Court in murder trial of Favor;

EXHIBITS D and D-l — Minutes showing Donald Lee Yates, charged on two counts of murder, on 11-27-67, withdrew his plea of not guilty in both cases, being sentenced to life in the Louisiana State Penitentiary on November 29, 1967.

These exhibits further show that on February 1, 1971, after Yates had filed a second petition for habeas corpus in the State District Court, upon this Court’s direction, in which we also ordered an evidentiary hearing, the State District Judge entered an order reading, “The writ of habeas corpus herein is granted. The sentences of the Court, imposed under Docket Nos. 35,520 and 35,521 are recalled and vacated.” No evidentiary hearing was held.

As noted at Pages 426 and 427 of our Order of June 2, 1972, Yates then received two sentences of 17 years each, to run concurrently, and concurrently with a federal sentence of 20 years for bank robbery which began in 1964; and, as stated in our June 2 Order, the State Judge provided, “In the event Yates is paroled by Federal authorities, the remainder of his State sentences are to be suspended.” See, also, in this connection, Exhibits 7-A and 7-B, appended to our Order of June 2,1972.

EXHIBIT E — Suit by former District Judge O. E. Price, No. 51650, Twenty-Sixth Judicial District Court, moving to recuse Charles A. Marvin as advisor to the Grand Jury, filed on June 13, 1972 (the Grand Jury having convened itself, *443pursuant to State law). See Exhibit H, Page 463, Hearing on Motion to Recuse Conducted by Judge Enos C. McClendon, Jr., on June 19, 1972, wherein, at page 465 thereof, Judge McClendon ordered the Grand Jury not to investigate the Favor case. Exhibits F and F-l are exceptions filed by Mr. Marvin in this suit; and Exhibit G is his Answer to the Motion.

Although not shown by the record, Judge McClendon then recused himself in the case and designated Judge Frank M. Dougherty, of the Third Judicial District Court, Claiborne Parish, Louisiana, adjacent to Bossier Parish, as judge ad hoc, to conduct a hearing. Exhibit I is the transcript of the hearing conducted by Judge Dougherty, June 22, 1972, in which he recused Mr. Marvin and upheld Judge McClendon’s order that the Grand Jury should not consider the Favor case.

EXHIBIT J — Order signed by Judge Dougherty under date of June 21, 1972, in which he “. . . ordered that Charles A. Marvin, District Attorney, be and is hereby recused in these proceedings or in any proceedings arising out of the trial, conviction or sentencing of one Jack Favor and the release of Floyd Cumbey.”

EXHIBIT K — This is a notice filed by Mr. Marvin, addressed to Judge Dougherty, as Judge ad hoc, after the Judge’s ruling, giving notice of Mr. Marvin’s intention to apply to the Louisiana Supreme Court for writs of certiorari, probition, and mandamus. He allowed Mr. Marvin until June 23, 1972, to file this application, which was done.

EXHIBIT L — This is the order of the Louisiana Supreme Court dated June 23, 1972, in which Mr. Marvin’s application for the writs was granted on the recusation motion.

EXHIBIT M — is a grand jury indictment returned on July 25, 1972, against Judge O. E. Price, charging him with perjury in his testimony before the Grand Jury. This indictment presently is pending, the defendant having not yet been arraigned.

EXHIBIT N — is an indictment against Judge Louis H. Padgett, Jr., returned by the Grand Jury July 25, 1972, also charging him with perjury committed before the Grand Jury. This indictment presently is pending, the defendant having not yet been arraigned.

As noted at Page 425 of our Order of May 16, 1972, in 1967, when Favor was tried, convicted and sentenced; when Yates pleaded as.above stated; and when Cumbey, after pleading guilty to murder without capital punishment, on the day after Favor’s trial began, received a life sentence; was allowed to withdraw his two pleas on November 11, 1967, with no reasons being given, and receiving two sentences of 21 years each for manslaughter, and having been released the next day, December 12, 1967 — Louis E. Padgett, Jr., then was the District Attorney for the Twenty-Sixth Judicial District Court of Louisiana, Bossier Parish, and Judge 0. E. Price then was the District Judge handling these cases.

Moreover, it is necessary that we correct the title page of our Order of June 2, 1972, wherein we showed John T. Campbell as one of the attorneys for Favor in this habeas proceeding. However, as brought out in Mr. Marvin’s answer to Judge Price’s motion, we were mistaken in that; Mr. Campbell did serve as one of Favor’s attorneys in the State Court habeas corpus proceeding, but he had not served as such since January 1, 1972.

It is ordered that the Clerk of this Court file this Order in the record of this case and forward the Order and its Exhibits to the Clerk of the United States Court of Appeals for the Fifth Circuit, to supplement the record therein; and to send copies to all counsel of record, including Mr. Marvin.

*444

*445

*446

*447

*448

*449

*450

*451

*452

*453

*454

*455

*456

*457

*458EXHIBIT E

In re: O. E. Price vs Charles A. Marvin, District Attorney

..Number: 51650 26th Judicial District Court Bossler Parish, Louisiana

MOTION TO RECUSE AND FOR STAY

The motion of O. E. PRICE, a resident and domiciliary of Bossier Parish, Louisiana, respectfully represents:

Mover has been subpoenaed to appear before the Grand Jury presently serving for Bossier Parish, Louisiana, at 1:00 P.M., 13 June 1972.

Mover is informed, believes and therefore alleges that the said Grand Jury is planning an investigation in some way related to or arising out of the trial of Jack G. Favor, which trial was held in Bossier Parish, Louisiana, with Mover as Presiding Judge, in April 1967.

Jack G. Favor was indicted for two murders, was tried, convicted and sentenced to life imprisonment and is currently incarcerated at Angola Penitentiary. The said proceedings were entitled “State of Louisiana vs. Jack G. Favor”, bearing numbers 35,522 and 35,523 on the docket of the Twenty-Sixth Judicial District Court, Bossier Parish, Louisiana.

Subsequent to his conviction and sentence Jack G. Favor filed an application for Habeas Corpus in the above identified proceedings. The proceedings were filed by Jack G. Favor in proper person, however, shortly thereafter J. B. Wells, Esq., of Bossier Parish and John T. Campbell, Esq., of Webster Parish, enrolled as counsel for Jack G. Favor. The application was denied by the Honorable Enos C. McClendon, Jr., on 13 October 1971. Writs were applied for to the Louisiana Supreme Court in proceedings entitled “State of Louisiana, ex rel Jack G. Favor v. C. Murray Henderson, Warden, Louisiana State Penitentiary”, No. 52,122 on the docket of said court and same were refused on 3 February 1972.

Mover shows that thereafter, on 22 February 1972, Jack G. Favor filed an application for writ of Habeas Corpus in the United States District Court for the Western District of Louisiana in proceedings entitled “Jack G. Favor, P. M. B. 65386 versus C. Murray Henderson, Warden, Louisiana State Penitentiary”, bearing No. Civil Action 17,628 on the docket of said Court. This writ was granted and Jack G. Favor was ordered released from custody subject to the right of the State of Louisiana to re-try the defendant within 30 days of 2 June 1972 in the Tenth Judicial District Court, Natchitoches Parish, Louisiana. That matter is presently pending.

Appearing as counsel of record on said federal writ application were James B. Wells and John T. Campbell of the firm of Campbell, Campbell, Marvin and Johnson of Minden, Louisiana.

Mover shows that the Marvin in the firm of Campbell, Campbell, Marvin and Johnson is Charles A. Marvin, District Attorney for the Twenty-Sixth Judicial District, composed of Bossier and Webster Parishes. Charles A. Marvin was elected District Attorney subsequent to the application for writ of Habeas Corpus filed in the State Court as set forth herein and before the filing of the writ of Habeas Corpus now before the Federal Court. Charles A. Marvin is and was a member of the said firm at all times mentioned herein. He is also the son-in-law of John T. Campbell of said firm.

In the identified Federal Court proceeding, the Honorable Ben C. Dawkins, Jr., Chief Judge, concluded that any *459further proceedings in State Court should not be held before the Twenty-Sixth Judicial District Court and should not be handled by District Attorney Charles A. Marvin.

Mover shows that Charles A. Marvin, is, by law, the legal advisor for any Grand Jury impaneled within his jurisdiction in Bossier and Webster Parishes.

10.

Mover shows that the specific purpose and primary motive of the applications for writs of Habeas Corpus in both the State and Federal Courts is the release of Jack G. Favor who has been convicted of two murders by a jury in Bossier Parish, Louisiana. Under these circumstances, it is imperative that any session of a Grand Jury directly or indirectly involving the Favor matter be conducted by and with the assistance of a legal advisor who is in no way connected personally or through his law firm, with that litigation.

11.

It was and is the responsibility of the attorneys representing Jack G. Favor on the writ applications to seek to secure the relief sought, i.e., his release from the penitentiary. At such time as he is tried again, as has been ordered by the Federal Court, it will be their responsibility to defend Favor, seeking an acquittal on the murder indictments. The conflict which would exist is apparent and compelling.

12.

Mover further shows that the Order rendered by Honorable Ben C. Dawkins, Jr., on 16 May 1972, noted that there was no filing in response to the application by Jack G. Favor other than a general denial filed by the Attorney General’s office. Attorney General William J. Guste, Jr., had just taken office a few days pri- or thereto. There were no filings of pleadings or briefs or affidavits or evidence of any kind presented to the Federal Court to rebut the naked allegations in the Favor application. No apparent effort was made by the office of the District Attorney to assist the Attorney General in properly representing the interest of the State of Louisiana in opposition to the writ of Habeas Corpus filed by Jack G. Favor.

13.

Mover asserts that Charles A. Marvin is disqualified to act as District Attorney herein by virtue of the provisions of Code of Criminal Procedure Article 680 which provides:

“A district attorney shall be recused when he:

(1) Has a personal interest in the cause which is in conflict with fair and impartial administration of justice;

(2) Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, to such an extent that it may appreciably influence him in the performance of the duties of his office; or

(3) Has been employed or consulted in the ease as attorney for the defendant before his election or appointment as district attorney.”

14.

Mover further shows that Article 682 of the Code of Criminal Procedure mandates that upon recusation of the District Attorney the court shall appoint an attorney at law of that district, who has the qualifications of a District Attorney, other than the assistants to the recused District Attorney, to act in the place of the subject District Attorney during the time of the recusal.

15.

Mover shows that an Order should i

Citation profile

Relationships

How this case has been treated — in progress