Patrick Mahon McGEE
is a statement of the facts and circumstances constituting the crime
whereof defendant was convicted, together with all other information
available in regard to the career of the defendant prior to the
commission of the crime of which he, the said defendant, was convicted.
On or about the 31st day of July, 1959, the Defendant
was charged with a felony, to-wit: Murder in the First Degree of one Ary
J. Best. Attorneys John H. Grace and William R. Preston, of Flagstaff,
Coconino County, Arizona, were subsequently appointed by the Court to
represent McGee an acknowledged indigent. On August 31, 1959, a
preliminary hearing was held in the Justice Court of the Flagstaff
Precinct of said County and State, and the defendant held to answer
without bond to the Superior Court.
An information charging Murder in the First Degree
was thereupon filed September 17, 1959, to which the defendant entered a
plea of not guilty on said date. Trial by jury was set for November 16,
1959 and later vacated to November 30, 1959. This trial date was also
vacated and then reset for the 7th day of December, 1959.
On December 7. 1959, the defendant was tried before a
Jury in the Superior Court of the County of Coconino, State of Arizona,
on the charge of First Degree Murder. The trial lasted for a period of
nine days, with the jury, on the 16th day of December, 1959, returning a
verdict of guilty of Murder in the First Degree and assessing the
penalty of death.
By order of the presiding judge, Jack L. Ogg, of
Yavapai County, the date of sentencing was set for the 8th day of
January, 1960, at the hour of 10:00 o'clock a.m. On said date the
defendant was sentenced to die in the gas chamber at the Arizona State
Prison, Florence, Arizona, on the 6th day of April, 1960.
Briefly, the facts surrounding the crime of murder
committed by the defendant are these.
On the 31st day of July, 1959, the said defendant,
Patrick McGee, was traveling by automobile through Coconino County,
Arizona, with one Millie Fain, a woman with whom he had been living for
approximately eight months, en route to California. They were given
assistance on their disabled automobile by the murder victim, Ary J,
Best. At a point approximately twelve miles east of Flagstaff, alongside
U.S. Highway 66, Patrick McGee, without provocation, and with the
apparent intent to rob, stabbed Ary J. Best, an arthritic cripple, four
times in the chest and back. As the victim lay dying, and probably
unconscious, on the ground, the defendant Patrick McGee placed the
murder weapon---a large hunting knife --.in the hand of Millie Fain and
told her to stab the said victim twice in the neck. His companion
complied and stabbed the mortally wounded man two times in the throat
area. McGee and his companion then robbed the dead man's pockets and
absconded with his automobile and personal belongings. No effort was
thereafter made to report the matter to the authorities. The said
parties squandered the victim's money in Flagstaff and Williams, and
went on a "drinking party" before leaving by train from Williams to
California. The two of them were arrested in Los Angeles the next
morning, on the 1st day of August, 1959.
The defendant at first denied his guilt and claimed
he had killed Best in resisting the latter's attempt to rape Millie Fain.
This version he persisted in repeating, and on the witness chair at his
trial, testified that he killed, either (1) in resisting an attempted
rape, or (2) in resisting an act of solicitation by Millie Fain which
reasonably appeared to him to be an act of forcible sexual intercourse.
This statement of the facts was refuted by Millie
Fain, who claimed and testified to the effect that the killing was
unprovoked and followed an unsuccessful solicitation of Ary J,Best by
her for money, and that the solicitation was at the request and demand
of Patrick McGee. Polygraphic examinations were conducted upon Millie
Fain by Charles Coates, Special Investigator for the Pima County
Attorney’s Office, Tucson; Arizona. The results of these tests
substantiated her statements as to solicitation for intercourse rather
than rape, the motive of robbery on the part of McGee together with the
intent to kill.
The defendant gave the following information:
Name of relative - Una Miller, wife, 1452 Chico, El
Place and date of birth - Wilburton, Oklahoma; May 3,
Religion - Protestant
Education - completed Eighth grade
Marital status - Married
Excessive drinking - Yes
Drugs - No
Occupation - Fruit Picker
Military History - Information not available
FBI No. 64150 - (record since June 1923) -
Charges of vagrancy, suspicion burglary, driving
motor vehicle while under influence of liquor, assault and battery,
drunk, traffic violation, et al, fined ten to three thousand fifty
dollars, sentenced fifty to one hundred fifty days. Sentenced State
Reformatory, Buena Vista, Colorado, April, 1924, grand larceny,
indeterminate. Latest---Police, Los Angeles, February, 1956, Fugitive,
RESPECTFULLY SUBMITTED this 11th day of
310 F.2d 230
Patrick Mahon McGEE, Petitioner,
Frank EYMAN, Superintendent, Arizona State Prison, Respondent.
Misc. No. 1486.
United States Court of Appeals Ninth
Nov. 16, 1962.
John H. Grace, Flagstaff, Ariz., for petitioner.
No counsel for respondent.
POPE, Circuit Judge.
direction of the Chief Judge of this court, I have undertaken to
consider and act upon this application for a stay of execution made on
behalf of petitioner who, it is stated, has been ordered executed by the
respondent on the 30th day a November, 1962, pursuant to judgment and
order of the Supreme Court of Arizona which has affirmed petitioner's
sentence of death. The petition recites that petitioner desires to
appeal to this court from the decision of the United States District
Court for the District of Arizona which has denied his petition for a
writ of habeas corpus.
outset I note that the petition here present merely prays for an order
staying petitioner's execution. I am of the opinion that I have no
jurisdiction to entertain such a petition in the absence of a
certificate of probable cause or an application for such certificate as
that is a condition precedent to petitioner's right to appeal. See U.S.C.
Title 28, 2253. However, since petitioner recites that he desires to
appeal, I disregard this formal insufficiency in the petition and treat
the petition as one both for a certificate of probable cause and for a
stay of execution. Such disregard of formal irregularities is proper and
appropriate under the decisions of this court. Cutting v. Bullerdick, 9
Cir., 178 F.2d 774, 12 Alaska 528, appears to be directly in point. See
also the discussion of formal irregularities in notices of appeal in
Yanow v. Weyerhaeuser Steamship Co., 9 Cir., 274 F.2d 274, 282.
to the merits of petitioner's application. I find it defective in
substance and wholly insufficient to present a case which this court may
petitioner's conviction in a Superior Court of Arizona, petitioner
appealed to the Supreme Court of Arizona, State v. McGEE, 91 Ariz. 101,
370 P.2d 261. Petitioner's conviction and sentence of death was affirmed.
Petitioner then sought a writ of certiorari from the Supreme Court of
the United States to review that decision. Certiorari was denied and
petitioner then filed a petition for writ of habeas corpus in the United
States District Court. The petition stated no specific grounds for the
issuance of a writ of habeas corpus bur incorporated by reference a copy
of petitioner's motion for a rehearing in the Arizona court and a copy
of the certificate of stay of execution which he obtained from the
supreme Court of Arizona pending his application for certiorari in the
United States Supreme Court. The petition for writ of habeas corpus
recites that 'The specific facts supporting this contention are stated
in' the exhibits mentioned. Neither of those exhibits contains any
statement of fact which would support or warrant the issuance of a writ
of habeas corpus.
It further appears that petitioner attached to his petition for a
writ of habeas corpus a copy of his petition for writ of certiorari
filed in the Supreme Court of the United States which contains a so-called
'Summary Statement Of The Matter Involved'. In this are listed, under
the headings 'A' to 'G' inclusive, what are called 'The principal
questions involved on said appeal' to the Supreme Court of Arizona. Here
are listed certain alleged errors of the trial court which were not
corrected by the Arizona Supreme Court. These include alleged errors in
permitting the case to be tried by the wrong Superior Court judge;
denial of inspection of certain documents and statements of the
defendant; denial of a change of venue due to alleged bias and prejudice
in the community; denial of the defendant's challenge to the panel;
denial of a new trial on the ground that the verdict was contrary to the
weight of the evidence; denial of a new trial on the ground that the
facts did not warrant the death penalty; errors in the court's
instructions respecting defendant's confession. None of these relate to
any denial of any constitutional or other federal right of the
In his petition for the writ of certiorari, petitioner recited that
of these claimed errors 'two are notably outstanding.' One of these was
the denial of his application for a change of venue which he says was
supported by copies of the newspaper circulated in the county where he
was tried. Another error which he said was outstanding was the alleged
failure of the trial court to give an instruction as to the
voluntariness of the confession, and as to whether, if it was
voluntarily given it was true. He complains of the Arizona Supreme
Court's discussion of this question in which it suggested that the
statement was merely an admission and not a confession.
jurisdictional statement to the Supreme Court of the United States
petitioner said that he had 'specially claimed under the Constitution of
the United States a title, right, privilege or immunity'; but, in
listing the so-called federal question sought to be reviewed he merely
listed the same errors previously mentioned adding a denial of a
separate preliminary hearing, a denial of bail, a charge that the county
attorney in his closing argument improperly stated that 'if the
defendant received a life sentence in Arizona it would mean from 10 to
12 years. This is an invasion by the judiciary on the legislative or
executive function.' He then concluded that in affirming the conviction
and the decision of the trial court, the Supreme Court of Arizona denied
petitioner 'due process and equal protection of the law.'
of the petition for the writ of habeas corpus with the other papers
mentioned convinces me that petitioner's counsel are laboring under a
serious misapprehension as to the function of the federal court in
dealing with such a petition for the writ of habeas corpus on behalf of
a state prisoner. A federal court's jurisdiction to issue such a writ is
strictly Limited. The only occasion for granting such a writ is stated
in sub-paragraph (c)(3) of 2241, Title 28, as follows: 'The writ of
habeas corpus shall not extend to a prisoner unless-- * * * (3) He is in
custody in violation of the Constitution or laws or treaties of the
United States.' A second limitation is found in 2254 of Title 28 where
the first paragraph of the section reads as follows: 'An application for
a writ of habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that
the applicant has exhausted the remedies available in the courts of the
State, or that there is either an absence of available State corrective
process or the existence of circumstances rendering such process
ineffective to protect the rights of the prisoner.'
Neither of these requirements are satisfied here. The limitation
upon a federal court in the case of a state prisoner was long ago
spelled out in simple language by this court in Sampsell v. People of
the State of California, 9 Cir., 191 F.2d 721, 725, as follows: 'Our
function in this type of proceeding is not to correct errors committed
in a state trial court. * * * Federal courts must withhold interference
with the administration of state criminal justice unless a federal right
has been violated."
plain to me that no question of denial of a federal constitutional right
was ever raised in the state court; that no such question was presented
in the application of certiorari, and no ground for relief by way of
habeas corpus was stated in the petition to the court below. Accordingly,
a certificate of probable cause is denied, and a stay of execution is
With respect ot the complaint about a refusal to
permit petitioner to inspect his written confession, see Cicenia v.
Lagay, 357 U.S. 504,
510, 78 S.Ct. 1297, 2 L.Ed.2d 1523
The opinion of the Supreme Court of Arizona Indicates
that petitioner did not confess guilt but claimed that he stabbed the
deceased in self-defense and admitted he took the deceased's wallet
after the stabbing
In that case this court held taht remarks by the
district attorney at the appellant's trial, similar to those complained
of in the matter now before me, did not raise a due process question