Incerto v. Patterson Motion to Advance, Motion for Leave to File and Petition for a Writ of Certiorari

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IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1971

No.

THOMAS INCERTO,
petitioner,

vs .
WAYNE K. PATTERSON, Warden, 
Colorado State penitentiary,

Respondent.

>

MOTION TO ADVANCE,
MOTION FOR LEAVE TO FILE PETITION 

FOR A WRIT OF CERTIORARI,
AND

PETITION FOR A WRIT OF CERTIORARI TO 
THE HONORABLE DAVID T. LEWIS, Chief 
Judge, HONORABLE JOHN C* PICKETT, 
Senior judge, and HONORABLE ROBERT H„ 
MCWILLIAMS, Circuit Judge, UNITED 
STATES COURT OF APPEALS FOR THE TENTH 

CIRCUIT

JACK GREENBERG 
STANLEY A. BASS

10 Columbus Circle 
Room 2030
New York, N.Y. 10019 

Attorneys For petitioner



I

I N D E X

Page

Motion To Advance ....................
Motion For Leave To File petition For A Writ of Certiorari ......................
petition For A Writ of Certiorari To The Honorable 

David T. Lewis, Chief judge, Honorable John C. 
Pickett, Senior Judge, And Honorable Robert H. 
McWilliams, Circuit Judge, united States Court of Appeals For The Tenth Circuit ............

Opinions Below ......................
Jurisdiction ........................
Questions presented For Review . . .
Constitutional and Statutory Provisions Involved
Statement of the Case ......................
Reasons For Granting The writ ........
Introduction .......... * * * • • • • • • • • •

I. Certiorari Should Be Granted To
Decide The important Question 
Whether The Eighth and Fourteenth 
Amendments Proscribe The Arbitrary 
Denial of Bail pending Appeal ..........

II. Certiorari Should Be Granted To 
Determine whether The Constitutional 
Proscription Against The Abitrary 
Denial of Bail is Offended By The 
Colorado Courts' Unexplained Refusal To Release petitioner pending Appeal,
In Violation of Their Own Rules 
Requiring A Written Statement Of The Reasons For Denial, and Under 
Circumstances where The Appeal involved Is Not Frivolous Or Taken Solely For The Purpose of Delay, and It Has Not 
Been Shown Or Found That This petitioner Poses Unavoidable Risk Of Flight Or Danger To The Community ................

Ill* Certiorari Should Be Granted To Determine 
Whether The District Court Had Jurisdic­tion under The Federal Habeas Corpus 
Statute To Grant Limited Relief Ordering 
The Release of petitioner pending Appeal, 
Without prejudice To The State's Right 
To Provide A Statement of Its Reasons Why Bail should Not Be Allowed ..........

1

4

5
5
5
6 
7 
9
13
13

15

20

23

l



IV. Certiorari Should Be Granted To Determine 
Whether Court of Appeals Judges Lewis,
Pickett and McWilliams Erred In Denying A 
Certificate of Probable Cause To Review 
The Summary Dismissal Or petitioner's 
Application For A Writ of Habeas Corpus . 26

Conclusion..........................  27

Appendix:
Order of the District Court Denying petition 1a
Order of the District Court Denying Certificate 3a
Order of the Court of Appeals DenyingCertificate..............................  4a

Table of Cases
Aguilar v. Texas, 378 U.S. 108 (1964)...........  15
Alcorcha v. California, 86 Sup. Ct. 1359, 16*L*Ed23 435 (1966).............................. ] 25

v- Division of State Athletic Commission, 316 FSupp. 1246 (S.D.N.Y. 1970).................... ’ 17
Attwood v. people, 165 Colo. 347, 439 P.2d*40(1968)........................................  12
Beyer v. United States, 396 U.S. 1235 (1970) . . . .  18Bitter v. united States, 389 U.S. 15 (1967) . . . .  17
Boyer v. City of Orlando, 402 F.2d 968 (5th Cir..1968)............................ ; ............24
Bridges v. united States, 184 F.2d 881, 887 (9thCir. 1950)....................................  21
Bruton v. United States, 391 U.S. 123 (1967) . . . 12Burwell v. Teets, 350 U.S. 808 (1955)..............  6
Carbo v. United States, 82 Sup. Ct. 662, 7 L.Ed.2d769 (1962)........ ........................... 2 1
Carlson v. Landon, 342 U.S. 524 (1952) . 15 18 19 21
Carter v. People, 458 P.2d 236 (Colo. 1969) . . . .  12*21*Chambers v. Mississippi, 10 Cr. L. Rptr. 2401(Feb. 15, 1972) . . ........................... 22
Coppedge v. United States, 369 U.S. 438 (1962) . . 26, 27
D ’Aquino v. United States, 180 F.2d 271 (1950) . . 16
Dawkins v. Crevasse, 391 F.2d 921 (5th Cir. 1968)* 23 24
Draper v. Washington, 372 U.S. 487 (1963) . . . .  26*Duncan v. Louisiana, 391 U.S. 145 (1968)........  15
Eskridge v. Washington State Board of Prison Termsand paroles, 357 U.S. 214 (1958)..............  26
Ex parte Bollman, 4 Cranch 75 (1807) . . . .*.".*. 24
Ex Parte perkov, 45 F. Supp. 864 (S.D. Cal. 1942) . 24

I

Page

ii



» l

Page
Fay v. Noia, 372 U.S. 391 (1963)..................  25
Febre v. United States, 396 U.S. 1225 (1969) . . . .  18
Gideon v. Wainwright, 372 U.S. 335 (1963)........  15
Goldberg v. Kelly, 397 U.S. 254 (1970).............  19
Green v. City of Orlando, 313 F. Supp. 583 (M.D.Fla. 1970).....................................  24
Griffin v. Illinois, 351 U.S. 12 (1953)..........  16
Harris v. united States, 404 U.S. 1232 (1971) . . .  21
House v. Mayo, 324 U.S. 42 (1945)................  6
Hudson v. Parker, 156 U.S. 277 (1895)............  17
in re Burwell, 350 U.S. 521 (1956)........... 6
In re Shuttlesworth, 369 U.S. 35 (1962)..........  6
Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123 (1951)..........................  6, 23,27
Ker v. California, 374 U.S. 230 (1963)...........  15
Klopfer v. North Carolina, 386 U.S. 213 (1967) . . 15
Leigh v. United States, 82 Sup. Ct. 994, 8 L.Ed.2d 269 (1962)................................  21
Malloy v. Hogan, 378 U.S. 1 (1964) . . . . . . . .  15
Mapp v. Ohio, 367 U.S. 643 (1961)...............  15
Maxwell v. Bishop, 385 U.S. 650 (1967)...........  6,27
Mayer v. Chicago, 92 Sup. Ct. 410, 30 L.Ed.2d 372

(Dec. 13, 1971).......................... .. . 16
McKane v. Durston, 153 U.S. 684 (1894)..........  16
Monks v. New jersey, 58 N.J. 238, 277 A.2d 193

(1971)........................................ 19
Morrissey v. Brewer, 92 Sup. Ct. 568 (Dec. 20,

1971)........................................  18
Nowakowski v. Maroney, 386 U.S. 542 (1967) . . . .  27
petty v. people, 167 Colo. 247, 447 p.2d 217

(1968)................................ .. . . 12
people v. Way, 165 Colo. 161, 437 P.2d 535 (1968) 12
Pointer v. Texas, 380 U.S. 400 (1965) . . . . . .  15
Rehman v. California, 85 Sup. Ct. 8, 13 L.Ed.2d17 (1964)..................................  21
Rinaldi v. Yeager, 384 U.S. 305 (1966)............ 27
Robinson v. California, 370 U.S. 660 (1962) . . .  15
Robles v. people, 160 Colo. 297, 417 P.2d 232

(1966) ....................................... 12
Rodriguez v. McGinnis, 307 F. Supp. 627 (N.D.

N.Y. 1969), aff'd en banc, F.2d (2dCir. Jan. 25, 1972)................ .. . . . 19
Schilb v. Kuebel, 92 Sup. Ct. 479, 30 L.Ed.2d

502 (Dec. 20, 1971) .................... 16



Page
Sellers v. United States, 89 Sup. Ct. 36, 21 L Ed2d 64 (1968).............. ..
Service v. Dulles, 354 u.S. 363 (1957)
Shakur v. Commissioner of Correction, 303*f ! Supp.’

303 (S.D.N.Y. 1969), aff'd, 418 F.2d 243 (2d Cir. 1969) ................
Sibron v. New York, 392 U.S. 40 (1968) . ! ! ! ! ! !
Sica v. United States, 82 Sup. Ct. 669, 7 L.Ed.2d 778 (1962) ........................
Simpson v. Spice, 318 F. Supp. 554 (E.D. Wis. 1970)Stack v. Boyle, 342 u.S. 1 (1951)................ ’
St. Pierre v. United States, 319 U.S. 41 (1943)

18
20

24
16,22,25
22
24
2,15,2716

Thompson v. Louisville, 362 u.S. 199 (1960) 12
United States v. Motlow, 10 F.2d 657 (1926)
United States ex rel. Keating v. Bensinger, 322 FSupp. 784 (N.D. 111. 1971) .................
United States ex rel. Tillery v. Cavell, 294 F 2d 12 (3d Cir. 1961) ..................

17
19,20,24,27 
26

Washington v. Texas, 388 U.S. 14 (1967)
Wisconsin v. Constantineau, 400 U.S. 433 (1971) . 1

Constitutional Provisions, Statues and Rules
Fifth Amendment, United States Constitution . . . .  
Eighth Amendment, United States Constitution 
Fourteenth Amendment, United States Constitution ! !
18 U.S.C. § 3148 ............
28 U.S.C. § 1651 ( a )........ ’ . “....................
28 U.S.C. § 2241(c)(3) . . . . . ..............28 U.S.C. § 2253 ............ ..
28 U.S.C. § 2254 ..........

15
7.16.18.19.257.15.16.19.25
21
4
7.9.23.25 
7,8,26
8, 24

Rule 31(1), Supreme Court Rules 
Rule 9(b), Fed. Rules App. proc
Rule 8.1(c), Colo. App. Rules . . . .Rule 9(b), Colo. App. Rules ........
Rule 46(a)(2), Colo. Rules Crim. Proc

8.9.20
9.18.20 9,19

Text
Mattick & Aikman, The cloacal Region of American 

Corrections, 381 Annals of the American Academy 
of Political and Social Sciences 109 (1969) . . 13

McGee» The Administration of Justice; The CorrectionalProcess, 5 N.P.P.A.J. 225 (1959) . --i3
Bennett, It's A Crime to Use the Jail, in OF PRISONS 

AND JUSTICE, S. Doc. No. 78, 88th Cong. 2d Sess.31-36 (1964)...................... .............. 13
Note, Constitutional Limitations on the Conditions

of pretrial Detention, 79 Yale l .J. 941 (1970) . . 13
Time Magazine, Aug. 24, 1970, at 28-29, The Black Hole of Manhattan 13



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1971 
No._________

THOMAS INCERTO,
petitioner,

vs .
WAYNE K„ PATTERSON, Warden, Colorado State penitentiary,

Respondent.

MOTION TO ADVANCE

petitioner moves the Court to expedite considera­
tion of the attached motion for leave to file petition for 
a writ of certiorari, and of the questions presented in the 
attached petition for certiorari, by advancing ten days the 
date by which respondent may file a brief in opposition, 
in the event the motion for leave to file, and the petition 
for writ of certiorari, are granted, and this case set down 
for argument, petitioner moves the Court to advance the dates 
by which briefs on the merits are to be filed and the date of 
oral argument.

As grounds for such motion, petitioner, by his 
undersigned counsel, states:

1. This case involves a substantial challenge 
under the Eighth and Fourteenth Amendments to the Constitution 
of the united States to the arbitrary, unexplained denial of 
bail pending a non-frivolous appeal to the Colorado Supreme 
Court by a 67 year old terminal cancer patient. It also



involves the jurisdiction of the District Court, under the 
federal habeas corpus statute, to grant at least limited 
relief ordering release of a petitioner pending his appeal to 
the state courts. if petitioner's contentions should prevail, 
he will nevertheless have been punished irreparably for each 
day he has remained in prison. This Court has said: "Relief
in this type of case must be speedy if it is to be effective." 
Stack v. Boyle, 342 u.S. 1, 4 (1951).

2. unless the schedule for presenting and consid­
ering this case is advanced, petitioner's appeal may be 
decided by the Colorado Supreme Court before final action by 
this Court on the matter of release, and the important bail 
and federal jurisdiction issues presented here could become 
moot. Relief similar to that sought by this motion was 
granted by this Court in Stack v. Boyle, supra.

3. it does not appear that any prejudice will be 
suffered by respondent by reason of advancing by ten days the 
date for filing a brief in opposition. And, petitioner is 
mailing his motions and petition for writ of certiorari to 
this Court ten days prior to their due date.

4. The record in this case is very short, and 
consists only of a two page order denying petition for writ 
of habeas corpus, a one page order denying certificate of 
probable cause by the District Court, a one page order 
denying such certificate by the Court of Appeals, all of 
which are appended to the petition for writ of certiorari, 
and the petition for writ of habeas corpus and supporting 
memorandum, which will be forwarded to this Court by the 
Clerk of the Court of Appeals upon receipt of notice of the 
filing herein of the motion for leave to file, and petition 
for writ of certiorari.

2



WHEREFORE, petitioner prays that the date by 
which respondent may file a brief in opposition to the 
motion for leave to file, and petition for writ of 
certiorari, be advanced ten days and, in the event the 
writ is granted, that the dates by which briefs on the 
merits are to be filed and the date of oral argument be 
advanced.

Respectfully submitted,

STANLEY A„ BASS
10 Columbus Circle Room 2030
New York, N.Y. 10019 

Attorneys For petitioner

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IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1971
No._______

THOMAS INCBRTO,
Petitioner,

vs.
WAYNE K. PATTERSON,
Warden, Colorado State Penitentiary,

Respondent.

MOTION FOR LEAVE TO FILE PETITION 
FOR A WRIT OF CERTIORARI

Pursuant to Rule 31(1) of this Court, Thomas 
Incerto, by undersigned counsel, respectfully moves the 
Court for leave to file the annexed petition for a writ 
of certiorari under 28 U.S.C. § 1651(a). Contentions in 
support of the petition are included in the body of the 
Petition, as required by the Rule.

JACK GREENBE/G 
STANLEY A. ^ASS

10 Columbus Circle Room 2030
New York, N.Y. 10019

Attorneys For petitioner

4



PETITION FOR A WRIT OF CERTIORARI 
TO THE HONORABLE DAVID T. LEWIS,Chief Judge, HONORABLE JOHN C.
PICKETT, Senior Judge, and 
HONORABLE ROBERT H. McWlLLIAMS,Circuit Judge, UNITED STATES COURT 
OF APPEALS FOR THE TENTH CIRCUIT„

Petitioner prays that a writ of certiorari issue 
to review the order of United States Circuit Judges David 
T. Lewis, John C. Pickett, and Robert H. McWilliams, 
issued on December 28, 1971, denying petitioner's applica­
tion for a certificate of probable cause to appeal to the 
United States Court of Appeals for the Tenth Circuit the 
denial of petitioner's application for a writ of habeas 
corpus by the United States District Court for the District 
of Colorado.

Opinions Below

The opinion and order of the united States Dis­
trict Court for the District of Colorado denying petitioner's 
application for a writ of habeas corpus is unreported, and is 
set out in the Appendix, at p. 1A-2A, infra. The District 
Court’s order denying a certificate of probable cause is 
unreported and is set forth at p. 3A.

The order of the Honorable David T. Lewis, Chief 
Judge, Honorable John c. Pickett, Senior Judge, and 
Honorable Robert H. McWilliams, Circuit Judge, denying a 
certificate of probable cause, is unreported and is set forth 
at p. 4A. No opinion was written by Judges Lewis, Pickett and 
McWilliams in connection with this order.

Jurisdiction
The order of Judges Lewis, Pickett and McWilliams 

denying a certificate of probable cause was entered on 
December 28, 1971.

5



r

The jurisdiction of this Court is invoked under 
28 U.S.C. § 1651(a). Authorities sustaining the jurisdic- 
tion are House v. Mayo, 324 U.S. 42 (1945); Burwell y. Teets. 
350 U.S. 808 (1955), and In re Burwell, 350 U.S. 521 (1956); 
Ij! re Shuttlesworth, 369 U.S. 35 (1962); Maxwell y. Bishop.
385 u.S. 650 (1967). The decision in House y. Mayo, supra, 
establishes that "the relief sought is not available in any 
other court. . . . and cannot be had through other appellate
processes," within the meaning of Rule 31(2) of this Court. 
Since three judges of the Court of Appeals for the Tenth 
Circuit have simultaneously considered and denied petitioner’s 
application for a certificate of probable cause, this Court 
is, in effect, the only one available to grant relief.

Questions Presented For Review 
Where a 67 year old terminal cancer patient was 

convicted of conspiracy to bribe a judge, but acquitted of 
bribery, and the co-defendant judge was acquitted of con­
spiracy and substantive charges, and under Colorado law, this 
would be arguable grounds for acquittal; where petitioner's 
application for bail pending appeal was denied by the trial 
court and the Colorado Supreme Court twice, without reasons, 
despite Colorado rules requiring a written statement of 
reasons for denial; where it has never been shown that this 
petitioner poses unavoidable risk of flight or danger to the 
community; where the District Court summarily dismissed, for 
lack of jurisdiction, petitioner's habeas corpus application, 
which alleged unconstitutionally arbitrary state court denial 
of bail; and where the District Court and three judges of 
the united States Court of Appeals denied certificate of 
probable cause:

6



1) Do the Eighth and Fourteenth Amendments 
proscribe the arbitrary denial of bail pending appeal?

2) Did the Colorado courts' unexplained refusal 
to release petitioner pending appeal, in violation of 
their own rules requiring a written statement of 
reasons for denial, constitute an arbitrary 
deprivation of bail?

3) Did the District Court have jurisdiction, 
under the federal habeas corpus statute, to grant 
limited relief ordering the release of petitioner 
pending appeal, without prejudice to the state's 
right to provide a statement of its reasons why bail 
should not be allowed?

4) Did Court of Appeals Judges Lewis, Pickett 
and McWilliams err in denying a certificate of 
probable cause to review the summary dismissal of 
petitioner's application for a writ of habeas corpus?

Constitutional and Statutory provisions involved
1. The case involves the Eighth and Fourteenth 

Amendments to the Constitution of the United States.
2. it involves 28 U.S.C. § 2241 (c)(3), which

provides, in pertinent part, as follows:
The writ of habeas corpus 
shall not extend to a prisoner unless- . . .  He 
is in custody in violation of 
the Constitution . . .  of the 
United States.

It involves 28 U.S.C. § 2253, which provides
in pertinent part, as follows:

In a habeas corpus proceeding before a circuit or district judge, the final order shall

7



be subject to review, on appeal, by the court of 
appeals for the circuit 
where the proceeding is 
had . . . .

An appeal may not be 
taken to the court of 
appeals from the final 
order in a habeas corpus proceeding where the 
detention complained of 
arises out of process 
issued by a State court, 
unless the justice or judge 
who rendered the order or a circuit justice or judge 
issues a certificate of probable cause.

4. It involves 28 U.S.C. § 2254, which provides 
in pertinent part, as follows:

(a) The Supreme Court, a justice 
thereof, a circuit judge, or a district 
court shall entertain an application for 
a writ of habeas corpus in behalf of a 
person in custody prusuant to the judg­
ment of a State court only on the ground 
that he is in custody in violation of 
the Constitution or laws or treaties of the united States.

(b) 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 ex­
hausted 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.
5. The case also involves Rules 8.1(c) and 9(b) 

Colorado Appellate Rules, and Rule 46(a)(2), Colorado Rules 
of Criminal Procedure, which provide as follows:

Rule 8.1 Stays in Criminal Cases
(b) Bail.

Admission to bail pending the determination 
of review as provided in Rule 46, Crim. P..
(c) Application For Relief pending Review

If an application is made to the supreme 
court, or a justice thereof, for bail pending
review . . . the application shall be upon

-  8 -



notice and shall show that application 
to the court below . . . has been made 
and denied, with the reasons given for the denial, . . .

* * *
Rule 9. Release in Criminal Cases
(b) Release pending appeal from a 

judgment of conviction.
Application for release after a judgment 

of conviction shall be made in the first instance 
in the trial court. If the trial court refuses 
release pending appeal or imposes conditions of 
release, the court shall state in writing the 
reasons for the action taken. Thereafter, if an 
appeal is pending, a motion for release, or for 
modification of the conditions of release, pen­
ding review may be made to the supreme court or 
to a justice thereof. The motion shall be de­
termined promptly upon such papers, affidavits, 
and portions of the record as the parties shall 
present and after reasonable notice to the 
appellee. The supreme court or a justice thereof 
may order the release of the appellant pending disposition of the motion.

Rule 46 Bail.
(a) Right to bail.
(2) After conviction. Except when a person 

has been convicted of a capital offense, bail may 
be allowed pending determination of a motion for 
a new trial or motion in arrest of judgment, or 
during any stay of execution or pending review by 
a higher court unless it appears that the review 
is sought on frivolous grounds or is taken for 
delay. pending review by a higher court, bail 
may be allowed by the trial judge, or by any judge 
of a higher court, to run until final determination 
of the proceedings in all courts. Pending review by the Supreme Court, bail may be allowed by the 
trial judge or by the Supreme Court or a justice 
thereof. Any court or any judge or justice 
granting bail may at any time revoked the order 
admitting the defendant to bail.

Statement of the case
As alleged in his petition for Writ of Habeas 

Corpus and supporting Memorandum Brief, filed in the 
United States District Court, pursuant to 28 U.S.C. § 2241 
(c)(3), petitioner, Thomas ("Whiskers") incerto was 
indicted by a Colorado grand jury on charges of bribery of

9



a judge and conspiracy to commit bribery. The judge, who 
was also indicted for the same offenses, was acquitted. 
Incerto was convicted of the conspiracy charge. on July 
23, 1971, he was sentenced to imprisonment for six to ten 
years. Upon expiration of a 30 day stay of execution, on 
August 23, 1971, petitioner commenced service of his sen­
tence in the Colorado State penitentiary, where he presently 
remains incarcerated, while his appeal is pending.

On July 23, 1971, the state trial court denied 
Incerto's application for bail pending appeal, without 
giving any reasons for such denial. Thereafter, petitioner 
sought bail from the Supreme Court of Colorado. He alleged 
that review was being sought on the basis of numerous grounds 
contained in his post-trial motions for acquittal and for new 
trial, and was not for the purpose of delay or on frivolous 

* Incerto further stated that he was 67 years old, 
and resided with his nephew, Kenton j. Adair, 830 West Route, 
Pueblo, Colorado, and that he would return there if released. 
He indicated that he "is undergoing frequent and extensive 
treatments for cancer at the penrose cancer Hospital located 
in Colorado Springs, Colorado, which treatments could not be 
effectively and adequately administered if Appellant was in­
carcerated pending this appeal." petitioner added that he 
had faithfully and diligently appeared in the trial court 
during numerous court appearances commencing in January of
1971 and during a lengthy trial which consisted of more than 
two and a half weeks.

He admitted to a prior record consisting of a six 
month period of confinement in the Colorado Boys' School 
when he was twelve years old, a seven month sentence for 
bootlegging 1 in the 1930's, an abortion conviction in 1964,

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for which he received a pardon, a one year sentence for 
gambling (a misdemeanor) imposed in absentia in 1971, which 
is on appeal, and a 1953 income tax evasion conviction.

Colorado's Attorney General opposed incerto's 
application for bail "because of the defendant's extensive 
criminal record, it would not be in the best interests of 
the community to grant this application for bail." On 
August 19, 1971, the Supreme Court of Colorado denied bail
pending appeal, without giving any reasons for said denial.

Thereafter, petitioner reapplied to the Supreme 
Court of Colorado for bail pending appeal, asserting that 
he had a "right to bail." Colorado's Attorney General opposed 
the reapplication, for the reason given earlier and because 
"there is no absolute right to post-conviction bail." On 
September 23, 1971, the Supreme Court of Colorado denied 
the reapplication for bail, without giving any reasons for 
said denial.

petitioner then applied to the united States 
District Court for a writ of Habeas Corpus, contending that 
he was unconstitutionally denied bail on appeal.

In his petition and attached Memorandum Brief, 
which was incorporated by reference, petitioner set forth 
the foregoing facts and added that he suffers from throat 
cancer, rheumatism, high blood pressure, arthritis, 
emphysema and other ailments. Incerto further indicated 
that his appeal from the conviction includes the points 
that he was entitled to acquittal of conspiracy, under 
Colorado law, by virtue of his acquittal of bribery and 
the acquittal of the co-defendant judge of conspiracy

11



and substantive charges, citing Carter v. people, 458 P.2d
236 (Colo. 1969); Robles v. people, 160 Colo. 297, 417 P.2d
232 (1966); people y. way, 165 Colo. 161, 437 P.2d 535 (1968)
Attwood v. people, 165 Colo. 347, 439 P.2d 40 (1968); and
petty v. people, 167 Colo. 247, 447 P.2d 217 (1968), and that

1/other "substantial errors" were committed at trial.
The District Court summarily dismissed the petition 

for writ of Habeas Corpus, without issuing an order to show 
cause, or examining any state court records, or holding a 
hearing. The Court held that petitioner had failed to ex­
haust available state court remedies, and that the District 
Court has "no authority to set bail pending appeal in the 
State Court." He concluded: "We have no jurisdiction to
review the decisions of the state courts. The petitioner 
should pursue his claim within the state court structure." 
in denying a certificate of probable cause, the District 
Court added: " [T]he law is clear that the petitioner must
exhaust his state remedies before this Court can consider 
his claim, and we have no jurisdiction to set bail in the 
State Court pending appeal in that Court . . ."

The Honorable David T. Lewis, Chief Judge,
Honorable John C. Pickett, Senior judge, and Honorable 
Robert H. McWilliams, Circuit Judge, united States Court 
of Appeals for the Tenth Circuit, granted leave to appeal 
in forma pauperis, but denied petitioner's application for 
a certificate of probable cause, without opinion. It is to 
review that order that the present petition for certiorari

i./ m  addition to the argument for acquittal based upon 
insufficient evidence to support a conviction, two 
federal issues will be included in Appellant's Brief; 
that the conviction was totally devoid of evidentiary support, Thompson v. Louisville, 362 U.S. 199 (1960); 
and that Incerto was denied confrontation by the use 
of hearsay, in violation of Bruton v. United States, 
391 U.S. 123 (1967)„

12



is filed.

REASONS FOR GRANTING THE WRIT 
Introduction

One of the most important decisions made thousands 
of times daily in the nation's criminal justice systems is 
whether a defendant will be released or detained in jail 
pending the disposition of his case. in order to give full 
fealty, as opposed to mere lip service, to the basic prin­
ciple that punishment should not be imposed until the 
accused has had his full day in court, admission to bail-- 
both pending trial and pending appeal— is generally
authorized. yet, many persons still languish in decrepit

2/jails and dangerous prisons before their cases are finally 
adjudicated. This situation contributes mightily to over­
crowded penal institutions and concomitant abuses, to say 
nothing of denial of justice in countless cases of mainly 
poor and black defendants.

Commentators have for some time not only criticized 
the operation of the bail system, but challenged its funda­
mental premises on constitutional grounds. One might suppose 
that the appearance of obviously substantial constitutional 
questions against the background of a substantial body of 
evidence documenting the abuse and unfairness of the bail

2/ See generally, Mattick & Aikman, The Cloacal Region
of American C.orrectio ns, 381 Annals of the American Academy 
of Political and Social Sciences 109 (1969); McGee, The 
Administration of Justice; The Correctioral Process, 5 N.P. 
P.A.J. 225 (1959)(describing the typical county jail as "the 
lowest form of social institution on the American scene"); 
Bennett, It's a Crime to Use the jail, in OF PRISONS AND 
JUSTICE, S. Doc. No. 70, 88th Cong., 2d Sess. 31-36 (1964); 
Note, Constitutional Limitations on the Conditions of Pretrial 
Detention, 79 Yale l .J. 941 (1970); The Black Hole~5f' Manhattan, Time Magazine, Aug„ 24, 1970, at 28-29.

13



system would have ordinarily resulted in consideration of 
pertinent constitutional standards by this Court before the 
present day. But in this area, lower courts act in a con­
stitutional vacuum. Appellate courts rarely are accorded 
the opportunity to grapple with the principles which spell 
the difference between liberty and jail for thousands of 
defendants each day, largely because of the impracticality 
of resort to protracted appellate procedures on such a so- 
called collateral issue. The result is that the hammering 
out of doctrine through the creative interplay of higher 
and lower courts--so integral a part of law development in 
Anglo-American jurisprudence--has been totally stifled in 
the bail area. As a consequence, administration of release 
standards is, in a sense, lawless. With deference, we be­
lieve this consideration above all others should move the 
Court to consideration of the questions raised by this case.

Few bail cases have survived for the full Court's 
examination; the resources required to bring such a case here 
are far beyond those of most counsel for either indigent or 
non-indigent accused; and such cases are frequently mooted 
by final state court determination before they can reach this 
Court.

The instant case is particularly worthy of the 
Court's attention. The state courts have not only denied 
bail under factual circumstances which compel the granting of 
bail, but have refused to give reasons for their action, 
despite their own rules requiring a written statement of 
reasons for denial. Moreover, the refusal of the federal 
courts below even to deal with petitioner's constitutional

14



claims reflects a disposition that, if sanctioned, would 
make even less likely the development of any case law in 
the bail area. if this Court is ever to consider the 
enormously important federal issues involved in this area, 
it should grant certiorar i to consider this shocking case 
of perversion of the bail setting process and abdication 
of judicial review by the courts below.

I.
CERTIORARI SHOULD BE GRANTED TO DECIDE THE IMPORTANT QUESTION 
WHETHER THE EIGHTH AND FOURTEENTH 
AMENDMENTS PROSCRIBE THE ARBITRARY 
DENIAL OF BAIL PENDING APPEAL.

Although an absolute "right to bail" has not yet
3/received constitutional sanction by this Court, it was 

recognized, in Carlson v. Landon, 342 U.S. 524, 542 (1952), 
that refusal of bail which is "arbitrary or capricious or

il

an abuse of power could constitute "denial of the due
process of the Fifth Amendment. At this point in our con-

4/
stitutional history, it would seem that such arbitrary 
refusal would also violate the Due process Clause of the

3/ In Stack v. Boyle, 342 U.S. 1 (1951), the court dealt
only with the problem of bail set in an "excessive" amount.

4/ in recent years, this Court has frequently granted re­
view in cases seeking to apply the specific guarantees 
of the Bill of Rights to state criminal proceedings.
See Klopfer v. North Carolina, 386 U.S. 213 (1967)(speedy 
trial); pointer v. Texas, 380 U.S. 400 (1965)(confronta­
tion) ; Washington v. Texas, 388 U.S. 14 (1967)(compulsory 
process); Gideon v. wainwright, 372 U.S. 335 (1963)(right 
to counsel); Ker v. California, 374 U.S. 230 (1963)(stand­ard of legality of searches without a warrant); Aguilar v. 
Texas, 378 U.S. 108 (1964)(standard for the issuance of a 
search warrant); Mapp v. Ohio, 367 U.S. 643 (1961)(exclus­
ion of illegally seized evidence)• Malloy v. Hogan, 378 U.
1 (1964)(protection against self-incrimination); Robinson 
California, 370 U.S. 660 (1962)(Eighth Amendment protection against cruel and unusual punishment); Duncan v. Louisiana, 391 U.S. 145 (1968)(right to jury trial.)

15

w >



r

Fourteenth Amendment.
And, while a federally protected right to appeal 

in criminal cases, has not specifically been found, e.g., 
McKane v. Purston, 153 U.S. 684 (1894), review is plainly 
viewed as an "integral part of the . . . system for finally
adjudicating the guilt or innocence of a defendant." Griffin 
v. Illinois, 351 U.S. 12, 18 (1953) . Further, as this Court 
has stated, most recently in Mayer v. Chicago, 92 Sup. Ct.
410, 30 L.Ed. 2d 372 (Dec. 13, 1971), "For 'it is now funda­
mental that, once established, . . . avenues [of appellate
review] must be kept free of unreasoned distinctions that 
can only impede open and equal access to the courts." 92 Sup. 
Ct. at 414, 30 L.Ed.2d at 377.

The granting of bail pending appeal serves to pro­
tect access to the courts by preventing possible mootness
problems that might arise if a sentence is fully served

6/before the appeal can be decided, and it avoids the unfair-

5/

5/ in Schilb v. Kuebel, 92 Sup. Ct. 479, 30 L.Ed.2d 502
(Dec. 20, 1971), this Court said: "The Eighth Amend­
ment's proscription of excessive bail has been assumed 
to have application to the States through the Fourteenth 
Amendment. (Citations). But we are not at all concerned 
here with any fundamental right to bail or with any 
Eighth Amendment-Fourteenth Amendment question of bail excessiveness." (emphasis supplied)

6/ See, St. Pierre v. united States, 319 U.S. 41 (1943);
Sibron v. New York, 392 U.S. 40, 57-58 (1968); D'Aquino v.United States,~T80 F.2d 271 (1950)(Douglas, j.).

16



ness of compelling a defendant to undergo incarceration with
all of its attendant rigors, before he has "been finally
adjudged guilty in the court of last resort." Hudson v

7/Parker, 156 U.S. 277, 285 (1895).
Although it might be suggested that the fact of 

conviction itself increases the likelihood of flight, there 
are no statistics available to support such a proposition. 
Moreover, the state should not be allowed to abandon indi­
vidual considerations of admission to bail on appeal and the 
requirement that the evidence show a likelihood of flight in 
each particular case.

It is not unfair to characterize the totally un­
explained denial of bail pending appeal, while other defen­
dants are granted such important stay of judgment^as an 
"unreasoned distinction," which unconstitutionally impairs the 
right to appellate review created by the state.

On several occasions, this Court and its individual 
justices have struck down the denial of bail, without reasons, 
as a protection against arbitrariness.

In Bitter v. United States. 389 U.S. 15 (1967), the 
Court reversed a conviction obtained after the trial judge had 
summarily revoked the defendant's bail "without hearing or 
statement of reasons." The per curiam opinion concluded "that 
the order was unjustified, and that it constituted an un­
warranted burden upon defendant and his counsel in the conduct 
of the case." ibid., at 17.

7/ See also, United States v. Motlow, 10 F.2d 657, 662 (1926)(Butler, j.)
8/ Compare, Ali v. Division of state Athletic Commission.

316 F. Supp. 1246 (S.D.N.Y. 1970)(discriminatory denial of boxing license).
17



Mr. Justice Black, in granting an application for 
bail pending appeal, in Sellers v. United States, 89 Sup. Ct. 
36, 21 L.Ed.2d 64 (1968), stated: "The command of the Eighth
Amendment that 'Excessive bail shall not be required . . .' at
the very least obligates judges passing on the right to bail to 
deny such relief only for the strongest of reasons." 89 Sup. 
Ct., at 38; 21 L.Ed.2d, at 66.

Mr. Justice Harlan, in Febre v. United States, 396 
U.S. 1225 (1969), remanded a bail application to the lower 
courts for compliance with Rule 9(b), Federal Rules of Appel­
late procedure, which, in language identifical to Rule 9(b),

9_/Colorado Appellate Rules, requires the District Court to state
in writing the reasons for its denial of bail pending appeal.
And, in Beyer v. United States, 396 U.S. 1235 (1970),
Mr. Justice Harlan granted an application for restoration of
bail which had been revoked by the Court of Appeals without it
having given any statement of reasons for the action taken.

Finally, in Carlson v. Landon, 342 U.S. 524, 543
(1952), this Court observed:

"The Attorney General is not left with 
untrammeled discretion as to bail.
Courts review his^determination.
Hearings are had,— /and he must justi­
fy his refusal of bail . . . "  (emphasis supplied).

9/ Rule 9(b), Colorado Appellate Rules, provides in pertinent 
part; "If the trial court refuses release pending appeal 
. . . the court shall state in writing the reasons for theaction taken . . . ."

10/ The Colorado court's failure also to grant any hearing on 
Incerto's bail applications presents another substantial 
due process question deserving of this Court's considera­
tion. Compare, Morrissey v. Brewer, 92 Sup. Ct. 568 (Dec. 
20, 1971)(granting certiorari to determine whether hearing 
is constitutionally required in parole revocation proceedings).

18



in aOne lower federal court recently concluded, 
similar case, that a state court's refusal to provide any 
basis for its denial of bail pending appeal creates a "pre­
sumption of arbitrariness." united States ex rel. Keating v. 
Bensinger, 322 F. Supp. 784, 787 (N.D. 111. 1971). There, the 
Court sensibly observed:

"If [respondents] are correct, the 
guaranty of the Eighth and Four­
teenth Amendments against arbi­
trariness by a state court in the 
setting of bail authorized by the 
state legislature could be reduced 
to a nullity by the mere silence 
of the court denying bail. if a court 
may deny bail with no reason, hardly any set of circumstances can be 
imagined wherein it could be de­
termined by a reviewing court that 
the denial was arbitrary or dis­criminatory. "

Whether as a matter of substantive or procedural due11/process, the requirement of a written statement of reasons for
12/denying the right to bail on appeal is an essential bulwark

I Vagainst "arbitrary or capricious" deprivation of liberty.

IV In Goldberg v. Kelly, 397 U.S. 254, 271 (1970), this Court 
held, inter alia: "The decision-maker should state the
reasons for his determination [to terminate welfare bene­
fits]." See also, Rodriguez v. McGinnis, 307 F. Supp. 627,
632 (N.D.N.Y. 1969), aff'd en banc, ____ F.2d ___ (2d Cir.
Jan. 25, 1972)(requires statement of reasons for denying 
prisoner's "good time"); Monks v. New Jersey, 58 N.J. 238,
277 A.2d 193 (1971) (requires statement of reasons for denying 
parole). And, in Wisconsin v. Constartineau, 400 U.S. 433,436 (1971), the Court said:

"It is significant that most of the provisions of the Bill of Rights are procedural, for it 
is procedure that marks much of the difference 
between rule by law and rule by fiat."

12/ Rule 46(a)(2) of the Colorado Rules of Criminal procedure 
is entitled "Right to Bail."

13/ The denial of release on bail is manifestly a "grievous loss." 
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951)(Frankfurter, j., concurring). While it is true 
that a person on bail is "in custody," in a constructive sense, 
Carlson v. Landon, 342 U.S. 524, 547 (1952)("His bondso*n are 
his jailers. "), one cannot ignore the significant distinction in status and freedom between a person on bail and one confined 
in a penal institution.

19



II.
CERTIORARI SHOULD BE GRANTED TO DETERMINE 
WHETHER THE CONSTITUTIONAL PROSCRIPTION 
AGAINST THE ARBITRARY DENIAL OF BAIL IS 
OFFENDED BY THE COLORADO COURTS' UNEX­
PLAINED REFUSAL TO RELEASE PETITIONER 
PENDING APPEAL, IN VIOLATION OF THEIR OWN 
RULES REQUIRING A WRITTEN STATEMENT OF THE REASONS FOR DENIAL, AND UNDER CIRCUM­
STANCES WHERE THE APPEAL INVOLVED IS NOT 
FRIVOLOUS OR TAKEN SOLELY FOR THE PURPOSE OF DELAY, AND IT HAS NOT BEEN SHOWN OR 
FOUND THAT THIS PETITIONER POSES UNAVOID­
ABLE RISK OF FLIGHT OR DANGER TO THE 
COMMUNITY.

The unique circumstances of this case compel the 
conclusion that petitioner was arbitrarily denied bail 
pending appeal, in violation of the Fourteenth Amendment.
As in United States ex rel. Keating v. Bensinger, supra,
the Colorado courts' unexplained refusal to release petitioner
created "a presumption of arbitrariness."

Moreover, this silent action constituted a violation 
of the Colorado courts' own rules, which explicitly require the 
trial court to state in writing the reasons for its denial of

14/bail pending appeal in a criminal case. Rudimentary due 
process demands that a tribunal be bound to follow its own 
rules even where the action under review is discretionary in 
nature. see, Service v. Dulles, 354 u.S. 363, 372 (1957). 
Colorado is, thus, hardly in a position to complain that a 
federal requirement--that reasons for denial be given--would 
be unreasonable or too burdensome to administer.

In addition, the issues in Incerto's appeal to the 
Colorado Supreme Court are not frivolous. He contends that, 
under Colorado law, he is entitled to judgment of acquittal 
on the conspiracy charge, where he was acquitted on the sub­
stantive charge, and where the co-defendant judge was ac-

14/ See, Rules 8.1(c) and 9(b), Colorado Appellate Rules, at 8-9, infra.

20



quitted of both the conspiracy and substantive charges.
SSe' e‘g*' garter v. people, 458 p.2d 236 (Colo. 1969), and
other cases cited, at 11-12, infra. Although this relates

15/primarily to evidentiary matters, bail has been granted in 
cases challenging the sufficiency of evidence to sustain a 
conviction. See, Harris v. United States, 404 U.S. 1232 
(1971)(Douglas, J.).

Colorado law does not expressly provide for the 
denial of bail pending appeal on the ground that the defen­
dant poses a menace to the community. Compare, 18 U.S.C.
§3148. But assuming, arguendo, that a state may consti­
tutionally deny bail where there is "substantial evidence"
in the record to suggest that the community would be threaten-16/
ed by the applicant's release, Harris v. United States, supra, 
at 1235-36; Leigh v. united States, 82 Sup. ct. 994, 996, 8 L.Ed. 
2d 269, 271 (1962)(warren, ch. j.); Carbo v. united States. 82 
Sup. ct. 662, 7 L.Ed.2d 769 (1962)(Douglas, j.); Rehman v. 
California, 85 Sup. ct. 8, 13 L.Ed.2d 17 (1964)(Douglas, j.),

15/

16/

"A Bridges singled out and jailed by arbitrary judicial action 
while he is prosecuting with 
diligence his good faith appeal 
poses, to our minds, a more 
serious menace to the nation and 
its institutions than does a Bridges enlarged on bail in 
accordance with established rules of law and the decisions and prac­tices of the courts."

See fn 1, infra. As the court stated, in Bridges v 
Igited_States, 184 F.2d 881, 884 (9th Cir. 1950?---- ~
matter a meri^°rious question exists, bail becomes a matter of right, not grace."
"There is no denial of . . . due process . . . where there 
is reasonable apprehension of hurt . . . "  Carlson v

„342 U'S:_^24, _542 (1952) • However, in Bridges v. United States, 184 F.2d 881, 887 (9th cir. 1950) theCourt noted:

21



there is no "substantial evidence" here to show that
Incerto poses either unavoidable danger to the community
or risk of flight if released upon appropriate terms and
conditions. Compare, Chambers v. Mississippi, 10 Cr. L.
Rptr. 2401 (Feb. 15, 1972) (Powell, j.). His previous non-

17/violent criminal record must be viewed in relation to his 
present poor condition of health, including cancer and other 
ailments, which necessitate intensive treatment in a special 
hospital unobtainable in prison. Surely, an appropriate 
bail order, sufficiently protective of public interests, 
could be drafted in such a situation. Cf., Sica v. united 
States^ 82 Sup. Ct. 669, 7 L.Ed. 2d 778, 779 (1962)(Douglas, 
J .)(requiring defendant to report personally to the united 
States Marshal each day, and "if his physical condition 
necessitates hospitalization, Sica shall give prompt 
notice thereof to the Marshal and shall continue to report 
each day in a manner satisfactory to the District Court.")

17/ in view of the pardon for his abortion conviction, 
petitioner has but one prior felony conviction--for 
income tax evasion— an obviously non-violent offense. 
Incerto s misdemeanor whiskey-peddling conviction over 40 years ago, during prohibition, deserves little 
weight. His 1971 gambling conviction was allegedly entered in absentia, while he was in prison, and is 
presently being appealed. As was pointedly acknowledged here not long ago:

"It is impossible for this Court 
to say at what point the number 
of convictions on a man's record 
renders his reputation irredeem­able . And even if we believed 
that an individual had reached 
that point, it would be impossi­
ble for us to say that he had no 
interest in beginning the process of 
redemption with the particular case 
sought to be adjudicated." Sibron 
v. New York, 392 U.S. 40, 56 (1968).

The extent to which Incerto1s realization of his present physical condition may influence his future actions, in 
a positive direction, if released on bail pending appeal, is deserving of exploration at a hearing on his bail application.

22



Ill.

CERTIORARI SHOULD BE GRANTED TO DETERMINE 
WHETHER THE DISTRICT COURT HAD JURISDIC­
TION UNDER THE FEDERAL HABEAS CORPUS 
STATUTE TO GRANT LIMITED RELIEF ORDERING 
THE RELEASE OF PETITIONER PENDING APPEAL, WITHOUT PREJUDICE TO THE STATE'S RIGHT TO 
PROVIDE A STATEMENT OF ITS REASONS WHY BAIL SHOULD NOT BE ALLOWED.

The District Court's refusal to review the state 
courts' arbitrary denial of bail pending appeal, under the 
circumstances of this case, was an abdication of its power 
under 28 U.S.C. § 2241(c)(3).

A decade ago, this Court rendered the following per 
curiam decision in In Re Shuttlesworth, 369 U.S. 35 (1962):

"Treating this application for habeas corpus as a petition for cer­
tiorari to review the denial by a 
judge of the Court of Appeals for 
the Fifth Circuit of a certificate 
or probable cause for appeal (28 U.S.C. § 2253) from the District Court 
for the Northern District of Alabama, cf. in re Burwell, 350 U.S. 521, 522, we grant it as such, vacate the order 
of the Court of Appeals, and remand 
the case to the District Court with 
instructions to hold the matter while 
petitioner pursues his state remedies 
(as indicated in the opinion of Judge Rives denying a certificate of probable 
cause), including an application for 
bail to state courts pending dispo­
sition of petitioner's application for state relief. in the even of failure 
to secure such relief, or to secure 
admission to bail pending such relief 
within five (5) days from the date of 
application for bail, petitioner may, 
upon appropriate showing, proceed on 
this application in the United States 
District Court which may then con­
sider all state remedies exhausted and 
proceed to hear and determine the cause, 
including any application for bail 
pending that court's final disposition 
of the matter. The clerk is directed 
to issue the judgment forthwith."

And in Dawkins v. Crevasse, 391 F.2d 921 (5th Cir. 
1968), the Court of Appeals, after finding that the petitioners' 
state court appeal was not so lacking in merit or frivolous as

23



f

to warrant denial of bail pending appeal, held that the 
District Court "erred in not granting a writ of habeas corpus 
at least to the extent of ordering appellants' release on bail 
pending their appeal in the Florida courts." 391 F.2d at 921- 
22. Accord, Boyer v. city of Orlando. 402 F.2d 968 (5th Cir. 
1968)‘ Green v. city of Orlando, 313 F. Supp. 583 (M.D. Fla.
197°); United States ex rel. Keating v. Bensinger, 322 F. Supp. 
784 (N.D. 111. 1971). Some courts, though denying relief under 
the particular circumstances presented, have nevertheless 
recognized the basic principle that federal habeas corpus can 
be used as a bail writ in appropriate situations. Simpson v. 
S£ice, 318 F. Supp. 554 (E.D. Wis. 1970); Shakur v. Commissioner 
of Correction, 303 F. Supp. 303 (S.D.N.Y. 1969), aff'd, 418 F.2d 
243 (2d Cir. 1969), cert, denied, 397 U.S. 999 (1970); Ex Parte 
Perkov, 45 F. Supp. 864 (S.D. Cal. 1942)(citing Ex Parte Bollman. 
4 Cranch 75 (1807)).

The District Court in the instant case must have mis­
conceived the nature of the relief sought by petitioner, when 
it held that he had failed to exhaust available state court 
remedies, required by 28 U.S.C. § 2254. it should be noted 
that Mr. incerto did not ask the District Court to set aside the 
state court judgment of conviction. Rather, he sought only 
limited relief-release on bail pending the determination of his 
appeal to the state court. The only available state court 
remedies on the bail issue were the applications for bail to 
the trial court and to the Colorado Supreme Court, which 
petitioner filed, and which were denied without reasons.

The District Court suggested that "the petitioner 
should pursue his claim within the state court structure," but 
did not indicate just what further remedies existed. in fact, 
no other remedies exist. The power of the Supreme Court, or of

24



an individual Justice thereof, to grant bail pendxng appeal 
of a conviction to a state court is in serious doubt. see, 
M£orcl^v Ĵ calrfor^, 86 Sup. Ct. 1359, 16 L-Ed. 23 435 
(1966); —  bron v- New York. 392 u.S. 40, 53 n. 13 (1968).
But even assuming, arguendo, that this Court does have such 
power, an application to the Supreme Court has been held not 
to be a part of the state court remedies which must be ex­
hausted as a prerequisite to federal habeas jurisdiction.
^  V“ NQia' 372 U'S* 391' 435-36 (1963). A contrary rule 
would result in an unwarranted imposition upon this Court's 
time and resources.

As the discussion in Point II, infra, shows, the 
Colorado courts' unexplained refusal to release petitioner 
pending appeal, in violation of their own rules requiring a 
written statement of the reasons for denial, and under cir­
cumstances where the appeal involved is not frivolous or 
taken solely for the purpose of delay, and it has not been 
shown or found that this petitioner poses unavoidable risk 
of flight or danger to the community, constituted an ar­
bitrary denial of bail, in violation of the Eighth and Four­
teenth Amendments. The District Court should, therefore, at 
least have directed the respondent to show cause why the writ 
of habeas corpus should not be granted, to the limited extent of 
ordering petitioner's release on bail pending appeal. The 
summary dismissal of Incerto's petition for the writ, without 
any hearing, compounded the previous arbitrary action of the
state courts, and failed to comply with the federal habeas 
corpus statute.

25



IV.
CERTIORARI SHOULD BE GRANTED TO DE­
TERMINE WHETHER COURT OF APPEALS 
JUDGES LEWIS, PICKETT AND MCWILLIAMS 
ERRED IN DENYING A CERTIFICATE OF 
PROBABLE CAUSE TO REVIEW THE SUMMARY 
DISMISSAL OR PETITIONER'S APPLICATION FOR A WRIT OF HABEAS CORPUS.

As for the standard of "probable cause" required 
to support a certificate under 28 U.S.C. § 2253, considerations 
to which this Court has given effect in other contexts im­
peratively compel the view that "probable cause" is made out by 
the presentation of any non-frivolous federal claims. Cf. 
Eskridge v. Washington State Board of Prison Terms and Paroles, 
357 U.S. 214, 216 (1958); Coppedge v. United States, 369 U.S. 
438, 444-450 (1962); Draper v. Washington, 372 U.S. 487, 498- 
500 (1963). These decisions recognize the deprivation involved 
when a trial judge's self-review and informal, inadequately- 
based consideration by appellate judges are substituted for the 
full consideration ordinarily given by the appellate process.
It is true that in these cases the substitution was imposed
discriminatorily, against only the class of poor persons. But

18/
28 U.S.C. § 2253 also is not a general, even handed rule of 
federal practice. it applies only in habeas corpus cases, only 
in those cases where state prisoners are petitioners, and--even 
in those cases— only against the prisoner, not the State. E.g., 
United States ex rel. Tillery v. cavell, 294 F.2d 12 (3d Cir. 
1961). It is dubious at best that meritless appeals, or appeals 
whose inconvenience outweighs their claim to judicial attention, 
are "concentrated in this narrow, yet vital, area of judicial

18/ See, 7-8, infra.

26



duty." Coppedge, supra, at 450. Grave questions of equal 
protection therefore would be raised if the "probable cause" 
hurdle amounted to more than a finding of non—frivolity. Cf. 
Rinaldi v. Yeager, 384 U.S. 305 (1966).

The issues on review of the denial of habeas corpus 
are certainly non-frivolous, as appears earlier herein, and 
therefore, the Court of Appeals should have "proceed[ed] to a 
disposition of the appeal in accord with its ordinary procedure." 
Nowakowski v. Maroney, 386 U.S. 542, 543 (1967). The question 
which now arises though is, to which court should this case be 
remanded; the Court of Appeals or the District Court?

 ̂the certificate of probable cause had been denied 
by only one judge of the Court of Appeals, it might well be 
expropriate to remand the case to the Court of Appeals for 
plenary consideration. Maxwell y. Bishop, 385 U.S. 650 (1967). 
But where, as here, the certificate of probable cause was 
jointly denied by three judges of the Court of Appeals(thereby 
constituting, in effect, an affirmance by a full panel), a 
remand to the Court of Appeals would be futile, and would 
surely entail unnecessary delay on a matter where "relief 
must be speedy if it is to be effective." Stack v. Boyle, 342 
U.S. 1, 4 (1951). Accordingly, the most appropriate disposi­
tion here would seem to be a remand to the District Court, cf.,
In Re Shuttlesworth, 369 U.S. 35 (1962), directing it to order 
the release of petitioner on bail pending his appeal to the 
Colorado courts, without prejudice to the right of the state 
courts to give their reasons why bail should not be allowed.
See' United States ex rel. Keating v. Bensinger. 322 F. Supp.
784, 788 (N.D. 111. 1971).

CONCLUSION
For the foregoing reasons, the motion for leave to

27



flic a petition for writ of certiorari, and the petition for 
writ of certiorari, to review the denial by three judges of 
the court of Appeals for the Tenth Circuit of a certificate 
of probable cause for appeal from the District Court for 
the District of Colorado, should be granted, the order of 
the Court of Appeals should be vacated, and the case should 
be remanded to the District Court with instructions to grant 
the writ of habeas corpus, without prejudice to the state's 
right to provide a statement of its reasons why bail should 
not be allowed. in the alternative, the cause should be 
remanded to the Court of Appeals with directions to issue 
the certificate of probable cause and to hear the appeal on 
an expedited basis.

Respectfully submitted

March, 1972
STANLEY A „ BASS

10 Columbus Circle Room 2030
New York, N.Y. 10019 
(212) 586-8397

Attorneys For petitioner

28



F I L E P
United St.'Us District Court 

Denver, ColoruJo

IN THE UNITED STATES DISTRICT COURT m  1 01971

G. WALTER BOWMANFOR THE DISTRICT OF COLORADO - clfkk* - D r.r ri FO-

THOMAS IISrCERTO, )
NO. 40751, )

)
Petitioner )

)vs. )
)

WAYNE K. PATTERSON, Warden, )
Colorado State Penitentiacy, )

)
Respondent )

Civil Action No.

ORDER DENYING PETITION 
FOR WRIT OF IIABEAS CORPUS

THIS MATTER is before the Court on the petition for 
writ of habeas corpus under 28 U.S.C. 2254. The petitioner is 
incarcerated in the Colorado Staite Penitentiary at Canon City, 
Colorado, serving a sentence imposed on July 23, 1971, by the 
District Court for El Paso County, Colorado Springs, Colorado, 
after a finding of guilty. Judgment was entered sentencing 
petitioner to a terra of six to ten years imprisonment.

The petitioner filed an appeal with the Supreme 
Court of Colorado, where it is still pending undetermined. He 
contends that he has been unconstitutionally denied bail on 
appeal 1.

Available state remedies must be exhausted before we 
can consider his claim. Section 2254, Title 28, U.S.C., Fay v. 
No_ia, 372 U.S. 391 (1963); Omo v. Crouse, 395 F.2d 757 (10th Cir.
1968); I.ew.i s v. State of New Mexico, 423 F. 2d 1048 (10th Cir. 
1970); Tap.V y, 1 cy v. Warden Colorado Penitentiary, 429 F. 2d 1308 
(JOtn Cir. 1970); and Kanan jv. Di.st.riot Court, 438 F.2d 521 
(10th Cir. 1971).

It is clear the t we have no authority to set bai.l 
pending appeal in the State Court. The setting of bail ponding 
appellate review is not a matter of constitutional right, but 
rather rests peculiarly within the discretion of the Court.

la.



United .Statesy.JPbpor, 227 F. Supp. 735 (N.D. Texas 1964); United 
AfiPa'lii* 93 >'• Supp. 989 (N.D. Calif. 1950); Romeo v. 

P-°yr£}‘ir» 63 Colo. 281, 193 Pac. 559 (1920)
Wg have no jurisdiction to review tho decisions of. 

the state courts. The petitioner should pursue his claim within 
the state court structure. it is, therefore,

ORDERED AS FOLLOWS:
1. lhat tne application to proceed in forma pauperis 

is granted.
2. That the petition for writ of habeas corpus is 

denied and the action is dismissed.
DATED at Denver, Colorado, this /_ _ day of November,

1971 .

BY THE COURT:
/

Alfred A. Arrcij, Chief Judge 
United States District Court

£«*'•-> »vu-t i>c\ :,r' ;
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G 7vAi'-->hR riCWMAN. Clerk
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G. WAL'I cR BOWMANCLERK
• ' DC.,J. u EHi-

2a.



\ •
IN THE UNITED STATES DISTRICT COURT F I L £ D

•;;o() Stales District Cor 
Denvwi, rX 'crido

FOR THE DISTRICT OF COLORADO 

Civil Action C-357.9
NOV 2 4 1971 •

G . W A L T E R  B O W M A ;

TH O M S  I.NCERTO,

Petitioner,

vs.

WAYNE K. PATTERSON, Warden, 
Colorado State Penitentiary,

Respondent.

J
]
J
]
] CERTIFICATE OF PROBABLE CAUSE
]
] SHOULD NOT ISSUE
J
]
]

IN THIS ACTION the petitioner on November 19, 1971, filed a notice 

of appeal to the United States Court of Appeals, for the Tenth Circuit 

from an Order Denying the Petition for Writ of Habeas Corpus entered 

on November 10, 1971.

This Court has determined not to issue a certificate of probable 

cause for the reason that the appeal is frivolous and lacks merit, since 

the law is clear that the petitioner must exhaust his state, remedies 

before this Court can consider his claim, and we have no jurisdiction to 

set bail in the State Court pending appeal in that Court, all of which is 

reflected in the order of November 10, 1971.
*'h

DATED a t Denver, Colorado this ?-/' day of November, 1971.

U r u ‘ i : l ■ * ,r ".*■

■ i '  - : *t.

B Y  T H E  C O U R T :

/ \  f  
/ / , ■  ■ /

* n 1: f x * H " __ /

T " ALFRED A. ARRAJ, Chief Judge
•t r, . .... ; SCA~ -4. »*>•" United Stater District Court. iV • L-r-l-'J - " •
; ' >■ E.OV\ MAN, ‘Terk
c '• ^’ D'-pntT

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O n )  | ( i i - n o C K E T

N O V 0
: 1971

1. W A L T / R F J O v . ' i V
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3a.



*
NOVEMBER TERM - Dccoinhe r_?8 j 19 71

Before Honorable David T. Lewis, Chief Judge, Honorable John C. Pickett, 
Senior Judge, and Honorable Robert H. McWilliams, Circuit Judge

THOMAS INCERTO,
Petitioner,

vs.
") WAYNE K. PATTERSON, Warden,

Colorado State Penitentiary,
Respondent.

)
)
)
)

f i l e d
Jnited States D istrict Cou 

Denver, Colorado

) . Misc. 783
DEC 28)

)
)
)
)

D. W ALTER BOWMAN
Cl £kk

Upon consideration of the motion for leave to appeal in forma 
pauperis, it is ordered that leave to appeal in forma pauperis is granted.

Upon consideration of the application for certificate of 
probable cause, it is ordered that a certificate of probable cause is 

denied.

A true 
Tos'.o

HOWARD K. PHILLIPS 
Clerk

I

Ho’far d K. Phillips 
Clerk, U. S. Con.'t of

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Vtsti+S O iit r ia  C om t fo r tfca
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Ifte f'>r*Ktmg i t  a t w  ro p y o f «■> 
aMNMw1 p m u in iif  od file
MMl w it i I »i» toy o ffice .

W IT N E S S  m y hand oud S E A L  (rf aatd 
C o u rt th ia ^ — day o f r,j ,, '

&  WALTER BOWMAN, Clerk

4a.