11th Circuit (Successive Petition) - Attorney's Working Files - Issues - Abuse

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o FEDERAL REPORTER, vol. 40. (Gero 

  

' Ex parte Cuppy. \ 

& l 
(Circuit Court, S. D. California. August 13, 339.) 

HABEAS CORPUS—DENIAL BY SUPREME COURT ON APPEAL—RENEWATL OF APPLICATION. 

Where a petitioner for a writ of habeas corpus appeals to the United States su- 

preme court from a judgment of the circuit court denying his application, volunta- 

rily omitting a material portion of his case, he cannot, after failing on the appeal 

upon the record presented, renew his application before another court or justice of 

the United States, upon the same record, with the addition of the matter thus 

omitted, without first having obtained leave for that purpose from the supreme 

court. The question is entirely different when subsejuently occurring events have 

changed the situation of the petitioner so as in fact to present a new case for con- 

sideration. 

Application of Thomas J. Cuddy to be Discharged from Imprison- 

ment on a Writ of Habeas Corpus. > 
J. A. Anderson, for petitioner. 
George J. Denis, U. S. Dist. Atty. 

Fiero, Justice. The-petitioner applied to me some days ago in San 

Francisco for a wril of habeas corpus, alleging that he is unlawfully im- 

prisoned by the marshal of the United States for the southern district of 

alifornia, and the warden of the jail of Los Angeles county, contrary to 

the constitution and laws of the United States; that such imprisonment is 

had under and by virtue of a warrant of commitment based upon a judg- 

ment of the district court of the United States for the southern district of 

California, adjudging him guilty of contempt, and sentencing him to im- 

prisonment in that Jail Tor the period ol six months.” An order was there- 

upon made that a writ Issue, to be directed to the marshal, and made 

returnable before me at this place, Los Angeles, on the 10th instant. 

The petition sets forth the judgment of the district court, rendered on the 

13th of February, 1889, upon which the writ of commitment was issued 

under which the petitioner is held. It is as follows: 

“Whereas, in the progress of the trial of the action of The United States 

of America rE 12th day of February, 1389, upon the 

examination of th ; jal jur 

to si 

other things, in effect, that on the day previous he was approached by one 

Thomas J. Cuddy, with The object on _Cuddy’s part to influence his.(McGar- 

viTi's) action as a juror in the said case in the event that he should be sworn 

to try the said action; and whereas, from the testimony, this court, on the 

said 12th day of February, 1889, entered an order directing the said I. as J 

Cuddy to show cause before this COUrt, at the court-room thereof, at 10 o’clock 

on The 13th day of February, 1889, why he should not be adjudged guilty of 

a contempt of this court; and whereas, in response to the said citation, said 

Thomas J. Cuddy did, on the said 13th day of February, 1889, appear before 

the said courtr and whereas, testimony was then and there introduced in re- 

spect to the matter both for and against him,—the court, having duly consid- 

ered the testimony, does now find the fact to be that the said Thomas.l..Cuddy 

did, upon the 11th day oT Tebruary, 1857, approach the said Robert McGar- 

vin, at the time being a term juror duly impaneled in this court, with a view 

to improperly influence the said McGarvin’s action in the case of the United 

  

  

  
  

  

  

  

   
  

  

    

      

      

  

 



EX PARTE CUDDY. 63 

States of America against the said Young in the event the said McGarvin 
should be sworn as a juror in said action. Now, it is here adjudged by the 
court that the said Thomas J. Cuddy did thereby commit a contempt of this 
court, for which contempt it is now here ordered and adjudged that the said 
Thomas J. Cuddy be imprisoned in the county jail of the county of los An- 
geles for the period of six months from this date, and the marshal of this dis- 
trict will execute this judgment forthwith.” 

The petition sets forth the proceedings taken by the court, and alleges 
that the transaction which was the basis of the charge against the peti- 
toner, and for which the judgment was rendered, took place on the 11th 
id a Rake 1559, Shen, ths gisriot gone was 10 109 mn San and 

  

  

  

  

  

   diction to try Fo ro 1m © alleg WPT, hecause the "et 
charged as such was committed at the time and place designated, and 
was not adjudged to have been done corruptly, or by threats or force. 
The purport of the objection is that the act charged as a contempt was 
not committed in the nce of the court, or so near thereto as to ob- 

struct the administration vi ustice; and therFTore did Not | Li Lh 5 SSC 

  

    

  

    

  

  

  

void. That doation ik) as Li : 

“The said courts [of the United States] shall have power * * * fo 
punish by fine or imprisonment, at the discretion of the court, contempts of 
their authority: provided, that such power to punish contempts shall not be 
construed to extend to any case gxeent the misbehavior of any person in their 
presence, or so near t ! administration of justice; the 

misbehavior of any of the oflicers of said courts in transactions, 
and the disobedience or resistance by any such oflicer, or by any party, juror, 
witness, or other person, to any lawful writ, process, order, rule, decree, or 
command of said courts.” 

  

    
   

  

       

The marshal returns the warrant of commitment under which he holds 
the prisoner. By consent of parties the record in the case of the peti- 
tioner before the district court and in the supreme court of the United 
States is also presented. By.ihat record it appears that the petitioner, 
on the 9th day of April, 1889. applied to the district court for the mene 14 

ern district of California for a writ of habeas corpus in order that he might 
be discharged from the imprisonment now complained of, asserting, as 
now, that the same was illegal for the reason that the court had no juris- 
diction to try and sentence him, Decause the matfers set forth in the 
judgment do not constitute any contempt under section 725 of the Re- 
vised Statutes, and because the judgment was not founded upon jro- 
ceedings in due course of law; that the district court, alter due consid- 
eration, denied the application for a writ; that thereupon an appeal was 

taken from the judgment to the supreme court of the United States, where, 
alter argument and due consideration, the judgment was aflimaed. 131 U. 
S. 280, 9 Sup. Ct. Rep. 703. The additional matter set forth in the pres- 
ent application consists only of the testimony which was before the district 
court when the question of contempt charged against the petitioner was 

iE Comlernror he bes US Dstt —> SA ave 

i Ho 2 TU Age ns o conteut umes £326 

    

  

  

  
  

  

  

  

  

    

  

  

   



  

    64 . - FEDERAL REPORTER, vol. 40. 

considered, and which might have been contained in the record of the 2 I 

supreme court, and, if deemed important for the due consideration of the d: 

ralidity of the judgment of the district court, should have been thus pre- SU 

sented. The finding and judeme if the district court do not state that : m 
         

    

    
    

resence of 

Te Court, Or so near thereto as to obstruct the administration of justice. 
court, “that 

is, 1n the place set ap e court, its officers, jurors, and 

witnesses, they were clearly a content, punishable as provided in sec- 

tion 725 othe Revised Statutes, by fine or imprisonment, at the discre- 

ton ol the court, and without indictment;” but that, inasmuch as the 

district court possesses superior jurisdiction within the meaning of the 

{Tar TUTE that the judgment or such eotrts cannot be attacked collat- 

ery, 1 must be presumed that it acted Tightly upon such a state of 

{acts as authorized its judgment; that the want of jurisdiction not ap- 

pearing amirmatively, it must be presumed that the evidence made a case 

within its jurisdiction to punish the petitioner in the mode prescribed. 
Thegjudgment of the district court was therefore affirmed. 

The petitioner, in the present application, as appears from what has 

already been said, supplies what was omitted in his record to the suprenie 

court. At : 16 question 1s thus presented whether 1t 1s permissi- 

ble for a party to appeal from a judgment denying his application, volunta- 

rily omitting a material portion of his case, and, after invoking the judg- 

ment of theappellate court upon the record presented, and failing therein, 

to renew his application before another court or justice of the United States, 

wiflout first having obtained [eave for that purpose from the appellate 

court elore passing upon this question some consideration should be 

given to tle position of the district attorney as to the jurisdiction of the 

court to punish summarily as a contempt an act obstructing the adminis- 

tration of justice in pending cases, even if committed at a distance from the 

court-room. He contends, if I rightly understand him, that all the oflicers 

and parties necessarily attending or summoned to attend in pending cases 

The courts or the United States as marshals, clerks, jurors, and wit- 

nesses “are so near thereto,” that is, so connected fhercwith,—applying 

{HE TETmS 50 hear therato” as indicating relationship of subject, rather 

than relationship of place,—that misbehavior towards them, though they 

are distant at the time from” the court-room, or during the temporary 

adjournment of the court, c 
statute. ertain 1 Sh attemp fs to turn such officers or parties from 

  
  

  

  

  

    
  

  

  

  

  

  

  

     
  

    language to them respecting, or to influence, their conduct, though _ut- 

tered or done outside of the court-house, and at a distance from it, are as 

much an obstruction to the administration of justice as though uttered 

or done within its.walls. Though I am not quite prepared to accept iC 

this position of the district attorney, it is entitled to grave consideration. : 18 

Co rian 
Suen 

  

  

  

   

 



EX PARTE CUDDY. 65 

I do not wish to express an opinion upon it, as it is unnecessary to the 
disposition of the case, and for the further reason that the justices of the 
supreme court deemed it of suflicient importance to reserve their judg- 
ment upon it. % 

The statute also declares the disobedience or resistance by any person fog 
of any “lawful writ, process, order, rule, decree, or command?” of the em 
per os to be a contempt. It iSThe practice ol die dosbbe 

: Pi 19 district courts of the United States to command all persons summoned f 
ioe 7 Ad and sworn as term-trial jurors to, av OTT Son whoo, and not to 
ULUS allow others to speak to them with respect to cases which may be tried 

: —— before them. Such a command, if a standing rule of the court, or given, 

| as usual, in its mstruction to t the jurors, when accepted, would bind all 
A+ al persons, jurors, parties, and others cognizant of it; and a Jisobedionge 

Tend be a flagrant contempt. Nothing, indeed, can tend more to 
by) pollute the administration of justice than to allow tampering with jurors 

PP | Any attempts, however slight, to swerve them from the strict line of their 
> duty, should be punished with the utmost rigor. Purity in the admin- 

istration of justice could not otherwise be maintained, and such purity 
is the only safety of the people under a free and popular government. “XL 

: suppose such a command was given by the district court in its instruc- 
+ ] tions to the trial jurors of the term, to one of whom the improper ap- 

EE proach was made which constitutes the contempt for which the petitioner 
) = was sentenced to be imprisoned; but, as no record is preserved of it, I i 2 cannot act upon the suggestion of the race. - Bree 

  

      

  

  

  

  

  

  

/ 4 =TTcturn, therefore, to the question whether the petitioner can renew 
his application for a writ after the decision of the supreme court on his ced 

“1 Er appeal to that tribunal, without first having obtained itsleave. If he can ¢ 
a. : renew it on another record, which may also be in some other particilu 
Me | defective, and so on Indelinitely whenever hie Tails on appes al, it is plain 

wy § hat the writ Day orten become an instrument of oppression, instead of 

  

  

      ga a means of relieving one Irom an unjus gal 1mprisoniifent. The 
S$ Ww writ of habeas corpus, it is true, is the writ of freedom, and is so highly 

esteemed that by the common law of England applications can be made 
  

  

o g for its issue by one illegally restrained of his liberty to every justice of 
fo. V9 3 the kingdom having the right to grant such writs. Noappgal or writ of 
aoe error was allowed there from a judgment refusing a writ of habeus corpus; 
No ] nor, indeed, could there have been any occasion for such an appeal or 
: writ of error, as a renewed application could be made to every other jus- 
i ! . ~ - . . . 
ti ches tice of the realm. The doctrine of res judicata was not held applicable to 

Hui) a decision of one court or Justice thereon, the entire judicial power of the 
Xr) oA Wy country could thus be exhausted. Ex parte Kaune, o Biatent. 0, and cases 
Ww 1 there cited. The same doctrine formerly prevailed in the several states of 

3 . . . K . 

the Union, and, in the absence of statutory provisions, is the doctrine pre- 
( ate vailing now. Tn many mstances great abuses have attended this privilece, 

  

  

  

  

  

  

  which Tiave led TT Some Otte States 10 Teaielation on tho subject. And 
in the absence of such legislation, while the doctrine of res judicata docs 
ot apply, itis held that the oflicers before whom the second application 

is made may take into consideration the fact that a previous application 

  

  

    by —v.40F.n0.2—> 

 



    66 FEDERAL REPORTER, vol. 40. 

     

  

had been made to another officer and refused: and in some instances that 

fact may justify a refusal of the second. The notion of the court or justice 

on the second application will naturally be affected to some degree by the 

character of the court or officer to whom the first application was made, 

and the fullness of the consideration given to it. I hardly think that an 

ordinary justice would feel like disregarding and setting aside the judg- 

ment of a magistrate like Chief Justice MARSHALL, or Chief Justice "T'A- 

NEY, who had refused an application for a writ after full consideration. 

In some slates an exception is also ingralted upon the general doctrine 

where a writ is issued to determine, as between husband and wife, which 

of the two shall have the custody of their children. In what I have said 

I refer, of course, to cases where a second application 1s made upon the 

same tacts presented, or which might have Deen presented, on the first. 

The question is entirely different WIeH SUDSCGULHL gcourring events have 

changed the situation of the petitioner so as in fact to present a new case 

for consideration. In the present application there are no new facts 

which did not exist when the first was presented. And under the law 

oF he United States an appeal is allowed to the supreme court where the 

writ is refused,—a provision which would seem to have been adopted to 

prevent a second application upon the same facts which were or might 

have been presented in the first instance. [am of the opinion that in 

such a case a second application should not be heard, except where the 

judgment of allirmance by the supreme court 1s rendered without preju- 

dice to, or with leave to make a new application by, the petitioner. He 

need not have appealed from the refusal of the district court; he could 

have applied to the circuit judge, 

  

  

  

  

  

  

  

  

    

re, and also, afterwards, to the circuit jus- 

not think proper to D 

eal to The supreme court, and during 

Was made that the record di TSclose the petitioner’s case; and 

when that tribunal decided the case, no request was made for permission 

torengy the application; and now the imprisonment of the petitioner 

under the judgment affirmed by that court is drawing to a close; it will 

expire with this day. This writ must therefore be dismissed, and the 

prisoner remanded; and it is so ordered. 

   

    

  

   
    

      

“the arcument there no suggestion 

  

  

        

Ex parte FARLEY. 

Ex parte WILSON. 

(Circuit Court, W. D. Arkansas. October 14, 1889.) 

1. HABEAS CORPUS—JURISDICTION OF UNITED STATES COURT. 

A United States circuit or district court, or any judge thereof, may issue a writ 

of hcibeds corpus in every case where it is alleged a party is restrained of his lib- 

erty anywhere in the territorial jurisdiction of such courts without due process of 

law, or against the constitution or laws of the United States. This may bedone by ... 

an order or proceeding of a state court, or any United States court, or by a person 

acting outside of a court. 

    

 



  
Pl 

~3
 

EX PARTE FARLEY 

2. SAME—REVIEW. 
By a habeas corpus veseonting the jurisdiction of a court trying a person may 

be inquired into, and the court having power to issue the writ will look into so 
- much of the pr oceedings as will enable it to determine whether jurisdiction exists 
or not. 

3. COURTS—JURISDICTION. 
Jurisdiction in a court to try a case means jurisdiction over the place, the person, 

and the thing, or the subject-matter. That there may be subject-matter there must 
be an act that is a crime, and this act must be properly and legally presented before 
a court. 

SAME—FEDERAL JURISDICTION. 
All courts of the United States are creatures of the constitution and laws of the 

United States, and have only such jurisdictional powers as are conferred by the 
constitution and laws of the United States. 

SAME—COURTS IN INDIAN TERRITORY—GRAND JURY. 
The United States court at Muskogee, Indian Territory, has no power to impanel 

a grand jury, as no such power is given "by the act cr eating it, and section 803 of the 
Revised Statutes of the United States has reference only to United States circuit 
or district courts, and the court at Muskogee is neither. The power to impanel a 
grand jury is not an inherent power of a court of the United States, but is derived 
from the statutes. 

. STATUTES—CONSTRUCTION. 
In construing the meaning of a law the court may 2onsider the statements of 

those who had char ge of the act as to the meaning and purpose of the act made to 
the legislative body passing it. 

INDICTMENT AND INFORMATION—ILLEGAL GRAND JuRY. 
The grand jury impaneled by the United States court at Muskogee was impan- 

eled without authority of law, and was an illegal body. An indictment found by it 
would be simply a nullity. 

. SAME—DUE Process or Law. 
A person convicted and sentenced to imprisonment for larceny upon such an in- 

dictment would be illegally convicted and sentenced, and is therefore restrained of 
his liberty without due process of law, and contrary to the constitution and laws of 
the United States. 

HABEAS CoRrRPUS—DISCRETION OF COURT. 
When such facts are shown, the writ of habeas corpus becomes a “writ of right,” 

and the court having the power to issue it can exercise no sound discretion against 
issuing it. 

(Syllabus by the Court.) 

> 
ot
 

[o
] 

N 
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® 

On Rule to Show Cause why Writs of Habeas Corpus Should not Issue. 
The cases of the two petitioners are precisely alike, and they will there- 

fore be considered together. In their petitions they allege that they 
were, on the ——— day of September, 1889, indicted by a grand jury, so 
called, impaneled by the United States court for the Indian Territory, for 
the crime of larceny; that on the ——— day of September, 1889, they 
were tried upon said indictment by a petit jury in said court. "They 
were by said jury convicted on said charge; that on the 9th day of Sep- 
tember, 1889, the court, upon said verdict of guilty, entered judgment 

against them, and sentenced them to one year’s imprisonment in the jail 
at Muskogee, where they are now confined; that the said parties are now 
illegally fm prisoned; that they are vestindned of their liberty contrary to 

the constitution and laws of the United States, because said indictment 
was found by a grand jury that had no leg: St existence, as it was im- 
paneled without authority of law; that the court had no legal authority 
to impanel a grand jury; that the indictment found by it is a nullity; 
that they are entitled to the writ of habeas corpus, that the legality of their 
imprisonment may be inquired into. 

M. H. Lidmiston and Wm. H. H. Clayton, U. S. Dist. Atty., for peti- 
tioners. 

 



  

  
    

224 ~~ OCTOBER TERM, 1923. 
Syllabus. 265 TU.S. 

SALINGER, JR. v. LOISEL, UNITED STATES MAR- 
SHAL FOR THE EASTERN DISTRICT OF 
LOUISIANA. 

SAME v. SAME. 
APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES 

"FOR THE EASTERN DISTRICT OF LOUISIANA. 

SALINGER, JR. v. UNITED STATES, AND LOISEL, 
AS UNITED STATES MARSHAL, EASTERN DIS- 
 TRICT OF LOUISIANA, A 

: GEETIORARD TO THE CIRCUIT COURT OF APPEALS FOR THE ih 

FIFTH CIRCUIT. 

Se 705. Argued January 14, 15, 1924—Decided May | 
26, 1924. 

1. Warrants of removal owt in triplicate are in legal effect but i 

a single warrant, and defendant who had secured a supersedeas 

~on appeal from an order refusing relief by habeas corpus from 

arrest under one, could not lawfully be arrested under another. 

Pp. 228. 1 
2. Where an accused person, on being surrendered by his surety = 

and instituting habeas corpus proceedings, is rearrested in re- 

moval proceedings, due practice requires that a test of the second 
. confinement, involving only the same questions, be had by 

amendment of the existing petition in habeas corpus; and where a 

second petition is erroneously brought, the two should be con- 

solidated and heard as one case, thus avoiding the confusion and ao 
- expense of double appeals. P. 229. 

~ 3. The common-law doctrine of res judicata does not extend to a ~~ © 
decision on habeas corpus refusing to discharge a prisoner. P.230. 

4, But, in the exercise of its sound, judicial discretion “to dispose of : 
' the party as law and justice may require,” (Rev. Stats. § 761) a 

federal court may base its refusal to discharge on a prior. refusal; 

~ and, as a safeguard against abuse of the writ, the applicant in any i 
case may be required to show whether he has made a po aankion ci 

tion and, if so, what was done on it. Id, 

: 5. Under the Sixth Amendment, an accused cannot be tried in one 

district under an indictment showing that the offense was com- 

mitted in another. district, P. 232.  



SALINGER v. LOISEL. 

: 224 5 ; 5 hn Opinion of the Court. 

6. Nor. is there any authority for a removal to a district other 

than that in which the trial may constitutionally be had. P. 232. 
7 Under § 215 of the Criminal Code, to knowingly cause a letter 

to be delivered by mail, in accordance with the direction thereon, 
for the purpose of executing a fraudulent scheme, is an offense 

separate from that of mailing the letter, or causing 1t to be mailed, 
Fey for the same purpose; and, where the letter is so delivered as di- 
rected, the person who caused the mailing causes the delivery, at 

> the place of delivery, and may be prosecuted in that district 
~ although he was not present there. P. 233. 

~ 8. Under Jud. Code, § 53, when a district contains several divisions, 
4 ~~ the trial (in the language of the statute, the “ prosecution”) of 

an offense must be in the division where it was committed, unless 
the accused consents otherwise; but the indictment may lawfully 

7 be returned in another division of the same district. P. 235. 

9. Resistance to removal having been unreasonably protracted, the 

“Court directs immediate issuance of its mandate, with orders re- 

quiring that the accused under his bonds surrender himself within 
"ten days to the marshal in the district of the removal proceeding 

or the district of the indictment. P. 238 
Nos. 341 and 342, -affirmed. | 
295 Fed. 498. (No. 705,) reversed. 

+ ~ Appravs from two orders of the District Court refusing 
release in habeas corpus; and certiorari to a judgment of 
. the Circuit Court of Appeals affirming a like order made 

; - on a third application. 

ae Mr. B. I. Salinger, with whom Mr. St. Clair Adams and 
Mr. ‘L. H. Salinger were on the briefs, for appellant and 

2 ppettioner 

a © Mr. aljred i’ Wheat, Hk Assistant to the Attorney 

General, with whom Mr. Solicitor General Beck was on 

; Ihe brief, for appellee. and respondents. 

Me. Justice Van DEVANTER delivered the opinion of 

. | the Court. 

These Atos cases Hvolvg certain Wa of a protracted 

resistance by B. I. Salinger, Jr., to an effort by the United 
a 2080" —24——15 gi 

  

   



   
226 OCTOBER TERM, 1923. 

Opinion of the Court. 265 U.S. 

States to have him removed to the District of South Da- 
kota to answer an indictment for a violation there of 
§ 215 of the Criminal Code, which makes it a punishable 

~ offense to use the mail for the purpose of executing a 
scheme or artifice to defraud. 

indictment was returned in the District Court for 
the District of South Dakota when sitting in the western 
division, and the offense was charged as committed in 
the southern division; but the grand jury which returned 

~ the indictment had been impaneled from the body of the 
district regardless of the divisions and instructed to in- 

quire into and make due presentment of offenses com- 
mitted in any part of the district. After receiving the 
indictment the court, at the suggestion of the United 

~ States Attorney, remitted it to the southern division for 
trial and other proceedings. A bench warrant was issued 
for Salinger’s arrest, and he appeared before a commis- 
sioner in Iowa and gave bond for his appearance in the 

  

  

  

  

  

  

southern division on the first day of the next term. But 
he failed to appear, and the bond was declared forfeited. 
Later, Salinger being in New York City, a proceeding 
was begun before a commissioner there for his arrest and 
removal to South Dakota under § 1014 of the Revised 

Statutes. He was arrested, taken before the commis- 

sioner, and accorded a hearing. The indictment was pro- 
“duced; he admitted he was the person charged; and on 

the evidence presented the commissioner found there was 
~ probable cause and committed him to await the issue of 

a warrant of removal. “He then sued out a writ of habeas 
corpus in the District Curt for that district; but after a 
hearing the court discharged the writ, remanded him to 
the marshal’s custody, and issued a warrant for his re- 

moval. On his appeal, that decision was reviewed and 
affirmed by the Circuit Court of Appeals for the Second 

    

    

  

  

    

Circuit. 288 Fed. 752. He made no attempt to obtain 
‘any other or further review. When the mandate of the 

    

  

  

        

  
  

  
 



| SALINGER v. LOISEL. 227 
224 ; Opinion of the Court. 

Circuit Court of Appeals went down, to avoid being re- 
moved in the custody of the marshal, he gave a bond for 
his appearance two weeks hence in South Dakota. Again 
he failed to appear, and that bond was declared forfeited. 

After giving the bond in New York and before the day 
ha stipulated therein for his appearance in South Dakota, 

“oq hs wr Salinger went to New Orleans, appeared with a repre- 
i? Foi sentative of the surety in that bond before a commis- 

sioner there, and was surrendered by the surety’s repre- 
sentative to the marshal of that district in the commis- 
sioner’s presence. Such a surrender in a distant district 
may not have been in accord with § 1018 of the Revised 

Statutes and may not have discharged the surety, but 

nothing turns on that here. The surrender seems to have 
been made with Salinger’s full consent; but, however 
made, it constituted no obstacle to further proceedings for 

his removal. The commissioner accordingly directed that 
“he be held 1i in the marshal’s custody to await the institu- 
tion of such a proceeding. He then sued out a writ of 
habeas corpus in the District Court at New Orleans 5 and 

was admitted to bail pending a hearing on the writ. 

In a few days—during which Salinger failed to appear 
in South Dakota as stipulated in the bond given in New 
York—a proceeding for his arrest and removal under 

§ 1014 was begun before the COIMUNISSIONET. in New Orleans, 
He was arrested, t ‘taken before the commissioner, and ac- 

corded a hearing. The indictment was produced; evi- 
dence was presented tending to show he was the person 
charged; and he gave testimony tending to show he was 

not in South Dakota at the times he was charged with 
unlawfully using the mail. On all the evidence the com- 
missioner found the requisite identity and probable cause, 

and committed him to await the issue of a warrant for 
his removal. He then sued out another writ of habeas 

corpus in the District Court, and was admitted to bail 
pending a hearing on the writ. 

  

  

    
  

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228 . OCTOBER TERM, 1923. 

~ Opinion of the Court. 265 U.S. 

On a hearing in the two cases all the proceedings in 
South Dakota, New York, the Circuit Court of Appeals 

for the Second Circuit, and New Orleans which have 
been recited herein were produced in evidence, and on 
consideration thereof the court discharged both writs of 
habeas corpus, remanded Salinger to the marshal’s cus- 
  

  

~~ tody, and issued a warrant for his removal. Direct ap- 
i. peals is Court in the two cases were then prayed by 

Salinger and allowed by the District Court, it being 
~ especially directed in both cases that the appeal operate 

as a supersedeas on Salinger’s giving approved bail. The 
bail was given and approved. These cases are Nos. 341 
and 342. 

Notwithstanding the  betwedens SO effected, Salinger 

  

    
  

was taken into custody by the marshal under the warrant 
of removal with a view to executing its command. He 

Be then sued out a third writ of habeas corpus'in the Dis- 
  

trict_Court,—his petition therefor—being like his earlier 
ee petitions, save as in it he additionally complained that     his detention under the warrant of removal was in con- 

~ travention of the supersedeas allowed on the appeals in 
Nos. 341 and 342. After a hearing the District Court 

- discharged the writ of habeas corpus and remanded him 
to the marshal’s custody for removal under the warrant. 
“An appeal was taken to the Circuit Court of Appeals for 
the Fifth Circuit, where the decision was affirmed. 295 

Fed. 498. The case is here on certiorari, 263 U. S. 683, 
and is No. 705. Bail in this case was allowed and given 

here when certiorari was granted. 
In disposing of the additional ground of complaint ad- 
vanced in No. 705 the Circuit Court of Appeals proceeded 
on the assumption that there were three distinct warrants 

of removal and that one of these was neither involved in 
: the > appeals i in Nos. 341 and 342 nor covered by the super- 

 sefleas. But the assumption was not well founded. 
There was but one proceeding for removal before the 

    

  
  
   



  

SALINGER v. LOISEL. 229 

224 Opinion of the Court. | 

commissioner in New Orleans and it was based on the 
single indictment in South Dakota. There also was but 
one commitment for removal in that proceeding. The 

warrant of removal issued by the District Court was 

based expressly on that commitment; but for reasons 

not explained the warrant was issued in triplicate. In 

substance, form and date the three papers were identical. 
Taken either collectively or separately they embodied a 

single command, which was that the marshal “forth- 

with ” remove Salinger to South Dakota and there de- 

liver him to the proper authority to be dealt with under - 

the indictment. To execute the command of one tripli- 

cate was to execute that of all. In legal effect therefore 

there was one warrant, not three. One was all that was 

sought, and no basis was laid for more. The obvious pur: 

pose of the supersedeas was to stay the execution of the 

command for removal pending the appeals to this Court 

in Nos. 341 and 342, and of course that purpose could not 

be thwarted by merely duplicating or triplicating the war- 

"rant embodying the command. It follows that the addi- 

tional ground of complaint advanced in No. 705 was well 

taken. But, as that ground could be effective only dur- 

ing the life of the supersedeas in Nos. 341 and 342, it has 

no bearing on the decision to be given in them on the 

right to remove. bo 

ing to the questions presented in those cases 

/ we think the procedure which was followed in them calls 

for comment. The first case was begun when Salinger was 

\ committed by the commissioner to await a proceeding for 

his removal. Later when such a proceeding was begun 

and the commissioner definitely committed him to await 

the issue of a warrant of removal, that change in the situa- 

tion should have been shown in the first case by an appro- 

priate amendment or supplement to the petition instead 

of being made the basis of a new and separate case. And 

when, in disregard of the propriety of taking that course, 

  
     

  

  
    
 



    
app 
plication i is being considered. In early times when a re- 

OCTOBER TERM, 1923. 

Opinion of the Court. 265 U.S. 

the second case was begun, the two should have been con- 

solidated and conducted as one. The parties were the 
same and the cases presented a single controversy. Main- 
taining them separately was productive of confusion and 
led to two appeals to this Court, when had the right 
course been taken one appeal plainly would have sufficed 

and would have lessened by one half the printing and 
other costs. As it is now, one record is largely a dupli- 

cation of what appears in the other and both are exceed- 
ingly confusing. The course that was taken should 
not have been selected, nor should the court have per- 
mitted it. 
In Nos. 341 and 342 the right to arrest ot remove in 

virtue of the indictment was questioned on the same 

grounds that were set up in the earlier case in New York, 
where that right was upheld. Because of this situation, 

~ counsel for the appellee invoke the doctrine of res 
judicata and insist that the decision in the New York case 
  

  

as a final adjudication of the right and is binding on all 

other courts, including this Court. We are unable to go 
so far. At common law the doctrine of res judicata did 
not extend to a decision on habeas corpus refusing to dis- 

charge the prisoner. The state courts generally have 

  

  

  

    

  

-agcepted that rule where not modified by s tatute; the 

lower federal courts usually have given effect to it; _and 
  

this Court has conformed to it and thereby Ted i it, 

although announcing no express decision on the point. 
    

  

} and Ez parte Sika 228 U. S. 652, 658, are piolahl | in- 
| stances. We regard the rule as well established in this 
iy 

    
  

   

  

“But 1t does not follow that a refusal to di on one 

out bearing or weight when a later ap- 
  

  

fusal to to discharge was not open to appellate review, courts 
and judges were accustomed to exercise an independent 
re Cit 

  

  

  

  

  
       



  

SALINGER v. LOISEL. 231 

224 Opinion of the Court. 

judgment on each successive application, regardless of the 

number. But when a right to an appellate review was 

“given the reason for that practice ceased and the practice 

came to be materially changed, —just as when a right to 
a comprehensive review in criminal cases was given the 

scope of inquiry deemed admissible on habeas corpus 

came to be relatively narrowed. 
The federal statute (§ 761, Rev. Stats.) does not lay = 

down any specific rule on the subject, but directs th 

“court © to dispose of the party as law and justice may on 

quire.” A study of the cases will show that this has been 

construed as meaning that each application 1s to be dis- 

posed of in the exercise of a sound judicial discretion 

guided and controlled by a consideration of whatever has 

a rational bearing on the propriety of the discharge 

sought. Among the matters which may be considered, 

and even given controlling weight, are (a) the existence 

of another remedy, such as a right in ordinary course to an 

appellate review in the criminal case, and (b) a prior re- 

fusal to discharge on a like application. Ez parte Royall, 

117.0. S.-241; Ez parte Fonda," 117 U. 8. 516; Ex parte 

Mirzan; 119 U. S. 584; Cook v. Hart, “146 U. 8S. 183; In 

re Frederic, 49 U. 8, 70; New York v. Eno M55 U. S. 
89; In re Chapman, 156 U. S. 211; Riggins v. United 

Stated 109 U. S. 547; In re Lincoln #202 U. S. 178; Henry 
LL Baa v. Henkel,"235 U. S. 219; Ex parte Cuddy 40 Fed. 62; 

Le A ‘In re Simmonsy45 Fed. 241; Ex parte M oebus~T48 Fed. 

a 39; In re Kopel, 148 Fed. 505. The decision in the Cuddy J 

Case was on a second application, and was given by Mr. 

~ Justice Field. While holding the doctrine of res judicata 

inapplicable, he said, “ the officers before whom the sec- 

ond application is made may take into consideration the 

fact that a previous application has been made to another 

officer and refused; and in some instances that fact may 

justify a refusal of the second. The action of the court 

or justice on the second application will naturally be 

  

    
  

  

  

  

  

  

  

  

  

    

    
     



  

OCTOBER TERM, 1923, 

Opinion of the Court. ; 265 U.S. 

affected to some degree by the character of the court or 
officer to whom the first application was made, and the 
fullness of the consideration given to it.” 

In practice the rules we here have outlined will accord 
to the writ of habeas corpus its recognized status as a 
privileged writ of freedom, and yet make against an 
abusive use of it. As a further safeguard against abuse 
the court, if not otherwise informed, may on receiving an 

application for the writ require the applicant to show 
whether he has made a prior application and, if so, what 
action washad on it. © = 

~~ Here the prior refusal to Advice ‘was by a court of 
coordinate jurisdiction amd-was affifined in a considered 
  

  

  

= opinion by a Circuit. Court of Appeals. Had the Dis- 
trict ed of the later applications on that 
  

  ground, its discretion would have been well exercised and 
  

a we should sustain its action without saying more. But 
: we been put on that 

ground; and, as circumstances are disclosed which make 
appropriate that we consider and pass on two of the 

  

- ein urged against a removal, we turn to them. 

  Both objections go-to the jurisdiction of the court be- 
~ fore which it is proposed to take and try the accused. _One 

. is that under the Sixth Amendment to the Constitution 
~~ there can be no trial in the District of South Dakota be- 
cause the Indictment shows that the a charged was 

  

  

  

bo not committed in that district but in a district in Towa, 
  

and the other that, even if the indictment be taken as 
charging an li the District of South Dakota, it 
shows that it was returned in a division of that district 
other than the one in which the offense was committed. 

Tt must be conceded that under the Sixth Amendment 
  

= a to the Constitution the accused can not be tried in one 
  

district on an indictment showing that the offense was 
  

= not commutfed in that district; and it also must be con- 
  

: el. that, jihore is no authority for a removal to a dis- 
  

  

  

  

   



  

      

    

SALINGER wv. LOISEL, 233 

aT Opinion of the Court. 

‘trict other than one in which the Constitution permits 
fhe trial to be had. We proceed therefore to inquire 
whether it appears, as claimed, that the offense was not 
committed in the district to which removal is sought. 

  

The material part of § 215 of the Criminal Code on ed 
which the indictment is based reads: 
.““ Whoever, having devised or intending to devise any 
scheme or artifice to defraud, . . . shall, for the pur- 
pose of executing such scheme or artifice . . . place, 

or cause to be placed, any letter . . . in any post- 
office, .- .  . or authorized depository for mail matter, 
to be sent or delivered, . . . or shall knowingly cause 
to be delivered by mail according to the direction there- 
on . . . any such letter, . -. . shall be fined not 
more than one thousand dollars, or imprisoned not more 
than five years, or both.” 

The indict charges that the defendants, of whom 
Salinger is one, devised a scheme and artifice to defraud. 
  

  

divers persons by means described, and thereafter, for the 
  

purpose and with the intent of executing their scheme and 
artifice, did unlawfully and knowingly “cause to b 

  

~ livered by mail ” according to the direction thereon, at 
  

foasd 
sab, 

5 Viborg within the southern division of the District of 4 

: ‘South Dakota, a certain letter directed to & named per- 

son at that place, the letter and the direction being par- 
  

  

ficularly described. The indictment then adds, in an ex- - 
planatory way (see Horner v. United States,:143 U. S. 

207, 213), that on the day preceding the delivery the 

defendants had caused the letter to be placed in the mail . 
  

  

at Sioux City, Iowa, for delivery at Viborg according to 
  

the direction thereon. There were other counts in the 

% indictment but they need not be particularly noticed, for 

the one just described is a fair sample of all. 

Section 215 is a reénactment, with changes, of an earlier 

x statute which made it an offense for the deviser of a 

scheme or artifice to defraud to place or cause to be placed 

 



    

OCTOBER TERM, 1923. 

Opinion of the Court. 265 U.S. 

in the mail any letter in furtherance thereof, but did not 
contain the clause making it also an offense for the deviser 

~ to cause such a letter “ to be delivered by the mail accord- 
ing to the direction thereon.” Under the original statute 
the offense was held to be complete when the letter was 
placed in the mail depository for transmission, and the 
place Of the deposit was held to be the place of commis- 
sion, regardless of whether or where the letter was de- 

~[ivered. The appellant insists that the introduction of 
the new clause into the statute as reénacted is not of 
material significance here. We are of a different opinion. 

"That clause plainly provides for the punishment of the 
deviser of the scheme or artifice where he causes a letter 

in furtherance of it to be delivered by the mail according 
~ to the direction on the letter. This is done by way of 
enlarging the original definition of the offense, the clause 

dealing with the placing of such a letter in a/mail de- 
- pository being retained. Evidently Congress intended to 

~ make the statute more effective and to that end to change 
it so that, where the letter is delivered according to the 
direction, such wrongful use of the mail may be dealt with 

in the district of the delivery as well as in that of the 

~ deposit. A letter may be mailed without being delivered, 
but, if it be delivered according to the address, the per- 

son who causes the mailing causes the delivery. Not 
only so, but the place at which he causes the delivery is 
the place at which it is brought about in regular course by 
the agency which he uses for the purpose. United States 

 v. Kenofskey, 243 U. S. 440, 443. Were the Government 
~ attempting to prosecute at both places, a question might 

arise as to whether 1t should be required to elect between 

  

  

  

  

  

  

  

  

  

  

tor them (see Haas v. Henkel, 216 U. S. 462, 474); but, as 
_ there is no such attempt here, that question need not be 

- considered. The appellant relies on United States v. 
i ~~ Stever, 222 U. 8. 167, as showing that the offense was 
committed at the place of the deposit and not at that 

      

    

  
    

   



    

      

  

  

    

SALINGER v. LOISEL. 235 

224 Opinion of the Court. 

of the delivery; but the case is not in point. It arose 
.before the statute was changed. The indictment there 
was in two counts. One was based on the original statute 
and was expressly abandoned by the Government. The 
other was based on another statute relating to the use of 
the mail in promoting lotteries and other schemes of ° 
chance. 

We conclude that there is no sound basis for the claim 
th e indictment shows that the offense was not com- 
  

  

  

mitted in the district to which removal 1s sought. An 
effort was made to strengthen that claim by producing . 
testimony tending to show that Salinger was not in that. 
district at the time. But of that effort it suffices to say 
that the nature of the offense is such that mr 
committed it, or have participated 1 in 1ts commission, even 
though he was not then in the district. In re Palliser, 136 

U. S. 257; Horner v. United States, 143 U. S. 207, 213; 
Burton v. United States, 202 U. S. 344, 386. 

The objection that the indictment was not returned in 
the division in which it charges the offense was com- 

mitted, and therefore that jurisdiction could not be 
founded on it, is based on a provision of § 53 of the Judi- 

cial Code reading as follows: 
“ When a district contains more than one division, 

all prosecutions for crimes or offenses shall be 

had within the division . . . where the same were - 

committed, unless the court, or the judge thereof, upon . 

application of the defendant, shall order the cause to be 

transferred for prosecnijon to another division of the 

district.” 
. South Dakota constitutes a single judicial district with = 

on Te fe Tar 
divisions, where sessions are held at times fixed by law, 

such sessions whether in one division or another Boing 

  

  

  

    

  

“ successive terms of one and the same court.” Hollister 

v. United States, 145 Fed. 773, 782. A like situation 

exists in many of the States. 

 



  
  

286 OCTOBER TERM, 1923. 

Opinion of the Court. 265 U.S. 

Formerly special statutes applicable to particular dis- 
~ tricts indicated the division in which criminal proceed- 

~ ings should be had, but the statutes were not uniform. 

  

  

  Some provided that crimes and offenses should be *4n- 
~ dictable” and triable only in the division where com- 
* mitted, or that all. criminal proceedings should “be 
brought” and had in such division. But the greater 

number, in varying terms, required that the trial be in 
“ that division, unle onsented to its being in 

nother. In districts where the latter were in force, it was 

  

  

   

common to impanel a grand jury from the district at : 
large, to charge such grand jury with the investigation 

~~ and presentment of offenses committed in any part of 
the district, and when indictments were returned to 

remit them for trial and other proceedings to the divisions 
~ wherein the offenses were committed, save as the defend- 

ant assented to a disposal in another division.! The prac- 
tice is illustrated in Logan v. United States, 144 U. S. 263, 
297, and Rosencrans v. United States, 165 U. S. 257. The 
‘general provision in § 53 here relied on superseded the 

ri special statutes. It obviously is less restrictive in its 
~ terms than some of them were; and the prevailing prac- 
tice under it has been like that theretofore followed in 

districts where the less restrictive provisions were in 
force. See Biggerstaff v. United States, 260 Fed. 926; 
United States v. Chennault, 230 Fed. 942. 

The contention is that the word “prosecution” in the 
general provision includes the finding and return of an 

sey indictment. That the word sometimes is used as includ- 
Ing them must be conceded. But there are also relations 
in which it comprehends only the proceedings had after 
the indictment is returned. Here we think it is used with 
the latter signification. It appears twice in the provision, 
doubtless with the same meaning. The first time is in 
the clause directing that “all prosecutions” be had in the 

division where the offense was committed, and the second 

J               
   



  
  

          

SALINGER v: LOISEL. 237 
224 "Opinion of the Court. 

is in the clause permitting the court or judge, at the in- 

stance of the defendant, to order “ the cause to be trans- 
~ ferred for prosecution” to another division. The con- 
nection in which it appears the second time shows that it 
refers to the proceedings after the indictment is found 

and returned, that is to say, after there is a cause sus- 

ceptible of being transferred. Besides, had Congress in- 
tended to put an end to the prevailing practice of im- 
paneling a grand jury for the entire district at a session 

in some division and of remitting the indictments to the 
several divisions in which the offenses were committed, 

unless the accused elected otherwise, it is but reasonable 

that that intention would have been expressed in apt 
terms, such as were used in some of the exceptional 
‘special statutes. That practice was attended with real 
advantages which should not be lightly regarded as put 

aside. - In many divisions only one term is held in a year. 
If persons arrested and committed for offenses in those 
divisions were required to await the action of a grand jury 
impaneled there, periods of almost a year must elapse in 
many instances before a trial could be had or an oppor- 
tunity given for entering a plea of guilty and receiving 

sentence. | 
In our opinion the real purpose of the provision, that 

which best comports with its terms when taken in the 

light of the circumstances in which it was enacted, 1s to 
~ “require, where a district contains more than one division, 

~ tlrat the trial be had in the division where the olfense was 

committed, unless the-accused consents to be tried 1 an- 
other. The Circuit Court. of Appeals so held 1m a well 
considered opinion in Biggerstaff v. United States, supra. 

The only decision the other way, of which we are advised, 
was by the District Court for the Eastern District of 

Louisiana in United States v. Chennault, supra; and that 

court receded from that decision in the cases now 

before us. | 

  

  

  

  
  

  

  

 



  

i 

pu 
——

——
 

sn
es

 

  

238 ~~ OCTOBER TERM, 1923. 

Opinion of the Court. 265 U.S. 

The appellant relies on Post v. United States, 161 U. S. 
583, as making for the contrary conclusion. But it does 
not do so. The case turned on a special statute, now 

~ superseded, declaring that “ all criminal proceedings ” for 
offenses in the District of Minnesota “ shall be brought, 
had and prosecuted ” in the division in which the same 
were committed. The difference between that special 
direction and the general one now before us is 50 marked 

~ that further comment is not required. 
. Other objections to the removal are urged, but those we 

~ have discussed and overruled are all that can with any 
propriety be regarded as open to consideration on these 
appeals. 

A survey of the roads before us shows that the re- 
sistance to removal has been unreasonably protracted. 

The mandate in these cases will issue forthwith and will 
embody an order requiring, under the bail given on the 

  

  
  

    

. appeals in Nos. 341 and 342 and under that given on the 
granting of the writ of certiorari in No. 705, that Salinger 
surrender himself into the custody of the marshal for the 

Eastern District of Louisiana, at New Orleans, within ten 
days from the day the mandate bears date preparatory to 
a removal under the warrant heretofore issued by the Dis- 
trict Judge of that district; or, in the alternative, that he 

surrender himself within such ten days into the custody 
of the marshal for the District of South Dakota at some 
place within that district, to be dealt with according to 

law. 

Judgments wm Nos. 841 and 342 affirmed. 
Judgment in No. 706 reversed. 

    

   



r
l
 

    

WONG DOO v. UNITED STATES. 239 

Opinion of the Court. 

WONG DOO v. UNITED STATES. 

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE 

SIXTH CIRCUIT. 

No. 736. Argued April 10, 1924. —Decided May 26, 1924. 

1. The strict doctrine of res judicata does not apply to habeas corpus. 
Salinger v. Loisel, ante, 224. P. 241. 

2. But the court, in its sound discretion, may dismiss a petition for 
habeas corpus because of a prior refusal, when the ground for the 

second application was set up, with another, in the first, and when 

the evidence to support it then was withheld without excuse for 
use on a second attempt if the first failed. Id. 

3. Where unreasonable delays have been caused by resort to habeas 

corpus proceedings, the mandate of this Court will issue forthwith. 

Id. 
293 Fed. 273, affirmed. 

CERTIORARI to a judgment of the Circuit Court of Ap- 
~ peals affirming a, decision dismissing a petition for habeas 

corpus. 

Mr. William J. Darley and Mr. Jackson H. Ralston, 
with whom Mr. George W. Hott was on the briefs, for 
petitioner. : 

Mr. George Ross Hull, Special Assistant to the Attor- 

ney General, with whom Mr: Solicitor General Beck was 
on the brief, for the United States. 

Mgr. Justice VAN DEVANTER delivered the opinion of 

the Court. 

This is a second petition for a writ of habeas corpus by 
~~ a Chinese in custody under an order of deportation issued 

under § 19 of the Immigration Act of February 5, 1917, 
c. 29, 39 Stat. 874. 

In the first petition the validity of the order was 
assailed on two grounds: one that the Secretary of Labor 

 



  

238 OCTOBER TERM, 1923. 

Opinion of the Court. 265 U.S. 

The appellant relies on Post v. United States, 161 U. S. 
583, as making for the contrary conclusion. But it does 
not do so. The case turned on a special statute, now 
superseded, declaring that “ all criminal proceedings ” for 
offenses in the District of Minnesota “shall be brought, 
had and prosecuted ” in the division in which the same 
were committed. The difference between that special 
direction and the general one now before us is so marked 
that further comment is not required. 

.". Other objections to the removal are urged, but those we 
have discussed and overruled are all that can with any 
propriety be regarded as open to consideration on these 
appeals, «del 

A survey of the records before us shows that the re- 
sistance to removal has been unreasonably protracted. 
The mandate in these cases will issue forthwith and will 
embody an order requiring, under the bail given on the 
appeals in Nos. 341 and 342 and under that given on the 

granting of the writ of certiorari in No. 705, that Salinger 
surrender himself into the custody of the marshal for the 
Eastern District of Louisiana, at New Orleans, within ten 
days from the day the mandate bears date preparatory to 
a removal under the warrant heretofore issued by the Dis- 
trict Judge of that district; or, in the alternative, that he 
surrender himself within such ten days into the custody 
of the marshal for the District of South Dakota at some 

place within that district, to be dealt with according to 
law. | 

Judgments in Nos. 341 and 342 affirmed. 
Judgment in No. 706 reversed. 

                    

   
    

                        

   

    

  

  



  

WONG DOO v. UNITED STATES. | 230 
Opinion of the Court. 

WONG DOO v. UNITED STATES. 
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE 

SIXTH CIRCUIT. 

No. 736. Argued April 10, 1924 —Decided May 26, 1924. 
1. The strict doctrine of res judicata does not apply to habeas corpus. 

Salinger v. Loisel, ante, 224. P. 241. 
2. But the court, in its sound discretion, may dismiss a petition for 

habeas corpus because of a prior refusal, when the ground for the 
second application was set up, with another, in the first, and when 
the evidence: to support it then was withheld without excuse for 

use on a second attempt if the first failed. Id. 
3. Where unreasonable delays have been caused by resort to Joho 

corpus proceedings, the mandate of this Court will issue forthwith. 
ed. 

293 Fed. 273, affirmed. 

CERTIORARI to a judgment of the Circuit Court of Ap- 
peals affirming a decision dismissing a petition for habeas 
COTPUS. 

Mr. William J. Dawley and Mr. Jackson H. Ralston, 
with whom Mr. ope Ww. Hott was on the briefs, for 
petitioner. Fal 

Mr. George Ross Hull, Special Assistant to the Attor- 
- ney General, with whom Mr. Solicitor General Beck was 
on the brief, for the United States. 

ME. JUSTICE VAN DevANTER delivered the opinion of 
the Court. 

This is a second. petition for a writ of habeas corpus by 
a Chinese in custody under an order of deportation 1ssued 

under § 19 of the ImmigTAtIOn Act of February 5, 1917, 
© 6.29, 39 Stat. 874. 
In the first petition the validity, of. the order was 
assal ed on two grounds: one that the Secretary of Labor 

  

  

   



   
240 OCTOBER TERM, 1923. 

Opinion of the Court. 265 U.S. 

issued it without lawful jurisdiction, and the other that 
0 = @ the administrative hearing on which it rested was not 
  

adequate or fair but essentially arbitrary. The return, 
besides answering the first ground, denied there was in 
fact any basis for the second. At the hearing in the 

District Court on these issues fhe petitioner offered no 
proof in support of the second ground. The court ruled 

that the first was not good in law, remanded the petitioner 
and dismissed his petition. He appealed to the Circuit 
Court of Appeals, and it affirmed the decision. 

Later the second petition was presented to the same 
District Court. In it the petitioner relied entirely on 
the second ground set forth before. There was some 
elaboration in stating it, but no enlargement of the sub- 
stance. The petitioner sought to distinguish the two 
petitions by alleging in the second that the earlier one was 
“based solely” on the jurisdictional objection; ‘but that 

allegation was not true. The return in the second case 
fully denied the charge that the administrative hearing 
was inadequate, unfair and arbitrary; set up the ‘prior 

petition and the proceedings thereon, and prayed a dis- 
missal of the second petition. 
After a hearing, the District Court ruled that the doc- 
 trine of res judicata applied; held the decision in the first 

case was conclusive in the second; remanded the peti- 
tioner, and dismissed the petition. 283 Fed. 989. On an 
appeal to the Circuit Court of Appeals that decision was 

affirmed. 293 Fed. 273. 
In Salinger v. Loisel, just decided, ante, 224, we held 

that in the federal courts the doctrine of res judicata does 

not apply to a refusal to discharge a prisoner on habeas 
COTPUS ; but that in those courts, where the prisoner pre- 
‘sents a second petition, the weight to be given to the prior 

refusal is to be determined according to a sound judicial 

  

  

  

  

  

  

  

  

  

  

  

    

discretion guided and controlled by a consideration of ie 
whatever has a rational bearing on the subject.  



    

WONG DOO v. UNITED STATES. 241 

og0/E Opinion of the Court. 

It therefore must be held that in this case the courts 

below erred in applying the inilexible doctrine of res 

judicata. But it does not follow that the judgment 

ould be reversed; for it plainly appears that the situa- 

. tion was one where, according to a sound judicial discre- 

t must have been given to the prior 

  

  

  

tion was assaile 

/ in the first petition. 

to offer proof of it at the hea 

and, if he was intending to rely 

required that he produce the proo 

proof for use in attempting to support a later petition, if 

the first failed, was to make an abusive use of the writ of 

habeas corpus. No reason for not presenting the proof 

at the outset is offered. It has not been embodied in the 

record, but what is said of it there and in the briefs shows 

that it was accessible all the time. II an alien whose 

deportation has been ordered can do what was attempted 

here, it is easy to see that he can postpone the execution 

of the order indefinitely. Here the execution already has 

been postponed almost four years. 2 

We conclude that the judgment was right, although a 

Wrong reason was given for it. The delay resulting from 

  

  

  

the course pursued by the petitioner has been unreason- 

able; so the mandate from this Court will issue forthwith. 
* 

Judgment affirmed. 

| 2080°—24——16 

  

  
  
             



  

U. S. SUPREME COURT REPORTS 10 L ed 2d 

rts [373 US 1) . 
*CHARLES EDWARD SANDERS, Petitioner, 

i oa 2 

“UNITED STATES 

375 US 1, 10 L ed 2d 148, 83 S Ct 1068 

; ; [No. 202] | 

Argued February 25, 1963. Decided April 29, 1963. 

SUMMARY 

When brought before the United States District Court for the Northern 

District of California on a charge of robbery of a federally insured bank, 

the accused, appearing without counsel, waived the right to the assisfance 

of counsel and the YENT 10 proceed by indictment, and pleaded guilty to 

the charge. He was given a l5-year sentence. Subsequently he filed a 

motion under 28 USC § 2255 to vacate and set aside his sentence on the 

grounds that the indictment was invalid, that he was denied the assistance 

of counsel, and that the sentencing court had allowed him to be coerced 

into entering a plea without counsel and without knowledge of the charges 

lodged against him. He also applied for a writ of habeas. corpus ad 

 testificandum requiring prisom authorities to produce kim before the court 

to testify in support of his motion. The sentencing court denied. both 

the motion and the application without a hearing, for the reason that 

the motion alleged bare conclusions unsupported by facts. The prisoner 

then filed a second motion under 28 USC § 2255, alleging that at the {ime 

ofthe conviction and sentence he was mentally incompétient as a result 

of TaTcoticeadrinistered to nim while he was being held ina county jail 

pending Trial. The sentencing court denied This motion without a hearing 

én the grounds that (1) there was no reason why the prisoner could not - 

have raised the issue of mental incompetency at the time of -the first 

motion, and (2) the prisoner's allegations were without merit in fact. The 

Court of Appeals for the Ninth-Circuit affirmed on the first of these grounds. 

(297 F2d 735.) be : a 

On certiorari, the Supreme Court of the United States reversed. In 

an opinion by BRENNAN,-J., expressing the views of six members of the 

Court, it was held that while the denial of the first motion was correct, 

the prisoner was entitled to a hearing on his second motion because the 

second motion made factual allegatioris which might entitle the prisoner 

to relief and which were neither decided adversely to him on the merits 

on the first motion nor conclusively shown by the files and records of the 

case not to entitle the prisoner to relief. The Court said that the provi- 

sion of 28 USC § 2255 that “the sentencing court shall not be required 

to entertain a second or successive motion for similar relief on behalf of    



  

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members of the 

was correct, 

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—
 

entitle the pri 

not be required 

on_behalf of 

  

    La 

278 UE L 10 L od ; 

the same prio ner” ca nnot be u Ro literal ly. 
83 s i 2968 

  

- HARLAN, J., joined by CLARK, J., dissented on the ground that the Court's 
construction of 28 USC $ 2255 amounted to judicial legisla 
the sentencing court had discretion to deny the second moti 
of the remedy. 

tion, and th 
ion as an abu 

HEADNOTES 

Classified to U. S. Supreme Court Digest 

Criminal Law § 74.5 — second motion 

{fo vacate sentence — right to 
hosing 

nding the provision in 

that the sentencing 

court shall not be required to enter- 
tain a second or successive motion for 
similar relief on behalf of the same 

prisoner, a prisoner whose first mo- 

tion for vacation of sentence under 
§ 2255 was denied as alleging only 

bare conclusions and no facts is en- 
titled to a hearing on his second mo- 

tion for vacation of his sentence where 

the second motion alleges—and the 
llegations are not shown conclusively 

0 be without merits—that he w 

c 
he offense charged. 

Sce annotation referemce 1] 

Judgment § 145 — res judicata — 
habeas corps 

2." At common 1 
“court or judge of a ap 
fe Cf orpus is not res 

e
t
 

Judgment § 121 — res judicata — con- 

stitutional rights. 

3. Conventional notions of finality 

of litigation have no place where life 

or liberty is at sta 

of constitutiona 

Habeas Corpus 

4. Each applicatic on 

S vorpus is t y 
B
E
,
 

a 
—
—
 

4 ¥ 

[¢]
 

® » ed
 

Q nsideration of 
al
e)
 

Po
et

 
w 

t
s
 

mn
 

{
 oh
 

— previous re- 
to enue — effect. 

o di szharge on 

    

  

Criminal Law § 74.5 — motion to va- 
cate sentence — grounds previ- 
ously considere 

E
i
n
e
 

and decided. 

is Sig required to 
successive mot 

for relief alrea dy fu 
  

ANNOTATION 

1. Constitutionality and construction of 
28° USC §2255. 96 L ed 244; 20 ALR2d 
976. 6 

- 2. ‘Denial of relief to prisoner on habeas 

REFERENCES 

at as bar -to second application. 

exclusive of 
by habeas - corpus otherwi ise avail-    



    

150 U. S. SUPREME 

a prior motion and decided against 

the prisoner. : - 

[See annotation reference 1] 

Criminal Law § 74.5 — successive mo- 

tions to vacate sentence — abuse. 

7. Under 28 USC § 2255, authorizing 

postconviction motiens to vacate or 

correct sentences imposed by federal 

courts, but further providing that “the 

sentencing court shall not be required 

to entertain a second or successive 

motion for similar relief on behalf 

of the prisoner,” the court in its dis- 

cretion may deny a hearing to a pris- 

oner who on a prior motion has de- 

liberately withheld a ground for relief 

which he asserts in the successive 

motion. 

[See annotation reference 1] 

Habeas Corpus § 113 — successive ap- 

plications — effect of statute. 

8. No intention to change the law 

as judicially evolved is intended by 

28 USC § 2244, which provides that 

no federal judge shall be required to 

entertain an application for a writ of 

habeas corpus to inquire into the de- 

tention of a person pursuant to the 

judgment of a state or federal court 

if the legality of such detention has 

been determined by a federal judge or 

court on a prior application for a 

writ of habeas corpus and the petition 

presents no new ground not thereto- 

fore presented and determined, and 

the judge or court is satisfied that the 

ends of justice will not be served by 

such inquiry. ; ; 

[See annotation reference 2] 

Habeas Corpus § 113 — successive ap- 

plications — ends of justice. 

fo. YUnder 28 USC § 2244, providing 

the no federal judge shall be com- 

pelled to entertain a prisoner’s ap- 

plication for writ of habeas corpus if 

the legality of his detention -has been 

determined by a federal judge or-court 

and the petition presents no new 

ground not theretofore presented and 

‘determined, a judge is not compelled 

to decline to entertain such an appli- 

cation, and is permitted to decline 

it only if he is satisfied that the ends 

10 Led 2d COURT REPORTS 

. 
3 1n= 

of justice will not be served by 

quiring into the merits. 

[See annotation reference 2] 

Habeas Corpus § 113 — successive ap-- 

plications — grounds not there- 

tofore presented and decided. 

10. 28 USC § 2244, which provides — 

that no federal judge shall be com- 

-pelled to entertain a prisoner's appli- 

cation for writ of habeas corpus if 

the legality of his detention has been 

determined by a federal judge or court 

and the petition presents no new 

ground not theretofore presented and 

determined, is addressed only to the 

problem of successive applications 

based on grounds previously heard and 

decided, and does not govern the prob- 

lem of abuse of the writ arising when 

a second or successive application 

contains a ground not theretofore pre- 

- sented and determined. 

[See annotation reference 2] 

~~ Criminal Law § 74 — motion to vacate - 

sentence — purpose. 

11. 28 USC § 2255, authorizing post- 

conviction motions to vacate or correct 

sentences imposed by federal courts, 

is intended to provide an expeditious 

- remedy for correcting erroneous Sén- 

tences of federal prisoners without 

resort to habeas corpus. x 

[See amnotationt reference 1] 

Habeas Corpus § $ — prisoner's right 

to attack sentence by motion in 

court imposing it. 

12. Section 2255 of the revised Ju- 

dicial Code, permitting a federal pris- 

oner to attack his sentence by motion 

in the sentencing court, is not intended 

to impinge upon his right to attack 

his conviction collaterally by habeas 

Corpus. - Si 

© [See anmmotation reference 1, 21 

Criminal Law § 74 — relief from sen- 

tence statutory remedy 

scope. : 

13. 28 USC § 2255, which provides 

‘that a prisoner in custody under sen-. 

tence of a federal court may file a 

“motion in the court which imposed 

the sentence to vacate or correct the 

sentence, on tke grounds that the sen- 

tence was imposed in violation of the 

sere 
—      



     

   

  

     
   
    

        

    

   

    

    
    

    

   

    
    

   

    

   
   

    

   

  

S 10 L ed 2d 

ot be served by in- 

merits. rr 

ion reference 2] 

113 — successive ap-_ 

grounds not there- 
nted and decided. 
2244, which provides 

judge shall be com- 
in a prisoner's appli- 

of habeas corpus if 

is de is detention has been 

federal judge or court 
presents no new 

Jot govern the prob- 
‘rit arising when 
bre application 

eretofore pre- 

tion reference 2] 

74 — motion to vacate 

purpose. 
255, authorizing post- 

ed by federal courts, 

lrovide an expeditious 

erroneous sen- 

al prisoners witheut 

corpus. 
tion reference 1] 

® 0
 er
 

.
m
 

§ 9 — prisoner's right bal 

entence by motion in 

ion reference 1, 3] 

74 — relief from sen- 
statutory remedy — 

k 2255, which provides 

in custody under sen- 

eral court may file a 

court which imposed 

vacate or correct the 

> gr rounds that the sen- 

sed in violation of the               

    
ns to vacate or correct - 

  

titution or Cor 

Sta 
jurisdiction to 

that the sentence was in excess of the 

maximum authorized by law, 

the sentence is 

collateral attack, 

sentencing court exactly commensu- 

rate with that which had previously 

SANDERS v UNITED STATES 151 - 
S Ct 106 3738 US 1, 10 L ed 2d 148, 83 Ct 1068 

18 laws of the United Crimin al Law § 74.5; Habeas Corpus 

tes, that the court was without § 123 — denial of previous appli- 

impose the sentence, cations — effect. 

16. Controlling weight may be given 

or that to denial of a previous application 

ise subject to Tor a federal habeas corpus, or for 
the correction or vacation of a sen- 

tence pursuant to 28 USC § 2255, only~ 
if (1) the same ground presented in 
i subsequent application was deter- 

otherw 

gives a remedy in the 

been available by habeas corpus in the Ge. adversely to ‘the hat 

court of the district where the pris- tk Iie . pple on 
Sor Wis confined the rior application, (2) the prior 
381 » LU 112 . Wi mi p determination was on the merits, and 

[See ammotation reference 1] (3) the ends of justice would not be 

Criminal Yaw § 
45 fieh to vd served by reaching the merits of the 

745 — molio * subsequent application. 

cate sentence — relation to habeas [See annotation references 1, 2] 
corpus. : : ; 
The ¢ ils lief” 1316 to's - mg 

14. The similar relief” provision Criminal Law § 74.5; Habeas Corpus 

of 28 USC § 2255, which states that §123 — successive applications 

a “sentencing court shall not be re- . — effect of former denial — 

quired to entertain a second or suc- grounds for relief. 

cessive motion 

behalf of the s 
for similar relief on 17. Under the rule that controll 

ame prisoner,” is the eight may be given to the Bre of 
ateria mivalent % ricti material equivalent, for post-conviction 5 prior application “for habeas corpus, 

motions under 9.7 ' 295 Bl 
. 

28 USC §2255, of 28 (yr for the correction or vacation of 5 i 

7 29 ‘hich prov ha § 9955 
USC § 2244, which provides that no gj sentence pursuant to 28 USC § 2255, 
federal judge shall be required to gply me ground presented in 

You
r 

m
 

™m
 

1 

atin I rv of 
entertain 2 an applica tion for a writ of the subsequent applic ation was deter- 

“ 3} a bg! 

1 Y habeas corpus to inquire into the de- mined adv 

tention of a person pursuant to a prior app 

federal or state » 171 Yrt 1 M ~~ ott fF +3 court judgment if the means 
] 9 of S tentio he is Roo legality of such detention has been granting the 
determined by a 

on a prior app 

habeas corpus 

judge or court 

ends of justice 

such inquiry. 

/ : and the pel tition pre- pe resolved in favor of the applicant. 
Q ; fos vi + . i tf 

i 

sents no new ground not theretofore [See annotation references 

presented and 

A al 3 3 1 2 vt os faders; judge or court piicant, 
lication for a writ of grounds a 

    

determined, and the 

is satisfied that the Criminal Law § 74.5 — Habeas Corpus 

will not be served by §123 — grounds for relief  — 

Senticn nature. 

   

[See -annotation reference 1] - 18. Under the rule that controlling 

weight may be" given to the denial of 
ee: ? - - AH : 

i Law § 74.5; Habeas Corpus ; prior application for habeas corpus 

: or ent applications  r for the correction or vacation of 

— lack of merl : a sentence pursuant to 28 USC § 2255, 
15. A second or successive applica- ply if the same ground presented in 

tion by a federal prisoner for habeas {he subsequent appl ication was de- 
Sedu 

corpus or for the correction or vaca- termined adversely to the applicant on 

tion of his se 

§ 2255 should be denied without a hear- may often be proved by different fac 

ing where the 

ntence under 28 USC the prior application, identical grounds 

application is shown, tual allegations or by different lega 

on the basis of the application, files, arguments, so that, for example, a 

and records of the case alone, con- claim of involuntary confession pred- 

clusively to be 

[See annot 

without merit. : jeated on alleged=psychological coer- 

tation reference 1] -  cion does not raise a different ground    



152 

from one predicated on alleged phys- 
ical coercion. 

[See annotation reterommis 1.2) 

Criminal Law § 74.5; Habeas Corpus 
§ 123 — successive applications 

previous denial | — factual 

issues. 3 - 

19. Under the rule that controlling 
weight may be given to the denial of 

a prior application for habeas corpus, 
or for the correction or vacation of 
a sentence pursuant to 28 USC § 2255, 
only if the prior determination was- 
on the merits, a prior determination 

on the merits is deemed made of an 
application raising factual issues not 

conclusively resolved by files and rec- 
ords only if an evidentiary hearing 
was held. s 

[See annotation vetirohes 1.2 

Criminal Law § 74.5; Habeas Corpus 

§§ 121, 123 — second application 
— grounds for hearing. 

20. Under the rule that controlling 
weight may be given to the denial of 
a prior application for habeas corpus, 

or for the correction or vacation of 
a sentence pursuant to 28 USC § 2255, 
only if the ends of justice would not 

be served by reaching the merits of the 

subsequent applicati ons, the burden 
is on the applicant to show that al- 
though the ground of the second 
application was 

him on the merits on the prior applica- 

tion, the ends of justice would be 
served by a redetermination of the 

ground, but-if factual issues are in- 
volved, the applicant is entitled to a 
new hearing upon showing that the 
evidentiary hearing on the prior de- 
termination was not full and fair: 
if purely legal questions are involved, 

-he may be entitled to a new hearing 
upon ‘showing an intervening change 
in the law or some other justification 

for having failed to raise a crucial 
point or argument in the prier ap- 
plication. 

[See annotation references 1,2] 

Criminal Law § 74.5; Habeas Corpus 
§§ 111, 113 — successive applica- 
tions — abuse of remedy — bur- 
den of pleading. 

21. No matter how many applica- 

U. S. SUPREME COURT REPORTS 10 Led 2d 

tions for federal relief by habeas 
corpus or motions under 28 USC § 2255 

& prisoner has made, a subsequent ap- 
plication for such relief cannot be 
denied on the ground that a prior 
application has been previously heard 
and determined if a different ground 
is presented by thé new application or 
if the same ground was earlier pre- 
sented but not adjudicated on- the 
merits, unless there has been an abuse 
of the writ or the motion remedy, 
which the government has the 
of pleading. : 

[See annotation references 1, 2] 

burden 

Equity § 87; Habeas Corpus §1 — 
equitable principles. 

22. Habeas corpus has traditionally 

been regarded as governed by equi- 
table principles,-among them the prin- 

ciple that a-suitor’s conduct in relation 

to the matter at hand may disentitle 
him to the relief he seeks. 

Criminal Law § 74.5; Habeas Corpus 
§ 121 — abuse of writ. 

23. If a prisoner deliberately with- 

holds one of two grounds for federal 
collateral relief, in the hope of being 

granted two hearings rather than one 

- or for some other such reason, or if 
“he sets forth two grounds for relief 
but deliberately abandons one of his 
grounds at the first hearing. he may 

to a hearing on a second application 

presenting the withheld or abandoned 
- ground. 

[See annotation references 1, 2] 

Habeas Corpus § 5 — piecemeal litiga- 
tion -—— vexatious purpese. 

24. Nothing in the traditions of 
haheas corpus requires the federal 
courts to tolerate needless piecemeal 
litigation, or to entertain. collateral 
proceedings whose only purpose is to 
vex, harass, or delay. 

[See annotation reference 2] 

Criminal Law § 
§ 123 — denial of successive ap- 
plications — discretion. _ 

25. On a second application for writ 
of habeas corpus or on a second mo- 
tion pursuant to 28 USC §2255 to 
corrector vacate a sentence, in which 

determined against be big to have whived his right. 2 

74.5; Habeas Corpus i     
 



   

   

         
    
   

      

   
   

    

   

   
   
   
    

  

    

   
   

    

        

   

    

   

    

10 L ed 2d 

relief by habeas 
nder 28 USC § 2255 

E, a subsequent ap- 

relief cannot be 
bund that a prior 

n previously heard 

a different ground 
new.application or 

was earlier pre- 
Hijudicated. on the 

has been an abuse 
e ‘metion remedy, 
ent has the burden 

   
    

  

   
    

    

    

   

  

   
     

          
        

  

     
      

          

       
      
       
    

  

    
   

       
     

             

   
       

references 1, 2] 

bas Corpus §1 — 

iples. 
s has traditionally 

governed by equi- 
ong them the prin- 

conduct in relation 
and may disentitle 

e seeks. 

5; Habeas Corpus 
of writ. 

deliberately with- 
rounds for federal 
the hope of being 

os. rather than one 

such reason, or if 
grounds for relief 

andons one of his 
t hearing. he may 

waived his right 
second application 

held or abandoned 

    

   

   

   

   

   references 1, 2} 

piecemeal litiga- 
us purpose. 
the traditions of 
uires the federal 
needless piecemeal 

ntertain collateral 

only purpose is to 
ay. i 

iw reference 2] 

    

      

    

  

   5; Habeas. Corpus 

of successive ap- 
tiscretion. 

pplication for writ 
r on a second mo- 

28 USC § 2255 to 

sentence, in which 

   
    

   

   

      

  

  

  
    

  

34 ~ SANDERS v UNITED STATES 
8373 US 1, 10 L ed 2d 148, 83 S Ct 1088 

a question is raised as to whether the 
application or motion should be denied 

for abuse of the writ or the motion 
remedy or because the application or 

motion presents grounds previously 
heard and determined, the question is 

addressed to the sound discretion of 

the federal trial judge. 
- [See annotation references 1,2] 

Criminal Law § 74 — motion to vacate 
-_ sentence — asserting only legal 

conclusions. 
26. A federal court has power to 

deny & motion to correct or vacate 

a sentence pursuant to 28 USC § 2255; 
on the ground that the motion states 

only bald legal conclusions with no 
supporting factual allegations, even 

though the better course- may be to 

direct the movant to amend his motion. 
[See annotation reference 1] 

Criminal Law § 74 — motion to vacate 
sentence — right to be present 

at hearing. 

27. While not every colorable allega- 
tion in a motion pursuant to 28 USC 
§ 2255 to correct or vacate a sentence 

entitles the movant to a trip to the 
sentencing court, the provision in the 

statute that a motion may be enter- 
tained and determined “without re- - 
quiring the production of the prisoner 

at the hearing” on the motion does 
not mean that a prisoner can be pre- - 
vented from testifying in support of 
a substantial claim where his testi- 

‘mony would be material, but gives the 
sentencing court discretion to ascer- 

tain whether the claim is substantial 

before granting a full evidentiary 

hearing. 
[See annotation reference 1] 

Criminal Law § 74; Habeas Corpus 
§ 111 — pleadings — liberal in- 
terpretation. 

28. An applicant for federal collat- 
eral relief from hissentence ought not 

to be held to the niceties of lawyer's 
pleadings or be cursorily dismissed 
because a claim seems unlikely to 

prove meritorious. - 
[See annoiation reference 1] 

Criminal Law §§ 74, 74.5 — motion to 
vacate sentence — scope of in- 

quiry. : 
29. A federal judge entertaining 

motion to vacate or correct a sentence 

pursuant to 28 USC §2255 is n 
required to limit his decision on the 
motion to the grounds narrowly al- 

leged, or to deny the motion out-of- 
hand because the allegations are 
vague, conclusional, er inartistically 

expressed, but is free to adopt any 

appropriate means for inquiry into the 
legality of the prisoner's detention in 

order to ascertain all possible grounds 
upon which the prisoner might claim 
to be entitled to relief; the disposition 

of all such grounds may then be 
spread on the files and records of the 
case, .and to the extent that the files 
and records _ conclusively show that 

r 

the prisoner is entitled to no relief 
on any such grounds, no hearing on a 

second -or successive motion is neces- 
sary on such grounds. 

[See annotation reference 1] 

} APPEARANCES OF COUNSEL 

Fred M. Vinson, Jr., argued the cause for petitioner. : 
Beatrice Rosenberg argued the cause for Fesnongent. ; 

Briefs of Counsel, p. 1119, infra.- . : = 

OPINION OF THE COURT SRE Lec 
#1373 US 2] 

*Mr. Justice Brennan delivered the 
opinion of the Court.- 

We consider here the standards 
which should guide a federal court 

  

  

_in deciding whether to grant a hear- 
  

ing on a motion of a federal prison- 
*[373 US 3) : 

er under 28 USC § 2255.1 *Under 
that statute, a federal prisoner who 

  

  

  

“1. Section 2255 provides: _ 
“A prisoner in custody under sentence 

of a court established by Act of Congress 
claiming the right to be  ioaved upon the 
ground that the sentence was imposed Tn: 

violation of the Constitution or laws of 

the United ly or that the ceurt was 

-without jurisdiction to impose such sen- 

“tence, or that the sentence was in excess 

of the maximum authorized by-law, or is 

  

    

       

  

   

     
      

  

      



    

  
  

4 

claims that his sentence was im- 

- posed in violation of the Constitu- 

tion or laws of the United States 

may seek relief from the sentence by 

_ filing a motion in the sentencing 

court stating the facts supporting 

his claim. “[A] prompt hearing” 

on the motion is required “fu]nless 
. ts #1373 US 4] 

the motion and the files *and records 

of the case conclusively show that 

the prisener is entitled te no re- 

Hef . . . 7 The section further 

provides that “[t]he sentencing 

court shall not be required to enter- 

tain a second or successive motion 

for similar relief on behalf of the 

same prisoner.” 

The petitioner is serving a 15- 

year sentence for robbery of a fed- 

erally insured bank in violation of 

18 USC § 2113(a). He filed two mo- 

tions under § 2255. The first al- 

leged no facts but only bare conclu- 

sions in support of his claim. The 

second, filed eight months after the 

first, alleged facts which, if true, 

_might- entitle him to relief. Both 

U.S. SUPREME COURT REPORTS 10 Led 2d 

motions were denied, without hear-_ 

ing, by the District Court for the 

Northern District of California. On 

appeal from the denial of the second 

“motion, the Court of Appeals for the 

Ninth Circuit” affirmed. 297 F2d 

735. We granted leave to proceed in 

forma pauperis and certiorari. 370 

US 936, 8 Led 2d 806, 82 S Ct 1592. 

On January 19, 1959, petitioner 5 

_ was brought before the United 

States District Court for the North- 

ern District of California, and was 

handed a copy. of a proposed in- 

formation charging him with the 

robbery. He -appeared without - 

counsel. In response fo inquiries 

of the trial-judge, petitioner stated 

that he wished to waive assistance 

of counsel and to proceed by in- 

formation rather than indictment ;? 

he signed a waiver of indictment, 

and then pleaded guilty to the charge 

in the information. On February 

10 he was sentenced. Before sen- 

tence was pronounced, petitioner 

said to the judge: “If possible, your 

  

otherwise subject to collateral attack, may 

move the court which imposed the sentence 

to vacate, set aside or correct the sentence. | 

“A motion for such relief may be made 

at any time. : ; 

“Unless the motion and the files and 

recor Se 
the prisoner is entitled - to ‘mo)reliei, 

court shall 1 

served upon the United States attorney, 

grant a prompt hearing thereon, deter- 

_ mine the issués and make findings -of fact 

and conclusions of law with respect there- 

to. If the court finds that the judgment 

was rendered without jurisdiction, or that 

the sentence imposed was not authorized 

by law or otherwise open to collateral 

_ attack, or that- there has been such a 

denial or infringement of the constitu- 

tional rights of the prisoner as 10 render 

the judgment. vulnerable to collateral 

attack, the court shall vacate and set the 

judgment aside and shall discharge the” 

prisoner or resentence him or grant a new 

trial or correct the sentence as may appear 

appropriate. > 

“A court may entertain and determine 

such motion without requiring the pro- 

: ATs f i r at the heari 

“The sentencing court shall not-be re- 

quired to entertain a second or successive 

motion for similar relief on behalf of the 
  

same prisoner. - 

T appeal may be taken to the court 

‘of appeals from the order entered on the 

motion as from a final judgment on appli- 

cation for a writ of habeas corpus. 

“An application for a writ of habeas 

corpus in behalf of a prisoner who is au- 

thorized to apply for relief by motion 

pursuant to this section, shall not be 

entertained if it appears that the appli- 

cant has failed to apply for relief,- by 

motion; te the court which sentenced him, 

or that such court has denied him relief, 

unless it also appears that the remedy by 

motion is inadequate or ineffective to tes 

the legality of his detention.” - - 

9. Petitioner makes no claim that the- 

procedure employed by the District Court 

was not adequate to advise him of his 

constitutional rights to assistance of 

counsel, grand jury indictment, and trial 

by jury. 1 1   
  

 



     
     10 Led 2d 
   

  

ed, without hear- 

ct Court for the = 

of California. On 

  

     

    

nial of the second 

bf Appeals for the 
irmed. 297 Fad 

eave to proceed in 

d certiorari. 370 - 

R06, 82 S Ct 1592. 

     

      

      
      

     
     
       

  

     
          

       

        

  

      

   

1959, petitioner 

fore the United 
rt for the North- 
lifornia, and was < 

f a proposed in- 

g him with the 

peared without 

onse to inquiries . 

petitioner stated 

waive assistance 

proceed by in- 

than indictment;? 

er of indictment, 

uilty to the charge 

n. On February 

ced. Before sen- 
unced, petitioner 
“If possible, your : 

  

   

    

     
    
    

   

     
    
    
         
    

     

        

      
     

      

    

       

     

  

    

  

   

   

  

   

   

  

   

   

    

   

  

   

  

   
   
   

   

   

    

   

      

   

   

      

      

  

   
   

   
   

  

requiring the .pro- 
ver at the hearing. 
hurt shall not be re- 

second or successive 

lief on behalf of the 

  

   
   

e taken to the court 
order entered on the 2 
b1 judgment on appli- 
habeas corpus. 

br a writ of habeas - 
p prisoner who is au- 
or relief by motion 
ction, shall not be 

hears that -the appli- 
apply for relief, by 
which sentenced him, 

as denied him relief, 
s that the remedy by 
or ineffective to test 

etention.” 

s no claim that the = 
by the District Court 
o advise him of his 

"to assistance of 

indictment, and trial 

  

   

    

   
   
   

   

            

   

  
  

161 ~~~ SANDERS v UN 
278 US 1, 10 L ed 24 148, 83 8 Ct 1068 

~ Honor, I would like to go to Spring- 

field or Lexington for addiction cure. 

I have been using narcotics off and 

on for quite a while.” The judge 

-replied that he was “willing to rec- 

ommend that.” + 

*[373 US 5] 

*On January 4 1960, pilitioner, 

appearing pro se, filed his first mo- 

tion. He alleged rio facts but mere- 

ly the conclusions that (1) the 

“Indictment” was invalid, (2) “Ap- 

pellant was denied adequate assist- 

ance of Counsel as guaranteed by 

the Sixth Amendment,” and (3) the 

sentencing court had “allowed the 

Appellant to be intimidated and co- 

erced into intering [sic] a plea with- 

out Counsel, and any knowledge of 

the charges lodged against the Ap- 

pellant.” He filed with the motion 

an application for a writ of habeas 

corpus ad testificandum requiring 

the prison authorities to produce 

him before the court to testify in 

support of his motion. On Pony 

3 the Distrie: Cort denied both th 

motion and the application. In a 

memorandum accompanying the de- 

nial, the court explained that the 

motion, “although replete with con- 

clusions, sets ferth no facts upon 
which such conclusions can be 
founded. For this reason alone, this 

motion may be denied without a 
hearing.” Nevertheless, the court 

stated further that the motion “sets 

forth- nothing but unsupported 
charges, which are completely. re- 

futed by the files and records of 
"this case. Since the motion and 
the files and records of the case con- 

clusively show that the prisoner is 
entitled to no relief, no hearing on 

-the motion is necessary.” No appeal 

was taken by the petitioner from 
this denial. 

+0n September 8 petitioner, again 

appearing pro se, filed his second 

3 

  

NITED STATES 155 

motion: This time he slleged that 

at the time of his trial and sen- 

tence he was mentally incom- 

petent as a result of or peties ad- 

ministered to him while he was held 

in the Sacramento County Jail pend- 

ing trial. He stated in a supporting 

affidavit that he had been con rfined in 

the jail from on or about January 

16, 1959, to February 18, 1959 : that 

_ during this period and during the 

period of his “trial” he had been in- 

termittently under the influence of 

narcotics: and that the narcotics 

had been administered to him by 

the medical authorities in attend- 

ance at the jail because of his being 

a known addict. The District Court 

*¥7373 US 6] 

*Jenied the motion without bokving 

stating: - “As there is no reason 

given, or apparent to this Court, 

why petitioner could not, and should 

not, have raised the issue of mental 

incompetency at the time of his first 

motion, the Court will refuse, in 

the exercise of its statutory discre- 

tion, to entertain the present peti- 

tion.” (Footnote omitted.) The 

court also stated that “petitioner’s 

complaints are without merit in 

fact” On appeal from the order 

denying this motion, the Court of 

Appeals for the Ninth Circuit af- 

firmed. 297 F2d 735 (1961). The 

Court of Appeals said in a per 

curiam opinion: “Where, as here, it 

is apparent from the record that at 

the time of filing the first motion the 

movant knew the facts on which the 

second motion is based, yet in the" 

second motion set forth mo reasom 

why he was previously unable to 

assert the new ground and did not 

allege that he had previously been 

unaware of the significance of the 

relevant facts, the district court, 

may, in its discretion, decline to en- 

tertain the second motion.” 297 

F2d, at 736,-737. : 

          

        

         
         

  

   



  

  
  

        

U. S. SUPREME COURT REPORTS 

We reverse. =~ We hold that 
the sentencing court 
should have granted a 
hearing on the sec- 

ond motion. i 

Headnote 1 

i = 

-The statute in terms requires 
that a prisoner shall be granted a 
hearing on a motion which alleges 
sufficient facts to support a claim 
for relief unless the motion and the 
files and records of the case “eon- 
clusively show” 

without merit This is the first case 
Which we have been called upon 

to determine what significance, in 
deciding whether -to grant a hear- 
ing, the sentencing court should at- 
tach to any record of proceedings on 
prior motions for relief which may 
be among the files and records of- 
the case, in_light of t rision 

. that: “The sentencing court shall 
not be required to entertain a sec- 
ond or successive motion ior similar 
relief on behalf of the same pris- 

This provision has caused 
FSIS TIS) Ce—— 

uncertainty *in the District Courts, 
sée Bistram v United States, 180 F 
Supp 501 (DC D NDak), affd 283 
F2d 1_(CA8th Cir 1960), and has 

  

  

provoked a conflict between circuits: 
with the decision of the Court of 
Appeals for the Ninth Circuit in the 
instant case, compare, e. g., Juelich 

v United States, 300 F2d 381 (CA 

5th Cir 1962); Smith v United 

States, 106 App DC 169, 270 F24. 

921 (1959). We think guidelines to 
the proper construction of the pro- 

284 (Ex 1845); 

-obtained his liberty.” 

10 Led 2d 

rision are to be found in its his- 
tory. 

At common law, the denial by a 
court or judge of an application for 

habeas corpus was not 
Headnote 2 pes judicata. King v 

Suddis, 1 East 306, 102 
Eng Rep-119 (KB 1801); Burdett v 
Abbot, 14 East 1, 90, 104 Eng Rep 
501, 535 (KB 1811); Ex parte Part- 
ington, 13 M & W 679, 153 Eng Rep 

); Church, Habeas . 
Corpus - (1884), § 386; Ferris and 
Ferris, Extraordinary Legal Rem- 
edies (1926), § 55.8% “A person de- 
tained in custody might thus pro- 
ceed from court to court until he 

. Cox v Hakes - 
15 AC 506, 527 (HL, T5 That 
this was a principle of our law of 
habeas corpus as well as the English 

  

“was assumed to be the case from the 

earliest days of federal habeas cor- 
pus jurisdiction. Cf. Ex parte Bur- 

ford (US) 3 Cranch 448, 2 L ed 
495 (Chief ~ Justice Marshall). 

Since then, it has become settled in 

an unbroken line of decisions. Ex 
parte Kaine. (CC NY) 38 Blatchf. 1, 
5, 6, F Cas No 7597: (Mr. Justice 

: i LE 1S 8] i 3 : 

Nelson in *Chambers); Re Kaine 

(US) 14 How 103, 14 L ed 345; Ex 

parte Cuddy, 14 Sawy 171, 40 F 62, 

65 (Cir Gi SD Cal 1889) (Mr. Justice 

Field); Frank yv Mangum, 237 US 
309, 334, 59 L ed 969, 983, 35 S Ct 

582; Salinger v Loisel, 265 US 224, 

230, 68 rae) 995, 44 S Ct519; 
‘Waley v _Johnston, 316 US 101, 86 

L ed 1302,°62 S Ct 964; United - 
States ex rel Accardi -v Shaugh- 

  

- 3. “This case has already been before 

the Court of Queen’s Bench, on the return 
of habeas corpus, and before my Lord 

Chief Baron at chambers; on a subsequent 
“application for a similar writ. 
instances the discharge was refused. The 

" defendant, however, has a right to the 
opinion of every tourt as to the propriety 

of his imprisomment, and therefore we 

- have thought it proper to examine atten- 

In both 

tively the provisions of the statute, with- 
out considering ourselves as conc luded by 

these decisions.” Ex parte Partington, | 

supra, 13 M & W, at 683- 684, 153 Eng 
Rep, at 286. 

4. See .also- Church, supra, §389. - The 

traditional English practice has recently 
been curtailed by statute. Administration 

of Justice Act, 1060, 8 & 9 Eliz 11, ¢. G5, 
Pred. 

1 

   



10 Led 2d 

in its his- 

, the denial by a 
an application for 
corpus was not 

dicata. King v 
1 East 306,-102 
1801) ; Burdett v 
80, 104 Eng Rep 

) ; Ex parte Part- 
679, 153 Eng Rep 
Church, Habeas 

t 386; Ferris and 

hary Legal Rem- 
2 “A person de- 
might thus pro- 

to court until he 
v.” Cox.v Hakes 
HI, 1890).¢ That 
ble of our law of 

vell as the English 
the case from the 
pderal habeas cor- 
Cf. Ex parte Bur- 

nch 448, 2 L ed 
stice Marshall). 

become settled in 

of decisions. Ex 

NY) 3 Blatchf. 1, 

597: (Mr. Justice 

bers); Re Kaine 

L 14 L ed 345; Ex 
awy 171, 40 F 62, 

I R89) (Mr. Justice 

Mangum, oor US 
969, 983, 35 S Ct. 

ise], 265 US 224, 
895, 44.8 Ct 519; 
, 316 US 101, 86 
Ct 964; United 

cardi v Shaugh- 
  

of the statute, with- 

ives as concluded by 

x parte Partington, 
ht 683-684, 153 Eng. 

, supra, $389. The 
ractice has recently 
ute. Administration 
8 & 9 Eliz II, c. 65, _   

SANDERS .v, UNITED STATES 
373 US 1, 10 L ed 2d 148, 83 S Ct 1068  - 

nessy, 347 US 260, 263, note 4, 98 

L ed 681, 685, 74 S Ct 499; Heflin-v 

United States, 358 US 415, 420, 3 
L ed 2d 407, 410, 79 S Ct 451 (opin- 
ion -of Mr. Justice Stewart) (dic- 
tum) ; Powell v Sacks, 303 F2d 808 
(CA6th Cir 1962). Indeed, only the 

“other day we remarked upon “the 
familiar- principle that res judicata 
is inapplicable in habeas proceed- 

ings.” Fay v Noia, 372 US 391, 

423; 9 L ed 2d 837, 859, 83 S Ct 
822. - : ; 

It -has been suggested, see Sal- 

inger v Loisel, supra (265 US at 

230, 251), that this principle derives 

from the fact that at common law 

habeas corpus judgments were not 

appealable. But its roots would 

séem to go deeper. 

  

  

  

  

  
  

Headnote 3 

tional rights is alleged. If “govern- 
ment . . . [is] always [to] be 

accountable to the judiciary for a- 

man’s imprisonment,” Fay v Noia, 

supra (372 US at 402), access to the 

courts on habeas must not be thus - 

impeded. The inapplicability of res 

judicat ta to habeas, then, 1s inherent 
  

  

in the Very role and junction of the 
  

writ. 

A prisoner whose motion under 

§ 2255 is denied will often file an- 

other, sometimes many -successive 

motions. We are-aware that in con- 

sequence the question whether to 

grant a hearing on a successive mo- 

tien ean be troublesome—partic- 

ularly when the motion is prepared 

without the assistance of counsel 

and contains matter extraneous to 

the prisoner’s case. Buf the prob- 
lem is not mew, and our decisions 

Whder habeas corpus have identified 
situations , where denial - without 

hearing is proper even though a- 

  

second or successive application 

states a claim for relief. One such 

situation is that involved in Sal- 
65 US 224, 68 L ed inger v Loisel, 2 

9]7, 44 i Ct-519, supra. There, a - 
Orpus 

S 

“one District Court, and the *denial 

was affirmed by the Court of ap 

peals. The prisoner then 

a different District 

Court. We indicated that the sub- 

Sequent aes 

there iad governing prin- 

“while reaffirming the inap- 

Son ability of res j juientn ¥ to habeas 

we said: “each appl 
u 

Headnote 4 

Headnote 5 

mong the matters 

which may be considered, and even 

given controlling weight, are . . . 

a prior refusal to dischatge on a like 

application.” 265 US, a 231. The 

Court quoted So? from Mr. 

Justice Field’s opinion in Ex parte 

Cuddy, supra (40 F at 66): “ The 

action of the court or justice on the 

second applicatien will naturally be’ 

affected to some degree by the char-. 

_acter of the court or officer to whom 

the first application was made, and 

the fullness of the cons sideration 

given to it.” 265 US, at 231, 232. 

The petitioner's successive applica- 

tions were properly denied because 

he sought to retry a claim previ- 

ously fully considered and decided 

- _ against him. Similarly, 
Eeadnote 6 ing ; .   

  

 



  
  

  

158 

sive motion alleging a ground for - 
“relief already fully considered on a 
prior motion and genjiey against the 
prisoner. : 

: Another Hy situation ds that 
— which was presented in Wong Doo 

v United States, 265 US 239, 68 L ed 
999, 44 S Ct 524. In Wong Doo the- 
prisoner in his first application for 
habeas corpus tendered two grounds 
in support of his position. A hear- 
ing was held but the petitioner of- 
fered no proof of his second ground, 
even though the return to the writ 
had put it in issue. Relief was 
denied and the denial affirmed by 
the Circuit Court of Appeals. Later, 
he filed a second application relying 
exclusively on the second ground. 

*[373 US 10] 
*Relief was denied. We upheld the 
denial: “The petitioner had full op- 
portunity to offer proof of . . . 
[the second ground] at the hearing 
on the first petition; and, if he was - 
intending to rely on that ground, 
good faith required that he produce 
the proof then. To reserve the 
proof for use in attempting to sup- 
port -a later petition, if the first 
failed, was to make an abusiye use 
of the writ of habeas corpus. No 
reason for not presenting the proof 
at the outset is offered. It has not 
been embodied in the record, but 
what is said of it there and in the 
briefs shows that it was accessible 
all the time” 265 US, at 241. Sim- - 

" ilarly, the prisoner who 
_Headnote ? on a prior motion under 

§ 2255 has deliberately 
withheld a ground for relief need 
not be heard- if he - asserts that - 
ground in-a successive motion: his 
action is inequitable—an abuse of 
the remedy—and the court may in 
its discretion deny him a hearing. 

"The interaction of these two prin- 
ciples—a successive application on 
a ground heard and denied on a prior 

application, and abuse of the writ— - 

u- S. SUPREME COURT REPORTS 10 Led 2d 

was elaborated in Pgicex Johnston, 
-834 US 266, 287-293, 92 L ed 1351, 
1370-1378, 68 S Ct 1049. The peti- 
tioner had for the first time in his 
fourth application alleged the know- 

“ing use of perjured testimony by the 
prosecution. But the Court held 
that regardless of the number of 
prior applications, the governing 
principle announced in Salinger v 
Loisel could not come into play be- 
cause the fourth application relied 
on a ground mot previously hear 
and determined. Weng Doo was 
-distipguished on the ground that 
there the proof had been “accessible 
at all times’ to the petitioner, which. 
demonstrated his bad faith, 884 US, 
at 289; in Price, by contrast, for 
aught the record disclosed petitioner 
might have been justifiably ignorant 

of newly alleged facts arunaware of 
their legal _significance. The case 
also decided an important proce- 
dural question with regard to abuse 
of remedy as justification for denial 

"of a hearing, namely, that the bur-- 
*[373 US 11} 

-den is on the Government *to plead 
abuse of the writ. “[I}f the Gov- 
ernment chooses not to deny- the 
allegation [of knewing use of per- 
jured testimony] or to question its 
sufficiency and desires instead to 
claim that the prisoner has abused 

the writ of habeas corpus, it rests 
with the Government to make that 
claim with clarity and particularity 

in its return to the order to -show 
cause.” Id. 334 US at 292. The 
Court reasoned that it would be un- 

fair to compel the habeas applicant, 

typically unlearned in the law and 
unable to procure legal assistance in 
drafting his application, to plead an 
elaborate negative. 

Very shortly after the Prise deci- 
sion, as part of the 1948 revision of - 
the Judicial Code, the Court’s state- 
ment in Salinger of the governing 

principle in the treatment of a suc-  



10 Led 2d 

Price v Johnston, 
93, 92 L ed 1351, 

t 1049. The peti- 
first time in his 

alleged the know- 
| testimony by the 
the Court held 

f the number of 

, the. governing 
d in Salinger v 
me into play be- 
application relied 
previously heard 
Wong Doo was 

the ground that 
been “accessible 

b petitioner, which 
bad faith, 334 US, 
by contrast, for 

isclosed petitioner 
stifiably ignorant 
cts or unaware-of 

cance. . The case 
important proce- 

h regard to abuse 
fication for denial 
ely, that the bur- 
JS 11) 
 rnment *to plead 

“[11f the Gov- 

not to deny the 
wing use of per- 

or to question its 
ecires instead to 
soner has abused 
s corpus, It rests 
ent te make that 

and particularity 
e order to show 

US at 292. The 
at it would be un- 

‘habeas applicant, 

in the law and 

eral assistance in 

bation, to plead an 

ter the Price debi: 

e 1948 revision of 

the Court's state- 
of the governing 

eatment of a suc-   

SANDERS v UNITED STATES ’ $159 
873 US 1, 10-L ed 24d 148, 83 S Ct 1068 

cessive application was given stat- 
utory form. 28 USC §22443 
There are several things to be ob- 
served about this codification. 

Headnote 8 the Reviser’s Note dis- 
claim ~ any such -in- 

tention, but language in the ori inal 

-bi 

No. 1559, 80th Cong, Es Sess 9; 
Moore, Commentary on the United 
States Judicial Code (1949), 436 - 

. (578 US 121 od 

n Ct. F: ay v : Wola, 5 supra 372 
US at 406. 

, even with respect to suec- 
: plications on which hear- 

ings may be denied because the 
ground asserted was previously 
heard and decided, as in Salinger, 

phrasing of the principle in Sal- 
inger, and does not enact a rigid 

rule. The 

Headnote g 

Third, \§ 2244 is addressed only to different gro 
- ——— 

the problem of successive applica- 
tions based on grounds 

‘Headnote 10 previously ~ heard and 

Jocide : It 

mined, i vi SO , does not touch the 
problem of abuse of the writ. In 
Wong Doo, petitioner's second 
ground had been presented but not 
determined on his prior application; 
§ 2244 would be inappHlcable in such 
a situation. On the other hand, 

    

Section 2255 of the Judicial Code, 
under which the instant case arises, 

is of course also a prod- 
~ Headnote1l yct of the 1948 revision 

guage of the Reviser’s Note, to pro- 
vide “an expeditious remedy for 
correcting erroneous sentences [of 
federal prisoners] without resort to 
habeas SOTDUS, » ‘It will be noted 
that although § 2255 contains a par- 

allel provision to 
apparent verbal discrepancy. uUn- 
der § 2255, it is enough, in order to 
invoke the court's discretion to de- 

*[373 US 13] 

cline to reach the “merits, that the 
prisoner is seeking ° ‘similar Feliel” 
for ihe second time. This language 

7 —enacted, in the lan- 

  

  

  
  

  

‘might seem to empower the senterc- 
ing court to apply res judicata Vir- 
tually at"Will, since even il a seeond 

motion is predicated on a completely 

  

  

  

5. Section 2244 provides: % 
“No circuit or district judge shall be 

required to entertain an application for 
a writ of habeas corpus to inquire into 
the detention of & person pursuant to a 

judgment of a court of the United States, 
or of any State, -if it appears that the 
legality of such detention has been deter- 
mined by a judge or court of the United 
States. on a prior application for a writ 

of habeas -corpus and the petition. pre- 

sents no new ground not theretofore pre- 
sented and determined, and the judge or 
court is satisfied that the ends of justice 
will not be served by such inquiry.” 

6. Article 1 §9, cl. 2, of the Federal 
Constitution provides: “The Privilege of 
the Writ of Habeas Corpus shall- not be 
suspended, unless when in Cases of Re- 
bellion or Invasion the public Safety may 
require it.” : 

,-there is an 

from the first, the 

l 

| 
, 

i
E
 B
E
 
A
 

en
 
r
R
 
E
R
 

R
R
A
 

  
h
y
 

TT 
A
   

 



    

  

U. S. SUPREME COURT REPORTS 160 

prisoner ordinarily will be seekin 
the_same “relief.” Note, 59 Yale 
LJ 1183, 1188; n 24 (1950). gst 
the i cannot be taken 
erally. ‘nited States v re 

342 US 205, 96 Led 232, 72 S Ct 
263, the prisoner ‘vigorously con- 
tended that § 2255 was an uncon- 
stitutional suspension of the writ of 
habeas corpus.” The Court avoided 
the constitutional question by hold- 
-ing that. § 2255 was as broad as 
habeas corpus: : 

“This review of the history of 
Section 2255 shows that it was 
passed at the instance of the Judi- 
cial Conference to meet practical 
difficulties that had arisen in admin- 
istering the habeas corpus jurisdic- 
tion of the federal courts. Nowhere 

4 in the history of Section 
Headnote 12 2255 do we find any pur- 

pose to 

prisoners’ rights of collateral attack 
upon their convictions. On the con- 
trary, the sole purpese was to min- 
imize the difficulties encountered in 
habeas corpus hearings by affording 
the same rights in another and more 

. convenient forum.” 342 US, at 219. 
{Emphasis supplied.) Accord, 
United States v Morgan, 346 US 
502, 511, 98 L ed 248, 256, 74 S Ct. 
247; Smith v United States, 88 App 
DC 80, 187 F2d 192 (1950) ;: Heflin 
v United States, 858 US 415, 421, 3 
L ed 2d 407, 411, 79 S Ct 451 (opin- 
ion of Mr. Justice Stewart). 

*[373 US 14] 

*As we said just last Term, “it 
  

impinge upon ~ 

10 Led 2d 

~-tencing-court a remedy exactly com- 
  

mensurate with _that which had 

previously b vailable by habeas 
corpus in the court of the district 
where the prisoner was confined.” 
Hill v United States, 368 US 424, 
427, TL ed 2d 417, 420, 82 S Ct 
640. 

  

E Plainly, were the prisoner invok- 
ing § 2255 faced with the bar-of-res 

-Judicata, he would not enjoy the 
“same rights” as the habeas corpus 
applicant, or “a remedy exactly 
commensurate with” habeas. In- 
deed, if he were subject to any sub- 

“stantial -procedural hurdles which 
made his remedy under § 2255 less 
swift and imperative than federal 
‘habeas corpus, the gravest constitu- 
tional doubts would be engendered, 
as the Court in Hayman implicitly 

'e therefore hold that 
“similar relief” provision 

Headnote 14 of § 2255 is to be deemed 
the material equivalent 

of § 2244. See Smith v United 
States, 106 App DC-169, 173, 270 
Fad 921, 925 (1959); Longsdorf, 
The Federal Haleas Corpus Acts 
Original and Amended, 13 FRD 407, 

424 (1953). We are helped to this 

conclusion by two jutihey consid- 
erations. 

First, there is no indication in the 
legislative history to the 1948 re- 

vision of the Judicial Code that Con- 

gress intended to treat the problem 

of successive applications differ- - 
‘conclusively appears from the his- ently under habeas corpus than un- 

I e———— 

  

= - TOTiC context in- which 
  

der the new motion procedure; and 
~Headnote 13 § 2255 was enacted that - it is difficult to see what logical or 

the legislation was In- 
tended simply to provide in the sen- 

  

  

practical basis there could be for 
such a distinction. 

  

-7. The Court of Appeals in Hayman 
had held § 2255 unconstitutional. 187 F2d 
456 (CA9th Cir 1950), amended, 
471 (1951). = The same osition had P 
been taken in a Note in the Yale Law. _ 
Journal, “Section 2255 of the Judicial 

id, at 

Cote The Threatened Demise of Habeas 
Corpus,” 59 Yale LJ 1183 (1950). In this 

Court, a powerful constitutional attack 
was mounted by respondent's: assigned 
counsel; Mr. Paul A. Freund.    



10Led 2d 

dy exactly com- 
bat which had 
lable by habeas 
of the district 
was confined.” 

s, 368 US 424, 
, 420, 82 S Ct 

prisoner invok- 
h the bar of res: 
not enjoy the 

e habeas corpus 
Femedy exactly 
” habeas. In- 
ject to any sub- 
hurdles which 
der § 2255 less. 
e than federal 

avest constitu- 

be engendered, 
yman implicitly 
pp. 158-159, su- 
hold that the 
elie” provision 
is to be deemed 
rial equivalent 

mith- v United 
-169, 173, 270 . 

9); Longsdorf, 
hs “Corpus Acts 
ed, 13 FRD 407, 

e helped to this 

further consid- 

indication in the" 

o the 1948 re- 

1 Code that Con- 
eat the problem 
fications differ- 
corpus than un- 
procedure; and 

what logical or 

re. could be for. 

  

Demise of Habeas 

83 (1950). In this 
nstitutional attack 

hondent’s assigned 
Freund. - 

_ judicata would seem as a conse- 

  

  

SANDERS v UNITED STATES 
873 US 1, 10 L ed 2d 148, 83 S Ct 1068 

Second, even assuming the consti- 

tutionality of incorporating _ res 

judicata in § 2255, such a provision 

would probably -prove to be com- 

pletely ineffectual, in light of the 
further provision in the section that 

"habeas corpus remains ‘available to 
a federal prisoner if the remedy by 

*[373 US 15] 

motion is *“inadequate or ineffec- 

tive.” A prisoner barred by res 

quence-to have an “inadequate or in- 
effective” remedy under § 2255 and 
thus be entitled to proceed in federal 
‘habeas corpus—where, of course, 

§ 2244 applies. See Smith v United 

tates, supra (106 App DC, at 174, 
270 F24, at 928). 

IL 

We think the judicial and statu- 

tory £Yolution of the principles gov- 
erning successive applications for 

federal habeas corpus and motions 

under § 2255 has reached the point 

  

  

at which the formulation of basic 
  

Fules to guide the lower federal 

Compare Townsend v Sain,-372 US 

293, 310, 9 L ed 2d 770, 784, 83 S Ct 
745. Since the motion procedure 
is the substantial equivalent of fed- 

eral habeas corpus, we see no need 

to differentiate the two for present 

purposes. -It should be noted that 

these rules are not operative in 

cases where the second or successive 

3 application is shown, on 

  

Headnote 15 the basis of the applica- 
tion, files, and records of 

the case alone, conclusively to be 
without . merit. 28 USC §§ 2243, 
2255. ~In such a case the application 
should be denied without a hearing. 

A. SUCCESSIVE MOTIONS ON 
GROUNDS PREVIOUSLY HEARD 

AND DETERMINED. 

Controlling weight may be given 
to denial of a prior application for 

federal habeas corpus or 
Headnote 16 § 2255 relief? only if (1) 

‘the same ground pre- 
sented in the subsequent applica- 
tion was determined adversely to 

_ the applicant on the prior applica- 

“tion, {2) the prior determination 

was on the merits, and (3) the ends 

of justice would not be served by 

reaching the merits of the subse- 

quent application. : $0 

*[373 US 16] 
*(1) By “ground,” we mean sim- 

ply a sufficient legal basis for grant- 
ing the relief sought by 

Headnote 17 the applicant. For ex- 
¥ ample, the contention 
that an involuntary confession was 
admitTed 10 eVIAeNCE against him is 
a distinct ground for federal collat- 
eral relief. But a claim of in- 

  

voluntary confession pre 
ma—_——— 
  

alleged psychological 

Headnote 18 coercion does—mot raise 
a different ¥ “ground” 

than does one predicated on alleged 

  

  

physical coercion. In other words, 

identical “grounds may often be 
proved by different factual allega-- 
tions. So also, identical grounds 
may often be supported by different 
legal arguments, cf. Wilson v Cook, 

327 US 474, 481, 90 L ed 793, 799, 
66 S Ct 663; Dewey v Des Moines, 

173 US 193, 198, 43 L ed 665, 666, 

"19 S Ct 379, or be couched in dif- 
  

ferent language, United States v 

Jones 192 F Supp 421 (DC D Kan 

1961) (dictum), affd mem 297 F2d 
835 (CA10th Cir 1962), or vary in 

  

8. The discussion in this opinion relates, 
of course, solely to the problem of “suc- 

cessive applications for federal collateral 

relief. _For the principles which govern 

where the prior application is not for 

[10L ed 2d]—I1 : 

federal collateral relief, see Fay v Noia, 

372 US 891, 9 L ed 2d 837, 83-8 Ct 822, 

and Townsend v Sain, 379 1 7S 293, 9 L ed 

2d 770, 83 S Ct 745, both supra.   

  

      

    
  

 



    

immaterial 

‘Headnote 20 the applicant to 

respects, Stilwell v 
United States Marshals, 192 F2d - 

853 (CA4th- Cir 1951) (per 
curiam). Should doubts arise in 
‘particular cases as to whether two 
“grounds are different or the same, 
‘they should be resolved in favor of 

the applicant. : 

(2) The prior denial must have 
rested on an adjudication of the 

‘merits of the ground presented in 

“the subsequent application. See 

Hobbs v Pepersack,” 301 F2d 875 
(CA4th_ Cir 1962). This means 

_ that if factual issues 

Headnote 19 rajsed-in the prior ap- 
plication, and it was not 

denied on the basis- that the files 

and records conclusively resolved 

these issues, an evidentiary hearing 

was held. See Motley v United 

States, 230 F2d 110 (CA5th Cir 
1956) ; Hallowell v United States, 

197 F24d 926 (CA5th Cir (1952). 

(3) Even if the same ground was 
‘rejected on the merits on a prior ap- 

plication, it is open to 
show 

: that the ends of justice 
would be sérved by permitting the 
redetermination of the ground. If 
factual issves are involved, the ap- 
plicant is entitled to a new hearing 
upon. showing that the evidentiary 
hearing en the prior application 

5 EEE yb al 
*was not full and fair; we canvassed 
"the-critertg—of—a—fult-and fair evi- 
dentiary hearing recently in Town- 
send v Sain, supra, and that discus- 
sion need not be repeated here. If 
purely legal questions are involved, 
‘the applicant may be entitled to a 
new hearing upon showing an inter- 
vening change in the law or some 
other justification for havinig-faited 
to raise a crucial-point or argument 
in The prior application. lwo fur- 
ther points should be noted. Furst, 
the foregoing enumeration is not in- 

U. S. SUPREME COURT REPORTS 10 L ed 2d 

tended to be exhaustive; the test is 
“he—enmds—of justice” and it cannot 
be too finely particularized. Sec- 
ond, the burden is on the applicant 
to show that, although the ground of 
the new application was determined 
against him on the merits on a prior 
application, the ends of justice 
would be served by a redetermina- 

tion of the ground. : 

B. THE SUCCESSIVE APPLICATION 
CLAIMED TC BE AN ABUSE 

OF REMEDY 2 

No matter how many prior ap- | 
plications for federal collateral re- 

lief a prisoner has made, 
Headnote 21 the principle elaborated 

“in Subpart A, supra, 
cannot apply if a NiTorent ground 
iS presented the new application. 

  

So too, it cannot apply if the same 
ground was earlier presented but 

not adjudicated on the merits. In 
either case, full consideration of the 
merits of the new application can be 
ayoided only If there has been an 
abUS€ Of the writ-er-motion femedy ; 
and this the Government has the 
burden of pisading See p. 158, 

Supra. * 3 

To say that it is open to the re- 
spondent to show that a second or 
successive application is abusive is 
simply to recognize that “habegs 

corpus has A 
as Headnote 22 been regarde as __goy- 

. erned by equitable prin- 
United States ex rel. Smith 

S. 561, 573 (dis-~ 
mong them is- 

  
ciples. 
v Baldi, 344 U. 
senting opinion). 

“the principle that a suitor’s conduct 
in relation to the matter at hand 
may _disentitle him to the relief he 
seeks. Narrowly circumscribed, in 

*[373 US 18] . 

*conformity to the historical role of 
the writ of habeas corpus as an ef- 
fective and imperative remedy for 
detentions contrary to fundamental 

[10L ed 2d}   
  

 



10 Led 2d 

ve; the test is 
and it cannot 
larized. Sec- 
the applicant 
the ground of 

‘as determined 
brits on a prior 
ds of justice 
bk redetermina- 

| APPLICATION 
AN ABUSE 
DY 

any prior ap- 
1 collateral re- 
oner has made, 
iple elaborated 
krt A, supra, 
fferent ground 
ew application. 
bly if the same 

presented but 
he merits. In 
deration of the 
blication can be 

e has been an 
otion remedy ; 

ment has the 
“See p. 158, 

open to the re-- 
lat a second or 
n is abusive is 
that “habeas 
hs traditionally 
arded as .gov- 
equitable prin- 

bs ex rel. Smith. 
561, 573 (dis- 
Among them is 
kuitor’s conduct 
atter at hand 

o the relief he 
cumscribed, in 
18] 
istorical role of 
orpus as an ef- 
ive remedy for 
to fundamental 
{10 L ed 2d]   

"ing granted two hearin 

SANDERS v UNITED STATES 163 
"8783 US 1, 10 L =d 2d 148, 83 S Ct 1068 

-law, the principle is unexception- 
able.” Fay v Noia, supra (372 US 
at 438). Thus, for example, if a 

" prisoner deliberately 
Hesdnote 23 withholds © WO 

~ grounds for federal col- 
lateral relief at the time of filing his 
first application, in the hope of be- 

rather 

than one or for some other such rea- 
son, he may be deemed to have 
waived his right to a hearing on a 
second application presenting the 
withheld ground. The same may be 
true if, as in Wong Doo, the pris- 
oner deliberately abandons one of 
his grounds-at the first hearing. 
Nothing in the traditions of habeas 

corpus requires the fed- 
Headnote 24 eral courts to tolerate 

3 needless piecemeal liti- 
gation, or to e lle 1 pro- 

ceedings whose only purpose is to 
vex, harass, or delay. 

We need not pause over the test 
- governing whether a 

cessive application may be deemed 
-an abuse by the prisoner of the writ 
or motion remedy. The Court's 
recent opinions in Fay v Noia, supra 
(372 US at 438-440), and Town- 
send v Sain, supra (372 US at 317), 
deal at length with the ecircum- 
stances under which-a prisoner may 
be foreclosed from federal collateral 
relief. The principles developed-in 
those decisions govern equally here. 

  

  

  

A final qualification, applicable to 
both A and B of the foregoing dis- 

cussion, is in order. The principles 
- _-governing both justifica- 

- Headnote 25 tions for denial of =a 

hearing on a successive 
application are addressed to the 
sound discretion of the federal trial 

judges. Theirs is the major re- 

sponsibility for the just and sound 
administration of the federal col- 
lateral remedies, and theirs must be 
the judgment as to whether a sec- 

second or suc- - 

  

ond or successive application shall 
be denied without consideration of _ 
the merits. Even as to such an ap- 
plication, the federal judge clearly 
has the power—and, if the ends of 

: *[378 US 19] 
justice demand, the duty—to *reach 
the -merits. Cf. - Townsend v Sain, 

supra (372 US at 312, 318). We 
are confident that this power will 
be soundly applied. - 

IML.. 

Application of the foregoing prin- 
ciples to the instant case presents 
no difficulties. Petitioner’s first mo- 
tign_under § 2255 was denied be- 
cause it stated only bald legal con- 
clusions with no supporting factual 
allegations. The court had the 

: power to deny the meo- 
Headnote 26 tion on this ground, see 

Wilkins v United States, 
103 App DC 322, 258 F2d 416 
(CA DC Cir 1958), although the 
better course might have been to 
direct petitioner to amend his mo- 
tion, see Stephens v United States, 
246 F2d 607 (CA10th Cir 1957) 
{per curiam). But the denial, thus 

  

  

  

based, was net o I the meerits. It 
g Fie hat petitioner's 

ple was deficient. 
e district judge stated in a foots 

note to his memorandum: “The 
Court has reviewed the entire file 

which includes the previous 

proceeding, and a transcript of the 
proceedings at the time petitioner 
entered his plea, and . « . is of 
the view that petitioner's com- 
plaints are without merit in fact.” 

ut the records of the 
case,” including -the transcript, 

could not “conclusively show” that 

the claim alleged in the second mo- 

tion “entitled the petitioner to no 
relief. The crucial allegation of the 
second motion was that petitioner’s 
alleged mental incompetency was 

thé result of administration OI nar- ae 91 au: 

  

  

  

  

  \   

  

    

   



  

    

  

164 

cotic drugs during the period peti- 

Toner WAS held in the Sacramento 

County Jail pending trial in the in- 

stant case. However regular the 

“proceedings at -which he signed a 

waiver of indictment, declined as- 

sistance of counsel, and pleaded 

guilty might appear from the tran- 

script, it still might be the case that 

petitioner did not make an intelli- 
: #1373 US 20] - - : 

gent and understanding *waiver 

oT his constitutional rights. See 

M=ehibroda v United States, 368 

US 487, 7 L ed 2d 473, 82 8 Ct 510; 

Moore v Michigan, 355 US 155, 2 

L ed 2d 167, 78 S Ct 191; Pennsyl- 

vania ex rel. Herman v Claudy, 350 

US 116, 100 L ed 126, 76 S Ct 223; 

Taylor v United States, 193 Fad 

411 (CA10th Cir 1952). Cf. Von 

Moltke v Gillies, 832 US 708, 92 

L ed 309, 68 S Ct 816. For the 

facts on which petitioner's claim in 

his second application is predicated 

are outside the record. This is so 

even though the judge who passed 

on the two motions was the same 

judge who presided at the hearing 

at’ which _petitioner made the 

waivers, and the later hearing at 

which he was sentenced. Whether 

or not petitioner was under the In- 

fiuence of narcotics would not nec- 

essarily have been apparent to the 

trial judge. - Petitioner appeared 

before him without counsel and but 

briefly. That the judge may have 

thought that he acted with intelli- 

gence and understanding in re- 

sponding to the judge's inquiries 

cannot “conclusively show,” as the 

statute requires, that there is no 

merit in his present claim. Cf. 

Machibroda v-United States, supra 

(368 US at 495). If anything, his 

request before sentence that the 

judge send him to a hospital “for 

- addiction cure” cuts the other way. 

_ Moreover, we are advised in the 

Government's brief that the proba- 

U. S. SUPREME COURT REPORTS 10 Led 2d 

tion officer's report made to the 

judge before sentence (the report is 

not part of the record in this Court) 

disclosed that petitioner received 

medical treatment for withdrawal 

symptoms while he was in jail prior 

to sentencing. 

On remand, a hearing will be re-. 

quired. This is not to say, however, - 

that it will automatically become 

necessary to produce petitioner at 

the hearing to enable him to testify. 

Not every colorable allegation en- 

titles a federal prisoner 

Headnote 27 to a trip to the sentenc- 

ing court. Congress, 

recognizing the administrative bur- 

den involved in the transportation 

of prisoners to and from a hearing 

in the sentencing court, provided in 

8 2255 that the application may be 

entertained and determined “with- 

*[373 US 21] hy 

out requiring *the production of the 

prisoner at the hearing.” This does 

not mean that a prisoner can be 

prevented from testifying in sup- 

‘port of a substantial claim where 

his testimony would be material. 

However, we think it clear that the 

sentencing court hae discretion to 

ascertain whether the claim is sub- 

stantial before granting a.full evi- 

dentiary hearing. (In this connec® 

- tion, the sentencing court might find 

it useful to appoint counsel to rep- 

resent the applicant. Cf. Coppedge 

v United States, 369 US 438, 446, 

g T, 2d 2d 21,28, 82 S Ct 917. Also, 
it will be open to the ‘respondent 

fo attempt to show that petitioner’s 

failure to claim mental incompe- 

tency in his first motion was an 

gbuse of the motion remedy, within 

the principles of Wong “Doo and 

Price v Johnston, disentitling him to 

a2 hearing on the merits. We leave 

to the District Court, in its sound 

discretion, the question whether the 

issue of abuse of the motion remedy, 

if advanced by respondent, or the is-    



10L ed 2d 

rt made to the 
nce (the repert is 
ord in this Court) 
htitioner received 

for withdrawal 

e was in jail prior 

hearing will be re- - 
bt to say, however, 
matically become 
Huce - petitioner -at 
ble him to testify. 

ble allegation en- 
federal prisoner 

ip to the sentenc- 
-ourt. Congress, 
dministrative bur- 
he transportation 
nd from a hearing 
court, provided in 
tpplication may be 
determined “with- 
US 21] 

e production of the 
baring.” This does - 
h prisoner can be 

testifying in sup- 
ntial claim where 
ould be material 
k it clear that the 
‘has discretion to 

r the claim is sub- 

ranting a full evi- 
r., In this connec- 

ng court might find 
hint counsel to rep- 
ant. Cf. Coppedge 

369 US 438, 446; 

82 S Ct 917. Also, 

to the respondent 
bw. that petitioner’s 

mental incompe- 

st motion was an 

Fion remedy; within 

hf Wong Doo and 
, disentitling him to 

. merits. We leave 

ourt, -in its sound 

estion whether the 

the motion remedy, 

espondent, or the is- 

  

  

SANDERS v UNITED STATES 165 
873 US 1, 10 L ed 2d 148, 83 S Ct 1068 

sue on the merits, can under the cir- 
cumstances be tried without having 
the prisoner present. As we said 
only last Term: 

“What has been said is not to im- 
ply that a movant [under § 2255] - 
must always be allowed to appear 
in a district court for a full hear- 
ing if the record does not conclu- 
sively and expressly belie his claim, 
no matter how vague, conclusory, 

or palpably incredible his allega- 

- tions-may be. The language of the 

statute does not strip the district 
courts of all discretion to exercise ~ 
their common sense. Indeed, the 
statute ifself recognizes that there 

_ are times when allegations of facts 

outside the record can be fully in- 
vestigated without requiring the 
personal presence of the prisoner. 
Whether the petition in the present 
‘case can appropriately be disposed 
of without the presence of the peti- 
tioner at the hearing is a question to 
be resolved in the further proceed- 
ings in the District Court. 

#373 US 22] : 
*“There will always be marginal 

cases, and this case is not far from 
the line. But the -specific and de- 
tailed factual assertions of the peti- 
tioner, ‘while improbable, cannot at 
this juncture be said to be incredi- 
ble. If the allegations are true, the 
petitioner is clearly entitled to re-. 
lief. . . .” Machibroda v United 

States, supra (368 US at 495, 496). 
‘(Footnote omitted.) ~~ 

The need for great care in crim- 
inal collateral procedure is well evi- 
denced by the instant case. Peti- 
tioner was adjudged guilty. of a 
  

cFiffie. carrying a heavy penalty in 
  

a SUMmary proceeding at which he 
_ WES Tot Tepresented by counsel. 
Very possibly, the proceeding was 

constitutionally adequate. But by 

  

  

  

  

its summary nature, and because de- 

fendant was unrepresented by coun- 
  

  

‘fair opportunity fe 

sel, & presumption of adequacy is 
obviously Jes§ conipelliiig than it 
would be had there been a full crim- 
inal trial. Moreover, the nature of 
the proceeding was such as to pre- 
clude direct appellate review. Im 
such a case 1t 1s imperative that a 

llateral re- 

lief be afforded./ An applicant fo 
such relief ought not to 

Headnote28 he held to the niceties 
of lawyers’ pleadings or 

be_cursorily dismissed because his 
claim seems unlikely to prove meri- 
torious. That his application is 
vexatious or repetitious, or that his 

claim lacks any substance, must be" 
fairly demonstrated. 

  

  

  

  

  

Finally, we remark that the im- 
aginative handling of a prisoner’s 
first motion would in general do 
much to anticipate and avoid the 
problem of a hearing on a second 
or successive motion. The judge is 

not required to limit his 

Headnote 29 decision on the first mo- 
tion to the grounds nar- 

rowly-alleged, or to deny the motion 
out of hand because the allegations 
are vague, conclusional, or inartis- 
tically expressed. He is free to 
adopt any appropriate means for 
inquiry into the legality of the pris- 
oner’s detention in order to ascertain 
all possible grounds upon which the 
prisoner might claim to be entitled 

*[373 US 23] 

to relief. Certainly *such an inquiry 
should-be made if the judge grants 

a hearing on the first motion and 

allows the ‘prisoner to be present. 
The disposition of all grounds for 
relief ascertained in this way may 

then be spread on the files-and rec- 

ords of the case. Of course, to the 
extent the files and records “conclu- 

_sively show” that the prisoner is 
“entitled to no relief on any such 
grounds, no hearing on a second or 

successive motion, to the extent of 

such grounds, would be- necessary.   

  

  

    

 



  

  
  

166 
‘The judgment of the Court of 

Appeals is reversed and the case is 

remanded to the District Court for 

a hearing consistent with this opin- 

_ ion. 

U. S. SUPREME COURT REPORTS 

SEPARATE OPINION 

10 L ed 2d 

It is so ordered. 

Mr. Justice White concurs in the 

result. 

Mr. Justice Harlan, whom Mr. Courts to cope efficiently, as well as 

Justice Clark joins, dissenting. 

This case, together with Town- 

send v Sain, 372 US 293, 9 L ed 2d 

770, 83 S Ct 745, and Fay v Noia, 

372 US 391, 9 L ed 24 837,83 S Ct 

822, form a trilogy of “guideline” 

decisions in which the Court has 

undertaken to restate the responsi- 

bilities of the federal courts in fed- 

eral- post-conviction proceedings. 

Sain and Noia relate to federal habe- 

as corpus proceedings arising out 

of state criminal convictions. The 

present case involves successive 

§ 2255 applications (and similar ha- 

beas corpus proceedings under 

§ 2244, which the Court finds- sets 

the pattern for § 2255) arising out 

of federal convictions. 

The over-all effect of this trilogy 

of Pronouncements 1s to relegate to 

a back seat, as it affects state and 

federal criminal cases finding their 

way into federal post-conviction 

proceedings, the principle that there 

must be some énd to litigation, 

While, contrary to the Court, I 

think the District Court's denial 

without hearing Of & S8CoNd § 2200 

application in this case was entirely. 
~. *1373 US 24] . 

_proper.in the circumstances *shown . 

by the record, the more serious as- 

pect of the Court’s opinion is the 

impact it is likely to have in curbing 

the ability of the Federal District 

fairly; with successive applications 

by federal prisoners,! the number of 

which will doubtless increase as a re-. 

sult of what is said today. The net 
of it is that the Court has come 

forth with a new § 2255 of ifs own 

which bears little resemblance fo 

the statute enacted by Congress. 

And in the process the Court has 

even gone so far as to suggest-that 

any tampering with its new compo- 

sition may run afoul of the Consti- 

tution. 

L 

At the outset, there is one straw 

man that should be removed from 

this case. The Court is at great 

pains to develop the theme that de- 

nial of & Prisoner's application for 

collateral relief is not res judicata. 

Buf the Government recognizes, as 

indeed it must in view of the deci- 

sions, that strict doctrines of res 

judicata do not apply in this field. 

JThe consequences Of Injustice—Ioss 

lof liberty and sometimes loss of 

life—are far too great to permit the 

automatic application of an entire 

body of technical rules whose pri- 

civil litigation. 

This is not to suggest, however, 

that finality, as distinguished from 

the particular rules of res judicata,” 

‘mary relevance lies in the area of 

is without significance in the crim- 

  

1. According to the reports of the Ad- 

ministrative Office of the United States 

Courts, 538 § 2255 proceedings were com- 

menced in 1960, 560 in 1961, and 546 in 

1962. Annual Report of the Director, 

1960, p. 231; id., 1961, p. 239; Preliminary 

Annual Report of the Director, 1962, Divi- 

even they “do not 

sion of Procedural Studies and Statistics, 

p. 23. The Government, in referring te 

these figures in its brief, has stated that 
appear to be 

complete in light of the Departments ex- 

perience with petitions for writs of cer- 

tiorari in this Court.”    



10 L'ed 2d 

ncurs in the 

tly, as well as 
e applications 
the number of 
crease as a re- 
day. The net 
urt has come 
P55 of its_own 
esemblance - to 
by Congress. 
he Court has 

o suggest that 

ts new compo- 
of the Consti- 

e is one straw 

removed from 

rt is at great 

heme that de- 

application for 
ht res judicata. 

| recognizes, as 

bw of the deci- 
hetrines of res 

y in this field. 
injustice—loss 
etimes loss of 
kt to permit the 

n of an entire 
les whose pri- 

in the area of 

peest; however, 
inguished from 

of res judicata, 

ce in the crim- 
  

fies and -Statistics, 
ht, in referring to 
Lf has stated that 
. . appear to be 
Department’s ex- 
for writs of cer- 

  

    

SANDERS v UNITED STATES 167 
878 US 1, 10 L ed 2d 148, 83 S Ct 1068 

inal Jaw. Both the individual crim- 
inal delendant Ang Society Have an 

*[373 US 25] 
interest in *insuring that there will 
at some point be the certainty that 
comes with an end to litigation, and 
that attention will ultimately be 
focused not on whether a conviction 

- was free from error but rather on 
“whether the prisoner can be re- 
stored to a useful place in the com- 
munity.- It is with this interest in 
mind, as well as the desire to avoid 
confinements contrary to fundamen- 
tal justice, that courts and legis- 
latures have developed rules govern- 
ing the availability of collateral 
relief. 

Thus it has long been recognized 
that not every error that may have 
occurred at a criminal trial may be 
raised in collateral proceedings. 
For Tany Years alter the Constitu- 
tion was adopted, and even down 
to the present century, such pro- 
ceedings were generally confined to 
matters of personal and subject mat- 

UI. Fay v Noia, ter jurisdiction. 
872 US 391, 450-455, 9 L ed 24 837, 
875-879, 83 S Ct 822 (dissenting 
opinion -of this writer). And while 
the scope of collateral review—ias 
expanded LO COVer questions Of the 
kind raised by petitioner here, the. 
Court has consistently held that 
neither habeas corpus nor its pres- 
ent federal counterpart § 2255 IS a 
substitute for an appeal. ee, €. g., 
.Sunal v Large, 332 US 174, 91 L ed 
1982, 67 S Ct 1588; Hill v- United 
States, 368 US 424, 7 L ed 2d 417, 
82 S Ct 468; see also, e. g., Franano 
-v United States (GAZ Mo) 303 Fad 
470.- 

Similarly, the court has held that 
not all questions That were or could 
have been raised imam initial ap- 
plication for collateral relief must 
necessarily be entertained if raised 
in a successive application. A _Dis- 

_ trict Court, for example, has discre- 

‘tion to deny, a successive application 
iT_the claim asserted was heard and 
determined_gn_a_ prior application, 
Salinger v Loisel, 2656 US 224, 68 
L ed 989, 44 S Ct 519. - Indeed the 
Court has stated that it would be 
an abuse of discretion.to .entertain 
a second application if the claim 
raised had been raised before, a 
hearing had been held, and no proof 
in support of the claim had been 
offered at the hearing. Wong Doo 
v United States, 265 US 239.68 L.ed 
999, 44 S Ct 524. J And in the same 
yea¥ that § 2255 was adopted, the 

*/373 US 26] 

decision in Price v *Johnston, 334 
US 266, 92 L ed 1351, 68 S Ct 1049, 
made it clear that a successive appli- 
cation could be denied for abuse of 
the remedy even if the prisoner’s 
claim had not been raised in any 
prior application, unless there were 
some acceptable excuse for the fail- 
ure to do so. 

It is in light of this history that 
§ 2255, and the retated § 2244, deal- 
ing with successive applications for 
writs of habeas corpus, must be 
considered. Concern with éxisting- 
and potential gZblSe 01 the remedy 
by—priseners~Who made a pastime. 
of filing collateral proceedings led - 

~ to proposals that successive applica- 
{Tons foF habeas corpus on grounds 
previously.available would be Wholly 
barred, except in thé OTM Of peti- 
tions for rehearing to the same 
judge, and that applications under 
what became § 2255 would have to 
‘be submitted within one year. after 
discovery of the facts or a change in 
the aw. E. g., HR 4232, 79th Cong, - 
1st Sess: HR 6723, 79th Cong, 2d 
Sess. These proposals were rejected 
in favor of the traditional discretion 
exercised by courts with respect to- 

successive applications, and it was 

made clear that this discretion ex- 
tended to a case in which an appli- 

cant asserted for the first time a 

ground that could have been raised   

  

    
  

  

   



  

  
  

168 

before. Thus the final wording of 

§ 2244 provided that the court shall 

not be required to entertain a peti- 

tion“. . . ifit appears that the le- 

gality of such detention has been 

determined . . . ona prior appli- 

cation. .= . and the petition 

presents no new ground not there- 

tofore presented and determined 

>" (Emphasis added.) : 

The word “new,” a word ignored 

by the COUTL 10 10S discussion oi this 

provision, is of cardinal importance. 

"A memorandum by Circuit Judge 

Stone, adopted in a Senate Report 

(S Rep No 1527, 0th Cong, 2d 

Sess), noted that two of the pur- 

poses of an earlier version of this 

#1373 US 27] 

*provision were “to compel petitioner 

to state in his petition all of the 

grounds for the writ then known to 

him” and “to afford unlimited op- 

portunity to present any grounds 

“which petitioner may thereafter dis- 

cover at any time.” (Emphasis 

added.) This latter purpose ‘was 

“brought about by allowing presen- 

tation of a subsequent petition based 

upon ‘new’ grounds ‘not theretofore 

presented and determined.’ ”? Thus 

a “new ground,” within the meaning 

of § 2244, is one that has not pre- - 

viously been asserted and had not 

previously been known. The Court 

js manifestly in error in its conclu- 

sion, ante, pp. 158, 158, that the dis- 

- cretion provided for in § 2244 is 

limited to petitions relying on 

grounds previously heard and de- 

"cided. 

- Although the wording of § 2255 is 

more general, it is clearly directed 

to the same end: =~ 

“The sentencing court shall not be 

required to entertain a second or 

U. S. SUPREME COURT REPORTS 

“of the prior motions. 

10 Led 2d 

successive motion for similar relief 

on behalf of the same prisoner.” 

The “relief” sought is the setting 

aside of the sentence; the statute 

contains no reference to the nature 

of the grounds urged in support of 

the motion, and there can be little 

doubt that the diseretion vested in 

the court was intended to extend to 

cases in which a particular ground 

was urged for the first time. 

Further, it would appear from the 

language of § 2955—the “sentencing 

court” is not “required to entertain” 

successive motions—that the court 

*[373 US 28] 4 

was given discretion *to deny a sec- 

ond motion, on grounds of abuse, on 

its own initiative and without wait- 

ing for the Government to raise the 

point in its return. The provisian, 

to this extent, departed. from the 

rule of pleading declared in the year 

of its adoption in Price v Johnston, 

supra (334 US at 292)—that in 

habeas corpus applications, “it rests 

with the Government to make that - 

claim [of abuse] with elarity ~and 

particularly in its return to the erder 

to show cause.” Such a departure 

was amply justified by fhe fact that 

on a § 2255 motion, unlike a habeas 

corpus application, the prisoner’s 

claim is presented to the sentencing - 

court (usually the trial judge him- 

self), which has ready access to the 

record of the original conviction and 
Moreover, 

Congress could certainly have rea- 

Sonably concluded, as did the dis- 

senters in Price, that: : 

“It is not ‘too much to ask the 

petitioner to state, however, .infor- 

mally, that his . . . petition is 

based on newly discovered matter, 

  
    

2. The memorandum of Circuit Judge 

Stone was written at a time when the 

proposal was to bar successive applica- 

tions except in the form of petitions for 

rehearing to the- same judge that had 

passed on the prior application. But the 

language in issue here, defining those ap- 

plications considered to be successive, i. e., 

those presenting “no new ground not 

theretofore presented and determined,” 

was the same as that contained in § 2244 

as ultimately enacted. - ; 4    



10 Led 2d 

or similar relief 
me prisoner.” 

ht is the setting 
nce; the statute 
hice to the nature 
ed in support of 
ere can- be little 
retion vested in 
ided to extend to 
articular ground 

rst time. 

appear from the 
the “sentencing 

red to entertain” 
that the court 

S 28] J 

n *to deny a sec- 
nds of abuse, on 

nd without wait- 
1ient to raise the 
The provision, 

arted from the 
lared in the year 
Price v Johnston, 
t 292)—that in 
ications, “it rests 
bnt to make that 
vith clarity and 
pturn to the order 
buch a departure 
fl by the fact that 
, unlike a habeas 
, the prisoner's 
o the sentencing 
trial judge him- 

ady access to the 

jal conviction and 
ions. - Moreover, 

tainly have rea- 
as did the dis- 

at: : 

uch to ask. the 
however, infor- 
Jie o petitions 

scovered matter, 
  
b, defining those ap- 
o be-successive, i. e., 

new ground not 

and determined,” 

contained in § 2244     

SANDERS v UNITED STATES ~~ 169 
373 US 1, 10 L ed 2d 148, 83 S Ct 1068 

or in any event, on a claim that he 
could not fairly have been asked to 
bring to the court’s attention in his 
. . . prior petitions. Such a re- 
quirement certainly does not narrow 
the broad protection which the writ 
« « « Serves. 834.US, at 2943 

The Court in Price held only that 
the burden is on the Government 
to plead abuse of the writ; the bur- 
“den of proving an adequate excuse 
was explicitly placed on the pris- 
oner: i) 

“Once a particular abuse has been 
alleged, the prisoner has the burden 
of answering that allegation and of 
proving that he has not abused the 

writ.” 334 US, at 292. 

#1573 US 29] 
*The Court today, however, leaves 
e crucial question of burden o 

proof up in the air, If it means to 
Suggest that this burden also rests 

“with the Government, then 1t is 
going far beyond the holding of the 
sharply divided Court in Price. The 
relevant iacts on_ the question of 
abuse would almost always lie with- 
in the exclusive possession of the 
prisoner, and any. evidentiary bur- 
den placed on the Government would 
therefore be one that it could seldom 
meet. - : 

  

  

  

  

It is startling enough that the 
“Government may now be required to 
establish, in a collateral attack on 
a prior conviction, that a successive 
application is an abuse of the rem- 

- ~ edy. ( IT 1s at least equally startling 
0 learn that the question whether 

or not there has been abuse of the . 
remedy may turn on whether the 
prisoner had “deliberately” with- 
held the ground now urged or had 
“deliberately” abandoned it at some 

\ earlier stage. Ante, pp. 162, 163.- 

The established concept of inexcus- 
able negiecl i5 appar ently im-the 

process of being entirely eliminated 
from the criminal law, cf. Fay v 
Noia, 372 US 391, 9 L ed 24d 837, 83 
S Ct 822, and the standard that 
seems to be taking -its place will, 1 
am afraid, prove wholly inadequate 
and in the long run wholly unsatis- 

factory. 

  

AT Fy 

I must also protest the implication 
in the Court’s opinion that every 
decision of this Court in the field of 
habeas corpus—even one like Price 
v Johnston, dealing with a purely 
procedural question on which rea- 
sonable men surely may differ—has 
become enshrined in the Constitu- 
tion because of the guarantee in Ar- 
ticle I against suspension of the writ. 
This matter may perhaps be brought 
back into proper perspective by not- 
ing again that at the time of the 
adoption of the Constitution, and 
for many years afterward, a claim 
of the kind asserted by Price, or 
-asserted here by petitioner, was not 
cognizable in habeas corpus at all. 

See p. 167, supra. 

+1373 US 30] ¢ 
*T1. 

Section 2255, read against the 
background of this Court’s decisions 
and the history of the related provi- 
sion § 2244, is surely designed to 
vest in the District Court a sound 
discretion to deny a Successive imo- 
tion, on its own initiative, for abuse 

of the remedy. Af the very least, 
this exercise of discretion should be 
dpheld in a case in which there has 

  

  

  

  

  

‘been no adequate explanation ofthe 
  

earlier failure to make the claim 
and in which the whole record, in- 
cluding that of the prior motion, 
casts substantial doubts on the 

EA 

  

  

  

~3. It seems clear that the actual deci- 

sion in Price v. Johnston could not have 

entered - into Congress’ deliberations on 
§§ 2244 and 2255, since the decision was - 

handed down -only one month before 
formal enactment, and well after study 
and formulation of the proposals.   

      
    

    

  
 



  

  
  

  

U. 8. SUPREME COURT REPORTS 
merit of that claim. This is such a 

case. Hix 

_ In the affidavit filed in support of 
his second motion, the Petitioner as- 
serted that he “did not Understand 
trial proceeding owing to his mental 
incompetency cause[d] by the ad- 
ministration of a dryg.” The judge 
who denied this motion was The Safe 
judge who presided at the trigl~=amd- 
thé Tecord not only shows that the 
judge took pains to make certain 
Sanders was aware Of all His rights 
but also_indicates that Sanders did 
indeed understand the nature of the 
proceedings. After the judge ex- 
plained at some length Sanders’ 
right to force the Government to 
proceed by indictment, the following 
questions were asked: 

“Having in mind all that I have 
told you do you wish- to have the 

matter heard by the grand jury? 

“The Defendant. No, your hon- 
or, I waive it. 

“The Court. I didn’t hear that. 

“The Defendant. I walve that 
right. 

“The Court. You 
right? = 

“The Defendant. Yes. 

“The Court. You understand you 
do-have the right, though? 

“The Defendant. Yes. 

*[373 US 311 
#4The Court. And you now want 

to proceed without indictment and 
by way of information? 

“The Defendant. Yes.” 

waive that 

In response to further questions, 
Sanders said he was acting freely 
and voluntarily. He then signed a 
waiver of indictment and after the 
information was read to him, plead- 
ed guilty. Shagts 

10 Led 2d 

Sentencing followed some three 
weeks after, and- about one wear 
later Sanders filed a § 2255-motion 
alleging, inter alia, that the court 
had allowed him to be “intimidated 
and coerced into intering [sic] a plea 
without Counsel, and any knowledge. 
of the charges.” This motion was 
denied on the merits, not simply for 
insufficiency, the trial judge cor- 
rectly stating that-the charges were 
“completely refuted by the files and 
records of this case.” : 

The motion before us new was 
filed some nine months after the 
initial application. In addition to 
commenting that he was “not re- 
quired to entertain a second motion 
for similar relief,” the trial judge 
said that he had “reviewed the en- 
tire file” and was “of the view that 
petitioner’s complaints are without 
merit in fact.” In support of this 
conclusion, in addition to whatever 
inferences the judge may properly 
have drawn from his ewn observa- 
tion of Sanders at the trial, there is: 

(1) the record of the original 
trial, which strongly indicates that, 
contrary to his sworn allegation, pe- 
titioher did understand precisely 
what was going op and responded 
promptly and intelligently; 

(2) an initial application under 
& 2255 which not enly failed to men- 
tion the claim now urged—a lack of 
mental competence to understand— 
but indeed advanced a wholly incon- - 
sistent claim—thatthe court allowed 
him to be “intimidated and coerced” - 
into pleading guilty; and - = - 

» [373 US 321 

* ®) a second application, not filed 
for another nine months, without 
any explanation why a point which 
was obviously known to petitioner 
before, and which would so clearly 
have been relevant, had not previ- 
ously been raised. 

In the light of the whole record, 
>.  



rs 10L ed 2d 

ollowed some three 
nd about ome year 
led a § 2255 motion 
alia, that the court 

nh to be “intimidated 
b intering [sic] a plea. 

, and any knowledge 
’ This motion was 
erits, not simply for 
e trial judge cor- 
at the charges were 
ted by the Tiles and 
case.” 

before us now was 

months after the 
on. In addition to 
ht he was “not re- 
ain a second motion 
ef,” the trial judge 
d “reviewed the en- 

hs “of the view that 
plaints are without 
In support of this 

ddition to whatever 
udge may properly 
im his own observa- 
ht the trial, there is: 

rd of the original 
ingly indicates that, 
worn allegation, pe- 
derstand precisely 
on and responded 

telligently ; 

| application under 
only failed to men- 

bw urged—a lack of 
ice to understand— 
ced a wholly incon- 
at the court allowed 
idated and coerced” 
ity ; and 

US 321 
application, not filed 
e months, without 
why -a point which 
nown to petitioner 
th would so clearly 

int, had not previ- 

F the whole record, 

  

  

SANDERS v UNITED STATES 171 
873 US 1, 10 L ed 2d 148, 83 S Ct 1068 

including the prior application, the 
second motion rested on an assertion 
of fact that was highly suspect, if 
not self-refuting. If the assertion 
had been made in the initial applica- 
tion, or if a valid excuse had been 
offered for the failure to do so, a 
hearing would doubtless have been 
necessary. But to require a hearing 
under the present circumstances, 
and to tell the trial court that it has 
abused its discretion, is to sanction 
manifest abuse of the remedy. 

] III. - 

I seriously doubt the wisdom of 
these “guideline” decisions. They 
suffer the danger of pitfalls that 
usually go with judging in a vacuum. 
However carefully written, they are 

apt in their application to carry 
unintended consequences which once 
accomplished are not always easy 
to repair. Rules respecting matters 
daily arising in the federal courts 
are ultimately likely to find more 
solid formulation if left to focused 
adjudication on a case-by-case basis, 
or to the normal rule-making proc- 
esses of the Judicial Conference, 
rather than to-ex cathedra pro- 
nouncements by this Court, which is 
remote from the arena. 

In dealing with cases of this type, 
I think we do-better to confine our- 
selves to the particular issues pre- 
sented, and on that basis I would 
affirm the judgment of the Court of 
Appeals. : 

i 
| 

E
R
 
S
S
 

ki
en

 
A
r
 

H
o
 

   



    OCTOBER TERM, 1968. 

Per Curiam. 393 U.S. 

SMITH ». YEAGER, WARDEN. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT. 

No. 399. Decided November 12, 1968. 

Following the Supreme Court of New Jersey's affirmance of peti- 

tioner's murder conviction, in 1961 petitioner sought a writ of 

habeas corpus in the District Court, asserting, among other 

grounds, that his confession had been coerced. Petitioner’s then 

counsel, though asserting the right to an evidentiary hearing, 

relinquished it. Relying on the state trial record, the court held, 

inter alia, that the confession was not coerced and denied the 

petition. Thereafter Townsend v. Sain, 372 U. S. 293, was 

decided, which substantially increased the availability of eviden- 

tiary hearings in habeas corpus proceedings. The Court of 

Appeals affirmed. In 1965 petitioner again sought habeas corpus 

in the District Court and asked for an evidentiary hearing. Noting 

that the coercion issue had been adjudicated in the prior habeas 

corpus proceeding, the District Court, without conducting an 

evidentiary hearing, denied the application. The Court of Appeals 

affirmed, concluding that petitioner had waived his claim to such 

a hearing in 1961. Held: 

1. The essential question in a subsequent habeas corpus pro- 

ceeding (to which the usual principles of res judicata do not apply 

and regardless of waiver standards in other circumstances) is 

whether the petitioner in the prior proceeding “deliberately with- 

held the newly asserted ground or otherwise abused the writ.” 

2. Petitioner’s failure to demand an evidentiary hearing in 1961 

followed by such a demand after this Court decided Townsend v. 

Sain, constitutes no abuse of the writ of habeas corpus or a 

waiver of his claim to a hearing. 

Certiorari granted; 395 F. 2d 245, reversed and remanded. 

Edward Bennett Williams, Steven M. Uwmun, and 

Stephen F. Lichtenstein for petitioner. 

Per CURIAM. 

This petition for a writ of certiorari presents the ques- 

tion whether petitioner’s relinquishment of an evidentiary 

   



SMITH ». YEAGER. 123 

122 Per Curiam. 

hearing in a federal habeas corpus proceeding taking 

place prior to Townsend v. Sain, 372 U. S. 293, bars 

him from obtaining such a hearing on a subsequent 

application made after Townsend was decided. 

In 1957, petitioner was convicted of first-degree murder 

in a New Jersey court, and sentenced to death. The 

Supreme Court of New Jersey atirmed the conviction, 

State v. Smith, 27 N. J. 433, 142 A. 2d 890, and subse- 

quently affirmed the denial of a motion for a new trial. 

State v. Smith, 29 N. J. 561, 150 A. 2d 769. 

Petitioner thereafter sought a writ of habeas corpus 

in the United States District Court for the District of 
New Jersey. During oral argument before the District 

Court on June 5, 1961, petitioner’s counsel, referring to 

the then recent decision in Rogers v. Richmond, 365 

U. S. 534, stated: 

  

  

  

    

   
Honor hold_a_hearing de novo if need be to 
go nto the historical facts behind this case, I 

don’t think it is necessary here. 
“I think if your Honor limits himself to the 

record, I think that the error, the fundamental 

constitutional error in this case is so overwhelming 

that I need not stand here and argue this case at 

any pe length.” Appendix to Petition 69a. 

    
    

4 20 pruning 7 hear- 

application, wr tor oy Te i confes- 

sion, introduced at his trial, was not the product of 

coercion. United States ex rel, Smith v. New Jersey, 

201 F. Supp. 272. The Court of Appeals affirmed. 322 

F. 2d 810. 

1 Petitioner has sought, and was denied, certiorari in this Court 

on three previous occasions—twice to the state courts, 361 U. S. 

861; 379 U. S. 1005, once to the United States Court: of Appeals in the 

  

 



OCTOBER TERM, 1968. 

  

Per Curiam. 393 U.S. 

In 1965, petitioner again sought habeas corpus. in the 
District Court, requesting an evidentiary hearing. As 

supplemented, the application alleged facts relevant to 

the admissibility _ of the confession which were not 

brought out at trial, and which, if proved, presented a 

stronger case that the confession was coerced.> The 

District Court denied the application without conducting 

an evidentiary hearing, noting that the issue of coercion 

had been adjudicated in the prior habeas proceeding. 

The Court of Appeals affirmed per curiam, Judge Biggs 

dissenting. Referring to the above-quoted statement by 

petitioner’s counsel, and to some remarks of the District 

1961 proceeding,’ (the 

Court of Appeals concluded that petitioner had waived 

his claim to an evidentiary hearing in 1961. 395 F. 2d 

245. Rehearing en banc was denied, Judge Freedman | 

dissenting,* and this petition for certiorari followed. 

We note initially that the usual principles of res judi- 

cata are inapplicable to successive habeas corpus_pro- 

prior habeas corpus proceeding, 376 U. S. 928. It is worth noting 

that the present pleadings below substantially expand and clarify 

the claims heretofore presented by petitioner. 

2 The allegations, which include claims of physical harassment by 
the police, are set out in Judge Biggs’ dissenting opinion below, 395 
F. 2d 245, 253, n. 12. 

30n May 15, 1961, during argument on the State’s motion to 

strike petitioner's “Amended and/or Supplemental Petition,” the 
District Court indicated its concern that the record be complete 
to the satisfaction of both parties. The Court of Appeals construed 

this as an offer to conduct an evidentiary hearing. No explicit 

mention of an evidentiary hearing was made, however. A reading 

of the entire colloquy in the District Court, though not unambiguous, 
suggests, as Judge Biggs noted in dissent below, that the discussion 

was concerned only with “the issue of whether or not the case would 

proceed upon the original petition for habeas corpus and answer, 

the supplemental petition for habeas corpus and answer, or on both 

sets of pleadings.” 395 F. 2d 245, 249, n. 4. 

+ Judge Biggs did not participate. 

  

  

  

  

  

  

  

   

   

  

  

  
  

  

  

  
 



  

SMITH v. YEAGER. 125 

122 Per Curiam. 

ceedings.® Salinger v. Loisel, 265 U. S. 224; cf. Sanders 

v. United States, 373 U. S. 1. ( Whatever the standards 3 

for waiver may be in other circumstances, the essential ic. 

  

question here is whether the petitioner “deliberately 

withheld the newly asserted ground” in the prior pro- 

ceeding, or “otherwise abused the writ.” 28 U. 8. C. 

§ 2244 (b) (1964 ed., Supp. III). a 

At the time of the 1961 proceeding, Brown v. Allen, 

3 UE I Td Tre Dats fete Tation 
to hold an evidentiary hearing was to be exercised 
only in “unusual circumstances,” 344 U. S., at 463, or 

where a “vital flaw” existed in the state procedure. 

344 U. S., at 506 (opinion of Mr. Justice Frankfurter). 

Townsend v. Sain, supra, had not yet been decided. This 

Court recognized in Townsend “that the opinions in 
Brown v. ...do not provide answers for all aspects 

of the hearing problem for the lower federal courts, 

which have reached widely divergent, in fact often irrec- 

oncilable, results,” 372 U. S., at 310, and established 
criteria for the granting of evidentiary hearings “which 

must be considered to supersede, to the extent of any 

inconsistencies, the opinions in Brown v. Allen . ...” 

372 U. S., at 312. Townsend v. Sain substantially in- 

creased the availability of evidentiary hearings in habeas 

corpus proceedings, and made mandatory much of what 

had previously been within the broad discretion of the 

District Court. See also Fay v. Noa, 372 U. S. 391. 
It is at least doubtful whether . ; 

    
  

  

  

  

  

  

  

     

  

Indeed at the time, the State argued to t a 
with some cogency ‘that petitioner presented ‘no unusual 

circumstances calling for a hearing.” (We do not believe : 

that petitioner should be placed in a worse position be- 

5 For this reason, if no other, the fact that Townsend v. Sain was 

decided before the Court of Appeals’ decision in the first proceeding, 

and considered by the Court of Appeals there in denying rehearing 

en banc, is not dispositive of the present case. 

   



  

OCTOBER TERM, 1968. 

  

Per Curiam. 393 U.S. 
  ——— 

cause his then counsel asserted that he had a right to 

an evidentiary hearing and then relinquished it. What- 

ever counsel’s reasons for this obscure gesture of noblesse 

oblige, we cannot now examine the state of his mind, 
or presume that he intentionally relinquished a known 
right or privilege, Johnson v. Zerbst, 304 U. S. 458, 
464, when the right or privilege was of doubtful exist- 
ence at the time of the supposed waiver, 

  

    

  

we conclude that petitioner’s failure to demand an evi- 
dentiary hearing in 1961, followed by such a demand 
after the decision in Townsend v. Sain, supra, constitutes 
no abuse of the writ of habeas corpus. 
  

11, Tor any reason not attributable to the inexcusable 
neglect of petitioner . . . evidence crucial to the ade- 
quate consideration of the constitutional claim was not 
developed at the state hearing, a federal hearing is com- 
pelled.” Townsend v. Sain, supra, at 317. Petitioner's 
assertion that he comes within this principle is not con- 
troverted by respondent or by the record below. We do 
not, however, pass on this question, or on the other 
questions presented in the petition. These, as well as 
other issues appropriately raised below, may be consid- 
ered by the District Court. We hold only that petitioner 
has not, by reason of anything that occurred during the 
1961 habeas proceeding, waived his claim to an eviden- 
tiary hearing in the District Court. 

The petition for writ of certiorari is granted, the judg- 
ment of the Court of Appeals is reversed, and the case 
is remanded to that court for proceedings consistent with 

this opinion. It is so ordered. 

MR. Justice WHITE dissents and would grant certiorari 
and set the case for oral argument. 

6 As the State pointed out during the 1961 hearing, Rogers v. 
Richmond, supra, the case chiefly relied on by petitioner, does not 
appear to support his claim to an evidentiary hearing. See espe- 
cially 365 U. S., at 547. 

  

    

  
  

 



  
  

  

DECISIONS PER CURIAM. 127 

393 U.S. November 12, 1968. 

ATLANTIC OCEAN PRODUCTS, INC, ET AL. v. 
LETH, DIRECTOR, DEPARTMENT OF AGRI- 

CULTURE OF OREGON, ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

THE DISTRICT OF OREGON. 

No. 417. Decided November 12, 1968. 

— F. Supp. —, affirmed. 

Thomas H. Tongue for appellants. 

Robert Y. Thornton, Attorney General of Oregon, and 

Harold E. Burke, Assistant Attorney General, for 

appellees. 

Per CURIAM. 

The motion to affirm is granted and the judgment is 

affirmed. 
  

DOOLIN, psa NATIONAL NOVELTY CO., ET AL. v. 

KORSHAK, DIRECTOR OF REVENUE, ET AL. 

APPEAL FROM THE SUPREME COURT OF ILLINOIS. 

No. 439. Decided November 12, 1968. 

39 Ill. 2d 521, 236 N. E. 2d 897, appeal dismissed. 

Owen Rall for appellants. 

William G. Clark, Attorney General of Illinois, and 

John J. O'Toole, Assistant Attorney General, for 
appellees. 

Per CURIAM. 

The motion to dismiss is granted and the appeal is 
dismissed for want of a substantial federal question.  



        78 L Ed 24 

     

  

of the Circuit in 
if Missouri is lo- 
oper application, 
ution of any Mis- 
ose direct review 

d death sentence 
hd has not been 

t the admonition 
ourt of Missouri, 
within the State's 

ility, that I shall 
tice. The stay, of 

e granted by the 
he first instance, 

fill its responsibil- 
ine. 

     

   

  

    
    

     

   
   

  

   

  

   

  

each of the four 
ipplication to stay 
w scheduled for 
Orders are being 
7 . 

   

      

   
   

  

    

  
  

: [464 US 377] : 
JAMES C. WOODARD, Secretary of Corrections of North Carolina, 

: et al. : : 

Vv 

JAMES W. HUTCHINS 

464 US 377, 78 L Ed 2d 541, 104 S Ct 752 

[No. A-557] 

January 13, 1984. 

Decision: Stay of execution of death sentence vacated where related 
petition for writ of habeas corpus constituted abuse of writ. 

SUMMARY 

A state prisoner filed a second federal petition for habeas corpus, together 
with an application for stay of execution of his death sentence, in the 
United States District Court for the Western District of North Carolina. The 
District Court denied the stay application without ruling on the petition for 
habeas corpus, although the execution was scheduled to take place within a 
matter of hours. A single Circuit Judge of the United States Court of 
Appeals for the Fourth Circuit then granted a stay. 

On application by the state, the United States Supreme Court vacated the 
stay. In a per curiam opinion, the court said that since the Circuit Judge 
had jurisdiction to consider the prisoner’s application under the All Writs 
Act (28 USCS § 1651), the Supreme Court had jurisdiction to consider the 
state’s application, and that the application should be granted. 

PowkLL, J., joined by Burger, Ch. J., and BLackMUN, REuNQuUIST, and 
O’CoNNoOR, JJ., concurred, stating that the prisoner’s second petition for 
federal habeas corpus was an abuse of the writ, because all of the claims 
made therein could and should have been raised in the prisoner’s first 
petition for federal habeas corpus, and that therefore the District Court was 
not obligated to rule on the second petition. 

REHNQUIST, J., joined by O’CoNNOR, J., concurred, stating that the second 
petition for habeas corpus lacked merit. 

BRENNAN, J., dissented, declaring that a stay issued by a lower court 

  

SUBJECT OF ANNOTATION 

Beginning on page 914, infra 

Stay of execution of death sentence by Supreme Court or 
Justice thereof       

  

  

  

 



  
U.S. SUPREME COURT REPORTS 78 L Ed 2d 

should be vacated only for an abuse of discretion, whereas the Circuit 
Judge’s action was eminently reasonable and correct. : 

WHITE and STEVENS, JJ., dissented on the ground that the stay should 
remain in effect until the District Court performed its duty and acted on the 
habeas petition. 

MARSHALL, J., dissented on the ground that the stay should not be vacated 
- without reading the Circuit Judge’s opinion or fully considering the prison- 
er’s defense of the stay. 

HEADNOTES 

Classified to U.S. Supreme Court Digest, Lawyers’ Edition 

Appeal and Error § 339; Criminal Law 
§ 96 — jurisdiction — stay 

1. The United States Supreme Court 
has jurisdiction to consider a state’s ap- 
plication to vacate an order of a single 
United States Court of Appeals Circuit 
Judge granting an application of a state 
prisoner for a stay of execution of his 
death sentence, since the Circuit Judge 
had jurisdiction to consider the prison- 
er’s application under 28 USCS § 1651, 
commonly known as the All Writs Act. 

[See annotation p 914, infra] 

Criminal Law §96 — stay — death 
sentence 

2. The United States Supreme Court 

would vacate an order of a single United 
States Court of Appeals Circuit Judge 

granting a state prisoner’s application 
for a stay of execution of his death sen- 

tence, although an earlier application for 

stay, made in connection with his peti- 

tion for habeas corpus, had been denied 

by a United States District Judge with- 

out passing on the petition for habeas 
corpus, so as to leave the petition unde- 

cided before the execution scheduled to 
take place within a matter of hours, 
where the prisoner’s petition for habeas 
corpus was his second petition for ha- 

  

Nos. 431, 432 

28 USCS § 1651 

Ed 2d 914.   

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 

21 Am Jur 2d, Criminal Law §§ 609-612 

9 Federal Procedure, L Ed, § 22:1337 

7 Federal Procedural Forms, L Ed, § 20:1201 

8 Am Jur Pl & Pr Forms (Rev), Criminal Procedure Form 

US L Ed Digest, Appeal and Error § 339; Criminal Law § 96 

L Ed Index to Annos, Criminal Law 

ALR Quick Index, Capital Cases; Supersedeas or Stay 

Federal Quick Index, Capital Punishment 

Auto-Cite®: Any case citation herein can be checked for 
form, parallel references, later history and annotation ref- 
erences through the Auto-Cite computer research system. 

ANNOTATION REFERENCE 

Stay of execution of death sentence by Supreme Court or Justice thereof. 78 L       
  
 



      

   

    
   

    
    

  

   
   
   

    

   
    

   

  

   

   

   

  

   

78 L Ed 24 

ereas the Circuit: 

t the stay should 
and acted on the 

ld not be vacated 

ion 

r of a single United 
peals Circuit Judge 
lsoner’s application 

bn of his death sen- 

rlier application for 

tion with his peti- 

s, had been denied 
District Judge with- 
petition for habeas 

the petition unde- 
ution scheduled to 

matter of hours, 

petition for habeas 
hd petition for ha- 

  

ENCES 

ure Form 

aw § 96 

ecked for 
lation ref- 
ystem. 

k thereof. 78 L     

dering the prison- 

  

  

  
  

§ 
H 

  

WOODARD v HUTCHINS 
464 US 377, 78 L Ed 2d 541, 104 S Ct 752 

beas corpus and all claims raised therein 
could and should have been raised in the 

_ first petition. (Brennan, White, Stevens, 

and Marshall, JJ., dissented from this 
holding.) : 

[See annotation p 914, infra] . 

OPINION OF THE COURT 

[464 US 377] 

Per Curiam. 

[1, 2] This matter comes to the 
Court on the application of the State 
of North Carolina to vacate an order 
of a single Circuit Judge of the 
United States Court of Appeals for 
the Fourth Circuit, granting, at 
12:05 a. m. today, respondent’s appli- 
cation for a stay of execution. Cir- 
cuit Judge Phillips had jurisdiction 
to consider respondent’s application 
pursuant to 28 USC § 1651 [28 USCS 

§ 1651]; accordingly, this Court has 
jurisdiction to consider the State’s 
application. A transcript of Judge 
Phillips’ opinion is before the Court. 
The application to vacate the stay of 
execution entered today, January 13, 
1984, by Circuit Judge Phillips, was 
presented to the Chief Justice and 
by him referred to the Court. 

The application to vacate said stay 
is granted. 

It is so ordered. 

SEPARATE OPINIONS 

Justice Powell, joined by The 
Chief Justice and Justice Black- 
mun, Justice Rehnquist and Justice 
O’Connor, concurring. 

Unlike Justices White and Ste- 
vens, I do not believe that under the 
circuistances of this case the Dis- 
trict Court was obligated to rule on 
thi ve petition for writ of 
habeas corpus. 

  

This is another capital case in 
which a last-minute application for a 
stay of execution and a new petition 
for habeas corpus 

[464 US 378) 

  

relief have 
been _filed withlno) explanation as to 
why the claims were not raised ear- 
lier or why they were not all raised 
in one petition. It is another exam.- 
ple of abuse of the writ.! 

On September 21, 1979, a jury 
convicted James Hutchins of two 
counts of first-degree murder and 
one count of murder in the second 
degree. He was sentenced to death. 

  
  

      

It is not denied that he deliberately 
murdered three policemen. After ex- 
hausting his state remedies, on Sep- 
tember 24, 1982, Hutchins filed Bis first petition Tor Tedoral Rabeas—cor. 
pus In the United States District 
Court for the Western District of 
North Carolina. This was denied af- 
ter an evidentiary hearing, and the 
United States Court of Appeals for 
the Fourth Circuit affirmed in a full 
opinion. Hutchins v arrison, 724 
F2d 1425 (1983). On January 4, 1984, 
Hutchins filed a petition for certio- 
rari with this Court seeking review 
of that decision. 

  

  

Hutchins raised three claims in 
this habeas petition: (i) that his 
Sixth Amendment right to effective 
assistance of counsel had been de- 
nied because of a breakdown in com- 
munications with his court-ap- 
pointed counsel; (ii) that the state 
trial court abused its discretion in 
denying defense counsel’s motion for 
a continuance; and (iii) that imposi- 

  
1. It would have been preferable had the 

District Court stated expressly that it would 
not entertain this successive petition because 

  

was an abuse. 

it constituted an abuse of the writ. Neverthe- 
less, it is clear that the petition in this case 

543 

  

       



  

  

U.S. SUPREME COURT REPORTS 

“tion of the death penalty in his case 
was - unconstitutional because the 
Eighth Amendment prohibits capital 
punishment of a person who is 
“mentally or emotionally distressed” 
at the time of the crime. This Court, 
after careful consideration, denied 
certiorari on January 11, 1984. Post, 
p 1065, 79 L Ed 2d 207. That same 
day Hutchins began anew his quest 
for postconviction relief, raising 
claims previously not raised. 

After both the North Carolina 
trial court and the North Carolina 
Supreme Court denied Hutchins’ 
new claims for postconviction relief, 
he filed a second petition in District 

: 464-655-879] 

Court on January 12, 1984.2 This 
raised three new claims: that he had 
new evidence of his alleged insanity 
at the time of the crime; that he had 
evidence that he currently is insane; 
and that the jury selection process 
was unconstitutional. { Hutchins of- 
fers—ne-explanation for having failed 
to raise these claims in his first 
petition for habeas corpus, and I see 
none. Successive petitions for habeas” 
corpus that raise claims deliberately 
withheld from prior petitions consti- 
tute an abuse of the writ.? 

Title 28 USC § 2244 makes clear 
the power of the federal courts to 
eliminate the unnecessary burden 
placed on them by successive habeas 
applications by state prisoners. It 
provides: 

“(b) When after an evidentiary 
hearing on the merits . . . [a fed- 
eral court or federal judge has 
denied a petition for federal ha- 

78 L Ed 2d 

beas corpus], a subsequent applica- 
tion for a writ of habeas corpus in 
behalf of such person need not be 
entertained by a court of the 
United States or a justice or judge 
of the United States unless 
‘the court, justice, or judge is satis- 
fied that the applicant has not on 
the earlier application deliberately 
withheld the newly asserted 
ground or otherwise abused the 
writ.” 

See also 28 USC §2254 [28 USCS 
§ 2254] Rule 9(b). 

This case is a clear example of the 
abuse of the writ that § 2244(b) was 
intended to eliminate. All three of 
Hutchins’ claims could and should 
have been raised in his first petition 
for federal habeas corpus. The new" 
eyidence that Hutchins offers to sup- 
port his claim that he was insane at 
the time of the crime is the report of 
a forensic psychiatrist prepared af- 

res 380] 

ter a January 2, 1984, psychiatric 
eXsmination. Hutchins, convicted 
some four years ago, and frequently 
before courts during the intervening 
years, does not explain why this ex- 
amination was not conducted ear- 
lier He does not claim that his 
alleged” insanity 1s a recent develop- 

ifient. In light of his claim that he 
Also was insane at the time of the 
crime, such an assertion would be _ 
implausible. Finally, Hutchins does 
not explain why he failed to include 
his challenge to the jury selection in 
his prior habeas petition. . 

A pattern seems to be developing 
  

2. See the per curiam opinion of this Court, 
ante, p 377, 78 L Ed 2d, at 543, vacating the 
stay entered by Judge Phillips for the proce- 
dural posture of the case here. 

3. There is no affirmative evidence that the 
claims were deliberately withheld. But Hutch- 
ins has had counsel through the various 

544 

phases of this case, and no explanation has 
been made as to why they were not raised 
until the very eve of the execution date. 

4. Hutchins’ case has been reviewed by at 
least seven courts, including this Court, and 

more than 25 judges.    



S 78 L Ed 24 

a subsequent applica. 
It of habeas corpus in 

person need not be 
by a court of the 

b Or a justice or judge 
d States ... unless 
ice, or judge is satis. 
applicant has not on 
plication deliberately 
be newly asserted 
herwise abused the 

C §2254 [28 USCS 
. 

clear example of the 
it that § 2244(b) was 
minate. All three of 
is could and should 
1 in his first petition 
bas corpus. The new 
tchins offers to sup- 
at he was insane at 
rime is the report of 
latrist prepared af- 
US 380] 

2, 1984, psychiatric 
Jutchins, convicted 
ago, and frequently 
ring the intervening 
pxplain why this ex- 
not conducted ear- 
ot claim that his 

is a recent develop 
f his claim that he 
at the time of the 
assertion would be 
ally, Hutchins does 
he failed to include 
he jury selection in 
petition. 

s to be developing 
  

and no explanation has 
y they were not raised 
he execution date. 

as been reviewed by at 
cluding this Court, and 

WOODARD v HUTCHINS 464 US 377, 78 L Ed 2d 541, 104 S Ct 752 in capital cases of multiple review in which claims that could have been presented years ago are brought for- ward—often in ga piecemeal fashion —only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate— even in capital cases—this type of abuse of the writ of habeas corpus. 
Justice Rehnquist, with whom Justice O’Connor joins, concurring. 
Unlike our Brothers White and Stevens, we believe that the District Court is not obligated to rule on every 1lth-hour petition for habeas corpus before it denies g stay. But assuming that the merits of the Witherspoon aspect of Judge Phil. lips’ order granting the stay are nec. essarily before us, we find that noth- ing in the materia] presented by respondent would show that the par- ticular jurors who sat in his case were “less than neutra] with respect to guilt.” Witherspoon v Illinois, 391 US 510, 520, n 18, 20 L Ed 24 776, 88 S Ct 1770 (1968). Absent such a showing, there can be no claim that respondent was denied this aspect of his right to a fair and impartial jury under the Sixth and Fourteenth Amendments, or that he would be subject to cruel and unusual punish- ment under the Eighth and Four- teenth Amendments, 

[464 US 381] 
Justice Brennan, dissenting. 

I find the Court's decision to va- cate the stay of execution in this case simply incomprehensible. The stay was granted early this morning, 
* As Justice Marshall points out, e Court’s zealous efforts to reimpose Hutchins’ 

competent Jurisdiction, is terminated. NC Gen 

at 12:05, by Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit. Judge Phillips correctly decided that a stay was necessary in order to preserve a substantial issue raised by the condemned prisoner, James Hutchins. That issue—whether the exclusion for cause of potential ju- rors unequivocally opposed to the death penalty resulted in a biased jury during the guilt phase of the trial Proceedings against Hutchins— is currently the subject of a conflict between judges of the District Court for the Western District of North Carolina and remains undecided by this Court. 

As the Court recognizes, Judge Phillips had jurisdiction over this case.” Late yesterday, Hutchins filed a petition for a writ of habeas corpus and an application for a stay of exe- cution in the court of District Judge Woodrow W. Jones. Chief Judge Jones, however, acted only to deny the application, leaving in limbo Hutchins’ petition for habeas corpus. After taking this action, Chief Judge Jones apparently went home. As a result, when Hutchins approached Judge Phillips for relief, Judge Phil- lips was faced with an application to stay the execution scheduled to take place within a matter of hours, ap- pended to which was a copy of Hutchins’ petition for habeas corpus that had been left undecided by the District Court. 

[464 US 382] 
Judge Phillips, knowing that a pe- tition for a writ of habeas corpus was then pending in the District 

Stat § 15-194 (1983). As we have noted, the Court holds that Judge Phillips had Jjurisdic- tion to issue his stay. It thus appears that the North Carolina Statute is applicable and will require that Hutchins’ execution be post- poned. 

545   
a
 

——
—



  
U.S. SUPREME COURT REPORTS 

Court, and would not be decided 
before Hutchins’ execution, correctly 
issued the stay to preserve the issue 
noted above. As Justice White and 
Justice Stevens note, the stay was 
properly issued to allow the District 
Court to act on the habeas petition. 
In addition, under 28 USC § 2241 [28 

USCS § 2241], it was appropriate for 
Judge Phillips to treat the papers 
filed with him as an independent 

~ petition for a writ of habeas corpus, 
refer that petition to the District 
Court, and grant a stay under 28 
USC § 2251 [28 USCS § 2251] pend- 
ing decision by the District Court. 
See also All Writs Act, 28 USC 
§ 1651 [28 USCS § 1651]. 

Despite its holding that Judge 
Phillips had jurisdiction to issue the 
stay, the Court has inexplicably con- 
cluded that Judge Phillips improp- 
erly exercised that jurisdiction. A 
stay issued by a lower court, how- 
ever, should be vacated only upon a 
showing that issuance of the stay 
was an abuse of discretion. Far from 
being an abuse of discretion, the 
action of Judge Phillips was emi- 
nently reasonable and correct. Not 
only is there at least one other fed- 
eral judge in Judge Phillips’ own 
Circuit who has ruled favorably on 
the merits of this question, see 
Keeten v Garrison, 578 F Supp 1164 

(WDNC 1984), and at least one Dis- 

trict Court in Arkansas that has 

reached a similar conclusion, see 
Grigsby v Mabry, 569 F Supp 1273 
(ED Ark 1983), appeal pending, No. 
83-2113 (CAS, filed Aug. 8, 1983), 
but also this Court itself has recog- 
nized the potential validity of the 
claim. See, e.g.,, Witherspoon v Illi- 
nois, 391 US 510, 516-518, 20 L Ed 
2d 776, 88 S Ct 1770 (1968); Bumper 

~v North Carolina, 391 US 543, 545, 
and nn 5, 6, 20 L Ed 2d 797, 88 S Ct 
1788 (1968). See also Winick, Prose- 

546 

78 L Ed 2d 

cutorial Peremptory Challenge Prac- 
“tices in Capital Cases: An Empirical 
Study and a Constitutional Analysis, 
81 Mich L Rev 1 (1982). 

Finally, the State argues that 

Hutchins should pursue state-court 
remedies in light of yesterday’s 
Avery decision. While this obviously 
is not the basis of the Court’s vaca- 
tion of the stay, this in any event is 
a literal impossibility given the 6 p. 
m. 

[464 US 383] 

deadline for execution. Indeed, 
in light of the constraints imposed 
on our deliberations by that dead- 
line, the most disturbing aspect of 
the Court’s decision is its indefensi- 
ble—and unexplained—rush to judg- 
ment. When a life is at stake, the 

process that produces this result is 
surely insensitive, if not ghoulish. 

I dissent. 
~, 

Justice (Whitd and Justice Ste- 
vens, dissering. 

We onld not vacate the stay be- 
cause the District Court did not pass 
on the merits of the habeas corpus 
petition and the stay was entered by 
a Court of Appeals Judge until the 
District Court performs its duty and 
acts on the habeas petition. Until 
the merits of the petition are ad- 
dressed below or it is there held that 

there has been abuse of the writ, we 
would leave the stay in effect. That 
is the orderly procedure it seems to 
us. It also seems to us that the 
Court's opaque per curiam opinion 
vacating the stay comes very close to 
a holding that a second petition for 
habeas corpus should be considered 
as_an apuse ol the WIT and for that 
reason need not be otherwise ad- 
dressed on the merits. We_are not 

nQw prepared to accept such a per se 
rule’    



     

   

    
   

   
hallenge Prac- 
An Empirical 

ional Analysis, 
     
   

argues that 
sue state-court 
of yesterday’s 
‘this obviously 

p Court’s vaca- 
n any event is 
given the 6 p. 

  

    
    

     
     

    

   

] 
cution. Indeed, 

aints imposed 

by that dead- 
bing aspect of 
5 its indefensi- 

-rush to judg- 
at stake, the 
this result is 

bt ghoulish. 

   
   

   

     
    
    

   

  

     

     
   

  

   

  

Justice Ste- 

   
    

  

   
   

   
    

    

      

   

    

    

  

   

e the stay be- 
rt did not pass 
habeas corpus 

‘as entered by 
dge until the 

s its duty and 
betition. Until 

fition are ad- 
here held that 
pf the writ, we 

n effect. That 

e it seems to 

us that the 

riam opinion 
very close to 

ld petition for 
be considered 

and for that 
btherwise ad- 

. We are not 

such a per se 

78 L Ed 24 
_
—
 

  
       

WOODARD v HUTCHINS 
464 US 377, 718 L Ed 2d 541, 104 S Ct 752 

Justice Marshall, dissenting. lips’ decision to grant the stay was a "prudent exercise of authority taken 
At 12:05 a. m. today, Judge James hy 4 federal judge under serious Cour of Appese for she Pot me. contri and Seeing os cuit granted respondent Hutchins’ Considerable mosrtsimy. ) Yihato is 

application for ¢ Soy of eiccution incredible about this Court’s decision Less than an hour after the stay was > that five Members of Ihe Cour issued, attorneys from the North Pave voted io vacate. Judge Phillip 2 Carolina Attorney General's Office Stay without Sen reading hig op in 
filed in this Court a 314 -page, hand. lon? or fully considering respondent’s ~ written motion to vacate Judge Phi]. defense of the stay. Indeed, at the lips’ stay. Without taking time to Present time, the Court does not Someider the basis of Judge Phillips’ even have before it a full record of stay—indeed without waiting to re- the cases’ In all candor, if there is ceive the final draft of Judge Phil- abuse of federal power In this mat- 
lips’ memorandum opinion—the ter, it is to be found in our own Court has granted the motion, ap- Chambers. parently so that North Carolina can proceed with Hutchins’ execution be- fore his death warrant expires at 6 o’clock this evening. Given the pos- 
ture 

Ironically, the Court’s zealous ef- 
forts to authorize Hutchins’ execu- 
tion at the last minute may be fu- tile. The North Carolina death pen- [464 US 384] alty statute apparently requires that of this application and the dire @ new date of execution i be go 

consequences of error, I find the whenever a stay of execution is is- Court’s haste outrageous. sued and then vacated. NC Gen Stat 
§ 15-194. Without any explanation, the [464 US 385) Court takes the position that Judge (1983) Since Judge Phillips Phillips somehow erred in granting indisputably issued a stay of execu- a stay of Hutchins’ execution! As tion and the Court now vacates the Justice Brennan has shown, ante, at stay, North Carolina law would 382, 78 L Ed 2d, at 5486, Judge Phil- seem to require that a new date of 

1. Much of the State's motion involves a to other courts in this litigation, neither party 
challenge to Judge Phillips’ jurisdiction and has filed a complete transcript of the tria] an argument that Hutchins is procedurally court voir dire, at which the deprivation of barred from raising his Juror-bias claim in Hutchins’ constitutional] rights allegedly took 
federal court. The majority apparently agrees place. with respondent that these threshold claims 
are insubstantial. 

4. The relevant statute reads: “Whenever 2. Early this morning, the Court received - 8 stay of execution granted by any com- 
over the telephone a short summary of Judge petent judicial tribunal . . . has expired or 
Phillips’ decision, which the Clerk’s Office been terminated, . . . a hearing shall be held 
transcribed. That brief. preliminary draft con- in a superior court . . . to fix a new date for 
cluded with the statement, “I will say roughly the execution of the original sentence. . . The judge shall set the date of execution for not less than 60 days nor more than 90 days 3. In addition to the State's handwritten from the date of the hear ing.” NC Gen Stat 
motion, the Court has received over the §15-194 (1983) (emphasis added). The majori- course of the day Hutchins’ response to the ty’s per curiam clearly concludes that Judge State’s motion and supplemental handwritten Phillips was a competent judicial tribunal papers from both parties. Although respon- with jurisdiction to issue a stay. See n 1, 
dent has filed various briefs that he presented supra. 

the foregoing in a very short memorandum opinion that I will file tomorrow.” 

   547 

    

  

   

      

   

  



    

U.S. SUPREME COURT REPORTS 

execution now be set.! Of course, the 

meaning of this provision is a ques- 
tion of North Carolina law, and is 
therefore to be decided by North Caro- 
lina courts. I trust, however, that the 
responsible North Carolina officials 
will consider whether Hutchins has 
a valid claim under this provision 

78 L Ed 2d 

before the State proceeds with 
Hutchins’ execution. 

-I dissent. 

An annotation on “Stay of execu- 
tion of death sentence by Supreme 
Court of Justice thereof,” appears p 
914, infra. 

  

5. Common decency demands such a post- 
ponement, especially since, under North Caro- 
lina law, Hutchins must already have been 

notified of his reprieve by Judge Phillips. See 
NC Gen Stat § 15-193 (1983). 

  

EDITOR’S NOTE 

An annotation on “stay of execution of death Sentonte by Supreme Court of Justice 
thereof,” appears p 914, infra. 

   



   

  

   

  

uncing it and re- 
Court of Appeals for 
n light of that stan- 

itself undertaking 
sw standard in the 

Chat course would 
ith the proper roles 
both this Court and 

eals. 

   
   
    

    

espect, I dissent and 
e judgment of the 

     
was allowed to proceed 

nduct of his appointed 
bited his ability to do so, 
enigration of the right. If 
e can be characterized as 
ore consistent with the 
of self-representation to 

olation occurred than to 
bn was harmless constitu- 
is the case here, counsel 

jal autonomy and signifi- 
th the pro se defendant’s 
defense, reversal should 
without any inquiry into 

  

    

    

    

    
    

   
   

  

     

  

e outcome of the trial.    

        

79 LEd2d 

r the constitutional viola- 

  
  

   

  

   

    

[465 US 200] 
ANTHONY ANTONE 

\' 

R. L. DUGGER, Superintendent, Florida State Prison, et al. 

465 US 200, 79 L Ed 2d 147, 104 S Ct 962 

[No. 83-6155(A-599)] 

January 25, 1984. 

Decision: Petition for writ of certiorari and application for stay of execution 
of death penalty denied. 

SUMMARY 

An individual convicted of murder, after having pursued post-conviction 
remedies a number of times in the state and federal courts, filed a succes- 
sive petition for a writ of habeas corpus in the United States District Court 
for the Middle District of Florida, presenting both allegedly new claims and 
claims that had been presented in the first habeas corpus proceeding. The 
District Court denied a stay of execution, the petition for habeas corpus and 
a certificate of probable cause to appeal, holding that the ends of justice 
could not be served by reconsidering the previously presented claims, and 
that the presentation of the new claims constituted an abuse of the writ 
under 28 USCS § 2254 and Rule 9(b) of the Rules Governing § 2254 Cases for 
inexcusable neglect in not raising those claims on the first petition. On 
appeal, the United States Court of Appeals for the Eleventh Circuit denied a 
certificate of probable cause and an application for a stay of execution 
pending an appeal on the merits of the habeas corpus petition, concluding 
that the District Court was correct in dismissing the petition on the grounds 
that it presented successive claims and constituted an abuse of the writ. 
However, the Court of Appeals did grant a temporary stay to give the 
individual an opportunity to apply to the United States Supreme Court for a 
stay of execution. The Court of Appeals subsequently denied the petition for 
rehearing, suggestion for rehearing en banc and an application for a stay 
pending rehearing. 

On petition for writ of certiorari and on application for stay, the United 
States Supreme Court denied both the petition for writ of certiorari and the 
application for stay. In a per curiam opinion expressing the view of BURGER, 

147 

Ea 

  

   
 



U.S. SUPREME COURT REPORTS 79 L Ed 2d 

Ch. J., and WHITE, BLACKMUN, PowELL, REHNQUIST, and O’CONNOR, JJ., it 
was held that the presentment of the new claims in the successive habeas 
corpus petition constituted an abuse of the writ for inexcusable neglect in 
not presenting them in the first petition, since the claims had been made in 
the state courts before the first habeas petition, the claim that the individu- 
al’s counsel did not have time to familiarize himself with the case in the 
first proceeding being without merit, and the ends of justice would not be 
served by reconsidering the claims previously presented because the federal 
and state courts had already carefully and repetitively reviewed those 
claims. 

STEVENS, J., concurred, expressing the view that the essence of each of the 
individual’s current claims had been raised in an earlier federal habeas 
corpus proceeding. 

BRENNAN and MARSHALL, JJ., dissented, expressing the view that the 
death penalty is in all circumstances cruel and unusual punishment prohib- 
ited by the Eighth and Fourteenth Amendments. 

 



    

   

   
    

    
   

    

   

   

79 L Ed 2d 

O’CoNNOR, JJ., it 
successive habeas 
cusable neglect in 
had been made in 
that the individu- 

th the case in the 
tice would not be 

ecause the federal 
y reviewed those 

nce of each of the 
er federal habeas 

he view that the 
linishment prohib- 

  

  

  

ANTONE v DUGGER 
     

465 US 200, 79 L Ed 2d 147, 104 S Ct 962 

HEADNOTE 

Classified to U.S. Supreme Court Digest, Lawyers’ Edition 

Criminal Law §96 — Stay of death 
sentence — habeas corpus — 
abuse of writ : 

The United States Supreme Court will 
deny an individual's petition for writ of 
certiorari and application for stay of 
execution of death sentence where (1) 
the presentation of new claims in a sec- 
ond habeas corpus proceeding in the 
federal courts constitutes an abuse of the 
writ of habeas corpus under 28 USCS 
§ 2254 and Rule 9(b) of the Rules Gov- 
erning § 2254 Cases for inexcusable ne- 
glect in not raising those claims in the 
first habeas corpus petition, the appli- 

cant having presented each of the new 
claims in the state court before the first 
habeas petition was filed, and the appli- 
cant’s claim that his counsel did not 
have time to familiarize himself with the 
case because of the imminency of execu- 
tion being without merit, and (2) the 
ends of justice would not be served by 
reconsidering those claims previously 
presented on federal habeas, the federal 
and state courts having carefully and 
repetitively reviewed the applicants 
challenges to his conviction and sen- 
tence. (Brennan and Marshall, JJ., dis- 

sented from this holding.) 
  

§§ 3:137-3:141, 3:146 

Habeas Corpus § 36:37 

Habeas Corpus 

Corpus 

Habeas Corpus 

under which it is imposed. 51 L Ed 2d 886.   

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 

32A Am Jur 2d, Federal Practice and Procedure §§ 714-718, 
723; 39 Am Jur 2d, Habeas Corpus §§ 168, 169, 174 

2 Federal Procedure, L Ed, Appeal, Certiorari, and Review 

2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and 
Review §§ 3:901-3:904; 10 Federal Procedural Forms, L Ed, 

20 Am Jur Trials 1, Federal Habeas Corpus Practice 
28 USCS § 2254; Rules Governing § 2254 Cases in United 

States District Courts, Rule 9(b) 
US L Ed Digest, Criminal Law § 96 
L Ed Index to Annos, Appeal and Error; Criminal Law; 

ALR Quick Index, Appeal and Error; Capital Cases; Habeas 

Federal Quick Index, Appeal and Error; Capital Punishment; 

Auto-Cite®: Any case citation herein can be checked for 
form, parallel references, later history and annotation ref- 
erences through the Auto-Cite computer research system. 

ANNOTATION REFERENCE 

Supreme Court’s views on constitutionality of death penalty and procedures 

  

    

    

 



U.S. SUPREME COURT REPORTS 79 L Ed 2d 

- OPINION OF THE COURT 

[465 US 201] 
Per Curiam. 

We consider an application for a 
stay of execution that had been set 
for January 24, 1984, at 7 a. m., and 
a petition for writ of certiorari. The 
Court of Appeals for the Eleventh 
Circuit granted a temporary stay 
until January 25, at 12 noon, to 
afford petitioner an opportunity to 
apply to this Court for a stay of 
execution. At the same time, the 
Court of Appeals denied applicant’s 
request for issuance of a certificate 
of probable cause and his application 
for an indefinite stay of execution.! 
The application and petition now 
before us were not filed until Janu- 
ary 25, shortly after the expiration 
of the temporary stay? The State 
has filed an opposition to the pend- 
ing application. 

I 

On August 27, 1976, a jury con- 
victed applicant of first-degree mur- 
der. He was sentenced to death. The 
evidence upon which the conviction 
was based showed that applicant 
had planned the “contract murder” 
of a Tampa police officer, apparently 
to prevent the officer from testifying 
at a grand jury investigation of 
“Mob” activities. 

On_the first appeal, the Florida 
Supreme Court remanded for a hear- 
Tg on the question whether the fajl- 
ure to disclose an attorney’s-fees ar- 
rangement between the State and 
one of the prosecution witnesses had 
violated applicant’s due process 

[465 US 202] 

rights under Brady v Maryland, 373 

US 83, 10 L Ed 2d 215, 83 S Ct 1194 
(1963), and United States v Agurs, 
427 US 97, 499 L Ed 2d 342, 96 S Ct 
2392 (1976). Antone v State, 355 So 
2d 777 (1978). The trial court found 
that there was no violation. On the 
second appeal, the Florida Supreme 
Court affirmed the conviction. An- 
tone v State, 382 So 2d 1205 (1980). 
This Court denied certiorari. 449 US 
913, 66 L Ed 2d 141, 101 S Ct 287 
(1980). 

Applicant was also a party to an 
unsuccessful suit challenging the 
Florida Supreme Court’s use of ex- 
tra-record materials in conducting 
proportionality review of death sen- 
tences. Brown v Wainwright, 392 So 
2d 1327 (1981), cert denied, 454 US 
1000, 70 L Ed 2d 407, 102 S Ct 542 
(1981). (This practice was also chal- 
lenged in Ford v Strickland, 696 F2d 
804 (CA1l), cert denied, 464 US 865, 
78 L Ed 2d 176, 104 S Ct 201 (1983); 
applicant was not a party to that 
litigation.) 

On January 6, 1982, applicant’s 
execution was set for February 5, 
1982. He then brought two motions 
for postconviction relief in state 
court. The motions raised a number 

of claims, including ineffective assis- 
tance of counsel, further Brady vio- 
lations, and challenges to applicant’s 
arrest under Payton v New York, 
445 US 573, 63 L Ed 2d 639, 100 S 
Ct 1371 (1980), and to the constitu- 
tionality of the death penalty stat- 
ute, as well as various challenges to 

the selection of the jury and the 
trial proceedings. After an eviden- 

  

1. Applicant then filed a motion with the 
Court of Appeals suggesting a rehearing en 
banc and requesting a further stay. This mo- 
tion and request were denied by the Court of 
Appeals on January 25. 

150 

2. Applicant lodged papers with this Court 
on January 20, while his petition for a writ of 
habeas corpus was pending before the District 
Court, but no formal filing for relief here 
occurred until today.  



79 L Ed 2d 

215, 83 S Ct 1194 
States v Agurs, 

i 2d 342, 96 S Ct 
pv State, 355 So 
trial court found 

iolation. On the 

Florida Supreme 
conviction. An- 

pb 2d 1205 (1980). 
ertiorari. 449 US 
tl, 101 S Ct 287 

0 a party to an 

challenging the 
burt’s use of ex- 

5 in conducting 
bw of death sen- 

inwright, 392 So 
denied, 454 US 

7, 102 S Ct 542 
e was also chal- 

ickland, 696 F2d 

led, 464 US 865, 
S Ct 201 (1983); 

h party to that 

982, applicant’s 
or February 5, 
rht two motions 

relief in state 

aised a number 

neffective assis- 

ther Brady vio- 
es to applicant’s 
i v New York, 
i 2d 639, 100 S 

to the constitu- 

h penalty stat- 
s challenges to 
jury and the 

[ter an eviden- 
  

ers with this Court 
etition for a writ of 

before the District 
ng for relief here   

ANTONE v DUGGER 
465 US 200, 79 L Ed 2d 147, 104 S Ct 962 

tiary hearing, the trial court denied 
relief, and the Florida Supreme 
Court affirmed. Antone v Strick- 
land, 410 So 2d 157 (1982). 

On January 22, 1982, applicant 
filed a petition Tor a writ of habeas 
corpus in the District Court for the 
Middle District of Florida. On Janu- 
ary 29, 1982, after oral argument, 
the District Court denied the peti- 
tion. The Court.of Appeals granted a 
stay and remanded to the District 
Court for further consideration of 
applicant’s claims. On remand, the 
District Court again denied relief, 
and the Court of Appeals affirmed. 
Antone v Strickland, 706 F2d 1534 
(CA11 1983). This Court denied cer- 
tiorari on November 28, 1983, 464 
US 1003, 78 L Ed 2d 699, 104 S Ct 
511, and denied a petition for re- 
hearing on January 9, 1984, 464 US 
1064, 79 L Ed 2d 206, 104 S Ct 750. 

[465 US 203] 
II 

On January 4, 1984, the Governor 

of applicant between noon Friday, 
January 20, and noon Friday, Janu- 
ary 27. The execution was subse-| 
quently set for January 24, 1984, atl 
7 a.m. 

signed a warrant for the execution 

On January 17, applicant filed a | 
second motion for post-CONViction re- | 

| paid by the State, despite trial coun- 
sel’s discovery demand for “any 

1ieT in the state courts, alleging inef- 
fective assistance at the penalty 
stage of his trial and unconstitution- 
ality of the Florida death penalty 
statute under Lockett v Ohio, 438 
US 586, 57 L Ed 2d 973, 98 S Ct 
2954, 9 Ohio Ops 3d 26 (1978). The 
motion was denied. On Friday after- 
noon, January 20, the Florida _Su- 
preme Court affirmed, noting that 
these claims had been considered 
and--rejected..in applicant s prior 
postconviction proceeding. Applicant 
also filed a “petition for extraordi- 
nary relief” in the Florida Supreme 

Court, questioning the propriety of 
that court’s use of extra-record ma- 
terials in reviewing death sentences. 
The State Supreme Court denied the 
petition, again noting that appli- 
cant’s claim previously had been 
considered by the court in Brown v 
Wainwright, supra, and by the Court 
of Appeals for the Eleventh Circuit 
in Antone v Strickland, supra. 

Applicant then filed a second peti- 
tion for a writ of habeas corpus in 
the District Court on January 20. Of 
the claims presented in that peti- 
tion, applicant previously had raised 
in his" first federal habeas petition 
the contentions that trial counsel 
was ineffective and that the State 
unjustifiably withheld testimony of a 
confidential informant. Nonetheless, 
applicant urged that these claims be \ 
reconsidered, as the press of {ime _ : 
during the first set of collateral pro- 
ceedings had denied his counsel a 
“full and fair opportunity” to de- 
velop the claims—inm—the state _and 

federal Touts. ————— - rr — 

Applicant’s second habeas petition 
| also contained several claims that 
purportedly had not been raised in 
hig™first federal habeas petition: (i) 

| that the State violated Brady and 
\ Agurs by failing to disclose prior to 

trial that the chief prosecution wit- 
ness had counsel whose fees were 

[465 US 204] 

ma- 
terial or information” relevant to 
the “credibility of the State’s wit- 
nesses’; (ii) that the “appearance of 
justice” was denied by the Florida 
Supreme Court’s consideration of ap- 
plicant’s extra-record materials in 
deciding applicant's direct appeal; 
(iii) that the statute under which 
applicant was sentenced unconstitu- 
tionally excluded nonstatutory miti- 
gating factors from consideration, 

151  



U.S. SUPREME COURT REPORTS 

see Lockett v Ohio, supra. These 
claims twice previously had been 
considered, as noted above, by the 
Florida Supreme Court. 

After a hearing on January 23, 
the District Court denied a stay of 
execution, the petition for habeas 
corpus, and a certificate of probable 
cause. The court concluded that the 
“ends of justice” would not be served by reconsideration of the claims that 
had been raised on the first petition 
for habeas corpus. F urther, the court 
expressed doubt that the claims that 
applicant described as “new” had 
not "been substantially considered 
during the first federal habeas pro- 
ceeding Tt concluded, in any event, 
that applicant’s presentation of 
these claims on the present petition, 
insofar as they were new, consti- 
tuted an abuse of the writ, see 28 
USC § 2257 Rule 9b) [USCS Court 
Rules § 2254 Rule 9b)], as applicant 
showed “inexcusable neglect” in not 
having raised these claims on the 
first petition. 

On appeal, the Court of Appeals 
concluded in a per curiam opinion 
that the District Court was “correct” 
in dismissing applicant’s petition on 
the grounds that it presented succes- 
sive claims and constituted an abuse 
of the writ. The Court of Appeals 
therefore denied a certificate of prob- 
able cause and a stay of execution 
pending an appeal on the merits of 
the habeas petition to that court. 
The Court of Appeals, however, 
granted a temporary stay until Jan- 
uary 25, at 12 noon, to afford appli- 
cant an opportunity to apply to this 
Court for a stay of execution. 

Applicant then submitted to the 
    

79 L Ed 2d 

Court of Appeals a petition for re- 
hearing, a suggestion for rehearing 
en banc, and an application for a 
stay pending rehearing. Applicant 
contended that the insufficient time 
allowed to his counsel to prepare 
: [465 US 205] 

the 
first habeas corpus petition violated 
applicant’s right to effective assis- 
tance in capital postconviction pro- 
ceedings; that the inadequacy of | 
counsel’s preparation in any event 
should be relevant to the question 
whether presentation of new claims 
constituted abuse of the writ; and 
that the District Court should have 
held an evidentiary hearing to in- 
quire into the circumstances under 
which the first habeas petition was 
prepared. The Court of Appeals de- 
nied the petition for rehearing, the 
suggestion for rehearing en banc, 
and the application for stay, with 
none of the participating judges re- 
questing a vote on the suggestion. 
Applicant then filed with this Court 
a petition for writ of certiorari and 
an application for stay pending con- 
sideration of the petition. 

III : 

Applicant’s petition for writ of cer- 
tiorari repeats the claims that were 
presented to the Court of Appeals in 
applicant’s petition for rehearing 
and suggestion for rehearing en 
banc.[Applicant urges that the lower 
courts should reconsider, after an 
evidentiary hearing and in light of 
the haste with which applicant’s 
first habeas petition was prepared, 
their findings as to applicant’s abuse 

‘of the writ.3 Like the Court of Ap- 
  

3. Applicant suggests that this haste denied him his right to counsel in postconviction proceedings and refers us in particular to Ross v Moffitt, 417 US 600, 41 L Ed 2d 341, 94 
S Ct 2437 (1974), and Powell v Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527 

152 

    

(1932). Ross v Moffitt held that the State has 
no obligation to provide counsel for discretion- 
ary direct review of a conviction either in the 
state courts or in this Court. Whether there is 
a right to counsel in repetitive collateral pro- 
ceedings in capital cases is not presented here    



DRTS 79 L Ed 2d 

ppeals a petition for re- 
suggestion for rehearing 
nd an application for a 
g rehearing. Applicant 
hat the insufficient time 
is counsel to prepare 
[465 US 205) 

the 
corpus petition violated 
right to effective assis- 
pital postconviction pro- 
nat the inadequacy of 
eparation in any event 
elevant to the question 
sentation of new claims 
abuse of the writ; and 
trict Court should have 
dentiary hearing to in- 

e circumstances under 
rst habeas petition was 
le Court of Appeals de- 
ition for rehearing, the 
pr rehearing en banc, 
lication for stay, with 
participating judges re- 
ote on the suggestion. 
n filed with this Court 
writ of certiorari and 
for stay pending con- 

he petition. 

III 

petition for writ of cer- 
5 the claims that were 
he Court of Appeals in 
etition for rehearing 
pn for rehearing en 
ht urges that the lower 
reconsider, after an 

baring and in light of 
th which applicant’s 
etition was prepared, 

ps to applicant’s abuse 
ike the Court of Ap- 
  

fitt held that the State has 
ovide counsel for discretion- 
f a conviction either in the 
his Court. Whether there is 
in repetitive collateral pro- 
cases is not presented here   

ANTONE v DUGGER 
465 US 200, 79 L Ed 2d 147, 104 S Ct 962 _ 

peals, we conclude that these find- 
ings do not warrant further review. 

With respect to the grounds for 
relief that applicant presented to the 
District Court for the first time on 
his second 

- [465 US 206] 

habeas petition, we up- 
hold the finding of the District Court 
and the Court of Appeals that pre- 
sentation of these claims constitutes 
an abuse of the writ. As applicant 
had presented each of these claims 
to the §fate Jcourts before the Arst 
petition for habeas was filed (and, 
indeed; the substance of these claims 
may have been presented in the first 
habeas petition), applicant hardly 
can contend that these claims were 
urrkfiown to him at that time.” 

Nor has applicant shown any basis 

for disagreeing with the finding of 
the District Court and the Court of 
Appeals that the ends of justice 
would not be served by reconsidera- 
tion of those claims previously pre- 
sented on federal habeas. The fed- 
eral and state courts carefully and 
repetitively have reviewed appli- 
cant’s- challenges to his conviction 
and sentence. 

; [465-U8-2073 

Upon consideration of 
the extensive papers filed with the 
Court, we find that none of these 
challenges warrants further review. 
Indeed, the grounds relied upon by 
applicant all appear to be meritless. 

For these reasons, we deny the 
petition for writ of certiorari and 
deny the application for a stay. 

It is so ordered. 

SEPARATE OPINIONS 

Justice Stevens, concurring. 

In my opinion, the claims pre- 
sented to the District Court, to the 

Court of Appeals, and to this Court, 
by means of the second petition for a 
federal writ of habeas corpus, are 
essentially the same as claims that 

  

as applicant had counsel throughout the rele- 
vant proceedings. See n 4, infra. We agree 
with the courts below that the circumstances 
under which the first petition for habeas was 
considered do not require those courts to con- 
sider further the claims withheld from those 
petitions. 

4. Applicant contends nonetheless that he 
could not have been expected to present these 
claims in his first federal habeas petition, as 
his present counsel was appointed when exe- 
cutiomr-wes-—imminerrt—and Therefore. did not 
have time Tully to familiarize himself with 
thé caseThis contention 1s not new, has been 
rejected by the courts below, and is meritless. 
The following sequence, however, is of inter- 
est: Applicant's conviction became final upon 
afirmance by the Florida Supreme Court on 
March 27, 1980, and this Court denied a 
petition for writ of certiorari to review the 
conviction on October 14, 1980. Applicant 
offers no explanation as to why he allowed 
almost two years to elapse between the affir- 

mance of his conviction and the filing of his 
first “motion for postconviction relief in the 
state courts on January —15~1982-~Nor does 
applicant contend that he was denied counsel 
during that period Infact; -it-appears—that 
applicant “continued to be represented 
throughout this period by his trial counsel. 
That counsel filed a motion to mitigate sen- 
tence that was acted upon on January 29, 
1981, was listed as applicant’s counsel in the 
petition for writ of certiorari in Brown v 
Wainwright, 392 So 2d 1327 (1981) (filed on 
April 3, 1981), and represented applicant on 
his first postconviction motion and the notice 
of appeal from denial of that motion in Janu- 
ary 1982. 

Finally, the lower courts’ consideration of 
the first federal habeas petition, in which 
applicant was represented by his present 
counsel, was not conducted under the pres- 
sure of ifrmiment execution, as the Court of 
Appeals had stayed execution pending consid- 
eration of applicant’s first habeas petition.  



U.S. SUPREME COURT REPORTS 

had previously been presented in the 
first petition. While I join the 
Court’s disposition of the application 
and petition, I rely largely on the 
fact that the essence of each of peti- 
tioner’s current claims was raised in 
an earlier federal habeas corpus pro- 
ceeding. Antone v Strickland, 706 
F2d 1534 (CA11), cert denied, 464 
US 1003, 78 L Ed 2d 699, 104 S Ct 
511 (1983). Nothing alleged in this 
application persuades me that this 
Court should exercise its discretion 
to permit petitioner to relitigate 
these claims. I therefore find it un- 
necessary to consider the merits of 
petitioner’s arguments concerning 

79 L Ed 2d 

hypothetical claims that were raised 
in the second petition but not in the 
first. 

Justice Brennan and Justice Mar- 
shall, dissenting. : 

Adhering to our views that the 
death penalty is in all circumstances 
cruel and unusual punishment pro- 
hibited by the Eighth and Four- 
teenth Amendments, Gregg v Geor- 
gia, 428 US 153, 227, 231, 49 L Ed 
2d 859, 96 S Ct 2909 (1976), we 
would grant the application for a 
stay of execution, grant the petition 
for certiorari, and vacate the death 
sentence. : 

 



  

Thr — wwe L Fath, 

FA cw ROA [e47) 

 



   78 L Ed 2d 

      

    

    

  

the risk of er- 
cuts are always 
er—surely not 

be taken to 
br when its con- 
sible. 

ht. 

    

    
   

  

1viction, but it may 
ommon criminals.” 
B31, 336 (CA7 1971) 
nting).    

  

OPINIONS OF JUSTICES IN CHAMBERS 
  

; [464 US 1301] 
JAMES DAVID AUTRY 

Vv 

W.J. ESTELLE, JR., DIRECTOR, Texas Department of Corrections 

464 US 1301, 78 L Ed 2d 7, 104 S Ct 24 

[No. A-242] 

October 5, 1983 

Decision: Application for stay of death sentence and certificate of probable ~ cause to appeal granted by White, J. 

SUMMARY 

An individual under a sentence of death imposed by the Texas courts unsuccessfully sought a writ of habeas corpus from a United States District Court. The denial of the writ was affirmed by the United States Court of Appeals for the Fifth Circuit, and the United States Supreme Court denied a stay of the sentence pending the filing of a petition for certiorari. The individual then filed a second petition for habeas corpus, raising new grounds not previously presented in his first petition. The District Court denied both the writ and a certificate of probable cause to appeal pursuant to 28 USCS § 2253. The Court of Appeals then denied the certificate of probable cause and denied the stay. The individual then applied to an individual Justice of the United States Supreme Court for a stay pending the final disposition of the appeal to the Court of Appeals. 

WHITE, J., as Circuit Justice, granted the stay and issued a certificate of probable cause to appeal for the reasons stated in headnote 1. 

HEADNOTES 

Classified to U.S. Supreme Court Digest, Lawyers’ Edition 
Criminal Law §96 — stay of death corpus petition — new grounds sentence — certificate of probable 1. An individual Justice of the United cause to appeal — second habeas States Supreme Court, as Circuit Justice, 

  

ANNOTATION REFERENCES 
Stay of execution of death sentence by Supreme Court or Justice thereof, 78 L Ed 2d 914. 

  
    

  



U.S. SUPREME COURT REPORTS 

will issue pursuant to 28 USCS § 2253 a 
certificate of probable cause to appeal a 
United States District Court’s denial of a 
second petition for habeas corpus, and 
grant a stay of an applicant’s death 
sentence pending final disposition of the 
appeal by a United States Court of Ap- 

~ peals, where the applicant raised a 
ground not presented in his first peti- 
tion, asserting that the state Court of 
Criminal Appeals failed to compare his 
case with other cases in order to deter- 
mine whether his death sentence was 
disproportionate to the punishment im- 
posed on others, and there may be a 
substantial question whether the state’s 

78 LEd 2d 

death penalty system, as a whole, satis- 
fies any constitutional requirement with 
respect to proportionality. [Per White, J., 
as Circuit Justice.] 

Habeas Corpus § 111 — successive pe- 
titions — legitimacy — raising 
new grounds 

2. Historically, res judicata has been 
in applicable to habeas corpus proceed- 
ings, and 28 USCS § 2244(a) and Rule 9 
of the Rules Governing Section 2254 
Cases implicitly recognize the legitimacy 
of successive petitions raising grounds 
that have not been presented and adjudi- 
cated. [Per White, J., as Circuit Justice.] 

OPINION 

. [464 US 1301] 

Justice White, Circuit Justice. 

Applicant is under a sentence of 
death imposed by the courts of 
Texas. His execution is scheduled to 
be carried out after midnight of Oc- 
tober 4, c. d. t. He has once unsuc- 
cessfully sought a writ of habeas 
corpus from the United States Dis- 
trict Court; denial of the writ was 
affirmed by the Court of Appeals for 
the Fifth Circuit, 706 F2d 1394 

trict 
[464 US 1302] 

Court denied both the writ and 
a__ certificate of probable cause, 
which, under 28 USC §2253 [28 
USCS § 2253], is a prerequisite to an 
appeal. The Court of Appeals then 
held a hearing, denied the certificate 
of probable cause, and denied the 
stay. Applicant has fiow applied to 
me for a stay. 

8 

One of the three grounds on which \ 
applicant sought relief in his second 
habeas corpus petition is the failure 
of the Texas Court of Criminal Ap: 
peals to compare his case with other 
cases in order to determine whether 
his death sentence is disproportion- 
ate to the punishment imposed on 
others. That ground as I have said 
was not presented in his first peti- 
tioh. Although it appears that no 
such review was in fact carried out 
in this case, the Court of Appeals 
held that the Texas death-penalty 
system, as a whole, satisfies any con- 
stitutional requirement with respect 
to proportionality. 

[1] I am compelled to issue a cer- 
tificaté€ of probable cause to appeal, 
as I am authorized to do under 
§ 2253, and to enter a stay pending 
the final disposition of the appeal by 
the Court of Appeals. On March 21, 
we granted certiorari in No. 82- 
1095, Pulley v Harris. 460 US 1036, 
75 L Ed 2d 787, 103 S Ct 1425. In 
that case, the Court of Appeals for 
the Ninth Circuit held that a death 
sentence cannot be carried out by 
the State of California until and 
unless the State Supreme Court con- 
ducts a comparative proportionality  



78 L Ed 2d 

, as a whole, satis- 

l requirement with 
lity. [Per White, J., 

— successive pe- 
macy — raising 

judicata has been 
as corpus proceed- 
2244(a) and Rule 9 
ing Section 2254 

nize the legitimacy 
S raising grounds 
psented and adjudi- 

Circuit Justice.) 

‘rounds on which 
ief in his second 
on is the failure 
of Criminal Ap- 

b case with other 
ermine whether 
is disproportion- 
lent imposed on 
| as I have said 
n his first peti- 
ppears that no 
fact carried out 
purt of Appeals 
s death-penalty 
atisfies any con- 
pnt with respect 

| to issue a cer- 

ause to appeal, 

to do under 

a stay pending 

pf the appeal by 
. On March 21, 

Yi in “No. "895. 
5. 460 US 1036, 

Fb S Ct 1425. In 
of Appeals for 

ld that a death 
carried out by 

‘nia until and 

eme Court con- 

proportionality 

AUTRY v ESTELLE 
464 US 1301, 78 L Ed 2d 7, 104 S Ct 24 

review, which, the court held, was 
constitutionally required. 692 F24 
1189 (1982). We shall hear argument 
in that case i vember, and if we 
‘affirm the Court of Appeals for the 

  

Ninth Circuit, there will be a sub- 
stantial question whether the views 
of the Court of Appeals for the Fifth 
Circuit, with respect to the propor- 
tionality issue were correct. Of 
course I do not know how the Court 
will rule on this question, but in 
view of the judgment of the Court of 
Appeals for the Ninth Circuit and in 
view of our decision to give the case 
plenary consideration, I_cannot say 

- that the issue lacks substance. Ac- 
cordingly, I hereby issue a certificate 

uel probable cause and stay petition- 
er’s execution pending the final dis- 
position of the appeal by the Court 

of Appeals, or until the Court's or 
my further order. 

[464 US 1303] 
[2] In my view, it would be desira- 

ble to require by statute that all 
ederal grounds for challenging a 
conviction or a sentence be pre- 
sented in the first petition for ha- 
beas corpus. Except in unusual cir- 
cumstances, successive writs would 
be summarily denied. But histori- 
cally, res judicata has been inappli- 
cable to habeas corpus proceedings, 
Sanders v United States, 373 US 1, 
7-8, 10 L Ed 2d 148, 83 S Ct 1068 
(1963), and 28 USC § 2244(a) [28 
USCS § 2244(a)] and 28 USC § 2254 
Rule 9 [USCS Court Rules § 2254 
Rule 9.] implicitly recognize the le- 
gitimacy of successive petitions rais- 
ing grounds that have not previously J 
been presented and adjudicated. 

  
    

 



    

  

  

  

U.S. SUPREME COURT REPORTS 78 L Ed 2d 

Comba Aen trim<d oil iota 

5 whi veplet 

[464 US 1027] 

ALPHA OTIS O’'DANIEL STEPHENS, Applicant 

Vv 

RALPH KEMP, Superintendent, Georgia Diagnostic and Classification 
Center 

464 US 1027, 78 L Ed 2d 370, 104 S Ct 562 

[No. A-455] 

December 13, 1983. 

Decision: Application for stay of execution of death sentence granted 
pending Court of Appeals decision involving identical issue of discrimina- 
tion in applying death penalty statute. 

SUMMARY 

An individual convicted of murder and sentenced to death, after having 
pursued post-conviction remedies a number of times in the both the state 
and federal court systems, filed a successive petition with the United States 
District Court for the Middle District of Georgia for a writ of habeas corpus 
under 28 USCS § 2254, claiming that the Georgia death penalty statute was 
being applied in an arbitrary and discriminatory manner, and that he had 
not raised the issue before because the statistical study on which he based 
his claim had not previously been available. The District Court denied relief, 
finding that his petition constituted an abuse of the writ under Rule 9(b) of 
the Rules Governing § 2254 Cases in the United States District Courts. A 
panel of the United States Court of Appeals for the Eleventh Circuit 
considered the petitioner’s emergency application for a certificate of proba- 
ble cause to appeal and a stay of execution, but the panel found that the 
District Court had not erred. By an evenly divided 6-6 vote, the Court of 
Appeals denied the prisoner’s request for a rehearing en banc. 

On application for stay, the United States Supreme Court granted the 
application for stay of the sentence of death pending the decision of the 
United States Court of Appeals for the Eleventh Circuit in Spencer v Zant 
(CA11, 1983) 715 F2d 1562, on rehearing en banc, since the claim raised by 
the petitioner in the present case was identical to the issue in the case 
pending before the Court of Appeals. 

370  



   

    

   
STEPHENS v KEMP 

464 US 1027, 78 L Ed 2d 370, 104 S Ct 562 
PowELL, J., joined by BURGER, Ch. J., and REHNQUIST and O’CoNNOR, Jd., 

dissented, expressing the view that the District Court did not err in finding 
an abuse of the writ, since the petitioner should have previously raised the 
equal protection issue even if the study was not known to him. 

  

     
      

       
     

  

HEADNOTES    
pplicant 

    

   

    

    
     

       

  

     
   

  

   
   

    

and Classification 

62 

Sentence granted 
1ssue of discrimina- 

leath, after having 
the both the state 
the United States 

It of habeas corpus 
enalty statute wag 
» and that he hag 
n which he based 
ourt denied relief, 
under Rule 9(b) of 
District Courts. A 
Eleventh Circuit 
rtificate of proba- 
el found that the 
ote, the Court of 
ne. 

ourt granted the 
decision of the 
Spencer v Zant 
claim raised by 

sue in the case 

   

  

Classified to U.S. Supreme Court Digest, Lawyers’ Edition 

Criminal Law §96 — stay of death 
sentence 

An application for stay of execution of 
a sentence of death will be granted pend- 
ing a Court of Appeals decision of a 
similar case on rehearing en banc, or 
until further order of the Supreme 
Court, even though a District Court de- 
nied the petitioner’s petition for a writ 
of habeas corpus on the ground that his 
claims in his successive petition consti- 
tuted an abuse of the writ under Rule 

  

9(b) of the Rules Governing § 2254 Cases 
in the United States District Courts, and 
the Court of Appeals found that the 
District Court did not err, where the 
petitioner’s claim that the Georgia death 
penalty statute was being applied in an 
arbitrary and discriminatory manner 
was identical to the issue in the case 
pending before the Court of Appeals. 
(Powell, J., Burger, Ch. J., and Rehn- 
quist and O’Connor, JJ., dissented from 
this holding.) 

  

  

  

Review §§ 3:411-3:416 

Courts, Rule 9(b) 

Habeas Corpus 

Corpus 

Habeas Corpus 

  

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 

32 Am Jur 2d, Federal Practice and Procedure §§ 831-835; 39 
Am Jur 2d, Habeas Corpus §§ 168, 169, 174 

2 Federal Procedure L Ed, Appeal, Certiorari and Review 
§ 3:149 16 Federal Procedure, L Ed, Habeas Corpus § 41:549 

2 Federal Procedural Forms, L Ed, Appeal, Certiorari, and 

20 Am Jur Trials 1, Federal Habeas Corpus Practice 
USCS, Rules Governing § 2254 Cases in United States District 

US L Ed Digest, Criminal Law § 96 
L Ed Index to Annos, Appeal and Error; Criminal Law; 

ALR Quick Index, Appeal and Error; Capital Cases; Habeas 

Federal Quick Index, Appeal and Error; Capital Punishment; 

Auto-Cite®: Any case citation herein can be checked for 
form, parallel references, later history and annotation ref- 
erences through the Auto-Cite computer research system. 

ANNOTATION REFERENCES 

Supreme Court’s views on constitutionality of death penalty and procedures under which it is imposed. 51 L Ed 2d 886. 

  

ow 

  

   



  

  
      

  

U.S. SUPREME COURT REPORTS 78 L Ed 24 

OPINION OF THE COURT 

The application for stay 
" [464 US 1028) 

of execu- 
tion of the sentence of death set for 
Wednesday, December 14, 1983, pre- 
sented to Justice Powell and by him 
referred to the Court, is granted 
pending decision of the United 
States Court of Appeals for the Elev- 
enth Circuit in Spencer v Zant, re- 
hearing en banc granted, —— F2d 
—— (CA11 Dec. 1983) or until fur- 
ther order of this Court. 

Justice Powell, with whom The 
Chief" tice; Justice Rehnquist, 
and Justice O’Connor join, dissent- 
ing. 

This is another capital case in the 
now familiar process in which an 
application for a stay is filed here 
within the shadow of the date and 
time set for execution. 

As summarized by the Court of 
Appeals the relevant facts are: 

“After escaping from county jail, 
petitioner was interrupted com- 
mitting a burglary in Twiggs 
County by his victim whom he and 
an accomplice robbed, kidnapped, 
drove into Bleckley County and 
brutally killed; he was caught the 
next morning with the murder 
weapon in his possession. . . . [Hje 
confessed and pleaded guilty in 
Twiggs County to armed robbery, 
kidnapping with bodily injury, and 
the theft of a motor vehicle . . . .” 
721 F2d 1300, 1304 (CA11 1983). 

A jury convicted applicant of mur- 
der and sentenced him to death in 

early 1975. In the nearly nine years 
that since have transpired, Stephens 
has repetitively moved between state 
and federal courts in pursuing post- 
conviction remedies. His direct and 
collateral attacks have taken hig 
case through the state court system 
three times and through the federal 
system twice. This Court has consid- 
ered Stephens’ case four times ex- 
cluding his present proceedings. See 
Stephens v Zant, 462 US 862, 77 L 
Ed 2d 235, 103 S Ct 2733 (1983); 
Stephens v Zant, 454 US 1035, 70 L 
Ed 2d 480, 102 S Ct 575 (1981); 
Stephens v Happer, 439 US 991, 58 
L Ed 2d 667, 99 S Ct 593 (1978); 
Stephens v Georgia, 429 US 986, 50 
L Ed 2d 599, 97 S Ct 508 (1976). 

The case before us today com- 
menced with the filing of a federal 
habeas petition on November 15, 
1983, in the United States District 
Court for the Middle District of 
Georgia. The State answered the pe- 
tition and pleaded that Stephens’ 
petition for a writ of habeas corpus 
was an abuse of the writ. On Novem- 
ber 16, 1983, the District Court held 
a hearing on the abuse question and 
five days later, on November 21, 
1983, the District Court denied re- 
lief. 578 F Supp 103. It filed a full 
opinion in which it concluded that 
“the claims raised by petitioner in 
his successive petition under 28 USC 
§ 2254 [28 USCS § 2254] constitute 
an abuse of the writ under 

[464 US 1029] 

Rule 9(b), 
Rules Governing Section 2254 cases 
in the United States District Courts, 
and are hereby DISMISSED in 
their entirety.” Id., at 108. 

  

1. Rule 9(b) provides: 
“Successive petitions. A second or succes- 

sive petition may be dismissed if the judge 
finds that it fails to allege new or different 
grounds for relief and the prior determination 

372 

was on the merits or, if new and different 
grounds are allegéd, the judge finds that the 
failure of the petitioner to assert those 
grounds in a prior petition constituted an 
abuse of the writ.” 

Ss Se ER RHE  



78 L Eq 24 

the nearly nine years 
e transpired, Stepheng 
moved between state 

urts in pursuing post. 
edies. His direct and 

icks have taken hig 
he state court system 
d through the federa] 
his Court has consid- 
case four timeg ex- 

sent proceedings, See 
it, 462 US 862, 77 L 
3 8S Ct 2733 (1983); 
t, 454 US 1035, 70 L 
2 S Ct 575 (1981); 
pper, 439 US 991, 58 
99 S Ct 593 (1978); 
rgia, 429 US 986, 50 
S Ct 508 (1976). 
ore us today com. 
e filing of a federa] 
on November 15, 

ited States District 
Middle District of 
Ite answered the pe- 
Hed that Stephens’ 
it of habeas corpus 
he writ. On Novem- 
District Court held 
abuse question and 
on November 21, 

t Court denied re- 
103. It filed a ful] 
it concluded that 

d by petitioner in 
tion under 28 USC 
§ 2254] constitute 

it under 
S 1029] 

Rule 9(b), 
pection 2254 cases 
's District Courts, 
DISMISSED in 

at 108. 

if new and different 
e judge finds that the 
ner to assert those 
tition constituted an 

STEPHENS v KEMP 
464 US 1027, 78 L Ed 2d 370, 104 S Ct 562 

On December 9, 1983, a panel of the 
Court of Appeals for the Eleventh 
Circuit considered Stephens’ emer- 
gency application for a certificate of 
probable cause to appeal and a stay 
of execution. Also in a full opinion, 
the panel found that the District 
Court had not erred in finding an 
abuse of the writ. 721 F2d 1300 
(1983). 

Today, the Court of Appeals de- 
nied Stephens’ request for a rehear- 
ing en banc by an evenly divided 
vote. 722 F2d 627. The six judges 
who dissented from the denial of 
rehearing filed a brief opinion ex- 
pressing the view that Stephens had 
presented a claim that warranted a 
stay of his execution. The dissent 
reasoned that Stephens’ claim that 
the Georgia death penalty statute is 
being applied in an arbitrary and 
discriminatory manner is identical 
to the issue in Spencer v Zant, 715 
F2d 1562 (CA11 1983). The Court of 
Appeals—apparently also today— 
granted a rehearing en banc in 
Spencer and the dissent argued that 
Stephens should receive like treat- 
ment. It was suggested that Ste- 
phens had not abused the writ with 
respect to this issue because the sta- 
tistical study on which he bases his 
claim did not become available until 
after he had filed his first federal 
habeas petition. The fact that 6 of 
the 12 active judges of the Court of 
Appeals wished to defer action on 
Stephens’ case prompted this Court 7 to grant Stephens’ request for a stay. | 

| Stephens’ claim of discriminatory 
I dissent from this action. 

The Court and the judges in dis- 
sent in the Court of Appeals appar- | 
ently misconstrue, as I view it, the 
posture of this case. We should now 
be concerned, as wags the panel of the"Court of Appeals, with whether the District Court erred In its find- ing that Stephens is guilty of having 

abused the writ of habeas corpus. In 
Sanders v United States, 373 US 1, 
10 L Ed 2d 148, 83 S Ct 1068 (1963), 
this Court observed that the “abuse 
of the writ” doctrine should be gov- 
erned by “equitable principles.” Id., 
at 17, 10 L Ed 2d 148, 83 S Ct 1068. 
The Court noted that consideration 
of abuse normally is left to the “dis- 
cretion of federal trial 

[464 US 1020] 

judges. Theirs 
is the major responsibility for the 
just and sound administration of the 
federal collateral remedies, and 
theirs must be the judgment as to 
whether a second or successive appli- 
cation shall be denied without con- 
sideration of the merits.” Id., at 18. 

In determining whether the Dis- 
trict Court properly exercised its dis- 
¢retion in finding an abuse we 
Should Took not to The merits of a 
petitioner’s claims but to the peti- 
tioner’s reasons for not having 

‘raised the claims in his first habeas 
proceeding. As the Court of Appeals 
noted, [tlhere Js no disagreement 
among the parties as to the standard 
applicable to second and subsequent 
petitions for habeas corpus which 
present wholly new issues. [Tn order \ to constitute abuse, presentafion of : 
such issues must result from (1) the | irffentional withholding or inten- 
tional abandonment of those issues on the hitial petition or (2) inexcus- 
able neglect.” 721 F2d, at 1303./Un- 
der this analysis, it 15 clear that the 
District Court properly dismissed 

application of the Georgia death 
penalty without holding an eviden- 
tiary hearing on the merits of that 

\ claim. 

Apparently Stephens concedes 
that the equal protection issue is 
being raised for the first time, but he 
alleges that a 1980 study by a Dr, 

373  



      
    

  

  
  

U.S. SUPREME COURT REPORTS 

David Baldus supports the clgim 
that Georgia's death penalty statute 
is discriminatorily administered 
against black citizens. As his excuge 
for not having raised this issue in 
his first habeas petition, Stephens 
states that the study was not made 
available to the public until 1982, 

Stephens’ argument sidesteps the 
crucial issue. The State having al- 
leged that he had abused the writ, 
the burden rests on Stephens to ex- 
plain why he did not raise the con- 
stitutionality of the application of 
the death penalty statute in his ear- 
lier petition. See Stephens v Zant, 
631 F2d 397 (CA5 1980), modified on 
rehearing, 648 F2d 446 (1981). He 
did not satisfy this burden in the 
District Court, in the Court of Ap- 
peals, or here. Although it is possi- 
ble_that Stephens did not know 
about the Baldus study even though it was published in T55 this does 
not explain his ye 

[464 US 1031] 

failure to raise his 
equal protection claim at all. The 
availability of such a claim. is illus- 
trated by the procedural history in 

78 L Ed 24 

Spencer v Zant, supra. In Spencer, e_defendanf’ raised this Tonstity. tional challenge to the application of 
the Georgia death penalty statute in 
1978 in his state habeas proceeding” 
and pursued that claim in his first 
federal habeas petition. Id., at 1579, 
See also Ross v Hopper, 538 F Supp 
105, 107 (SD Ga 1982), revd and 
remanded, 716 F2d 1528 (CA11 
1983). 

Stephens simply failed to explain 
his failure fo raise his claim in his 
first federal habeas petition, and 
therefore his case comes squarely 
within Rule 9(b). In addition, Ste- 
phens made no factual showing to 
the District Court that the statistics 
contained in the Baldus study sup- 
ported his allegation —ofparticulsy- 
ized discrimination in the imposition 
of the death penalty in Georgia. 

This Court has now stayed Ste- 
phens’ execution until the Court of 
Appeals has decided Spencer. In my 
view, for the reasons noted below, I 
am satisfied that the Court will con- 
clude that Spencer—however it may 
come out—will not control this case? 

    
2. The Baldus study, relied upon by Ste- 

phens, has not been presented to us. It was 
made in 1980 and apparently has been avail- 
able at least since 1982. Although character- 
ized by the judges of the Court of Appeals 
who dissented from the denial of hearing en 
banc, as a “particularized statistical study” 
claimed to show “intentional race discrimina- 
tion,” no one has suggested that the study 
focused on this case. A “particularized” show- 
ing would require—as I understand it—that 
there was intentional race discrimination in 
indicting, trying, and convicting Stephens, 
and presumably in the state appellate and 
state collateral review that several times fol- 
lowed the trial. If the Baldus study is simjlar 
to the several studies filed with us in Sullivan v WalRWHIght, ante, at 100, 78 L Ed 2d 266, 
104 S Ct 90, the statistics in studies of this kind, many of which date as far back as 1948, 
arg merely general statistical surveys that are 
hardly particularized with respect to any al- 
leged “intentional” racial discrimination. 
Surely, no contention can be made that the 

374 

entire Georgia judicial system, at all levels, 
operates to discriminate in all cases. Argu- 
ments to this effect may have been directed to 
the type of statutes addressed in Furman v 
Georgia, 408 US 238, 33 L Ed 2d 346, 92 S Ct 
2726 (1972). As our subsequent cases make 
clear, such arguments cannot be taken seri- 
ously under statutes approved in Gregg v 
Georgia, 428 US 153, 49 L Ed 2d 859, 96 S Ct 
2909 (1976). , - a 

3. With all respect, I disagree with the 
judges on the Court of Appeals who say that 
this case presents the “identical issue” to be 

/ 
| 

considered in Spencer. That case is readily } 
distinguishable. As noted above, the discrimi- 
natory application of capital punishment—the 
equal protection issue—was raised in the first 
habeas petition in Spencer, and has been 
pressed at all subsequent stages. In this case, 
it was not raised until last month. In a funda- 
mental sense, thefefore, there could have 
been no abuse of writ issue in Spencer. There 
are other distinguishing factors, but these 
need not be stated here.  



S 78 L Ed 24 

t, supra. In Spencer, 
raised this constity. 
to the application of 

th penalty statute ip 
te habeas Proceeding 
at claim in his firgt 
petition. Id., at 1579, 
Hopper, 538 F Supp 
a 1982), rev'd ang 
F2d 1528 (CA11 

ply failed to explain 
aise his claim in hig 
abeas petition, and 
>ase comes squarely 
b). In addition, Ste. 
» factual showing to 
irt that the statistics 
le Baldus study sup. 
gation of particular- 
ion in the imposition 
.alty in Georgia. 

as now stayed Ste- 
n until the Court of 
rided Spencer. In my 
rasons noted below, | 
t the Court will con- 
cer—however it may 
hot control this case.’ 
  

cial system, at all levels, 
inate in all cases. Argu- 
may have been directed to 
; addressed in Furman v 
3, 33 L Ed 2d 346, 92 S Ct 
r subsequent cases make 
hts cannot be taken seri- 
>s approved in Gregg v 

, 49 L Ed 2d 859, 96 S Ct 

ect, I disagree with the 
of Appeals who say that 

he “identical issue” to be 
er. That case is readily 
noted above, the discrimi- 
"capital punishment—the 
ie—was raised in the first 
Spencer, and has been 
juent stages. In this case, 

11 last month. In a funda- 
>fore, there could have 
it issue in Spencer. There 
shing factors, but these 
>re. : 

STEPHENS v KEMP 
464 US 1027, 78 L Ed 2d 370, 104 S Ct 562 

It should be apparent from the deci- 
giohs of this Court since Gregg v 
Georgia, 428 US 153, 49 L Ed 2d 
859, 96 S Ct 2909 (1976), was decided 
that claims based merely on general 
statistics are likely to have little or 
po merit under statutes such as that 
in Georgia. - 

That Stephens is innocent of the 
brutal, execution style murder, after 
kidnaping and robbing his victim, is 
not seriously argued. 

[464 US 1032] 

This is a 
contest over the application of capi- 
tal punishment—a punishment re- 
peatedly declared to be constitu- 
tional by this Court. In the nearly 
nine years of repetitive litigation by 
state and federal courts there has 
been no suggestion that the death 
sentence would not be appropriate in 
this case. Indeed, if on the facts here 
it was not appropriate, it is not easy 
to think of a case in which it would 

be so viewed. Once again, as I indi- 

cated at the outset, a typically “last 
minute” flurry of activity is result- 
ing in additional delay of the imposi- 
tion of a sentence imposed almost a 
decade ago. This sort of procedure 
undermines public confidence in the 
courts and in the laws we are re- 
quired to follow. 

In conclusion, I reiterate what the 

Court said in the concluding para- 
graph in our recent per curiam in 
Sullivan v Wainwright, ante, at 112, 

78 L Ed 2d 266, 104 S Ct 290: We 
recognize, of course, as do state and 
other federal courts, that the death 
sentence is qualitatively different 
from all other sentences, and there- 
fore special care is exercised in judi- 
cial review. In this case, it is per- 
fectly clear to me that this care has 
been exercised in abundance. Ac- 
cordingly, I would deny the applica- 
tion for a stay. 

 



    

272 293 FEDERAL REPORTER 

“Phat the vessel and her owner are, both by English and American law, 
liable to an indemnity for injuries received by seamen in consequence of the 
unseaworthiness ‘of the ship.” : : 

; [3, 4] It is likewise well established that the very principle of an- 
cient maritime law, to the effect that a sailor is entitled only to wages, 
maintenance, and also. cure, carries with it the corollary that, if the 
cure is not provided to the best ability of the master, the resulting 

. damage must be compensated in-a. court of admiralty. Requests by 
Kohilas for treatment were brutally refused. Moreover, in my opinion, 
the master of the ship violated the statute when he neglected to deliver 
Hansen, or bring Hansen back to an American port in irons for trial 
for his crime... But, more than all that, it is perfectly apparent that as 

to’ the sailors, the Rolph was not a seaworthy vessel. = Seaworthiness, 
according to all’ the authorities, not alone implies that the vessel be 
staunch and sound, but that she shall be properly manned. The lead- 

ing case in this circuit, of course, is the case of the Rio de Janeiro limi- 
tation of liability of the Pacific Mail Steamship Company (130 Fed. 76), 
in which the Court of Appeals of this circuit held that the Rio de Janeiro 
was not seaworthy when she sank in the Golden Gate, for the reason 
that her crew was composed of Chinese who could not speak English, so 
that when it came to lowering the lifeboats they were unable to under- 
stand the orders of the master.and the first officer. I therefore hold 

that the employment of Hansen rendered the Rolph, in so far as the 
+ sailors: were concerned, an unseaworthy vessel, therefore admiralty 

rule No. 15 or-16 does not apply at all, and that the decree should be 
for the libelant and the intervening libelants. ifs 

- Inasmuch as the injuries were fully set forth in the testimony by 

medical and other witnesses, the expectation of life and earnings of 

these men were: laid before the court, there is no necessity for a ref- 

erence to a commissioner in'the usual manner. ; 

The decree, therefore, will provide that the judgment be, for Kobhilas, 

in the sum of $10,000; for Kapstein, in the sum of $3,500; for Sep: 
pinnen and Arnesen, in the sum of $300. '~ 

         



; WONG SUN Vv. UNITED STATES AE > \ 4 (293 rE.) 

| WONG SUN v. UNITED STATES, and three other cases, 
(Circuit Court of Appeals, Sixth Circuit, November 12, 1923.) Cg Nos. 3829-3832." 

agin 

¥ VF od 

~~ L.Judgment €=713(2)—Conclusive of issues which might have been tried. atv 1 The final determination of the court is a conclusive adjudication, not 
only as to matters .actually argued and decided, but also as to matters “which might have been so considered and decided. : Habeas ‘corpus €&=90, 113(1, '12)—~Nature of, stated. i" A habeas corpus proceeding is essentially ga Judicial proceeding involy- ing a trial of the truth of the officer's return when challenged on the facts, with the right to review by an appellate court, not merely by a writ of error, but by an appeal, bringing up for review the entire record pre- “sented in the court below. 
‘Habeas ‘corpus @=120—Doctrine of res judicata applicable to judgments :affirmed on appeal, 5% viral Where a judgment denying a writ of habeas corpus has been affirmed ; res judicatg applies, in the absence of new con- : ations which were unknown to petitioner on first 

9 

Appeals from the Dis 
ern District of Ohio; 
. Habeas Corpus. 

: Ohio, for appellants. 
U. S. Att 

appell 
f whom claim 

9 . . . . ’ eedings in habeas corpus, thereupon in- 

fates [C. C. 
. White, Com- 

8, wherein it 
did not pre- 

espect to deportation after ; @For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 203 F—18 

       



   
274 £54 

May 1, 1917, of Chinese found here, or who s 

Jation of the exclusion acts. Appellants thereupon severally instituted 

eedings in habeas corpus, attack- 

in the District Court below mew proc 

ing the deportatio 

regularity in the 

sufficiency’ of the evidence to sus 

to the writ 'of habeas corpus ‘the inspector, not on 

allegations of the petition relative to asserted insufficiency of. proof 

“and unfairness and lack, of impartiality of the proceedings on the ad= 

‘but invoked the dismissal by the District Court. 

ministrative hearing, 

. Westenhaver discharged the writs 0 

cation of petitioners’ li: 

go Appellants 
t 

eas corpus; and, second, 

  were so dismissed DY 

    

  

   
    
     

   

    

   

   

  

      

  

   

  

   
   

  

    

    

   
   
   

   
    

    
   

    

      

     

       
          

            
       

        

      
      
    

  

       
    

      
     
     
   
   

E1203 FEDERAL REPORTER ; 

hall have entered, in vio- 

n order upon various charges of unfairness and ir- 

departmental hearing awarded, and challenging the 

tain the findings made. By his return 

ly ‘traversed the 

of the former proceeding in habeas ' corpus, and the affirmance of 

that action by 'this court, as a bar to the present proceeding. Judge 

f habeas corpus, and ordered peti- 

tioners remanded into the custody of the immigration authorities, upon 

the ground that the previous discharge of the writs by the District 

Court, and the offirmance thereof by this court, worked a final adjudi-, 

liability to. deportation. Wong Sun Vv. Fluckey 

(D. C.) 283 Fed. 089. These appeals are from the respective orders 

that th ine of res judicata does not 

        

  

    fing tl of the hearing before the 

dq the conclusions Teacned were not com-- 

ourt or this court. SE 

s corpus, the proceedings in ‘which 

“the District Court, and whose action was ai- 

t (282 Fed. 498), not onl asserted and relied upon 

the denial to petitioner of a! judicial nr g, respecting fis Tight to 

remain 1n the 
Th the language quoted in the mar- 

gin;® directly attacked the sufficienc of the administrative hearing ac- 

~ tually had as unfair and not Impartial To The peritioner. 

. .,[1]./The mspector s urn to the writ, in the case of each appellant, 

not only. a ed petiioner s_right to a judicial hearing, but, in the 

‘ language, We, have set tort Te margin,’ joined issue upon the al- 

g the ch acter of the agmunistrative 11 

legations of the petition, regardin 2 

    

   
  

  

firmed by this. cour 
                

  

              

    
  

alleges that sald so-called hearing conducted be 

‘inspector in charge of the Immigration Depart- 

unfair and not impartial to this 

ined on several occasions by sald 

; 1 “Your petitioner further 

fore said J.’ Arthur Fluckey, 

ment, Cleveland district, -was ‘manifestly 

petitioner, but, on (the contrary, was exam 

J. Arthur Fluckey and his assistants without the privilege of counsel, and 

* found by said Fluckey to be unlawfully in the United States solely from the 

cross-examination of whom was not had by your pe 

  

B
a
t
 

ba
h 

T
a
d
 

a
a
 

al
y 

    

g that'such a hearing was duly had and oppor- 

ner to show cause why he ghould not be deport-. 

‘tioner was represented by. coul: 

titioner was given: full opportunity to pro 

d to produce; that there was no abuse of 

the discretion lodged by law in the Secretary of Labor: that sald hearing was 

had in accordance with law an ‘wi he regulations of the 

Department 
nt denies each and every allegation of 

the petition, with the exce 
cifically admitted 

and alleges 
held in lawful custody, ete.” cia 

   

   

: 
% 

i
 

3 
ay 

Ty
 

a 
m
o



/ WONG SUN V. UNITED STATES 275 
(293F.) 

While petitioner’s charges in that respect were not as 
failed as in the application before us. the 

rool thereof 
; It is true that, in the former proceeding, HY 
sufficiency of the hearing before the immigration officer, and the con- 
clusions there reached, were not considered by the District Court, nor, 
at least substantially, by this court; but that was because proof in 
support of petitioner’s allegations in those respects was not presented.® 
But it is a commonplace that in ordinary judicial proceedings the final 
determination of the court is a conclusive adjudication, not only as to 
matters actually argued and decided, but also as to all matters which 
might have been so considered and decided. New Orleans v. Citizens’ 
Bank, 167 U. S. 371, 397, 17 Sup. Ct. 905, 42 L. Ed. 202; So. Pacific 
ER v. United States, 168 U. S. 1, 48,18 Sup. Ct. 18, 42 L. Ed. 

[2] At the common law a refusal to discharge on habeas corpus 
one in custody on a criminal charge was no. bar to further and re- 
peated applications of the same nature, even upon the identical grounds 
existing or alleged on the first application, 
tions leading to this state of the law seem to have been that a proceed- 
ing by habeas corpus—which was the “writ of freedom —is purely 
ST sion for framing or trying issues of fact (the 
Officer's return to the writ being taken as true), and without right of 
review. To-day, generally, and in the federal courts specifically, the 
hearing in court of a petition for TR TR i ART re 
Cial proceeding, involving a trial of the truth fT 
when challenged on the facts, and hearing on the questions of law in- 
volved, with a right of review by an appellate court (United States v. 
Fowkes |C. C. A. ed. 15, SSA, : In re Graves [C. C. 
A. 1] 270 Fed. 181), not merely by writ of error, but by appeal, bring- 
ing up for review on both law and facts the entire TESTE presented 
to the court below (In re Neagle, 135 U. S. 1, 41, 42, 10 Sup. Ct. 658, 

34 L. Ed. 55). As a practical proposition, the basis for the old com- 
~ mon-law rule has thus disappeared. : : : 
[3] the question of res judicata, as involved here, we find no 

_ decisions of the Supreme Court of the United States in point. Ii Re | 
~ Jugiro, 140 U. S. 291, 11 Sup. Ct. 770, 35 L. Ed. 510, cited by appel- - | 
lant, the appeal was from a denial by the federal Circuit Court of 
acsecond application for habeas corpus, made after the affirmance by 

~ the Supreme Court of a former denial by the Circuit Court, with re- 
mand of petitioner to the state court. The second petition presented 
a matter occurring after the affirmance by the Supreme Court; also 

  

~~ 13a'We of course accept as correct the statement of counsel for appellants 
. that the course taken upon the previous application was followed because of 
differing interpretations by the United States courts of the jurisdiction of the 
Immigration Department under the Act of 1917, and for economical reasons 
as well, and in the belief that the Immigration Department did not have ju- 
risdiction. For purposes of this hearing, we disregard the comments (partly 

~ obiter) made in the concluding paragraph of our opinion on review of the 
« former application (282 Fed. at page 502), upon the departmental record there- 
in referred to... ; ;  



    276 A ;, 293 FEDERAL REPORTER 

"several other ‘matters of which petitioner claimed to have been ig- 

norant when: the first application’ was made. The Supreme Court held 

that the matter later occurring did not render the action of the state 

court void, and that the other errors. alleged could not be reached by 

* habeas corpus. There was thus no second hearing of any question 

once decided, or that might have been decided, and the question of res 

judicata was not raised or presented, nor was there room therefor. =» 

In Rose v. Roberts (C. C. A. 2) 99 Fed. 048, 40 C. C. A. 199, an 

order of the Circuit Court dismissing the writ of habeas corpus ha 

been affirmed upon the holding that the judgment of a court-martial 

cannot be reviewed by a writ of habeas corpus, except to determine 

the question of jurisdiction, which was found to extend to the action 

of the court-martial. - In Carter Vv. McClaughry, 105 Fed. 614, the 

Circuit Court for the District of Kansas held, as applied to the above- 

stated action of the Circuit Court for the Southern District of New 

' York and of the Circuit Court of Appeals for the Second Circuit, that 

the denial of a writ of. habeas corpus by the federal courts of one | 

circuit does not render questions determined res judicata, s0.as to 

preclude their re-examination by the courts of another circuit in sub-" 

sequent ‘habeas ‘corpus proceedings instituted therein by the same | 

petitioner. The Supreme Court, in dismissing an attempted review 

of the judgment of" the Circuit Court for the Southern District of 

New York, did not pass upon the questions of fact and the validity of 

the conviction and sentence, but held merely that the Supreme Court 

would not entertain a direct appeal therefrom. Carter v. Roberts, 177 

U.S. 496, 20 Sup. Ct. 713, 44 1,. ¥.d. 861. ‘The affirmance by the Su- 

preme Court (Carter v. McClaughry, 183 U. S. 365, 22 Sup. Ct. 181, 46 

IL. Ed. 236) of the action of the District Court of Kansas did not 

involve or consider the question of res judicata, which manifestly 

could not arise inthe case. We therefore see no basis for the sug- 

~ gestion that the Supreme Court, by its action in either of the cases cited, 

impliedly recognized the right of repeated review. Hoa 

We think the same is true of Chin Fong v. White (C. C. A. 9), 258 

Fed. 349, 169 C. C. A. 569, also cited by appellant, in support of his’ 

denial of the doctrine of res judicata. The first application for habeas 

corpus involved the contention that the construction of a treaty was’ 

involved. Ex parte Chin Fong (D. C.) 213 Fed. 283. An appeal to 

the Supreme Court was dismissed on the ground that appellant’s rights 

depended upon the statutes regulating Chinese immigration and not 

upon. a ‘construction of treaty provisions, and that there was thus no 

right of direct appeal from the District Court to the Supreme Court. 

Chin Fong v. Backus, 241 U. S. 1, 36 Sup. Ct. 490, 60 L. Ed. 859 i 

The District Court then granted appellant permission to file a new 

petition for habeas corpus, basing his claim to relief upon his alleged 

statutory rights, and not upon claimed treaty rights. Chin Fong v.. 

White, supra, was a review of the order made under the second prop: 

osition. No question of res judicata was thus necessarily involved. 

Elsewhere in the federal courts the trend of decision seems to. 

favor the rule of res judicata when the right of review exists. In Ex 

~ parte Kaine, 3 Blatchf. 1, 14'Fed. Cas. 78, No. 7,597, and in In re 

Kaine, 14 Fed. Cas. 32, No. 7,597a, the decision denying the bar of 

    
     
     

       

      
/ 

 



ain. : WONG SUN Vv. UNITED STATES 277 
gn ’ (293 F.) 3 
former adjudication was rendered before any review of an order in a 
habeas corpus case was permitted. The decision ‘was based solely on 

the common-law rule as it stood at the time of the adoption of the Con- 
stitution of the United States. : : 

~~ In Re Kopel (D. C.) 148 Fed. 505, Judge Hough entertained a peti- 
‘tion in habeas corpus (an eXtradition case) notwithstanding a previous - 
denial by a justice of the Supreme Court of the state, from whose 
decision, .as stated by Judge Hough, “no appeal seems to have been 
taken, if such appeal be permissible”; Judge Hough basing his con- 

clusion upon the absence of federal statute limiting the right of suc- 
cessive petitions. It does not appear what the decifion would have 
been had the New York practice permitted an appeal, or if the prior 
dismissal had been made by the same federal court. The case was 
“not reviewed. 7 
~.!'In United States v. Chung Shee (C. C. A. 9) 76 Fed. 951, 22 C. C. A. 
639, ‘a judgment of the District Court, discharging on habeas corpus 
a Chinese immigrant detained for deportation, as not entitled to enter, 
‘was held conclusive of the right of entry, and not subject to re- 
examination by subsequent proceedings for deportation; and this de- 
cision has recently been followed by District Judge Neterer in Ex 
parte: Gagliardi (D. C.) 284 Fed. 190.4 
~ In Ex parte Cuddy (C. C.) 40 Fed. 62, Mr. Justice Field, sitting at 
the circuit, in dismissing a writ of habeas corpus and remanding the 
prisoner, held, as stated in the headnote, that: 
“Where a petitioner for a writ of habeas corpus appeals to the United States 

~ Supreme Court from a judgment of the Circuit Court denying his application, 
voluntarily omitting a material portion of his case, he, cannot, after failing 
on the appeal upon the record presented, renew his application before an- 
other court or justice of the United States, upon the same record, with the 
addition of the matter thus omitted, without first having obtained leave for 
that purpose from the Supreme Court. The question is entirely different when 
subsequently occurring events have changed the situation of the petitioner so 

as in fact to present a new case for consideration.” 

In Ex parte Moebus (C. C.) 148 Fed. 39, 40. 41, the late Circuit 
Judge Putnam held, as stated in the headnote, that: 
“In jurisdictions where appeals have been provided for in habeas corpus 

cases, it has come to be the rule, either as one of law or of practical adminis- 
tration, that a judge is not required to consider an application for a writ 
which has been denied by another judge, but may remit the petitioner to his 
remedy by appeal.” ha 

“While in Lui Lum v. United States (C. C. A. 3) 166 Fed. 106, 92 
C. C. A. 90, an order of a United States District Judge of New York, 
denying the right to a discharge, was expressly held res judicata as to a 
subsequent application in habeas corpus to a District judge in Penn- 
sylvania. : 

. In the state courts a contrariety of decision is found. Among the 
cases denying the conclusiveness of former adjudication are Bradley 

14 In the Chung Shee Case the District Court (71 Fed. 279) had distinguished, 
as to the applicability of res judicata, between an order remanding and 

an order discharging the petitioner; but this distinction is not mentioned in 
the decision of the Circuit Court of Appeals, which on its face would apply 
equally to a decision against the petitioner’s right.  



    
IN

 

~ i 

278 . 293 FEDERAL REPORTER 

v. Beetle, 153 Mass. 154, 26 N. E. 4€9;° Miskimmins v. Shaver, 8 

Wyo. 392, 404, 58 Pac. 411, 49 1. R. A. 831;° People v. Brady, 56 

N.Y. 183,191,192; Weir'v, Marley, 99 Mo. 434, 12 S. W. 798, 6 L. 

‘R. A. 672; 674.8 In People v. Siman, 284 TL 28.110. N, B. 940, it 

is said that there is no statutory review of an order refusing to dis- 

-charge on habeas corpus. In Luetzler v. Perry, 18 ‘Ohio Cir. Ct. R. 

826, where it was held that an order by a judge refusing to issue a 

writ of habeas corpus (not an order discharging the writ after hearing) 

was not res judicata as to a second application to another court, atten- 

tion was called to the: facts that the Ohio statute did not authorize 

review of an ofder refusing to issue the writ, but only of an order 

discharging the writ upon a hearing, and that even in the latter case’ 

the permissible review, being only by writ of error, without provision 

for bringing to the attention of the reviewing court the real facts upon 

‘which petitioner claimed to be entitled to his discharge, was not a full, 

complete and adequate remedy in all cases. The Circuit Court decision 

in the Luetzler Case does not seem to have been reviewed. 

Among the decisions affirming the conclusiveness of a former adjudi- 

cation are State v. Whitcher, 117 Wis. 663, 94 N. W. 787, 98 Am. 

St. Rep. 968; ° State v. Hebert, 127 Tenn. 220, 245, 154 S. W. 957; 

Perry v. McLendon, 62 Ga. 598, 603 211" Fx parte Justus, 26 Okl: 101, 
LJ 

110 Pac. 907.1% HE 

5 This case holds that a former discharge is not “as matter of law, a bar to 

subsequent proceedings of the same kind founded on the same facts.” The 

question whether the court on the second application has discretion to hear or: 

refuse to hear a new application on the same facts was not passed upon. 

¢ This decision seems to be based in part upon the Wyoming statute, as be-. 

ing inconsistent with the idea that a former denial of the writ is a final ad- 

judication. roi tii duis Tf toi 10a) \ : 

7 It does not appear whether or not the statute provided for an appeal. In: 

at least three states besides Wyoming, statutes govern the practice of subse- 

quent applications for habeas corpus. In re Udell, 171 Cal. 599, 154 Pac. 23; 

Tox parte Hamilton, 65 Miss. 98, 3 South. 68; Ex parte Rosson, 24 Tex. App. 

906. 58, W. 6066.1 11" fal. 4 : Pr : : 

8 It is said that “the serious objection to the conclusiveness of a judgment 

of habeas corpus in such causes [custody of children] would be removed by a 

- provision for review by appeal or writ of error.” 

9 This case holds that in view of the statute giving a right of appeal, the, ° 

decision upon the application is res judicata to be set aside by some subse- 

quent proceeding in the same matter, according to the legal procedure for re- 

viewing judicial errors. : 

10 The right to a second application for habeas corpus, after affirmance by 

the Supreme Court of an order of discharge, was limited by that court to 

cases where new and vitally material facts have developed after the decision 

of the Supreme Court, which were unknown to petitioner and could not have’ 

been discovered by the exercise of reasonable diligence, and which would have 

deterred the court from dismissing the petition had they been known and pre- 

sented to the court. , : : 

“11 Perry Vv. McLendon, supra, holds a refusal to discharge a prisoner res 

judicata as to all points which were necessarily involved in the general ques- 

tion of the legality or illegality of the arrest and detention, whether all of 

them were actually presented or not, especially where the imprisonment is on 

civil process; this holding being based on the existence of right of review. 

12 Tt was said that “while the order of the Criminal Court of Appeals deny-’ 

ing the writ is not a bar to a further application to this court, still its order 

       



SWIFT & 'CO. Vv. BOWLING : 279 
. (293 F.) ) 

"The text-books cited are generally not inconsistent with the existence of res judicata where there is statutory provision for review. The citation of Foster's Federal Practice does not in terms cover cases of statutory appeal and affirmance thereunder, : 
“i Brown on Jurisdiction, § 111, states that: 
4 “The doctrine of res judicata has no application to this proceeding [habeas corpus] except where the statute provides for an appeal, which is the case in some states.” v3 : 

74} 
, Bailey on Habeas Corpus, § 59,’ says: 
“Where, however, a statute exists which authorized a review of the pro- ceedings upon appeal or writ of error, the.determination being held res ad- ~. Judicata, it would follow that it would constitute a bar to the prosecution of + Buch action” (false imprisonment for the same cause). : 

he law, and regardless of decisions asserting the 
to custody of children or 
HL." 519,-71 N. E. 1077, 

n v. Mead, 30 S. D. 515, 
90, 167 Pac. 184), and in 

ct of appeal and 
presents no coi- 

or_which could not ha p 
and without reference to the fact 
pplication was not obtained or re- -quested,’* we are constrained to hold that the final jud ment upon the 

  

previous applicati abeas corpus constituted a conclusive bar _to the second application. " We think this concltision supported by Bot reason and the weight of authority. =~ = ; : 
“The orders of the District Court, discharging the respective writs of habeas corpus, are affirmed. ng : 
CTE 

re SWIFT & CO. v. BOWLING. 
(Circuit Court of Appeals, Fourth, Circuit. November 6, 1923.) 
Fi ShE THE '} No. : 2111. 

1, Master and servant ¢&=316(1)—Master liable, if independent contractor acts 47 as servant. 
ig Though one was independent contractor under his contract, his em- +" ployer would nevertheless be liable for his negligence if, in doing the ‘Hiwork, he did not really carry it on as an independent contractor, but as a mere employee. ge 

2% Master and servant ¢=319—Fire to keep concrete from freezing not intrinsi- ' cally dangerous work, 
..,... Maintenance of fires to keep concrete work from freezing was not so 71" intrinsically dangerous as to render employer of independent contractor 

wdpey 
1¥31) 

  made inthe premises is entitled to consideration, and it appearing that the conclusion reached is correct, it will be followed by this court.” 
{13 Buch cases are not entirely destitute of analogy to deportation proceed- ngs, as involving a status other than an imprisonment for an offense. : 

~ .1 4 Compare Raydure v, Lindley (C. C. A. 6) 268 Fed. 338, 340, and other : cases cited in Amer. Foundry, etc, Co. v. Wadsworth (C. C. A. 6) 290 Fed. at 
page 196. > dir Hg  



1g a Consolidaeg 

re.’ oo pper value of its 

preva) of the 
Iscretion ‘gj 

bection Ho 
oy 

regulation under 
Rcted is not only, 

/ with applicable’ 
City Structural 

0 S.Ct. 263, 74 
o.v, Helvering, 

Ig 

Ee» 

FISK. 

Fifth Circuit. 

exception was 
idence in sup- 
complaint, and 
in the record, 
would presume 
pport of judg- 

g petition to 
ankrupt, which 
dant’s alleged 
judgment ob- 
equired to be 
that the state 
nally declared 
Appeal Court. 
S.CA. §let 

Court of the 
rn District of 

on, Judge. 

Stores, Inc, y.". + 
a4, Te 

GARRISON v. JOHNSTON : 1011 
Cite as 151 F.2d 1011 

. Petition by J. McAllister Stevenson 
against Frances Fisk to have defendant 

declared a bankrupt and to establish a 
claim provable in bankruptcy. From a 
judgment dismissing the complaint, peti- 
tioner appeals. : 

© Affirmed. 

~ John Sayles and J. McAllister Steven- 
son, both of Abilene, Tex., for appellant. 

= W. E. Lessing, of Abilene, Tex., for ap- 
15 pellee. 

Before SIBLEY, McCORD, and WAL- 
LER, Circuit Judges. 

McCORD, Circuit Judge. 

J. McAllister Stevenson seeks by peti- 
tion to have Frances Fisk declared a bank- 

i rupt and to establish a claim against her 
. provable in bankruptcy. After charging 

© the required allegations to meet the Bank- 
fuptcy Act, 11 USCA, § 1 et seq, the 

| petition further alleges: “Judgment recov- 
tered December 18, 1935, against Record 
Publishing Company, a corporation, in the 

amount of $5,680.61, for the payment of 
i which G. Fisk, the late husband of re- 
.  spondent, Frances Fisk, became personally 

liable by reason of non-payment of a great- 
er amount due said corporation for sub- 
scription to its capital stock when, on 
September 13th, 1939, return was made up- 
on execution issued under said judgment 
showing no property of said corporation 
to be found subject to execution, and for 
the payment of which respondent, Frances 

- Fisk, became personally liable when, after 
the death of said G. Fisk, on December 

29th 1940, and prior to January 16th, 1941, 
she the said respondent, assumed the pay- 

ment of all debts of the community es- 
tate of herself and her deceased husband.” 

Over one year after the filing of the 
petition, and motion to dismiss, the court 

passed upon and entered a decree, of which 
the important part for decision here is: 
“On this the 18 day of October, 1944, 
came on to be heard the motion of re- 
spondent, Frances Fisk, praying that this 

cause be dismissed for failure to show 

any debt due by this respondent to the 
petitioner, J. McAllister Stevenson, prov- 

able in bankruptcy, and the Court having 
heard said motion and the evidence there- 

on, is of the opinion that the same is well 
taken and should be sustained. * * *? 

[1] No objection or exception is shown 
to the taking of evidence in support of 

the motion and no evidence is set out in 

the record. We are, therefore, authorized 
to indulge the presumption that such evi- 
dence was in support of the judgment to 
dismiss and is in all respects correct. Lo- 
cals Nos. 1470, 1469, and No. 1512 of In- 

ternational Longshoremen’s Association v. 

Southern Pac. Co., 5 Cir., 131 F.2d 605. 

Furthermore, it appears that the plaintiff 
has wholly failed to comply with Rule 
75(d), 28 U.S.C.A. following Section 723c. 

[2] The brief of appellant shows that 
the judgment here under consideration and 
which was the subject of Stevenson’s peti- 
tion, was finally held to be erroneous and 
of no effect by the Court of Appeals of 
Texas. That court reversed and rendered 
the judgment which petitioner had obtained 
and directed a verdict to be entered for 
Frances Fisk, and the Supreme Court 
thereafter denied application for certiorari. 
Fisk v. Stevenson, Tex.Civ.App., 179 S.W. 
2d 432. 

It becomes manifest that the reversal 
of this case would work no benefit to the 
plaintiff. 

Affirmed. 

Oo KEY NUMBER SYSTEM £3 

GARRISON v. JOHNSTON, Warden. 

No. 11104. 

Circuit Court of Appeals Nin 

Nov. 20, 

I. Haheas corpus €=120 

Although doctrine of res judicata does 
not apply to judgment refusing to dis- 
charge a prisoner on habeas corpus, each 
petition must be disposed of in exercise of 
sound judicial discretion guided by what- 
ever has a rational bearing on propriety 
of discharge sought, and one of matters 
which may be given controlling weight is 
a prior refusal to discharge on a like pe- 
tition. 

2. Habeas corpus &=120 

A petition for discharge in habeas 
corpus which was filed after a judgment 
which refused a discharge on a similar 
petition was addressed to sound judicial 
discretion of court, in exercise of which 

court could give controlling weight to the 
prior judgment, notwithstanding Isubse- 
quent petition stated some matters which   

            

 



  

  

  

1012 151 FEDERAL REPORTER, 2d SERIES 

prior petition did not, where’ such matters 

, were known to pedtdoner when he filed 
prior petition, : 

‘Appeal : from the District Court of the 
United States for the Northern District 

of California, Southern Division; Michael 

J. Roche, Judge. 

Habeas corpus proceeding by Orville C. 
Garrison against James A. Johnston, War- 
den, United States Penitentiary, Alcatraz, 

Cal. From a judgment denying the peti- 

tion, the petitioner appeals. 

Affirmed. 

Orville C. Garrison, in pro. per. 

Frank J. Hennessy, U. S. Atty., and Jo- 
seph Karesh, Asst. U. S. Atty, both of 
San Francisco, Cal., for appellee. 

Before GARRECHT, MATHEWS, and 
ORR, Circuit Judges. 

MATHEWS, Circuit Judge. 

In the District Court of the United 
States Tor the Western District of Mis- 
souri, hereafter called the Missouri court, 
appellant and others were indicted for vio- 
lating § o83b of litle 12 U.S.C.A. The 
indictment was in two counts. Count 1 was 
based on subsection (a) of § 588b. Count 
2 was based on subsections (a) and (b) of 
§ 588b. Appellant was arraigned, pleaded 
not guilty and was tried and found guilty 
on both counts. Thereupon, on Novem- 
ber 13, 1937, judgment was entered sen- 
tencing appellant to be imprisoned for 20 
pe on count 1 and for 25 years on count 

: the sentences to run consecutively. 

From that judgment an appeal was taken, 
but was not prosecuted.r 

Appellant’s codefendants were James 
Harris, George Karatasos, William Newell, 

Charlie Norvel Arthur and Paul M. Hew- 
itt. Harris, Karatasos, Newell and Arthur 
pleaded guilty and were sentenced on both 
counts. Hewitt pleaded not guilty, was 
tried and found guilty, was sentenced on 

both counts and took an appeal. On 
March™5, 1940, the Circuit Court of Ap- 
peals Tendered a decision holding that 
counts “T"afid 2 charged a single offense, 
vacating TIewitt s sentence on count 1 and 
affirming his sentence on count 22 Cer. 
tiorari to review that decision was denied 

on May 27, 1940.8 Thereafter appellant 
and Harris moved the Missouri Court to 
vacate their sentences on count 1 and pe- 

titioned the Circuit Court or Appeals for 

a writ of mandamus to compel a judge of 

the Missouri court to grant the motion. 

On January 18, 1941, the Circuit Court of 

Appeals mn a gv holding that 

the motion should be granted. According- 
ly, on January 30, 1941, appellant’s sentence 
on count 1 was vacated. His sentence on 
count 2 was not disturbed. 

The United States penitentiary at Tow 
enworth, Kansas, was designated as the 

place where appellant’s sentences should 

be served. On or about January 5, 1938, 
appellant was transferred from that peni- 
tentiary to the United States penitentiary 
at Alcatraz, California, where he ever 

since has been and is now confined. _On_ 

September 26, 1938—before his sentence on 
count 1 was vacated—appellant petitioned 
the District Court of the United States 
for the Northern District of California, 
hereafter called the California court, for 
a writ of habeas corpus directed to appel- 

lee, warden of the penitentiary at -Al- 
catraz. The proceeding thus commenced 
was No. 22,802. In_that proceeding, ap- 
pellee was ordered to show cause why a 
WTIt Of habeas corpus should not be issued. 
In response thereto, appellee filed a return; 
which appellant did or TrIVerSE.._ On Oc- 
tober 26, 1043, judgment was entered deny- 
ing the=petitior-—FHat judgment was, ai- 
firmed on May 29, 1939.5 Certiorari to re- 
view its affirmance was denied on October 
9, 1939.86 

On April % 1941—after his sentence ofl 

count 1 was ne a again pe- 
titioned the ‘Califorpia court for a writ 

of habeas corpus directed to appellee. 
  

1 The appeal was docketed and dismissed 

on February 25, 1938. Garrison v. Unit- 

ed States, 8 Cir., 97 F.2d 1002. 

2 Hewitt v. United States, 8 Cir., 110 F. 

2d 1. Cf. Dimenza v. Johnston, 9 Cir, 

130 F.2d 465; Coy v. Johnston, 9 Cir., 136 

F.2d 818; Wilson v. United States, 9 

Cir., 145 F.2d 734; Barkdoll v. United 

. States, 9 Cir., 137 F.2d 617; Minntole v. 
Johnston, 9 Cir., 147 F.2d 944. 

3 Hewitt v. United States, 310 U.S. 641, 
60 S.Ct. 1089, 84 L.Ed. 1409. ; 

4 Garrison v. Reeves, 8 Cir., 116 2g 
978. 

5 daprison v. Johnston, 9 Cir., 104 F.2d 
128, 

6 Garrison v. Johnston, 308 U.S. 553, 60 
S.Ct. 107, 84 L.Ed. 465. 

  

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    ircuit Court of Ap- 

ision holding that 
ed a single offense, 
ence on count 1 ang 
on count 22 - Cer. 
decision was denied 
[hereafter appellant 

Missouri court to 
on count 1 and pe- 
urt of Appeals for 

p compel a judge of 
grant the motion, 

he Circuit Court of 
:cision holding that 
anted.* According- 
appellant’s sentence 

d. His sentence on 
ed. 

enitentiary at Leav- 

designated as the 

s sentences should 

ut January 5, 1938, 
ed from that peni- 
States penitentiary 

a, where he ever 

now confined. On 

fore his sentence on 

appellant petitioned 

the United States 
rict of California, 

lifornia court, for 

5 directed to appel- 
enitentiary at -Al- 
g thus commenced 
1at proceeding, ap- 
show cause why a 
10uld not be issued. 

ellee filed a return, 

traverse. On Oc- 
was entered deny- 

judgment was af- 
3 (Certiorari to re- 

denied on October 

    

    

   

        

   
   

    

  

   

  

   

        

   
   

   

  

   

  

   

  

   
   

   

      

   

   
   

      

   

er his sentence on 

ppellant again pe- 
court for a writ 

.cted to appellee. 
  

tes, 310 U.S. 641, “i 
409. ol 

8 Cir., 116 F.2d 

9 Cir, 104 F.2d 

308 U.S. 553, 60 
] 

hk ‘an appeal, 99 On’ 

    

The proceeding thus commenced was No. 

23.450. In that proceeding, a writ of ha- 

BE beas corpus was issued, appellant was pro- 

~~ duced, a hearing was had, and on April 

9, 1942, judgment was entered discharging 

© the writ and remanding appellant to ap- 

pellee’s custody. From that judgment a 

appeal was taken, but was not prosecuted.’ 

@ Dn February 6, 1045, appellant again pe- 

2. Es court for a writ of 

habeas corpus directed to appellee. he 

  

proceeding thus commenced was No. 24,- 

3 334. In that proceeding, appellee was or- 

. dered to show cause why a writ of habeas 

corpus should not be issued. In response 

thereto, appellee filed a return. In that 

return, the record in No. 23,450 was incor- 

porated by reference. The court concluded 

that, in view of the Ly in No. 23,450, 

"the petition in No. should be denied. 

Accordingly, on April 25, 1045, Judgment 

was entered denying the petition in No. 

24334. From that judgment this appeal 

is prosecuted. 

As indicated above, the California court, 

n considering and denying the petition in 

No. 24,334, considered and gave controlling 

eight to the judgment in No. 23,450. Ap- 

pellant contends that this Was error. ‘The 

contention 1s rejected Ior the 1oliowing 

asons: 

[1] Although the doctrine of res judi- 

  

     
     

  

#. cata does fo a judg rerusing 

to discharge a prisoner on habeas corpus, 

GARRISON v. 
Cite as 151 F.2d 1011 

it does not follow that a refusal to dis® 

charge on one petition is without bearing 

  

   

  

       

     
     

      
    

       

       

      
   

        

      

      

      
      
      

      
   

    

  

      

       
       

JOHNSTON 1013 

or weight when a later petition is being 
considered® Each petition is to be dis- 
posed of in the exercise of a sound judicial 
discretion guided and controlled by what- 
ever has a rational bearing on the propriety 
of the discharge sought? - One of the mat- 
ters which may be considered and given 
controlling weight is a prior refusal to dis- 
charge on a like petition.1? 

[2] By the petition in No. 23,450, ap- 
pellant, a prisoner, sought discharge from 
appellee’s custody. By the judgment in No. 
23,450, such discharge was refused. By 

the petition in No. 24,334, appellant again 
sought such discharge. Hence the petition 
in No. 24,334 was addressed to the sound 

judicial discretion of the court, and in 
the exercise of that discretion, the court 

could, as it did, consider and give con- 
trolling weight to the judgment in No. 
23,450.11 

It 4s true that the petition in No. 24,334 
stated some matters Which the petition in 
No. 23.450 did not. Obviously, however, 
these matters (it true) wer 1- 

lant when ne filed the petition in No. 23,450. 

If APPeITant intended to rely on these mat- 
ters, he should have urged them in No. 23,- 
450.12 To reserve them for use in a later 
proceeding “was to make an abusive use of 
the writ of habeas corpus.”13 

. Judgment affirmed. 

  

  

7 A petition for leave to prosecute the 

appeal in forma pauperis was denied by 

the California court on April 29, 1942. A 

similar petition was denied by this court 

‘on June 22, 1942. Garrison v. Johnston, 

9 Cir., 129 F.2d 318. 

8 Salinger v. Loisel, 265 U.S. 224, 44 S. 

Ct. 519, 68 L.Ed. 989; Wong Doo v. Unit- 

ed States, 265 U.S. 239, 44 S.Ct. 524, 68 

L.Ed. 999; Sander v. Johnston, 9 Cir, 

11 F.2d 509; Pagett v. McCauley, 9 Cir,, 

95 In.2d 839; Rolfe v. Lloyd, 9 Cir., 102 

F.2d 606; Swihart v. Johnston, 9 Cir, 

1560.77.24 721. 

9 See cases cited in footnote 8. 

10 See cases cited in footnote 8. 

11 See cases cited in footnote 8. 

12 Wong Doo v. United States, supra; 

Swihart v. Johnston, supra. 

13 See cases cited in footnote 12. 

    

e
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“friend”, - 

ks would * 
perfectly 
€ instant 

ts in that 
analogy 

r funda. 
In gen- ° 
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commis- 
decision. 

le state- 

reading, 
ntrolling 

proper- 
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sociate 

SWIHART v. JOHNSTON 
; ; Cite as 150 F.2d 721 

' SWIHART v. JOHNSTON, Warden. 
No. 109609. 

Circuit Court of Appeals, Ninth Circuit. 

Aug. 6, 1945. 

Rehearing Denied Sept. 17, 1945, 

i. Habeas corpus e120 A 

The doctrine of res judicata does not 
apply to a judgment refusing to discharge 

a prisoner on habeas corpus, but a refusal 

to discharge on one petition may appropri- 
"ately be considered in a hearing on a second 
petition and may be ‘given controlling 
weight on second petition. 

~ 2. Haheas corpus €&=7 

Each petition for habeas corpus is to 

be disposed of in exercise of a sound judi- 
cial discretion, controlled by whatever has: 
a rational bearing on the propriety of the 
discharge sought. 

3. Habeas corpus ¢&=120 

Where petitioner’s first petition for ha- 
beas corpus to secure discharge from im- 
prisonment alleged that petitioner’s deten- 
tion was unlawful because judgment under 

which he was detained was void and such 
petition was denied, second petition for 

same relief based on same ground was ad- 
dressed to sound judicial discretion of 
court and, in exercise of that discretion, 
court properly gave controlling weight to 
judgment on first Petition. 

4, Habeas corpus e=120 

- Matters known to petitioner for writ 

of habeas corpus at time of the filing of his 
original petition and which were relied 
upon by him to secure release from impris- 

onment under subsequent petition should 

have been urged in original petition rather 
than reserved for later use. 

5. Haheas corpus e=74 

Where court in habeas corpus proceed- 
ing directed respondent to show cause why 

a writ of habeas corpus should not be is- 

sued and respondent made such a showing, 
petitioner could not complain that showing 

was labelled a “motion to dismiss” instead 
of “return”. 

eme———— : 

Appeal from the District Court of the 
United States for the Northern District of 

California, Southern Division; Louis E. 

Goodman, Judge. 

150 F.2d—46 

Habeas corpus proceedings by Ralph 
Swihart against James A. Johnston, War- 
den, United States Penitentiary, Alcatraz, 
Cal. From a judgment denying and dis- 
ising the petition, petitioner 2ppeals 

Affirmed. 

Ralph Swihart, of Alcatraz Yefand Cal, 
in pro. per. 

Frank J. Hennessy, u. S. Sy and Jo- 

seph Karesh, Asst. U. S. Atty., both of San 
Francisco, Cal., for appellee. 

Before GARRECHT, MATHEWS, and 
STEPHENS, Circuit Judges. 

MATHEWS, Circuit Judge. 
In the District Court of the United States 

_ for the Eastern District of Oklahoma, here- 

after called the Oklahoma court, appellant 

was indicted for violating section 1 of the 
Act or February 1371913 ¢ 30, 37 Stat. 

, as amended Dy | ct of January 21, 
1933, c. 16, 47 Stat. 773, 18 U.S.C.A. § 409. 
The indictment was in two counts. Appel- 
lant was arraigned, pleaded not guilty 
and was tried and found guilt 
counts. Thereupon, on March 13, 1940, the 

Oklahoma court entered a judgment, here- 

  

after called the Oklahoma judgment, sen- 

tencing ce JE LAs 
years _omn each count, the sentences to run 

consecutively. e United States peniten- 
SEIT Toavenworth, Kansas, was desig- 
nated as the place where appellant’s sen- 

tences should be served. There appellant 

was confined until October 27, 1942, when 

he was transferred to the United States 
penitentiary at Alcatraz, California, where 
he ever since has been and is now confined. 

On December 16, 1943, appellant peti- 
tione istrict Cour nited 

Ed TINA gts fo 
nia, hereatter called the California court, 
5%, writ of habeas corpus directed to ap- 
pellee, warden of the United States peni- 
tentiary at Alcatraz. The proceeding thus 
commenced was No. 23016—R on the dock- 
et of the California court. In that pro- 
ceeding, the court ordered appellee to show 
cause why a writ of habeas corpus should 
not be issued. In response thereto, appellee 

filed a return which showed or purported to 
show such cause. The court nevertheless 
issued a writ of habeas corpus. Appellee 
filed a return thereto and prodficed a - 

lant in court. A hearing "was had, and 

on May £, 1744, the court entered a judg- 

ment dismissing the writ and remanding 
appellant to appellee’s custody. From that 

  

  

  

o
p
 

  

    

S
A
Y
 

R
e
 

a
v
o
 

ry 

  

      

                                  
  

              
           



  
                

    
  

    
    

  

722 150 FEDERAL REPORTER, 2d SERIES 

judgment no appeal was taken. The time 
within which such an appeal might have 
been taken expired on August 2, 1944.1 

On August 23, 1944, appellant again peti- 
tionied_ the California court ior a writ of 
habeas corpus directed to appellee. The 
proceeding thus commenced was No. 23604 
—G on the docket of the California court. 

In that proceeding, the court ordered ap- 
pellee to show cause why a writ of habeas 
corpus should not be issued. In response 
thereto, appellee filed a motion to dismiss 
the petition. The motion stated that the 
reading of this petition [in No. 23604—G] 
in conjunction with the record in * * * 

No. 23016—R indicates that there is no 
merit therein, and that the same is insuffi- 

cient to justify the issuance of a writ of 
habeas corpus.” The court considered the 

petition in No. 23604—G, together with the 
record (including the judgment) in No. 
23016—R, and concluded that, in view of 
the judgment in No. 23016—R, the petition 
in No. 23604—G should be denied and dis- 
missed. A judgment to that effect was en- 

tered on October 3, 1944. From that judg- 
ment this appeal was taken. 

As indicated above, the California court, 

in considering, denying and dismissing the 
petition in No. 23604—G, considered and 
gave controlling weight to the judgment in 
No. 23016—R. Appellant contends that 
this was error. The contention is rejected 
f8T the following reasons: 

[1,2] Although the doctrine of res ju- 
dicata does not apply to a judgment refus- 
ing to discharge a prisoner on habeas cor- 
pus, it does not follow that a refusal to dis- 
charge on one petition is without bearing 
or weight when a later petition is being 
considered.* Each petition is to be dis- 
posed of in the exercise of a sound judicial 

* discretion guided and controlled by what- 
ever has a rational bearing on the propri- 

ety of the discharge sought.3 One of the 
gmatters which may be considered ang giv 3 
‘controlling weight is a prior refusal odin 
charge on a like petition4 ~~ ooo 

[3] By the petition in No. 23016— 
pellant, a prisoner, sought discharge 
appellee’s custody. By the judgment in No 
23016—R, such discharge was refused, By 

R, ap- 

the petition in No. 23604—G, appellant 
again sought such discharge. Hence ‘the 
petition in No. 23604—G was addressed to | 
the sound judicial discretion of the court, 
and in the exercise of that discretion, the 
court could, as it did, consider and give 5 
controlling weight to the judgment in No. 
23016—R.5 : 

Appellant says that the issues raised in 
No.” Z30T6—R HordTro=SHiarIy To the is. « | 
sues raised in" No. 23000 —Gr. Appellant is 
mistaken. The petition in No. 23070—n 
and the petition in No. 23604—G sought 
the same relief—appellant’s discharge from 
appellee’s custody. Both petitions sought 
such relief on the ground that appellant's 
detention in appellee’s custody was unlaw- 
ful. Both stated, in substance and effect, 
that such detention was unlawful because 
the Oklahoma judgment—the judgment un- 
der which appellant was detained in appel- 
lee’s custody—was void,® and both stated 
why that judgment was void, or was claim- 
ed by appellant to be void. 

Both petitions stated, in substance and 
effect, that the Oklahoma judgment result- } AV 
ed from a trial by. ihe. Oklahoma court. 
without a jury. The petition in No. 23016 
ZR stated that jury trial was waived by 
appellant. The petition in No. 23604—G - 
did not expressly so state, but there was at- 

tached to that petition, as Exhibit B there- 

of, a certified copy of the docket entries 
in the Oklahoma case, which showed that 

Jury trial was waived by appellant.” Both 
petitions made statements the obvious pur-, 

  

1 See § 8(e) of the Act of February 13, 

1925, ce. 229, 43 Stat, 940, 28 UKS.C.A. 

§ 230. 

2 Salinger v. Loisel, 265 U.S. 224, 44 

S.Ct. 519, 68S L.Ed. 989; Wong Doo v. 

United States, 265 U.S. 239, 44 S.Ct. 524, 

68 L.Ed. 999; Sander v. Johnston, 9 Cir., 

11 F.2d 509; Pagett v. McCauley, 9 Cir., 

95 F.2d S39; Rolfe v. Lloyd, 9 Cir., 102 

F.2d 606; Slaughter v. Wright, 4 Cir., 

135 F.2d 613; Pope v. Huff, App.D.C., 
141 F.2d 727; Rookard v. Huff, App.D.C., 

145 F.2d 708; Ex parte Cuddy, C.C.S.D. 

Cal, 40 BF. 62 (cited with approval in 

Salinger v. Loisel, supra); United States 

v. Johnston, D.C.S.D.Cal.,, 58 F.Supp. 

208 (affirmed in 9 Cir., 146 F.2d 26S). 

© 3 See cases cited in footnote 2. 

4 See cases cited in footnote 2. 

5 See cases cited in footnote 2. 
6 The petition in No. 23016-R express- 

ly stated that the Oklahoma judgment 
was void. The petition in No. 23604-G 
stated that the Oklahoma judgment was 
“without force or effect in law,” thus, 
in effect, stating that it was void. 

70n March 13, 1940, there were four 

docket entries. The first read as follows: 
“Mar. 13—Order said cause proceed to 
trial before the court the deft having 

from 

— 

MAAR 

  

= has agre 
are conv: 

SR KYour 

ment, ag 
was callc 

trial.” 

The pt 

240 M 

er, Willi 

tempts t 
to trial 

ferred a 
petitionc 

© agreemc 
and pro: 

titioner, 
to trial 

done in 

“Whe 

after tl 
petition 

by jude 

before ! 

out a J 
The H 

said D: 

did no! 
petitio: 
afores: 

fend 1 

“Pet 

of the 

cernin: 

he adv 
to, no: 

the di 

Tht 

ity of 

wali  



ne of the. 

and given 
sal to dis- 

p16—R, ap- 
arge from ° 

ent in No. 

fused. By 
appellant 

Hence the 

dressed to 

the court, 
retion, the 

- and give 
ent in No. 

s raised in 
to the is- 

ppellant is 

23016—R 

—G sought 

harge from 

ons sought 

appellant’s 
as unlaw- 

and effect, 

ful because 

dgment un- 
d in appel- 

both stated 
was claim- 

stance and 
nent result- 

oma court 

h No. 23016 

waived by 

23604—G 

here was at- 

it B there- 

ket entries 

Lhowed that 
ant.” Both 

\bvious pur-. . 

> F.Supp. 

2d 268). 
u 

D 

D 
<o 

> 
v express- 

judgment 

. 23604-G 

ment was 
Tw,” thus, 

void. 
were four 

1s follows: 

yroceed to 

sft having 

WEST v. COMMISSIONER OF INTERNAL REVENUE 728 
: Cite as 150 F.2d 723 : 

that the waiver 
was invalid and ineffective. The petition 
il INO. state a 

- “On March 13, 1940, your petitioner [ap- 

pellant] went into the [Oklahoma court], 
Judge Alfred P. Murrah presiding, and was 
thereupon met by counsel W. P. Gullatt,8 
who advised me [appellant] as following: 

“‘I [Gullatt] had a talk with the Judge 
and District Attorney,? they both agree that 
if you [appellant] will waive a jury trial 
and take your chances before the Judge, he 
has agreed to give you probation if you 
are convicted. I advise you to do that.’ 

“Your petitioner, against his better judg- 
ment, agreed to do this, and accordingly 
was called to the bench and waived jury 
trial.” : 

The petition in No. 23604—G stated: 

“On March 13, 1940, counsel for petition- 

er, William P. Gullatt, after repeated at- 
tempts to induce petitioner to sign a waiver 
to trial by jury had failed, * * * con- 
ferred and agreed with the court to waive 
petitioner’s right to trial by jury. Such an 
agreement was made betwixt the court 
and prosecuting officials, by counsel for pe- 
titioner, to waive his constitutional right 
to trial by jury, and positively was not 
done in the presence of petitioner. 

“When petitioner was returned to court 

after the noon recess,!® counsel informed 
petitioner of this arrangement, as to trial 
by judge. Petitioner vigorously protested 
before the court of proceeding to trial with- 
out a jury, in words of a common layman. 
The Honorable Alfred P. Murrah, afore- 

said District Judge, told petitioner that he 
did not have any malice against him; still 

petitioner protested and was sternly told by 

aforesaid judge that he had counsel to de- 
fend him, and to sit down. 

“Petitioner was not advised by the court 
of the arrangements made by counsel con- 
cerning the waiver of trial by jury, or was 
he advised of his constitutional right there- 
to, nor of the consequences contingent upon 
the dispensation of that right.” 

homa case, thereby challenging the Sates 
of the Oklahoma judgment and the legality 
of appellant’s detention in appellee's cus- 

tody. 

[4] It is Ir thot the petition in No. 
23604—C stated some matters which the 
petition iff No. 29016—R did not. Obvious- 

ellant when the pe- 
tffion in No. 23016—R.11 If appellant in- 
tended to rely on these matters, he should 
have urged them in No. 23016—R.12 To 
reserve them for use in a later proceeding 
“was to make an abusive use of the writ 
of habeas corpus.”!3 

[5] Appellant says that appellee was 
ordered to make a return to the order to 
show cause and hence should not have been 
permitted to file a motion to dismiss the 
petition in No. 23604—G. Appellee was 
not ordered to make a return. He was or- 
dered to, and did, show cause why a writ 

‘of habeas corpus should not be issued. 
That the showing was entitled “motion to 
dismiss,” instead of “return,” is immaterial. 

Judgment affirmed. 

w 
[) : KEY NUMBER SYSTEM 

T 

WEST v. COMMISSIONER OF INTER- 

NAL REVENUE (three cases). 

WEST'S ESTATE et al. v. SAME. 

Nos. 11178-11181. 

“Cirauis Court of Appeals, Fifth Circuit. 

July 24, 1945. 

Rehearing Denied Sept. 18, 1945, 

I. Mines and minerals €&=55(1) 

In Texas, the surface of realty may be 
Thus both petitions challenged the valid- severed and held SSprralely Arom the tide 

ity of the waiver of jury trial in the Okla- to the minerals. 
  

waived in open court his constitutional 

right to trial by a jury and being repre- 

sented by counsel Mr. William P. Gul- 

late,” 

8 Counsel for appellant. 

9 Judge Alfred P. Murrah and the Unit- 

ed States Attorney for the Eastern Dis- 

trict of Oklahoma. 

10 On March 13, 1940. 

11 Cf. Wong Doo v. United States, su- 

pra; Pope v. Huff, supra; Ex parte 

Cuddy, supra. 

12 See cases cited in footnote 11. 

13 Wong Doo v. United States, supra.   

  

  

                        
  

        
  

           



   

  

   

    

    

   

    
   
   

   
   

      

   

        

   

    

    
     

    

   89,676, the PRICE v. JOHNSTON.       

  

   
   

    
    

    

  

    

    

    

    

   

  

   

   

    

    

          

F 1943. 'He No. 11334. this money : 
,'and that Circuit Court of Appeals, {Ninth Circuit. 
Hed by him- = 

May 5, 1947. 

ittorney,'F. © Writ of Certiorari Granted June 23, 1047. 
th a bundle fon See 67 S.Ct. 1757. 
0 which he 1. Habeas corpus €&=120 ; 
C. saying, Court has discretionary power to deny ansaction.” Lk habeas corpus petition because of an abu- 

for Florida sive use of privilege of the writ through 
of Fred, in the filing of successive petitions presenting 
you would seriatim grounds at all times within knowl- 
0.” A.C. edge of applicant. 28 U.S.C.A. § 461. 

meetings, 2. Habeas corpus €=59 
erament all Under statute commanding court to 

make such disposition of habeas corpus 
question as 

    

   

  

    
   

     

  

   
   

    

    

     

   

   

  

   
   

  

   

  

   

  

appellants - tioner is entitled to an opportunity to prove 
1 plea was his claim of unlawful imprisonment, but 
0 the Dis- good faith requires that he make fair use of 
the ground the opportunity afforded. 28 U.S.C.A. § 
prove will- 461. 

art of the 3. Haheas corpus ¢=120 
it of taxes. Where there have been repeated peti- 
dered this tions for habeas corpus with apparent hus- 
established banding of grounds, the onus may properly 
F. A. was be cast on the petitioner of satisfying court 

error in that an abusive use is not being made of the 
writ. 28 U.S.C.A. § 461. 
4. Habeas corpus €=59, 90 

. Even if there has been a multiplicity 

ttention to 

bmitted by 

ther effect 

¢ the com- of habeas corpus petitions, grounds newly 
the com- asserted and seemingly valid must be in- 

75 interest. quired into if circumstances appear or are 
signed the fairly shown to excuse prior failure to as- 
ld not be sert them, but even in absence of such a 
have some : showing, court may issue writ and proceed 
pt signing to inquire if in a particular case it is 
Fraudulent. thought that ends of justice dictate that 
to ‘A.C, course. 28 U.S.C.A. § 461. 
ithdrawals 5. Habeas corpus &=120 
nded that - Where fourth petition for writ of ha- 
who pro- beas corpus presented a wholly new ground 
described — for discharge in that government allegedly 

knowingly employed false testimony on 
trial to obtain convictions under statutes 

on.” 5 The 

kd A. Cs 

oar nis relating to bank robbery and assault and 
ird of © kidnapping incidental thereto, but petitioner 
finding as apparently knew as much about alleged mis- ed States, conduct at time thereof as at time of filing 

  

LE . 2 PRICE v. JOHNSTON ty 705 
Cite as 161 F.2d 705 

petitions as law and justice require, a peti- 

petition and no reason or excuse was at- 
tempted to be advanced for failure to set 
it up in prior petitions, dismissal of fourth 
petition without hearing was not an abuse 
of discretion. 12 U.S.C.A. §§ 588b(a,b), 

> 588¢; 23 U.S.CA. $461. i 

DENMAN .and STEPHENS, Circuit 
Judges, dissenting. : 

: : 

Appeal from the District Court of the 
United States for the Northern District of 
California, Southern Division; Michael J. 
Roche, Judge. ; 

Habeas corpus proceeding by Homer C. 
Price against James A. Johnston, Warden, 

United States Penitentiary, Alcatraz, Cali- 
fornia. From a judgment denying the peti- 

tion, the petitioner appeals. 

Affirmed. 

Homer C. Price, of Alcatraz, Cal., in pro 
per., for appellant. 

Frank J. Hennessy, U. S. Atty., and Jo- 
seph Karesh, Asst. U. S. Atty., both of San 
Francisco, Cal, for appellee. - 

‘Before GARRECHT, DENMAN, 
MATHEWS, STEPHENS, HEALY, 
BONE, and ORR, Circuit Judges. 

HEALY, Circuit Judge. 

[1] This appeal challenges the discre- 
tionary power of the court to deny a habeas 

corpus petition because of an abusive use of 
t rivilege o e_writ through the filing 
of successive petitions presenting seriatim 

grounds at all times within the knowledge 
of the applicant. Panels of this court have 

—— 

repeatedly affirmed the existence of such 
authority,X but in view of the importance of 

the question and the possible bearing upon 
it of recent Supreme Court decisions the 

appeal has been set down for hearing be- 
fore the full bench. 

Appellant is serving a sentence of 65 
years on a general verdiCt oI guilty r 

an 1ndictmen ging violations of 12 

U.S.C.A: §§ 588b(a) and (b) and 588c, re- 
lating to bank robbery and assault and kid- 

I ——————__ 

  

  

  

  

  

1 Swihart v. Johnston, 9 Cir., 150 F.2d 

721; Garrison v. Johnston, 9 Cir., 151 
F.2d 1011; Wilson v. Johnston, 9 Cir. 

161 F.2d—45 

154 F.2d 111, cert. den. 328 U.S. 872, 
66 S.Ct. 1366, 90 L.Ed. 1642. 

En banc 

  

    
  

            
     

      
        

      
    

  

       

  

       

         

         

       

    

   
        

  

     

    
      

      

     
   

    
         

  

       

  

        

     
        

       

  

     

  

   
      
       

        
       
        

         

     
       

    

    

    
     

      

     

     

  

     

  

   

  

  
          

     
       
        

  

                   



  
      

          

    
  

  

  

F
A
T
E
 

h
i
a
,
 

o
P
 

E
S
A
           

3 

706 161 FEDERAL REPORTER, 2d SERIES 

napping incidental thereto. The present is 

his Tourth petition for the writ, all of them 
having been presented to the United States 
district court for the northern district of 

California.? On appeal from the first re- 
fusal to discharge we affirmed the judg- 

ment, Price v. Johnston, 125 F.2d 806, cer- 

tiorari denied 316 U.S. 677, 62 S.Ct. 1106, 
86 L.Ed. 1750 and a like result was reached 
on appeal in the second proceeding, Price 

v. Johnston, 9 Cir., 144 F.2d 260. No appeal 
was taken from the denial of the third peti- 

tion. 

The instant petition, as originally filed, 

raised questions concerning the validity of 
the sentence and the giving of an instruc- 
tion commenting on evidence of the com- 

mission of a collateral offense. Substantial- 

ly the same questions, among others, had 

heen raised in the district court in the pro- 

ceeding on the second application? Ac- 

cordingly, if this were all, the judgment of 

dismissal would appropriately be subject to 
affirmance on the basis of the court’s re- 

fusal to discharge in the second proceeding. 

Ex Parte Hawk, 321 U. S. 114, 118, 64 

S.Ct. 448, 83 L.Ed. 572; Salinger v. Loisel, 

265 U.S. 224, 230-232, 44 S.Ct. 519, 68 L.Ed. 

989 4” However, by way of amendment to 

his petition the appellant interposed a 
wholly new ground for discharge, gamsly, 

“that the government knowingly employed 
false testimony on the trial, to obtain con- 

viction.” ‘The specific circumstances of this 
claim are not further developed in the peti- 

tion er in the traverse to the warden’s re. 

turn,’ but in his brief here the appellant has _ 

enlarged upon the point by stating that the 
United States attorney, in the course of the | 
trial, “did take the one and only witness, 

Donner, that testified that there had been a 
crime committed, from the witness stand 

after he had testified that he could not see 

any guns or pistols during the robbery, to 

the district attorney’s office, and talked 

about the evidence and put the witness Pon- 

i 

ner back on the witness stand to testify that i 
i 

he did see the pistols, and described them, 

wheiPhe could not do so at first.” Since® 
the general allegation may be supported by 
specific proof we treat this statement as 

though it had been incorporated in the peti- 
tion, Hawk v. Olson, 326 U.S. 271, 273, 66 

S.Ct. 116. So construing the petition, it re- 
mains to determine whether the court erred 

in refusing to inquire into the claim of the 
knowing employment of false testimony. 

Cf. Mooney v. Holohan, 294 U.S. 103, 112, 

55 S.Ct. 340, 79 L.Ed. 791, 93 A.L.R. 406 
The _court’s refusal to inquire was con- 

cededly predicated on our holding in Swi- 
hart v. Johnston, supra [note 1], and cases 

therein cited. 

The records in these several proceedings 

disclose that throughout his trial appellant 
was represented by counsel of his own 

choosing. And since he was himself pres- 

ent at all times he could hardly have been 
unaware of the described incident or of its 

implications, nor does he make any such 
  

2 The first petition was filed in June, 

1940, the second in September, 1942, 

. and the third in August, 1945. 

3 These points appear not to have been 

pressed on the appeal in that proceed- 

ing, and they are patently without merit. 

4 In Salinger v. Loisel, after noting 

* that the common law doctrine of res 

judicata does not extend to a decision 

on habeas corpus refusing to discharge 

a prisoner, the Court said that a prior 

refusal is not without bearing or weight 

when a later application is being consid- 

ered. “In early times,” said the Court, 

“when a refusal to discharge was not 

open to appellate review, courts and 

judges were accustomed to exercise an 

independent judgment on each successive 

application, regardless of the number. 

But when a right to an appellate review 

was given, the reason for that practice 

ceased, and the practice came to be ma- 

terially changed * * % 265 U.S. pp 
230-231, 44 S.Ct. 521. In the Salinger 

case there had been a prior refusal to 

discharge by a court of coordinate juris- 

diction and an affirmance of the judg- 
ment by the circuit court of appeals. 
The Supreme Court remarked that had 

the district court disposed of the imme- 

diate application on that ground “its dis- 

cretion would have been well exercised, 

and we should sustain its action, with-~ 

out saying more.” 263 U.S. p. 232, 44 
8.Cu. 522. : fen 

5 The court below issued an order to 

show cause upon the filing of the peti- 

tion, and after the warden had made his 

return setting up the earlier proceedings, 

the petitioner filed a traverse. The court 

thereupon, without having issued the 

writ, discharged the show cause order 

and dismissed the petition. 

: 

= i 8 

  

  

parent he 

conduct at ! 
curred as he 

excuse 1s at 

‘failure to se 

prior petitic 

“The deci 
holding tha 

amounts to 

nounced no 

those which 

the authort 

and Wong 
239, 44 S.C 

these latter 

taneously, t 

certain pri 

pus. The 

petition by 

portation 0 
present. I 
earlier pett 

order was 

which was 

deportation 

or fair bu 

hearing the 
in support 

g court did 1 

A that the ¢ 
pe | = | 
het] good. In! 

relied ent: 

serted but 

hearing ha: 
held that 
plied and 

cuit court 

~preme Cou 
but nevert! 

ing that th 

“according 
controlling 

the prior 

petitioner 

proof of t 

first petiti: 

that he pr 

Court: +1 

attempting 

first failed 

the writ © 
not presen 

fered. It  



   
          

arden’s re- 

pellant has 

g that the 
rse of the 

ly witness, 

ad been a 

ness stand 

Id not see 

obbery, to 

ind talked 

tness Don- 

festify that 

ibed them, 

5t.”” Since 

pported by 

\tement as 

n the peti- 

71, 273, 66 

tion, it re- 

fourt erred 

aim of the 

testimony. 

+ 103, 112, 

L.L.R. 406. 

was con- 

g in Swi- 

and cases 

     

    
    

    

   

    

   

    

   

   
   

   

  

   
   
   

    

   

   

    

    
    

   

roceedings 

appellant 

his own 

self pres- 

have been 

t or of its 

any such 

    

   
         C.S. pp. 

Salinger 

fusal to 

‘e juris- 

le judg- 
appeals. 

hat had 

hb imme- 

‘its dis- 

Lercised, 
, with- 

232, 44 

     

      

  

      
       

    
   

      

   

  

irder to 
ie peti- 

hade his 

nedings, 
1e court 

led the 

> order 

  

“the prior refusal.” 

  

on hw Vnibge 
claim. On the face of his showing it is ap- 
parent he knew as much about the mis- 

conduct at the time it is said to have oc- 

curred as he knows now. Yet no reason or 

excuse 1S attempt to be adfanced. danced Tor his 
failure to set it up in one or the other of his 
prior petitions. 

  

  

  

The decision in Swihart v. Johnston, 

hofdfig that such reservation of grounds 
amounts to an abusive use of the writ, an- 

nounced no novel doctrine. That case and 

those which came after it proceeded upon 

the authority of Salinger Y. Tolsel, supra, 

an ong Doo v. United States, 265 U.S. 

230. 44 S.Ct. 524, 525, 68 L.Ed. 999. In 
these latter decisions, handed down simul- 

taneously, the Court elaborately considered 

certain principles applicable to habeas cor- 

pus. The Wong Doo case, involving a 

petition by a Chinese in custody under a de- 

portation order, is closely analogous to the 

present. The applicant had presented an 

earlier petition in which the validity of the 

order was assailed on two grounds, one of 

which was that the hearing on which the 

deportation order rested was not adequate 

or fair but essentially arbitrary. In the 
hearing the petitioner had offered no proof 

in support of this ground, and the district 

court did not rule upon it, holding merely 
that the other ground asserted was not 

good. In his second petition the applicant 
relied entirely on the ground earlier as- 

serted but not pressed, namely, that the 
hearing had been unfair. The district court 
held that the doctrine of res judicata ap- 

plied and remanded the petitioner, the cir- 
cuit court of appeals affirming. The Su- 
preme Court held the doctrine inapplicable 
but nevertheless affirmed the judgment, say- 

ing that the situation was plainly one where 
“according to a sound judicial discretion, 
controlling weight must have been given to 

It observed that the 
petitioner had full opportunity to offer 
proof of the ground in the hearing on his 
first petition and that good faith required 
that he produce the proof then. Said the 
Court: “To reserve the proof for use in 
attempting to support a later petition, if the 
first failed, was to make an abusive use of 
the writ of habeas corpus. No reason for 
not presenting the proof at the outset is of- 
fered. It has not been embodied in the 

PRICE v. JOHNSTON gh 707 
Cite as 161 F.2d 705 

record, but what is said of it there and in 
the briefs shows fhat it was Bocetsihie all 
the time.” 

In none of the more recent decisions of 
the Supreme Court are the principles an- 
nounced in Salinger v. Loisel or Wong 
Des v. United States, supra, overruled or 
Modified. Waley wv. Sy TY 
101, 62 S.Ct. 964, 86 L.Ed. 1302, and Hawk 
Vv. OLdn 326 U.S. 271, 66 S.Ct. 116, reaf- 
firm the rule there stated that the doc- 
trine of res judicata is not applicable in 
habeas corpus cases, but neither decision 
casts doubt upon the power of the court, 

in the exercise of a sound discretion, to de-: 

cline to consider repeated petitions where 

  

  

  

-it appears that the privilege of the writ is 

being abused. Practical considerations as 

well as reason and justice support the ex- 
ercise of such power. In an earlier opin- 

ion in the present proceeding, Price v. 

Johnston, 9 Cir., 159 F.2d 234, we noted 
the tendency of prison inmates in this cir- 

cuit to multiply petitions, with the result 

that unnecessary and increasingly heavy 

burdens are thrown on the courts in dis- 
tricts where federal penitentiaries are lo- 

cated; and in Dorsey v. Gill, App.D.C,, 148 

  

  

  

  

  

F.2d 857, the -court of appeals of the Dis- x 

trict of Columbia has amassed figures evi- 

dencing the occurrence of a like phenome- 
non in 1ts jurisdiction. Our opinion last 

above cited comments on the dubious na- 
ture of the objectives that seem in many 

instances to inspire these recurring applica- 
tions for the writ, 

[2-4] The command of the statute, 28 

US.C.A. § 461, is that the courts and 
judges make such disposition of habeas cor- 

pus petitions “as law and justice require.” 

A petitioner is entitled to an opportunity to 
prove his claim of unlawful imprisonment, 

Hawk v. Olson, supra, 326 U.S. 271 page 

279, 66 S.Ct. 116, but good faith requires 
that he make fair use of the opportunity af- 

forded. {Where there Have been repeated") 
petitions with an apparent husbanding of 

grounds the onus may properly be cast on 

the applicant of satisfying the court that an 

abusive use is not being made of the writ. 

Conversely, no matter if there have been a 

multiplicity of petitions, grounds newly as- 

  

  

  

  

  

  

  

  serted and seemingly valid must be inquired 

into if circumstances appear or are fairly" Masband 

A 
ik 

wals 

    

   
   
   

    

  

         

  

    

  

  

   

    

    

   
   
   

          

    
   
  
   

  

   

   

          

  

    

  

   

  

    

    

   
         
             

  

    

   

    

          

  

   

      

       

                    

  
    
   
   
      

  

   

      

           



  

      

  
          

    

708 : 161 FEDERAL REPORTER, 2d SERIES 
shown to excuse the prior failure to assert 
them. It should be unnecessary to add that 
even in the absence of such a showing the 
court may issue the writ and proceed to in- 
quire if in a particular case it is thought 
that the ends of justice dictate that course. 
We are not here concerned with a compul- 
sive principle analogous to res judicata, nor 
with some empty formula to be applied 
without reflection or as a matter of course, 
We are speaking rather of a discretionary 
power resting in the conscience of the 
judge, to be exercised in light of the cir- 
cumstances of the particular case and on 
grounds which square with reason and 
justice 

[51 Tn this instance there was no abuse 
of discretion in the dismissal of the peti- 
tion. 

Judgment affirmed. 

DENMAN, Circuit Judge (dissenting). 
Under the pressure of the large number 

of habeas corpus petitions filed in this cir- 
cuit, this decision establishes a principle 
hamstringing a wrong fully imprisoned 

, pan. Tt plainly makes it the law Tor this. 
circuit that a man convicted on perjured 
testimony procured by a United States at- 
torney, but who does not discover the facts 
until after he has filed a petition for the 
writ on another ground, must serve his 
sentence—here for 65 years.1 

a 

In so narrowing the relief afforded by 
the writ, this court is but following a con- 
tinued line of decisions since the increase 

of such petitions in this court, in which the Supreme Court recently has reversed ys They are: Waley v. Johnston, 316 U.S. 10 
62 S.Ct. 964, 86 L.Ed. 1302; Robinsgr 
Johnston, 316 U.S. 649, 62 S.Ct. 1301, gg 
L.Ed. 1732; Holiday v. Johnston, 313 U.S 342, 61 S.Ct. 1015, 85 L.Ed. 1392 Walker | v. Johnston, 312 U.S. 275,61 S.Ct. 574, 85 
L.Ed. 830. 

: The ground of the petition of the appel- : 
lant, kept from appearing before us, is 
properly stated in the court’s opinion, Jt is, 
as there stated, that the prosecuting attor- 
ney “knowingly employed Ialse testimony 
on the trial, to obtain the conviction” and 
that this false testimony was and was pro- 
cured in the following manner, namely that 
the prosecuting attorney “did take the one 
and only witness, Donner, that testified 
that there had been a crime committed, 
from the witness stand after he had testi- 
fied that he could not see any guns or pis- 
tols during the robbery, to the district at- 
torney’s office, and talked about the evi. 
dence and put the witness Donner back on 
the witness stand to testify that he did not 
see the pistols, and described them, when 
he could not do so at first.” ‘rl 

The gravamen of the misconduct charged 
is not the fact that the witness changed his 
testimony but that the prosecuting attorney 
knowingly “caused the witness to give the 
false testimony. All the accused and his 
attorney knew at tHe ¥FIaT WAS that The 
single prosecuting witness changed his tes- 4 
timony. Obviously this in itself does not 
warrant a charge of fraud. That it was 

  ‘1An ex parte hearing, in effect, on a 
habeas corpus appeal. The declared im- 
portance of this case ig apparent, both 
as to the principle established and to 
Price under a 65-year sentence. Yet, 
regardless of this importance, neither 
Price, suing forma pauperis, nor any at- 
torney appointed for him, participated 
in the hearing en bane. This is despite 
our Rule 22 (1), which has the force of 
law, that “the appellant shall be entitled 
to open and conclude the argument of 
his case.” 

In this court’s opinion, filed on January 
8, 1947, 159 F.2d 234, to which Judge 
Orr and the writer dissented, it is held, 
ignoring our rule and the underlying jus- 
tice of having Price or some attorney in 
his behalf participate in the hearing, 
that we have not the power to compel 

the Warden to produce ‘him so he could wn 
participate in the hearing and he was 
denied his petition for a writ of habeas 
corpus for that purpose. 

In the absence of such power it be- 
came the duty of the Warden to deter- 
mine whether he would obtain what, in 
effect, is an ex parte hearing, by holding 
from the court the body of his opposing 
litigant, or would afford Price due process 
by bringing him into court. 
At the hearing we asked the Warden’s 

attorney why Price was not present. He 
stated that the Warden had advised him 
that in all habeas corpus cases he was 
opposed to having the petitioner present 
at such hearings. What was said in our 
dissent to the opinion of January 8, 1947, 
applies a fortiori to the case as it de- 
veloped at the hearing, 

nson y_- 

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eversed us, 

16 U.S. 101, 

bn, 313 U.S. 

02; Walker 

b.Ct. 574, 85 

f the appel- 

fore us, is 
inion. It is, 
uting attor- 

testimony 
iction” and 

d was pro- 
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"PRICE v. JOHNSTON 709 
Cite as 161 F.2d 705 

fraudulently done by persuasion of the 
prosecuting attorney could only have been 

learned after conviction and after the con- 
victed man was in the penitentiary.? 

This fair statement of the appellant's 
contention is followed by ‘the court's com- 
plete and very damaging non sequitur with 

no support in any fact stated in the opinion 

or in the record here. It is that “On the 

face of his showing it is apparent he knew 
as much about the misconduct at the time 
it is said to have occurred as he knows 
now.” 

This is immediately followed by another 

non sequitur of the last quoted sentence. 

It is “Yet no reason or excuse is attempted 
to be advanced for his failure to set it up 
in one or the other of his prior petitions.” 

The appellant, denied hearing here, well 
may mediate bitterly in his cell: “Why per- 

tinent that I did not give reason or excuse 

for stating the facts of the subornation of 

the testimony in a prior petition, if the rec- 
ord clearly shows that I knew about it 
when the testimony was changed and could 

have had my attorney prove it at the trial?” 

4 Fer all we know, Price was not apprised 

of such action of the prosecuting attorney 

until long after the filing of any prior peti- 
tion. It 1s on this that the court, in confus- 
ing terms, makes its constricting ruling. 
It is that “Where there have been repeated 
petitions with an apparent husbanding of 
grounds the onus may properly be cast on 
the applicant of satisfying the court that 
an abusive use is not peing! made of the 
writ,” : ; : 

This is Eonfising because the onus pro- 
bandi concerns facts not the satisfactions 
of a court. The true statement of the 
court’s criterion on the facts in issue here 
is “Where there have been repeated peti- 
tions with an apparent husbanding of 
grounds, the applicant has the burden of 

  

showing that a ground newly asserted was 
in fact Previouny unavailable or unknown 
to him.” : 
  

That is to say, re | is a _a_presumption 
ag itioner here, not an 1 attorney, 
that if the time he acquired knowledge of 
the facts constituting the wrong 1s not 
stated in a second petition, he is deemed to 
flave known them at the time he filed the 

rst petition. There is no such presumption 
in any civil or criminal proceeding of 
which I have knowledge. 

  

  

  

  

  
  

Certainly the creation and application of 
such a presumption against a non-lawyer 
petitioner is not such a disposition “as law 
and justice require” as provided in 28 U.S. 
C.A. § 461. 

Having so ruled, this court then denies 

court and establish his “burden of showing” 
such facts. It then sustains the dismissal 
of the petition without permitting its 
amendment to show when Price acquired 
such knowledge of the alleged subornation 
of perjury leading to his conviction. 

  

  

True, the multiplicity of petitions in the 
District Court for the Northern District 
of California from ingenious and some- 
times perjuring pleaders in Alcatraz prison 
may cause its judges to have a justifiable 
suspicion that this petition may be “just an- 
other.” 3 However, that court well may 
protect itself by requé wii NE ‘amendment to 
the petition statifig" 1 Ahe kn ge of 
the facts was Cg also could pro- 
tect itself by a rule requiring that such 
petitions should state when the facts plead- 
ed came to the knowledge of the petitioner. 

Here the absent petitioner, not a lawyer, 
pleading in propria personam and in forma 
pauperis, has his petition dismissed with 
neither the right to sustain his “burden of 
showing” nor with the right to amend. A 
similar situation is where a sentence ad- 

  

  

  

  
2 It is only by such an allegation of the 

prosecuting attorney’s wrongful acts that 

the case is brought within Mooney wv. 

Holohan, 294 U.S. 103, 112, 55 S.Ct. 

340, 79 L.Ed. 791, 98 A.L.R. 406. 

3 The Supreme Court reversed this 

court for sustaining the dismissal of a 

petition for the writ, though stating that 

it is “True, petitioner's allegations in the 

circumstances of this case may tax cre- 

dulity. But in view of their specific na- 

ture, their lack of any necessary relation 

to the other threats alleged, and the 
failure of respondent to deny or to ac- 

count for his failure to deny them spe- 

cifically, we cannot say that the issue 

was not one calling for a hearing within 

the principles laid down in Walker v. 

Johnston, [312 U.S. 275, 61 S.Ct. 574, 

85 L.Ed. 830].” Waley v. Johnston, 316 

U.S. 101, 104, 62 S.Ct. 964, 965, 86 L. 

Ed. 1302. (Emphasis supplied.)   

  

                 



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710 161 FEDERAL REPORTER, 2d SERIES 

judged is invalid on its face but the im- 
prisoned man, not a lawyer, does not real- 
ize it. He files a petition on another ground. 
Under the instant decision he must remain 

imprisoned because in a second petition 

setting forth the judgment he has not stat- 
ed that he did not realize its invalidity until 

after the first petition was filed. 

Nothing in Wong Doo v. United States, 
265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999 
warrants such a denial of justice. , In the 
Wong Doo case the ground of the second 

petition was set up in a prior petition and 

the Supreme Court found, 265 U.S. at page 

241, 44 S.Ct. 525 that the facts supporting 

it were “accessible all the time” to Wong 
Doo. Here the ground was not asserted 
in a prior petition and there 1s nothing in 

fhe record fo show that at the prior “time 
any of the facts regarding the prosecuting 

attorney’s wrongful action were then 

known to Price, confined in a federal peni- 
lentiary. 

Nor is there anything in the dictum in 

Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 
519, 68 L.Ed. 989, supporting such a treat- 

ment of a petition which for the first time 
sets forth a justifiable ground for a release 

of the prisoner. There Salinger’s later pe- 
tition merely repeated the ground of a prior 

one which, on appeal, had been held not 
valid. In that case, however, despite the 
prior decision of the appellate court, the 

Supreme Court did consider the merits and 

did not base its decision upon the decision 

on the prior petition, 

The companion cases of Wong Doo and 
Salinger were decided in 1924. In the 23 

years since, the Supreme Court decisions 

have made clear the limitations of these de- 
cisions—Ilimitations well to be considered, 
though, as seen, these two cases are not ap- 

plicable here. 

Though ignored by this court, Price's 
Lhrief points out that in the recent case of 

| Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 

the Supreme Court upheld Hawk’s petition 
though it states 326 U.S. at page 272, 66 

| S.Ct. 116 it had denied two: petitions for 
Al certiorari on Hawks two other habeas 

| corpus proceedings in which the same 

ground was asserted. A fortiori should 

| we consider a. petition stating a ground 

"never before stated in any petition, 

So also ‘the court’s opinion ignores the | i 
case of Waley v. Johnston, 316 U.S. 101, 
105, 62 S.Ct. 964, 966, 86 L.Ed. 1302, where 
the Salinger case, is emphasized for its 
holding that “the principle of res judicata 
foes not apply to a decision on habeas cor- 
pus.” There this court was reversed and 
Waley’s petition sustained, the opinion - 

stating “The principle of res judicata does 
not apply to a decision on habeas corpus 
refusing to discharge a prisoner, Salinger 
v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 63 1. 
Ed. 989. It does not appear that on peti- 

tioner’s earlier application for a writ of 
coram nobis the same issue was raised as 
that now presented. The earlier application 
was denied for insufficiency upon its face 
and without a hearing. There is thus no 
basis for the holding of the district court 
that the denial is res judicata of the present 

petition.” , 

Waley, of course, had full knowledge of 
the threatsTmadc fo him when he brought 
his earlier proceeding. The fact that he 
reserved the contention for the later pro- 
ceeding did not prevent its consideration by 
the Supreme Court. 

Likewise in Robinson v. Johnston, 9 Cir., 

118 F.2d 998, 1001, Healy, C. J., dissenting, 

this court refused to consider Robinson's 

petition for a writ of habeas corpus based 

upon his claimed insanity, because the same 
claim had been urged in a prior coram 
nobis proceeding and decided against him, 
he having first offered and then withdrawn 

the proof of his mental condition. We were 
reversed, 316 U.S. 649, 62 S.Ct. 1301, 86 L. 
Ed. 1732, on the authority of Waley v. 
Johnston, supra. 

In the case Cochran v. Amrine, 153 Kan. 

777, 113 P.2d 1048, a habeas corpus pro- 
ceeding, the nsar supreme court states, 
at page 1049, that Cochran unsuccessfully 

had filed four petitions, two in the federal 

court and two in the state courts. Despite 
the fact that the Kansas supreme court de- 

cision was on an appeal from the fifth de- 

nial of the writ, the United States Supreme 

Court granted certiorari, sustained Coch- 
ran’s contention and reversed the decision. 

Cochran v. Kansas, 316 U.S. 255, 62 S.Ct. 

1068, 86 L.Ed. 1452 

Nor does the court's opinion consider this 

court’s decision in Johnston v. Wright, 9 

  

  

Wright S 

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ceedings 
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Wright : 

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gnores the 
4 11.5,.101, 

302, where 

ed for its 
es judicata 
abeas cor- 

versed and 

dicata does 

eas corpus 

br, Salinger 

L519, 68 1. 

at on peti- 

a writ of 

s raised as 

application 

on its face 

is thus no 

strict court 

the present 

lowledge of 
he brought 
act that he 

later pro- 

deration by 

ston, 9 Cir, 

dissenting, 

Robinson’s 

brpus based 

se the same 
rior coram 
gainst him, 

withdrawn 
h. We were 
1301, 86 L. 
Waley v. 

   
   

    
   

  

   

   

    
   
   
    

         

     

     

     
    

     

le, 153 Kan. 

corpus pro- 
bourt states, 
successfully 

the federal 

ts. Despite 
he court de- 

‘he fifth de- 

es Supreme 

ined Coch- 

he decision. 

55, 62 S.Ct. 

       

   

Lonsider this 

Wright, 9 

he opinion - 

  

‘PRICE v. JOHNSTON ii = 7 11 
Cite as 161 F.2d 705 

Cir, 137 F.2d 914, 915, where, in sustaining 

‘Wright's contention, we state that the iden- 

tical contention there made by Wright had 

been considered in three district court pro- 
ceedings and disposed of adversely to him 

before it was decided favorably to him in a 

fourth petition to a circuit judge. 

Surely it is a strange divergence from 

Johnston v. Wright where we ordered 

Wright released on his fourth petition for 
the writ, each asserting the same grounds, 
now to refuse to consider Price’s petition 

on a ground never before asserted. Strang- 

er yet to do so sub silentio. 

Though not presented here, it is still a 

serious question whether an innocent man 

must be imprisoned or hung where his first 
petition asserts, unsuccessfully, what he 

considers his strongest claim and conscious- 
ly reserves for a second petition another 

ground which, if considered, would free 

him. For instance, should a man impris- 
oned on a sentence for life, invalid on its 

face, spend the remainder of his days in 
the penitentiary if he “had access to” 
knowledge of its invalidity and nevertheless 

filed a first petition on another ground? 
Would it be the exercise of a “sound” or 
any permissible discretion for the district 

court to dismiss the petition on the grounds 
stated in the court’s instant opinion? If it 

be beyond the court’s discretion so to keep 

  

‘him imprisoned where the judgment is void 

on its face, does such discretion arise be- 
~ cause he has been wrongfully convicted by 

perjury procured by the prosecution? 

‘The bad situation arising from a bur- 
densome infliction on some of our district 
courts of a flood of unwarranted petitions 

should find relief through Congress. Where 

the petition is perjured there should be a 

criminal prosecution. With the fascistic 
tendencies apparent in our American life, 

the remedy is not in undermining any of 

our civil liberties, particularly the right to 

habeas corpus, by bad law. 

It may be argued that Price now may 
file a.new petition alleging the fact that, 

while he knew at the trial of the change of 

‘testimony, he did not learn until after his 

last proceeding was filed that the prosecut- 
Ing attorney had suborned the perjury to 

  

procure his conviction. Thus at the end of 
another two years in prison, while the fed-' 
eral courts are giving the “summary” dis- 
position of a writ of habeas corpus required 
by 28 U.S.C.A. § 461, Price may be re- 

leased. : 

The absurdity of the argument is patent. 
Under the rule here established, such a new 
petition must be denied because the fact of 

the late acquisition of the knowledge of 
such subornation was known to Price at the 

time of the filing of the petition we now 

dismiss. 

The district court should be reversed 
because it at least erred in that it neither 

(a) permitted Price to go forward and 

_prove that not until after ne nad hled his 
first petition had he learned the facts al- 
leged as to the gross misconduct of the 

prosecuting officers, nor (b) permitted him 

to amend his petition to show when such 

knowledge was acquired. 

    
  

  

  

  

STEPHENS, Circuit Judge (dissenting). 

I am unable to subscribe to the majority 
opinion, because I think by it the holding in 
Swihart v. Johnston, 9 Cir., 150 F.2d 721, 
722, is extended beyond its true limitations. 

In the Swihart case we held that control- 

ling weight in the consideration of a peti- 

tion for the writ of habeas corpus may be 
given the fact that a former petition, based 

upon the same cause, had been filed, heard 

and decided. We did not hold that the 
court could refuse to consider a petition 

for the writ merely because a former peti- 
‘tion had been adjudicated. No case, so far 

‘as I am aware, has ever gone further than 
the expression we used in the cited case, 

to wit, “One of the matters which may be 
considered and given controlling weight is 
a prior refusal to discharge on a like peti- 

tion.” This expression does not mean and 

should never be judicially extended to mean 

that because one petition had been heard 

and denied, a second petition, based upon 
different allegations, could or should be 
dismissed as a matter of course. 

  

  

  

  

No more is stated in the cited case than 
that in the consideration of the second peti- 

tion the instance of, and the facts connected 

with, the first petition may turn the scales 

   

    

   

    
    
    

    

    

   
    

   

      

    

   
    
   
   
    
    

    

   

    

      

  

  
        
     
    
          

      

   

   

  

   

  

   

  

   
   

  

   
   

    

   
    
   

   

   
   

  

   

  

   

  

   

  

   

   

    

          

  

        



    

    
    

  
  

    
            

712 

against the petitioner. And the instance of, 
and the facts connected with, the first peti- 
tion, I apprehend, would be that the hear- 
ing upon the first petition had been a thor- 
ough and adequate trial upon issues again 
presented in the second petition or that the 

petitioner was perpetrating a fraud upon 
the court, - 

In the instant case the cause gh by 
petitioner is entirely different from any 
heretofore alleged. If what petitioner now 
alleges is true, he was convicted upon per- 
jured testimony suborned by the prosecut- 
ing attorney. It is entirely unlikely that 
such a monstrous charge has any truth in 
it, but such improbability does not author- 
ize the court to brush it aside. Any num- 
ber of circumstances may have prevented 
this new and different issue from being” set 
up in the former petitions, and it must not 
be overlooked that one in prison and long- 
ing for freedom is not always in a mental 
condition to act perfectly or even free to 
act as and when he desires to do so. It may 
be petitioner believed that the reasons he 
gave for his release in the former petitions 
were entirely sufficient and that he would 
never be put to the difficult task of prov- 
ing the charges of the misconduct he now 
charges to the prosecuting officer. It may 
be that he has but recently obtained in- 
formation which in his opinion will prove 
his charges. The possibilities are endless, 
and they should not be denied judicial in- 
vestigation because all of them seem im- 
probable. 

It will be a very serious blow to the great 
writ if it is ever authoritatively decreed 

| that one deprived of his liberty has but one 
shot for his freedom. This one shot must 
have everything; missing anything, and 
the legal right to show the injustice and il- 
legality of the imprisonment is gone for- 
ever. The impact of such a holding cannot 
be exaggerated. A court should take steps 

' to be sure that “an abusive use of habeas 
corpus” is present before it rules against 
the entertainment of the petition, remem- 

bering at all times that the basis of the writ 
is a right and not a privilege. Until Con- 
gress, after a thorough consideration of 
the subject, places a limitation upon the 
right to the writ of habeas corpus, courts 
should not decree such limitation. 

161 FEDERAL REPORTER, 2d SERIES 

It is my considered opinion that the pro- 
nouncement, without a hearing, of the judg- 
ment of dismissal in the instant case consti- 
tutes an abuse of discretion as a matter of 
law. : 

KEY NUMBER SYSTEM 

SINDELAR et al. v. LIBERTY MUT. 
INS. CO. 

No. 9123. 

Circuit Court of Appeals, Seventh Circuit. 

May 9, 1947. 

Rehearing Denied June 19, 1947. 

I. Insurance &=668(3) 

Construction of policy presented ques- 
tion of law. 

2. Insurance €>435 
Where standard workmen’s compen- 

sation and employers’ liability policy 
contained provision protecting employer 
against liability imposed by Illinois Work- 
men’s Compensation Law and an agree- 
ment to indemnify employer against dam- 
ages sustained by employees as a result of 
employer’s negligence, the coverage of 
such provisions was extended by subse- 
quent provision that agreement should ap- 
ply to injuries sustained by certain officers 4 
of employer if a corporation, and policy 
could be construed as insuring against in- 
jury to president when performing execu- 
tive duties. Smith-Hurd Stats.Ill. c. 48, § 
138 et seq. 

3. Insurance ¢&=146(1) 

An “insurer is only liable to pay in 
accordance with its promises, 

4. Insurance €&=146(2) 

A policy must be construed so as to 
give effect to all of its provisions if pos- 
sible and not eliminate some of them as 
meaningless. 

5. Insurance €&=146(3) 3 

In construction of policy, ambiguities 
will be resolved in favor of insured.   

  

 



ORTER, 2d SERIES 

of Columbia. On December 3, 1953 
executed a deed conveying the pro 
to a third person who, on the Same 
conveyed the property to Miss Sp, 
and the appellee, Mrs. Adler, g5':o8 

Miss Shorter died in ‘oud tenants. 
2 The appellant was her brother ang 

sole heir. He brought a civil acti, the District Court for the District Columbia seeking to set aside the dea on the grounds of “mental incapagf fraudulent inducement, duress 

ical abuse.” 

The case was heard by the Disp 
Court without a jury. The evi 
showed that Miss Shorter was, in 1g almost eighty years old. She had been eacher in the public schools for some 
pears, during much of that time principal of a school, and had been ml ired for some 10 years. In 1943 
[949 she took Mrs. Adler, who wag some £0 years her junior, into her home as he 
ompanion, 

Witnesses for the plaintiff, most : 
hem neighbors and friends of Mi 
thorter for many years, testified to ¢ 
erioration of her mental capacity du 
1g the period before the making of tht 
eeds in question. Several of them ga 
eir opinion that she was of unsou? 
ind in December 1953. Others testi 
loss of mental acuteness, but were 

le opinion that she was not of unsou 
ind. All of them testified to progres 
'e physical deterioration. 

The plaintifi’s witnesses testified 
rs. Adler frequently inflicted phys 
lence upon Miss Shorter, the vil 

sses having observed the incidents, 
rd Miss Shorter’s pleas that it sho 
p; that on one occasion Mrs. Ad 
s seen to tear off Miss Shore} 
wn; that she was heard to demand ¥} 
tedly that Miss Shorter sign sor 
ng; that she was heard to threst?] 
expose some supposed misconduct 
5s. Shorter; that Miss hort, gi 

a friend that Mrs. Adler woul 

ions of Sec. 201(a), Title 28 U.S.Code: 

, Undy Influence and coercion coupled With phy, 

that 
5 ent testified to by the plain- 

oo Years gang decli 

TURNER v. UNITED STATES 165 
Cite as 258 F.2d 165 

, plaintiff rested his case, 
- the defendant expressed an 

n to make a motion, presumably 
for judgment on the ground 

Fo laintiff’s evidence was not suffi- 

require that the deeds be set 

sreupon the following colloquy 

oes not have much weight 

“equity suit. But on such a 

n I have to consider the testi- 

dpoint most favorable to the 

ever, if you rest, I can make 

fr. Hayes: (Counsel for the de- 

lant.) I do not rest. 

fhe Court: I suggest that you 

Mr. Hayes: Then of course I 
Il be guided by Your Honor. 

he Court: Do you rest? 

M . Hayes: Yes, Your Honor.” 
court thereupon made a finding of 

that there was not sufficient proof 
the defendant induced Miss Shorter 

te the deeds in question by the 
i alleged in the complaint. 

18 evident that the court desired 
e to consider the evidence other- an “from the standpoint most le to the plaintiff”, when the Suggested that the defendant rest 

#1an make a motion to dismiss. 

Shorter, having heen a teacher 
Fears, was Presumably a woman “€ment ang gentility, It would she woulg not have tolerated 
esses, unless, because of hey ad- 

ning physical and “Apacities, she could not muster 

the strength and will to put an end to it. 
Taking the testimony at its face value, 
Mrs. Adler must have been an overbear- 
ing, dominating companion. In those 
circumstances, the deeds may well have 
been the product of coercion. 

When and if the defendant presents 
her side of the case, the court may be 
convinced that the testimony of the 
plaintiff’s witnesses was false or ex- 
aggerated, or that, in spite of the un- 
savory incidents to which they testified, 
Miss Shorter was, on the whole, fond of Mrs. Adler and appreciated her com- 
panionship, and freely and genuinely 
wished to reward her by giving her the 
house. 

The judgment is reversed and the cause is remanded to the District Court for further proceedings not inconsistent with this opinion. 

Reversed and remanded. 

Ww 
O £ KEY NUMBER SYSTEM 

T 

Randolph TURNER, Appellant, 
Vv. 

UNITED STATES of America, 
Appellee. 

No. 14446. 

United States Court of Appeals 
District of Columbia Circuit. 

Argued June 23, 1958. 

Decided J uly 10,\1958; 

Defendant filed a second motion to 
vacate sentence. The United States Dis- 
trict Court for the District of Columbia, 
David A. Pine, J. entered judgment 
denying the second motion, and the de- 
fendant appealed. The Court of Appeals 
held that where defendant’s allegations 
reviewable on second motion to vacate 
judgment could readily have been raised 
on defendant’s first motion to vacate  



  

    
  

  

  

166 

judgment, and also could have been 

raised by defendant on direct appeal, 

which he had taken, and there was no in- 

dication of any justifiable reason why he 

had not previously raised the allegations, 

and there was no showing that he had 

previously been unaware of the signifi- 

cance of the allegations, District Court 
did not abuse its discretion in denying 

second motion to vacate sentence. 

Judgment affirmed. 

1. Criminal Law €-997 (18) 

Where there has been a previous 
appeal or previous motion to vacate sen- 
tence, district judge has discretion to 

deny relief as to those allegations, which 

could have been, but were not, raised in 
earlier proceeding, unless defendant has 

some justifiable reason he was previously 

unable to assert his rights, or unless he 

was unaware of significance of relevant 

facts, and absent some allegation or evi- 

dence as to what is the “justifiable 

reason” or “unawareness,” District Court 
is under no duty to grant hearing on 

what appear on face of petition to be old 

claims. 28 U.S.C.A. § 2255. 

2. Criminal Law €2997 (18) 

Where defendant’s allegations re- 

viewable on second motion to vacate 

judgment could readily have been raised 

on defendant’s first motion to vacate 
judgment, and also could have been raised 

by defendant on direct appeal, which he 

had taken, and there was no indication 

of any justifiable reason why he had not 

previously raised the allegations, and 

there was no showing that he had pre- 
viously been unaware of the significance 

of the allegations, District Court did not | 

abuse its discretion in denying second 

motion to vacate sentence. 28 U.S.C.A. § 
2255. 

® Sitting by designation pursuant to the 

provisions of Sec. 291(a), Title 28 U.S. 
Code. 

I. Carrado v. United States, 1953, 

App. D.C. 183,: 210 1.24 712, 

2. Turner v. United States, No. 13178 (Oct. 
4, 1956). 

93 U.S. 

258 FEDERAL REPORTER, 2d SERIES 

Mr. T. Emmett McKenzie, Washing, 

Appellant fei D. C.,, for appellant. 
brief pro se. 3 

Mr. Edgar T. Bellinger, Asst. | T 
Atty., with whom Messrs. Oliver Gasch 
U. S. Atty.,, and Carl W. Belcher, Ast 
U. S. Atty., were on the brief, for ap 
pellee. 1 

Before MADDEN, Judge, United Stata 
Court of Claims, * and BAZELON and B 
GER, Circuit Judges. 

PER CURIAM. 

Appellant was convicted in 1953 ¢ 
violation of narcotic laws. On atrect ap 
peal we affirmed. t About three Yea 
later, appellant filed a motion under 
U.S.C. § 2255 to vacate his sentence, 
leging denial of a fair trial by misco 
duct of a juror—described now by hi 
counsel as the juror’s failure to live up 
a promise to be “sympathetic” to app 
lant. The District Court denied his m 

\ tion and on appeal from that denial 
dismissed.” 

In December 1957, appellant again fil 
a motion under ov 2259, alleging 

number of violations of constitutional 

rights; some new, and some previously; 
raised on the direct appeal. The Districk 

)Court denied relief without a hearing, on 
the ground that the motion was a second 

or successive motion,3 and alternative 

that the files and records conclusively 
showed that appellant was entitled to no’ 

\ relief. 

11,2] Where there has been a prev 

ous appeal or a previous 2255 motion, t é 
District Judge has discretion to deny res 
lief as to those allegations which could 

f have “been, buf were not, raised in the 
| earlier proceeding, unless the petition 

has “some justifiable reason he was pr 

viously unable to assert his rights,” 
a 

3. “The sentencing court shall not be re- #= 
quired to entertain a second or succes: 
sive motion for similar relief on behalf = 

.- of the same prisoner.” 28 U.S.C. § 2259. 
Cf. Belton v. United States, — U.S.AppP- 

D.C. —, 259 F.2d 811 (dissent); Sal 
inger v. Loisel, 1924, 265 U.S. 224, 44 S. 
Ct. 519, 6S L.Ed. 989.  



SERIES 

mmett McKenzie, Washingt, 
appellant. Appellant fileq 5 

=} 

bar T. Bellinger, Asst. U. § 
i whom Messrs. Oliver Gasch 
.» and Carl W. Belcher, Asst 
., were on the brief, for ap- 

ADDEN, Judge, United State 
faims,* and BAZELON and Buz. 
tL Judges. 

RIAM. 

C was convicted in 1953 for 
narcotic laws. On direct ap. 

firmed.! About three years 
lant filed a motion under 28 
55 to vacate his sentence, al. 
al of a fair trial by miscop. 
juror—described now by his 
he juror’s failure to live up to 
o be “sympathetic” to appel- 
District Court denied his mo- 
appeal from that denial w 

ber 1957, appellant again filed 
der section 2255, alleging a 
violations of constitutional 

ie new, and some previously 
e direct appeal. The District 
relief without a hearing, on 

that the motion was a second 

e motion,3 and alternatively, 
es and records conclusively 
appellant was entitled to no 

here there has been a prev 

r a previous 2255 motion, the 
ge has discretion to deny re: 

hose allegations which could 

put were not, raised in the 
eding, unless the petitioner 

stifiable reason he was prey 
le to assert his rights,’ g 

incing court shall not be re- 
ntertain a second or succes 
for similar relief on behal 
prisoner.” 28 U.S.C. § 225 

. United States, — U.S.ApP- 
590 F.2d S11 (dissent); Se 
sel, 1024, 265 U.S. 224, 44 
L.Ed. 989. 

ness,” the Distri 

TURNER v. UNITED STATES 
167 Cite as 258 F.2d 165 

nless he was “unaware of the signifi in ce of relevant facts.” 4 Absent some 
can gation or evidence as to what is 

» “justifiable reason’ or “unaware- 
Re ct Court is under no duty 

  

is orant a hearing on what appear on the 
of the petition to be old claims ; in- 

deed without such allegations the Dis- trict Judge cannot even be aware of a 
possible basis for exercising his discre- 

on to grant a hearing, applying the 
dards of Price v. Johnston, supra 

ote 4. Here those of appellant's allega- 
tions reviewable on a § 2255 motion 

Price v. Johnston, 1948, 334 U.S. 266, 
291, 68 S.Ct. 1049, 92 L.Ed. 1356; cf. 
Wong Doo v. United States, 1924, 265 U. 

. 239, 44 S.Ct. 524, 68 L.Eq. 999. 

Under Price v. Johnston a second or suc- 
ssive petition for habeas corpus may 

properly be entertained if it (1) asserts 
a claim not previously passed on and (2), 
asserts or demonstrates “some justifiable 
reason [why petitioner] was Previously 

could readily have been raised on the first § 2255 motion, and of course all of the allegations could have been raised on the direct appeal. No indication of any “justifiable reason or “unaware- ness” is apparent or alleged. Hence, the District Court a; not abuse its dis- cretion in refusing relief 6 on the grounds this wag a second or successive motion for similar relief, 
Affirmed. 

BAZELON, Circuit Judge, concurs the result, 

unable to assert hig rights or was un- aware of the significance of relevant facts * % a» At page 291 of 334 U.S. at page 1063 of 68 S.Ct. 
See Lipscomb v. United States, 8 Cir, 1955, 226 F.24 812, certiorari denied, 350 U.S. 971, 76 S.Ct. 445, 100 L.Ed. 843, rehearing denied 350 U.S. 1003, 76 S.Ct. 550, 100 L.Ed. 866 

  

          

 



152 884 FEDERAL REPORTER, 2d SERIES    Henry DEUTSCHER, 

Petitioner/Appellant/Cross-Appellee, 

V. 

Harol WHITLEY, Warden of the Nevada 

State Prison, and Brian McKay, Attor- 

ney General of the State of Nevada, 

Respondents/Appellees/Cross-Appel- 

lants. 

Nos. 88-2552, 88-2579. 

United States Court of Appeals, 
Ninth Circuit. 

Argued and Submitted Jan. 10, 1989. 

Decided Aug. 31, 1989. 

Defendant was convicted in the Eighth 
Judicial District Court, Clark County, of 
first-degree murder and robbery without 
use of a deadly weapon, and death sentence 

was imposed. After state Supreme Court 
affirmed, 95 Nev. 669, 601 P.2d 407, and 
after initial federal habeas petition was de- 
nied, defendant filed second petition for 

relief. The United States District Court 

for the District of Nevada, Edward C. 

Reed, Jr., Chief Judge, dismissed some 

counts on procedural default grounds, 663 

F.Supp. 793, and denied relief as to remain- 
ing counts, 682 F.Supp. 1098. Defendant 
appealed. The Court of Appeals, Farris, 

Circuit Judge, held that: (1) defendant's 
successive petition did not abuse writ; (2) 

majority of defendant's claims were barred 
by state procedural default; but (3) defen- 

dant was denied effective assistance of 
counsel by virtue of state counsels failure 

to investigate and present evidence in miti- 
gation during sentencing phase. 

Reversed and remanded. 

1. Habeas Corpus &=842 

District court’s grant or denial of habe- 

as corpus relief is reviewed de novo. 

2. Habeas Corpus <=843 

District court’s decision not to dismiss 

petition for habeas corpus relief as abuse 
of writ is reviewed for abuse of discretion. 

3. Habeas Corpus &=768 

State trial court’s determination of ju- 

ror bias is presumed correct under federg) 
habeas statute. 28 U.S.C.A. § 2254(d). 

4. Habeas Corpus €=898(1) 

State inmate did not abuse writ by 
bringing successive habeas corpus petition 

where second petition raised issues that 

simply did not occur to inmate's previous 
counsel. Rules Governing § 2254 Cases, 
Rule 9(b), 28 U.S.C.A. foll. § 2254. 

5. Habeas Corpus &=404, 406, 407, 409 

State inmate barred by procedural de- 
fault from litigating claim in state court 

may not litigate that claim in habeas cor- 

pus proceeding unless he can show cause 

for\ and actual prejudice from default; 
showing by inmate either that counsels 
failure to raise claim deprived him of effec- 

tive assistance of counsel or that claim was 

unavailable at time it should have been 

raised is sufficient to establish cause, and 

defendant who proves ineffective assist- 
ance need not make additional showing of 
prejudice because actual prejudice is aspect 
of ineffective assistance of counsel. U.S. 

C.A. Const.Amend. 6. 

6. Habeas Corpus 407 

Fact that federal habeas petitioner's 
state counsel was unaware of factual or 
legal basis for claim that unintentional 
murder was insufficient offense to justify 
imposition of death penalty was not cause 
for state procedural default such that issue 

could be raised in habeas proceeding; fur- 
thermore, novelty of claim was not suffi- 

cient cause for default. 

7. Habeas Corpus €=409 

Federal habeas petitioner’s state coun- 
sel’s unawareness of claim directed at pros- 

ecution’s argument that “what you volun- 
tarily take into your system isn’t any de 
fense” was not egregious enough to be 
ineffective assistance of counsel and did 
not result in prejudice so as to overcome 
state procedural default. U.S.C.A. Const. 

Amend. 6. 

8. Habeas Corpus ¢=409 

Failure by federal habeas petitioner's 
state counsel to challenge use of concur 

F (owt hawon't oddwessed coat, petihon yet   
   



  

DEUTSCHER v. WHITLEY 1153 
Cite as 884 F.2d 1152 (9th Cir. 1989) 

rent felony both to convict petitioner of 
felony-murder and as aggravating circum- 
stance for imposition of death penalty was 
not prejudical so as to overcome state pro- 
cedural default. 

9, Habeas Corpus ¢=406 

Failure by federal habeas petitioner's 

state counsel to raise issue that was devel- 
oping at the time of direct appeal could not 

serve as cause for state procedural default. 

10. Habeas Corpus &=409 

Federal habeas petitioner was not prej- 

udiced by state counsel's failure to raise 
equal protection challenge to death penalty 
such that petitioner could raise issue de- 

spite state procedural default. U.S.C.A. 
Const.Amends. 5, 14. 

11. Jury &=108 

Prospective jurors’ statements during 
voir dire that they could not impose death 

penalty under any circumstances justified 
exclusion. 

12. Habeas Corpus ¢=4(09 

Federal habeas petitioner was not prej- 
udiced by state counsel's procedural de- 
fault with respect to state Supreme Court's 

alleged failure to conduct proportionality 
review required by death penalty statute; 
therefore, claim could not be raised in ha- 

beas proceeding despite state procedural 
default. 

13. Criminal Law ¢=641.13(7) 

Counsel did not render ineffective as- 
sistance by failing to raise, on direct ap- 
peal, claim that trial court violated due 

process during penalty phase of capital 
murder case by allowing State to prove 
prior sexual assault conviction by testimo- 

ny of victim and arresting officer. U.S. 
C.A. Const.Amends. 5, 6, 14. . 

14. Criminal Law ¢=641.13(7) 

Performance of capital murder defen- 
dant’s counsel was deficient inasmuch as 
he failed to investigaté and present any 
mitigating evidence during penalty phase 
other than to argue that defendant must 
have had some sort of mental problem; 
counsel did not even consider presenting 
evidence of defendant’s mental problems or 

any other mitigating evidence, and admit- 

ted that his representation was deficient. 
U.S.C.A. Const.Amend. 6. 

15. Criminal Law €=641.13(7) 

Capital murder defendant was preju- 
diced by counsel’s deficient performance in 
failing to investigate and present any miti- 
gating evidence during penalty phase of 
case; psychiatrist who examined defendant 
would have testified that defendant’s histo- 

ry was consistent with mental disorder 
characterized by episodes of uncontrollable 
violence, which could have rebutted other 

testimony and counteracted state's evi- 
dence concerning sexual assault committed 
by defendant. U.S.C.A. Const.Amend. 6. 

16. Homicide &=311 

Instruction on torture and mutilation 
aspects of aggravating circumstance for 

imposition of death penalty was sufficient- 

ly clear and objective to withstand constitu- 

tional vagueness challenge; mutilation was 
objective difference between murder by 
mutilation and any other murder, and in- 

tent to cause cruel pain and suffering for 
sadistic purposes was similarly objective 

and reviewable distinction. U.S.C.A. 
Const.Amends. 5, 14. 

17. Criminal Law €=796 

Instruction on depravity of mind ag- 
gravating circumstance for imposition of 
death penalty was unconstitutionally 
vague. U.S.C.A. Const.Amends. 5, 14. 

18. Habeas Corpus ¢=498 

Federal habeas petitioner would not be 
entitled to relief in connection with chal- 
lenge to instruction on state capital murder 
aggravating circumstance of torture, de- 
pravity of mind, or mutilation even though 
depravity of mind instruction was unconsti- 
tutionally vague; jury found other aggra- 
vating circumstances. U.S.C.A. Const. 
Amends. 5, 14. 

David J. Burman and Stephan R. Illa, 
Perkins Coie, Seattle, Wash., and Thomas 

E. Perkins, Carson City, Nev., for petition- 

er/appellant/cross-appellee. 

Brian McKay, Atty. Gen., and David F. 
Sarnowski, Supervising Deputy Atty. Gen., 

 



    

1154 

Carson City, Nev., for respondents/appel- 

lees/cross-appellants. 

Appeal from the United States District 

Court for the District of Nevada. 

Before SKOPIL, FARRIS and HALL, 

Circuit Judges. 

FARRIS, Circuit Judge: 

Henry Deutscher appeals the district 
court’s dismissal of his petition for a writ 
of habeas corpus. Deutscher sought habe- 
as corpus relief from a Nevada court's 
sentence of death. Nevada authorities ap- 
peal the district court’s refusal to hold a 
hearing on whether Deutscher’s petition 

was an abuse of the writ of habeas corpus. 
We reverse the district court’s dismissal of 
Deutscher’s petition and remand with in-. 
structions to grant the writ unless 
Deutscher is resentenced within a reason- 

able time. 

FACTS 

In 1977, a Nevada jury convicted 
Deutscher of first degree murder and of 
robbery without the use of a weapon. Af- 
ter a separate hearing, the same jury sen- 

tenced Deutscher to die. Witnesses at trial 

testified that the victim had been stran- 

gled, beaten, and bitten, prior to suffering 

a fatal skull fracture. 

Two potential jurors were excluded from 
Deutscher’s jury because of their views on 
the death penalty. Both jurors said they 
would not impose the death penalty under 

any circumstances. 

During the penalty phase of the trial, the 

court instructed the jury to impose the 
death penalty unless the mitigating circum- 
stances outweighed the aggravating cir 
cumstances. The court instructed the jury 
as to three possible aggravating factors: 
(1) prior conviction of a felony involving 
use or threat of violence; (2) murder dur- 

ing an attempted sexual assault; and (3) 

murder involving “torture, depravity of 
mind, or the mutilation of the victim.” The 

jury found all three of these aggravating 

factors. 

884 FEDERAL REPORTER, 2d SERIES 

During both the guilt phase and the pen- 
alty phase, Deutscher was represented by 
Herbert Ahlswede. Ahlswede did not cg] 

any witnesses at the penalty phase hearing, 
Although Ahlswede made a tactical dec; 

sion not to pursue an insanity defense dy. 

ing the guilt phase, he did not consider 
using psychological evidence during the 
penalty phase. Nor did Ahlswede invest. 
gate Deutscher’s past psychiatric treat. 

ment or family background. Investigation 

would have revealed that Deutscher wag 

born substantially premature, that he had 

been diagnosed as mentally ill and treated 

for mental illness, and that he had sought, 

but was not given, psychiatric care for 

uncontrollable violent outbursts. Dr. 

O’Gorman, a psychiatrist who examined 
Deutscher near the time of the murder, 
testified during a state post-conviction 
hearing that Deutscher’s history was con- 
sistent with a mental disorder character- 
ized by episodes of uncontrollable violence. 

Ahlswede did present a closing argument 
at the penalty phase hearing but referred 
to only one mitigating factor: that 
Deutscher killed while under the influence 
of an extreme mental disturbance. Ahls- 
wede argued that such a brutal murder 
could only have been the product of a dis- 

eased mind. 

The Nevada Supreme Court affirmed 
Deutscher’s conviction and sentence. 

Deutscher v. State, 95 Nev. 669, 601 P.2d 
407 (1979). Ahlswede filed a habeas corpus 
petition on Deutscher’s behalf in the United 
States District Court for the District of 
Nevada. The court directed Deutscher to 

submit four unexhausted issues to the 

state courts. Following exhaustion of 

those issues, the district court dismissed 

the petition. 

Deutscher appealed to this court, and 

present counsel was substituted for Ahls- 

wede. Present counsel Jetermined that a 
  

number of federal issues were not present: 

ed by Ahlswede during post-conviction pro- 

ceedings and asked us to remand the case 

to state codTt Eo HOW THE Tew tesues to be 

raised. We denied remand and affirmed 

dismissal of the petition. Ahlswede v- 

  

  

Wolff, 720 F.2d 1108 (9th Cir.1983), cert. 

    

 



  
  

denied, 469 U.S. 873, 105 S.Ct. 225, 83 
LEd.2d 155 (1984). 

Deutscher, through present counsel, then 

litigated his additional claims in state court. 
The state trial court denied relief, and the 

Nevada Supreme Court affirmed. 
Deutscher v. Warden, Nevada State Pris- 
on, 102 Nev. 388, 724 P.2d 213 (1986). The 
Nevada court held on the merits that 

Deutscher was not deprived of effective 
assistance of counsel. Id., 724 P.2d at 214. 

The court held that Deutscher’s other as- 

DEUTSCHER v. WHITLEY 
Cite as 884 F.2d 1152 (9th Cir. 1989) 

  

signments of error were barred by proce- 
Jural default. The court held that 
"Deutscher could not show good cause for 
failing to raise his claims within one year 
of the resolution of his direct appeal and 

failing to raise his claims in his first peti- 
tion for post-conviction relief. Id. (citing 
Nev.Rev.Stat. §§ 177.315(3) and 177.375(2)). 

Deutscher again petitioned for habeas 
corpus. The petition set forth the follow- 
ing claims: 

1. Deutscher was deprived of effective 
assistance of counsel. 

J. Deutscher was sentenced to death 
without a finding of intent to commit 
murder. 

3. The prosecutor’s argument was im- 

proper. 

4. Deutscher was sentenced to death 
based on the “torture, depravity of mind, 

or mutilation” aggravating circumstance. 

5. The state used a concurrent felony 

both to support a felony murder convic- 
tion and as an aggravating circumstance. 

6. The trial court failed to instruct the 
jury that the prosecution must prove be- 
yond a reasonable doubt that the aggra- 
vating circumstances outweigh the miti- 
gating circumstances. 

7. Nevada improperly discriminates in 
imposing the death penalty. : 

8. Prospective jurors were improperly 

excluded. 

9. The Nevada Supreme Court violated 
due process by failing to conduct a prop- 
er proportionality review. 

10. Prejudicial evidence of prior bad 
acts was improperly admitted. 

The United States District Court held that 
Deutscher was barred by unexcused proce- 

  

  

  

  

  

  

1155 

dural default from raising counts two, 
three, Tive, siX, seven, nine, and ten. 

Deutscher wv. Whitley, 663 F.Supp. 793, 
800-01 (D.Nev.), reconsid. denied, 671 

F.Supp. 1264, 1267 (D.Nev.1987). The 
court rejected counts one, four, and eight 

on the merits. Deutscher v. Whitley, 682 

F.Supp. 1098 (D.Nev.1988). 

  

  

I. STANDARD OF REVIEW 

[1-3] We review de novo a district 

court’s grant or denial of habeas corpus 
relief. McKenzie v. Risley, 842 F.2d 1525, 

1531 (9th Cir.) (en banc), cert. denied, — 

U.S. —, 109 S.Ct. 250, 102 L.Ed.2d 239 
(1988). We review for abuse of discretion 

the district court’s decision not to dismiss 

the petition as an abuse of the writ. See 
Harris v. Pulley, 852 F.2d 1546, 1561 (9th 
Cir.1988). A state trial court's determina- 

tion of juror bias is presumed correct under 
28 U.S.C. § 2254(d). Wainwright v. Witt, 
469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 
L.Ed.2d 841 (1985). All other issues 

presented by this appeal are issues of law 
or mixed legal-factual issues. We review 
these issues de novo. See United States v. 

McConney, 728 F.2d 1195, 1200-1205 (9th 

Cir.) (en banc), cert. denied, 469 U.S. 824, 

105 S.Ct. 101, 83 L.Ed.2d 46 (1984). 

II. ABUSE OF THE WRIT 

[41 The state contends that the district 
court erred by failing to require Deutscher 

to prove in an evidentiary hearing that he 
had not abused the writ by bringing a 
successive habeas corpus petition. 28 
U.S.C. § 2254, Rule 9(b) provides that: 

A second or successive petition may be 
dismissed if the judge finds that it fails 

to allege new or different grounds for 

relief and the prior determination was on 
the merits or, if new and different 
grounds are alleged, the judge finds that 
the failure of the petitioner to assert 
those grounds in a prior petition consti- 
tuted abuse of the writ. 

In Harris v. Pulley, we set forth a three- 
part test for determining whether a succes- 
  

  

sive petition is an abuse of the writ under 

rule 9(b): 

 



i 

  

   
1156 

Previously unadjudicated claims must be 
decided on the merits unless (1) the peti- 

tioner has made a conscious decision de- 
liberately to withhold them, (2) is pursu- 
ing “needless piecemeal litigation,” or (3) 

has raised the claims only to “vex, ha- 

rass, or delay.” 

852 F.2d at 1572 (quoting Richmond wv. 
Ricketts, 774 F.2d 957, 961 (9th Cir.1985)). 

("In Harris, previous counsel failed to make 
a claim, not for any tactical reason, but 
“merely because he missed it.” 852 F.2d 
at 1572. We held that because counsel had 

not made a conscious decision to withhold 
claims, engage in piecemeal litigation, vex, 

  

  

harass, or delay, the successive petition 

was not an abuse of the writ. Deutscher’s 
previous counsel similarly made no con- 
scious decision to withhold claims. The 
claims simply did not occur to counsel. 
The district court correctly held that 
Deutscher’s petition was not an abuse of 

the writ. 

III. PROCEDURAL DEFAULT 

The district court held that counts two, 

three, five, six, seven, nine, and ten were 

barred by procedural default. Deutscher 
claims this holding was error. The state 
argues that all of Deutscher’s claims 
should have been rejected because of 

Deutscher’s procedural default in failing to 
raise the claims in the first state post-con- 
viction proceeding, see Nev.Rev.Stat. 177.- 
315(3), and in failing to file his petition for 

state post-conviction relief within one year 

of final resolution of his direct appeal. See 

Nev.Rev.Stat. 177.375(2). 

[5] A state prisoner barred by proce- 
dural default from litigating a claim in 
state court may not litigate that claim in a 

habeas corpus proceeding unless he can 

show cause for and actual prejudice from 
the default. Engle v. Isaac, 456 U.S. 107, 
110, 102 S.Ct. 1558, 1563, 71 L.Ed.2d 783 
(1982) (citing Wainwright v. Sykes, 433 
US. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 

(1977). 

Whether there is cause for procedural 
default will “ordinarily turn on whether the 
prisoner can show that some objective 
factor external to the defense impeded 

  

  

  

884 FEDERAL REPORTER, 2d SERIES 

counsel's efforts to comply with the State's 
procedural rule.” Murray v. Carrier, 477 
US. 478, 488, 106 S.Ct. 2639-2645, 9] 
L.Ed.2d 397 (1986). Deutscher attempts tq 
demonstrate cause for his procedural de. 
fault by showing either that his counsel's 
failure to raise each claim deprived him of 
effective assistance of counse \or)that the 
claims were unavailable at the “time they 

shold have been raised. Either showing 

is sufficient to establish cause. Id. 

Ineffective assistance of counsel is suffi- 

cent cause to excuse procedural default, 

“{T]f the procedural default is the result of 
ineffective assistance of counsel, the Sixth 

  

  

  

  

  

  

  

. Amendment itself requires that responsibil- 

\ity for the default be imputed to the State.” 
Id. An ineffective assistance of counsel 
claim has two components. 

‘First, the defendant must show that 

counsel's performance was deficient. 
This requires showing that counsel made 
errors so serious that counsel was not 
functioning as the “counsel” guaranteed 
the defendant by the Sixth Amendment. 
Second, the defendant must show that 

the deficient performance prejudiced the 

defense. 

Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 

(1984). Because actual prejudice is an as- 
pect of ineffective assistance of counsel, a 
defendant who proves ineffective assist- 
ance need not make any additional showing 
of prejudice to overcome procedural de- 

fault. 

Cause also exists when the claim is novel 

in that it had “no reasonable basis in exist- 

ing law” at the time of the procedural 

default. Reed v. Ross, 468 U.S. 1, 15, 104 

S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). But 

“the question is not whether subsequent 

legal developments have made counsel's 

task easier, but whether at the time of the 

default the claim was ‘available’ at all.” 

Smith v. Murray, 477 U.S. 527, 537, 106 

S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). To 
overcome procedural default, a defendant 

who demonstrates that his claim was un- 

available at the time it should have been 

raised must also show that he was preju- 

diced by his counsel's failure to raise the 

    

 



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DEUTSCHER v. WHITLEY 1157 
Cite as 884 F.2d 1152 (9th Clr. 1989) 

claim. See Engle v. Isaac, 456 U.S. at 110, 
102 S.Ct. at 1563. 

A. Count One: Ineffective Assistance 

This claim is not subject to procedural 
default because the Nevada Supreme Court 
reached the merits. See Wainwright v. 
Sykes, 433 U.S. at 87, 97 S.Ct. at 2506; 

Deutscher v. Warden, Nevada State Pris- 

on, 724 P.2d at 214 (reaching the merits of 
Deutscher’s ineffective assistance claim). 

B. Count Two: No Finding of Intent 

[61 The court instructed the jury that, 
under Nevada's felony murder statute, it 

could convict without finding that Deutsch- 
er intended to kill the victim. Deutscher 
contends that unintentional murder is an 
insufficient offense to justify imposition of 
the death penalty. 

Deutscher’s reasons for failing to raise 

this claim are not sufficient cause for pro- 
cedural default. Deutscher’s counsel was 

unaware of this claim. The mere fact that 
counsel failed to recognize the factual or 
legal basis of a claim, however, is not cause 

for default. Murray v. Carrier, 477 U.S. 
at 486-87, 106 S.Ct. at 2644-45. Although 

Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 

2861, 53 L.Ed.2d 982 (1977), held, prior to 
resolution of Deutscher’s appeal, that the 
death penalty is a disproportional penalty 
for rape, it was not until Enmund v. Flor- 
ida, 458 U.S. 782, 102 S.Ct. 3368, 73 
L.Ed.2d 1140 (1982), that the Supreme 

Court questioned imposition of the death 
penalty in felony murder cases. Given the 
state of the law at the time, counsel's fail- 

ure to raise the claim was not outside the 
“wide range of reasonable professional as- 
sistance.” See Strickland, 466 U.S. at 689, 

104 S.Ct. at 2065. Counsel's failure also 
may not have been prejudicial. See Tison 
v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 
L.Ed.2d 127 (1987) (holding that the death 

penalty could be constitutionally imposed 
against a defendant who neither intended 

to kill nor actually killed but who was 

recklessly indifferent to human life). 

Novelty of this claim is also insufficient 
cause for procedural default. The claim 
that a sentence was disproportional to the 

crime was available when Deutscher ap- 
pealed. See Weems v. United States, 217 
U.S. 349, 371, 30 S.Ct. 544, 550, 54 L.Ed. 
793 (1910); Coker, 433 U.S. at 596, 97 S.Ct. 

at 2868. 

C. Count Three: Improper Argument 

[7] Deutscher claims that the prosecu- 

tion misstated the law and prevented the 
jury from considering mitigating evidence 
by saying “what you voluntarily take into 

your system isn’t any defense.” 

Although Deutscher’s counsel was un- 
aware of the claim, this unawareness was 

not egregious enough to be ineffective as- 

sistance. Nor did prejudice result from 
failure to raise the claim. A prosecutor’s 
argument does not violate the Constitution 
unless it renders the defendant's trial “so 

fundamentally unfair as to deny him due 
process.” Donnelly v. DeChristoforo, 416 
U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 
L.Ed.2d 431 (1974). A misstatement of the 

law can deny due process, but reversal is 
not warranted unless the misstatement 

prejudiced the hearing. United States v. 
Becker, 720 F.2d 1033, 1036 (9th Cir.1983). 
See also Campbell v. Kincheloe, 829 F.2d 
1453, 1457 (9th Cir.1987), cert. denied, — 

U.S. —, 109 S.Ct. 380, 102 L.Ed.2d 369 

(1988). 

Deutscher’s contention that this claim of 

improper argument was unavailable in 1977 
also lacks merit. See, e.g., DeChristoforo, 

416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431; 

US. v. Martinez, 514 F.2d 334, 343 (9th 

Cir.1975). 

D. Count Four: Torture, Depravity of 
Mind, or Mutilation 

Procedural default does not apply to this 

claim because the claim was properly 

raised in state court. 

E. Count Five: Double Counting of 
Concurrent Felony 

[8] Deutscher contends that the trial 
court erred in allowing the jury to use a 
concurrent felony both to convict him of 
felony murder and as an aggravating cir-



  

1158 

cumstance for imposition of the death pen- 
alty. 

Failure to raise this issue was not preju- 
dicial. See Lowenfield v. Phelps, 484 U.S. 

231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) 
(holding that use of the same circumstance 
as both a guilt phase element and an ag- 
gravating circumstance is constitutional as 
long as the class of death eligible persons 
is genuinely narrowed). 

F. Count Six: Sentencing Standard 

[9] Deutscher contends that the court 
erroneously instructed the jury to impose 
the death sentence unless mitigating 
factors outweighed aggravating circum- 

stances. 

As with other claims, Deutscher admits © 

this was a developing .issue at the time of 
his direct appeal. Because of this, 

Deutscher’s counsel was not ineffective for 
failing to raise the claim. That the issue 
was ‘‘developing” also indicates that the 
claim was available. 

G. Count Seven: Discrimination 

[10] Deutscher contends that the death 
penalty was improperly imposed against 
him because the penalty is discriminatorily 
imposed against poor persons, males, and 
those convicted of killing white women. 

Deutscher was not prejudiced by his coun- 
sel’s failure to raise this claim. See 
McCleskey v. Kemp, 481 U.S. 279, 292, 107 
S.Ct. 1756, 1766, 95 L.Ed.2d 262 (1987) 
(holding that statistical bias in imposition 
of the death penalty does not mandate re- 
versal of individual death sentences). 

H. Count Eight: 
spective Jurors 

Exclusion of Pro- 

[11] Deutscher contends that jurors 
were improperly excluded from his jury 
despite their willingness to impose the 
death penalty in the proper circumstances. 
Deutscher was not prejudiced by his coun- 
sel’s failure to raise this claim. If the 
claim had been brought, a reviewing court 
would have affirmed. 

A juror may be excluded when the ju- 
ror’s scruples against the death penalty 
would “prevent or substantially impair the 

884 FEDERAL REPORTER, 2d SERIES 

performance of his duties as a juror in 
accordance with his instructions and jg 
oath.” Gray v. Mississippi, 481 U.S. 648, 
658, 107 S.Ct. 2045, 2051, 95 L.Ed.2d 629 
(1987) (quoting Wainwright v. Witt 469 
U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2q 
841 (1985)). Juror bias is a factual finding 
entitled to a presumption of correctness 
under 28 U.S.C. § 2254(d). Wainwright +, 
Witt, 469 U.S. at 428-29, 105 S.Ct. at 854~ 
55. Thus, the question before a reviewing 
court is not whether the court agrees with 
the trial court’s findings, but whether 
those findings are fairly supported by the 
record. Id. at 434, 105 S.Ct. at 857 (citing 
Marshall v. Lonberger, 459 U.S. 422, 432, 
103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983) 

The trial court’s finding that jurors Gos- 
" sard and Norris were properly excluded is 
supported by the record. Both jurors said 
during voir dire that they could not impose 
the death penalty under any circumstances. 

Q. (Mr. Ahlswede) 

So you are saying that you could never 
under any circumstances at any time im- 
pose a death penalty on an individual, no 
matter how awful the crime was? 

A. (Juror Gossard) 

I never been able to since a few things 

happened in my life. I just—I just 
couldn’t do it. 

* * * *® * * 

Q. (Mr. Ahlswede) 

Do you feel that you could never under 
any circumstances send anyone to the 
gas chamber? 

A. (Juror Norris) 

No, I could never. 

The district court incorrectly found that 
Deutscher’s counsel rendered ineffective 

assistance by failing to assert improper 
exclusion of jurors on appeal. Because 
Deutscher was not prejudiced by his coun- 
sel’s failure to raise this claim, Deutscher’s 

claim on this issue is barred by procedural 
default. 

I. Count Nine: Improper Proportion: 

ality Review 

[12] Deutscher contends the Nevada 
Supreme Court failed to properly conduct 

    

 



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DEUTSCHER v. WHITLEY 
Cite as 884 F.2d 1152 (9th Cir. 1989) 

the proportionality review required by Ne- 
vada’s death penalty statute and thus de- 
prived Deutscher of a liberty interest with- 
out due process. Deutscher was not preju- 
diced by his procedural default. See Pul- 
ley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 
871, 879-80, 79 L.Ed.2d 29 (1984) (holding 
that the Constitution does not require pro- 
portionality review). 

J. Count Ten: Prejudicial Evidence 
Introduced at Sentencing 

[13] Deutscher argues that the trial 

court violated due process during the pen- 
alty phase hearing by allowing the state to 
prove a prior sexual assault conviction by 
testimony of the victim and arresting offi- 
cer. This claim was available to counsel. 
No case decided since Deutscher’s appeal 
has significantly changed the type of evi- 
dence that can be presented during the 
penalty phase.. Proving that introduction 
of evidence violated due process is extraor- 
dinarily difficult. See Hobbs v. Lockhart, 
791 F.2d 125, 128 (8th Cir.1986) (holding 
that to violate due process, evidence must 
be so conspicuously prejudicial or of such 
magnitude that it fatally infected the trial 
and deprived the defendant of fundamental 
fairness). Given the small likelihood of 
success, counsel’s decision not to raise the 
claim was within the broad parameters of 
reasonably effective assistance. 

IV. INEFFECTIVE ASSISTANCE 

Deutscher argues that he was deprived 
of the effective assistance of counsel in 
violation of the Sixth Amendment. 
Deutscher’s ineffective assistance claims 
fall into two categories: first, Deutscher 
claims that counsel failed to investigate 
and present mitigating evidence at the pen- 

~alty phase hearing; second, Deutscher 
claims that counsel failed to present meri- 
torious claims on appeal. Because 
Deutscher also claims that ineffective as- 
sistance on appeal was cause for his proce- 
dural defaults, Deutscher’s claims of inef- 
fective assistance on appeal are addressed 
in the preceding section. 

[14] Deutscher claims that his counsel’s 
failure to investigate and present mitigat- 

   
1159 

ing evidence at the penalty phase was inef- 
fective assistance. We evaluate Deutsch- 
er's claim under the two-part Strickland 
test. First, Deutscher must show that his 
counsel’s performance was deficient. Sec- 
ond, Deutscher must show that his coun- 
sel’s deficient performance prejudiced his 
defense. Strickland, 466 U.S. at 687, 104 
S.Ct. at 2064. 

In evaluating Deutscher’s counsel’s per- 
formance, we “indulge a strong presump- 
tion that counsel's conduct falls within the 
wide range of reasonable professional as- 
sistance; that is, the defendant must over- 
come the presumption that, under the cir- 
cumstances, the challenged action ‘might 
be considered sound trial strategy.” Id. 
at 689, 104 S.Ct. at 2065 (quoting Michel v. 
Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 
164, 100 L.Ed. 83 (1955)). We do not look 
at counsel's performance through the dis- 
torting lenses of hindsight, but rather ex- 
amine counsel's performance according to 
what was reasonable at the time. Id. 

We agree with the district court that 
Deutscher’s counsel's performance was de- 
fective. Counsel's sole mitigation argu- 
ment was that Deutscher must have had 
some sort of mental problem. Yet counsel 
did not even consider presenting evidence 
of Deutscher’s mental problems or any oth- 
er mitigating evidence at the penalty phase 
hearing. Counsel himself admitted at the 
state trial court hearing on this issue that 
this aspect of Deutscher’s representation 
was deficient. Counsel made no tactical 
decision not to investigate Deutscher’s pos- 
sible mental impairment. He simply failed 
to do so. 

We do not hold that failure to present 
mitigating evidence at a capital sentencing 
hearing is always defective performance. 
In certain cases, counsel might reasonably 
decide that mitigation evidence would 

present more problems than it would solve. 
In Darden wv. Wainwright, 477 U.S. 168, 

106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), the 
Court rejected a claim of ineffective assist- 
ance where counsel failed to present evi- 
dence in mitigation at a capital sentencing 
hearing. The Court noted: 

   



   
1160 

[There are several reasons why counsel 
reasonably could have chosen to rely on 
a simple plea for mercy from petitioner 
himself. Any attempt to portray peti- 
tioner as a nonviolent man would have 
opened the door for the State to rebut 
with evidence of petitioner’s prior convic- 
tions.... For that reason, after consul 

tation with petitioner, defense counsel 
rejected use of psychiatric testimony. 

Id. at 186, 106 S.Ct. at 2474. Counsel in 

this case did not make a reasoned decision 
not to use psychiatric testimony. Nor did 
he decide to rely on a simple plea for mer- 
cy. Rather, counsel decided to defend on 
the basis of petitioner's psychiatric prob- 
lems, but did not even consider investigat- 
ing evidence which would have bolstered 
that defense. Counsel could not have cho- 
sen to avoid psychiatric evidence because 
of potentially damaging rebuttal testimony. 
Counsel did not even know what evidence 

was available. 

Ahlswede had a “duty to make reason- 
able investigations or to make a reasonable 
decision that makes particular investiga- 
tions unnecessary.” Strickland, 466 U.S. 
at 691, 104 S.Ct. at 2066. He did neither. 

In Evans v. Lewis, 855 F.2d 631 (9th Cir. 
1988), we considered a similar case. Coun- 

sel knew his client had some history of 
mental problems, but “conducted no inves- 
tigation to ascertain the extent of any pos- 
sible mental impairment,” id. at 636, and 

did not present any mitigating evidence at 
his client's death penalty hearing. “Under 
these circumstances, counsel's failure to 

pursue the possibility of establishing ... 
mental instability constituted deficient per- 
formance.” Id. at 637. This case is virtu- 
ally identical. Counsel knew from the re- 
port of Dr. O'Gorman that Deutscher had 
been hospitalized for mental problems in 
the past, but counsel completely failed to 
pursue the possibility of presenting miti- 
gating evidence of mental impairment. 

Deutscher’s counsel's performance was de- 

ficient. 

[15] The district court rejected Deutsch- 
er’s ineffective assistance claim, however, 

holding that Deutscher had not shown prej- 

udice as required by the second part of the 

884 FEDERAL REPORTER, 2d SERIES 

Strickland test. To show that prejudice 
resulted from his counsel's defective per- 
formance, Deutscher must show that 
“there is a reasonable probability that, byt 

for counsel's unprofessional errors, the re- 
sult of the proceeding would have beep 
different.” Strickland, 466 U.S. at g94 
104 S.Ct. at 2068. “A reasonable probabil. 
ty is a probability sufficient to undermine 
confidence in the outcome.” Id. We cap. 
not say with confidence that the jury's 
sentencing decision would have been the 
same in this case had Deutscher’s counse] 

presented the available mitigating evi 
dence. 

\ The penalty phase hearing Deutscher re- 
ceived consisted of extensive testimony 

about an incident in 1967 in which Deutseh- 
er sexually assaulted a young woman. 

This testimony included the woman's own 
emotional and graphic description of the 
attack. This was followed by an extremely 
persuasive closing argument in which the 

prosecutor detailed five aggravating cir- 
cumstances and then demonstrated the 
complete absence of any of seven mitigat- 
ing circumstances. Next, Deutscher’s 

counsel admitted there was “no excuse” 
for what Deutscher had done, admitted the 

presence of the aggravating circumstances 
detailed by the prosecutor, and argued in 
mitigation only that “such a sick mind is 
not to be punished but rather to be pitied.” 
Finally, the prosecutor accurately pointed 
out the complete lack of any evidence of 
mitigation—“as far as insanity, the first 

thing you hear about it is an argument 
here on penalty. Don’t you believe if he 

had a doctor that would say he was insane, 
which he is entitled to, that you would have 

had him on the stand here?” 

Having that doctor on the stand might 
have made a difference. Dr. O'Gorman, 2 
competent, experienced psychiatrist Who 
examined Deutscher in 1977, would have 
testified that premature children such aS 
Deutscher can develop a mental disorder 

characterized by episodes of uncontrollable 

violence that are often accompanied by 2 
temporary loss of memory. He would have 
testified that stress and alcohol can make 

such an outburst more likely and that 

  

   

      

 



   

  

  

Deutscher’s story that he had blacked out 

was consistent with the symptoms of this 
disorder. Mental health records would 
have shown diagnoses of schizophrenia, 
pathological intoxication, and organic brain 

damage; commitments to mental institu- 
tions; and a history of good behavior in 
institutional settings. The records would 

have also shown that Deutscher had asked 

for but had not received treatment for epi- 
sodes of uncontrollable violence. Deutsch- 

er's family would have testified that 

Deutscher suffered fetal injury and was 
born prematurely due to a beating his 
mother received from his father, that 

Deutscher’s father beat and occasionally 
seriously injured Deutscher, and that 
Deutscher was often beaten while attempt- 
ing to protect his mother and sisters from 
his father. 

In finding that counsel's deficiencies 
were not prejudicial, the district court 

pointed to testimony by Dr. Master disput- 
ing Dr. O’Gorman’s conclusions and the 
previous diagnoses. Dr. Master testified 
that Deutscher was not mentally ill, but 

rather had no social conscience. The court 
speculated that the jury might have con- 
sidered this lack of social conscience testi- 
mony as further aggravation. Dr. Mas- 
ter’s testimony might have been successful- 
ly rebutted. Dr. Master did not take into 

account Deutscher’s premature birth, fetal 
injury, or childhood beatings. Dr. Master 
admitted that Deutscher would do well in 
an institutional setting. In addition, Dr. 
Master might have been impeached by evi- 
dence that Dr. Master has been an overzea- 
lous prosecution witness in other murder 
trials. Moreover, much of Dr. Master's 

testimony would have been inadmissible at 
the penalty phase hearing. Dr. Master 
was appointed by the trial court to deter- 
mine Deutscher’s competence to stand trial. 
When “a psychiatrist designated by the 
trial court to conduct a neutral competency 
€Xamination” goes beyond simply reporting 
On competence and testifies at the penalty 

Phase, he becomes like “an agent of the 
State recounting unwarned statements 

Made in a post-arrest custodial setting,” 
and use of his testimony could violate the 
Fifth Amendment. Estelle v. Smith, 451 

DEUTSCHER v. WHITLEY 
Cite as 884 F.2d 1152 (9th Cir. 1989) 1161 

U.S. 454, 467, 101 S.Ct. 1866, 1875, 68 
L.Ed.2d 359 (1981). 

Although we do not presume prejudice in 
a case such as this, we must be especially 

cautious in protecting a defendant's right 
to effective counsel at a capital sentencing 
hearing. The Constitution prohibits imposi- 
tion of the death penalty without adequate 
consideration of factors which might evoke 
mercy. California v. Brown, 479 U.S. 538, 

554, 107 S.Ct. 837, 846, 93 L.Ed.2d 934 
(1987). “Consideration of such evidence is 

a ‘constitutionally indispensable part of the 
process of inflicting the penalty of death’ ” 
Id. (quoting Woodson v. North Carolina, 

428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 
L.Ed.2d 944 (1976) (plurality). The Su- 

preme Court has consistently held that 
“the sentencer may not refuse to consider 

or be precluded from considering ‘any rele- 
vant mitigating evidence.”” Skipper o. 
South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 

90 L.Ed.2d 1 (1986) (quoting Eddings wv. 

Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 
869, 877, 71 L.Ed.2d 1 (1982). See also, 

Hitchcock v. Dugger, 481 U.S. 393, 398-99, 
107 S.Ct. 1821, 1824-25, 95 L.Ed.2d 347 
(1987). Deutscher’s state appointed lawyer 
failed to present any mitigation evidence at 
all. A finding that Deutscher was not prej- 
udiced by this failure would deny Deutsch- 
er the chance to ever have a jury, Nevada's 
death penalty arbiter, fully consider miti- 
gating evidence in his favor. Instead, sec- 
ondhand bits and pieces of mitigation evi- 
dence would be analyzed and rebutted 
based only on speculation about what 
might have happened if dozens of impor- 
tant variables had been different. Allow- 
ing the death penalty to be imposed in that 
context would fall far short of the constitu- 
tional mark. We therefore reverse and 
remand for resentencing so that a jury can 
properly weigh mitigating and aggravating 
circumstances before deciding Deutscher’s 

fate. 

In our efforts to protect the constitution- 

al right to “effective assistance of counsel” 
recognized in McMann v. Richardson, 397 

U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 
14, 25 L.Ed.2d 763 (1970), we have often 

treated “ineffective assistance of counsel” 

   



  

1162 

as if it were a defense available to one 
accused of a crime. It is not a defense. 
Rather, it is an indictment of counsel that 
results in relief to one who is unfortunate 
enough to have been represented incompe- 
tently. Because of our treatment of the 
issue, defense lawyers may be encouraged 
to leave behind a trail of mistakes in a 
hopeless case so that there is some possibil- 
ity of relief on ineffective assistance 
grounds in a case in which no relief is 
legally available to the accused. We can- 
not and do not accuse counsel of such 
reprehensible conduct. We must therefore 
conclude that the incompetent act is per- 
formed because the lawyer is not compe- 
tent to represent those accused of crime. \ 
Courts should not tolerate incompetence so 
flagrant as to be ineffective assistance. 
Nor should courts tolerate deliberate mis- 
takes which amount to both a dereliction of 
duty and an egregious lack of candor to- 
ward the courts. In the case of deliberate 
mistakes, it may become necessary for this 
court to act to prevent and deter such 
conduct. It is within our supervisory pow- 
ers, for example, to revoke the privilege of 
practice before this court when an attorney 
is found “guilty of conduct unbecoming a 
member of the bar of the court....” Fed. 
R.App.P. 46(b). In appropriate cases, we 
will not hesitate to do so. 

V. NEVADA'S TORTURE, DEPRAVITY, 
MUTILATION AGGRAVATING CIR- 
CUMSTANCE 

[16] Deutscher argues that the aggra- 
vating circumstance of torture, depravity 
of mind, or mutilation of the victim was 
unconstitutionally vague as applied to him. 
Nevada must not allow arbitrary and capri- 
cious imposition of the death penalty. See 

1. The relevant instructions were: 

Instruction No. 21: the essential elements of 
murder by means of torture are: (1) the act or 
acts which caused the death must involve a high 
degree of probability of death, and (2) the de- 
fendant must commit such act or acts with the 

intent to cause cruel pain and suffering for the 
purpose of revenge, persuasion, or for any other 
sadistic purpose. 

The crime of murder by torture does not 

necessarily require any proof that the defendant 
intended to kill the deceased, nor does it neces- 
sarily require any proof that the deceased suf- 
fered pain. 

884 FEDERAL REPORTER, 2d SERIES 

Godfrey v. Georgia, 446 USS. 420, 427 100 S.Ct. 1759, 1764, 64 L.Ed.2d 308 (1980) 
The Supreme Court has “insisted that the 
channeling and limiting of the Sentencep'g 
discretion in imposing the death Penalty jg 
a fundamental constitutional requirement 
for sufficiently minimizing the risk of whol. ly arbitrary and capricious action ” May. 
nard v. Cartwright, 486 U.S. 356, 108 S.Ct. 
1853, 1858, 100 L.Ed.2d 372 (1988). Be- 
cause the jury was instructed that it coulq 
find this aggravating circumstance if tor- 
ture, depravity of mind, or mutilation ge. 
curred, each of the three elements must be 
evaluated.! The torture and mutilation ag. 
pects of this circumstance are sufficiently 
clear and objective to satisfy the require- 
ments of Godfrey. The cutting off or de- 
‘struction of a portion of the body (mutila- 
tion) is an objective difference between a 
murder by mutilation and any other mur- 
der. See Godfrey, 446 U.S. at 428, 100 
S.Ct. at 1764. Intent to cause cruel pain 
and suffering for sadistic purposes is a 
similarly objective and reviewable distinc 
tion. 

[17] The depravity of mind instruction, 
however, fails to meet Godfrey require- 
ments. There is nothing in the definition 
of depravity of mind that restrains arbi- 
trary imposition of the death penalty. See 
Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764. 
The depravity instruction in this case, al- 
though it contains more words, is no more 
capable of channeling discretion than the 
“especially heinous, atrocious, or cruel” in- 
struction rejected in Maynard or the “out 
rageously or wantonly vile, horrible or in- 
human” instruction in Godfrey. See also 
Adamson v. Ricketts, 865 F.2d 1011, 1029 

(9th Cir.1988) (en banc) (holding Arizona 

“especially cruel, heinous, and depraved” 

Instruction No. 22: the condition of mind de- 

scribed as depravity of mind is characterized by 

an inherent deficiency of moral sense and recti- 

tude. It consists of evil, corrupt and perverted 
intent which is devoid of regard for human 
dignity and which is indifferent to human life. 

It is a state of mind outrageously, wantonly vile, 

horrible or inhuman. 
Instruction No. 23: You are instructed that the 
term “mutilate” means to cut off or permanent: 
ly destroy a limb or essential part of the body or 
to cut off or alter radically so as to make imper- 
fect. 

  

   

  

   

 



   
L J

EN
S 

AA
. 

LE
R 

LL 
SE
R 

PE
E 

    

aggravating circumstance unconstitutional 

as applied). 

[18] Because the jury found two aggra- 

yating circumstances besides the torture, 
depravity of mind, or mutilation ecircum- 

stance, however, Neuschafer v. Whitley, 

816 F.2d 1390, 1393 (9th Cir.1987) (citing 
Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 

9733, 77 L.Ed.2d 235 (1983)), would require 

affirmance as to this issue had we not 

decided to reverse on the basis of Deutsch- 
er's ineffective assistance claim. 

CONCLUSION 

The case is remanded to the district court 
for entry of an order granting the writ of 

habeas corpus, unless the state resentences 

Deutscher within a reasonable time. All of 

Deutscher’s claims except counts one and 
four are barred by procedural default. The 

district court erred only in its determina- 

tion that Deutscher was not prejudiced by 
his counsel's deficient performance in fail- 
ing to investigate or present any mitigating 
evidence. Because Deutscher was denied 
his right to effective assistance of counsel 
at sentencing, his 1977 sentence must not 

be carried out. 

REVERSED and REMANDED. 

O KEY NUMBER SYSTEM 

~
u
n
m
z
 

UNITED STATES of America, 

Plaintiff-Appellee, 

Vv. 

Albert O’Neal SCOTT, 

Defendant-Appellant. 

No. 87-1354. 

United States Court of Appeals, 
Ninth Circuit. 

Submitted June 27, 1989 *. 

Decided Sept. 1, 1989. 

/ 

Defendant was c¢onvicted before the 

United States District Court for the Dis- 

* The panel finds this case appropriate for submis- 
sion without oral argument pursuant to Ninth 

U.S. v. SCOTT 1163 
Cite as 884 F.2d 1163 (9th Cir. 1989)    

trict of Nevada, Lloyd D. George, J., of 

blackmail, and he appealed. The Court of 

Appeals held that: (1) appeal from denial of 
motion to dismiss indictment was not moot- 

ed by defendant’s conditional guilty plea to 

substituted information; (2) indictment 

charging defendant with mailing a threat- 

ening communication was not invalid be- 

cause it employed the disjunctive by alleg- 
ing that the defendant intended ‘‘to extort 

money . . . or other thing of value”; and (3) 

indictment was not unconstitutionally 
vague because it failed to describe “what 

thing of value” defendant intended to ob- 

tain. 

Affirmed. 

Pregerson, J., filed a dissenting opin- 
ion. 

1. Criminal Law &=1134(3) 

Generally, when an indictment is dis- 

missed and replaced with an information 

charging offenses different from those con- 

tained in the indictment, any challenge to 

the legal sufficiency of the indictment be- 

comes moot. 

2. Criminal Law ¢=1131(4) 

Appeal from denial of motion to dis- 

miss indictment was not mooted by defen- 

dant’s subsequent guilty plea to substitut- 

ed information, where plea was conditioned 

upon defendant's retaining his right to ap- 

peal from denial of motion to dismiss indict- 

ment; if indictment was overturned on ap- 

peal, Court of Appeals was required to 

allow defendant to withdraw his plea. Fed. 

Rules Cr.Proc.Rule 11(a)(2), 18 U.S.C.A. 

3. Indictment and Information &72 

Indictment charging defendant with 

mailing a threatening communication was 

not invalid because it employed the disjunc- 

tive by alleging that defendant acted with 

“intent to extort . . . money or other thing 

of value,” where indictment specified acts 

Circuit Rule 34-4 and Fed.R.App.P. 34(a). 

 



  

1370 

Appeals held that: (1) where uncontrovert- 
ed evidence presented to District Court 
judge did not establish that habeas petition- 

er had acted with intent to vex, harass, or 

delay in withdrawing first set of petitions, 
evidentiary hearing was unnecessary with 
respect to issue of abuse of writ raised by 
state, and (2) prosecutor’s use of an inflam- 

matory passage from a prior state Supreme 
Court decision was so misleading, legally 

incorrect and prejudicial as to warrant re- 

sentencing. 

Petition denied. 

1. Habeas Corpus &=7 

Government's only burden in pleading 
abuse of writ of habeas corpus is to make 

that claim with clarity and particularity in 
its return to order to show cause. Rules 

Governing § 2254 Cases, Rule 9(b), 28 U.S. 

C.A. foll. § 2254. 

2. Habeas Corpus ¢&=7 

Once government has properly raised 
issue of abuse of writ of habeas corpus, 

petitioner then has burden of answering 
allegation and of proving that he has not 
abused writ. 

3. Habeas Corpus €=90.2(1) 

Where uncontroverted evidence 

presented to district court judge did not 

establish that habeas petitioner had acted 
with intent to vex, harass, or delay in with- 

drawing first set of petitions, evidentiary 

hearing was unnecessary with respect to 

issue of abuse of writ raised by state. 
Rules Governing § 2254 Cases, Rule 9(b), 28 

U.S.C.A. foll. § 2254. 

4. Criminal Law &=717 

Prosecutor’s use during closing argu- 

ment of an inflammatory passage from a 
prior state Supreme Court decision was so 
misleading, legally incorrect and prejudicial 
as to warrant resentencing. 

Susan V. Boleyn, Asst. Atty. Gen., Atlan- 
ta, Ga., for respondent-appellant, cross-ap- 

pellee. 

Millard C. Farmer, Atlanta, Ga., for peti- 

tioner-appellee, cross-appellant. 

Appeals from the United States District 
Court for the Northern District of Georgia. 

764 FEDERAL REPORTER, 2d SERIES 

ON PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING 

EN BANC 

(Opinion May 29, 1984, 11th Cir., 

1984, 734 F.2d 526). 

HILL and VANCE, Circuit 
and TUTTLE, Senior Circuit 

Before 
Judges, 
Judge. 

BY THE COURT: 

The petition for rehearing filed by appel- 
lant in this case asserts several points of 
error in our earlier decision. Appellant 
raises two contradictory objections to our 
holding on abuse of the writ. First, appel- 
lant suggests that our decision improperly 
held that the state had to meet a “heavy 
burden” to establish abuse of the writ. 
Potts v. Zant (Potts II), 134 F.2d 526, 529 
(11th Cir.1984). Second, appellant sug- 
gests our decision erred because it “simply 
concluded without the benefit of an eviden- 
tiary hearing being held in district court, 
that the ends of justice required the district 
court to consider the merits of Petitioner's 
claims.” It therefore appears that some 
clarification may be in order. 

[1,2] Our earlier decision did not hold 
that the state must meet a particularly 
stringent burden in pleading abuse of the 
writ. Under Price v. Johnston, 334 U.S. 

266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948) and 
Rule 9(b) of the Rules Governing Section 

2254 Cases in the United States District 
Courts (28 U.S.C. foll. § 2254), it is clear 

that the government's only burden in 
pleading abuse of the writ is “to make that 
claim with clarity and particularity in its 
return to the order to show cause.” Price, 

334 U.S. at 292, 68 S.Ct. at 1063. Once the 
state has properly raised the issue, the 
petitioner then has the burden of answer- 
ing the allegation and proving that he has 
not abused the writ. Id. The state could 
meet the initial burden of sufficient plead- 
ing here. It faced a considerably more 
difficult task, however, once the petitioner 

responded: to convince the court that the 
abuse was sufficiently grave that nothing, 
not even the “ends of justice,” would war- 
rant consideration of the merits of the peti-   

   



it 

nit 

  

  

BOOKER v. WAINWRIGHT 1371 
Cite as 764 F.2d 1371 (1985) 

tioner’s claims. The state's position would 
be particularly difficult where—as in the 
present case—the petitioner has not yet 

secured a determination on the merits of 
his claims. Potts v. Zant (Potts I), 638 

F.2d 727, 741-42, 751-52 (5th Cir. Unit B), 
cert. denied, 454 U.S. 8717, 102 S.Ct. 357, 70 
L.Ed.2d 187 (1981). Thus, “[i]f a petitioner 
is able to present some ‘justifiable reason’ 
explaining his actions, reasons which ‘make 
it fair and just for the trial court to over- 
look’ the allegedly abusive conduct, the tri- 
al court should address the successive peti- 
tion.” Potts I, 638 F.2d at 741 (quoting 

Price, 334 U.S. at 291, 68 S.Ct. at 1063). 

[3] That is precisely what occurred in 

the present case. Although the state car- 
ried its burden of pleading abuse of the 
writ, the district judge concluded that the 

uncontroverted evidence presented to him 

did not establish that the petitioner had 
acted with the intent to ‘vex, harass, or 

delay.” Sanders v. United States, 373 
U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 
148 (1963). Our opinion simply noted that 
even if the district court had concluded that 
Potts acted in bad faith in withdrawing his 

first set of petitions, it would still be within 
the trial court’s discretion to review the 
second set of petitions under the “ends of 
justice” rationale set forth by the Supreme 
Court in Sanders. In any event, we be- 
lieve that the trial court correctly conclud- 

ed that there was no genuine dispute as to 

Potts’ motives for withdrawing his initial 
set of petitions. The Supreme Court's deci- 
sion in Price suggests merely that a hear- 
ing “may be necessary” where there is a 
“substantial conflict” as to the actual facts. 

Price, 334 U.S. at 292, 68 S.Ct. at 1063. 

Since no such conflict was present here, the 

district court properly concluded that an 
evidentiary hearing was unnecessary. 

[4] Appellant also claims that this court 

erred in condemning the prosecutor's use 
of a quotation from Eberhart v. State, 47 
Ga. 598 (1873), in closing argument. It 
argues that although the use of the state- 
ment is not favored, it does not rise to the 
level of constitutional error. We note that 
the en banc court has subsequently sup- 
ported our reasoning in Drake v. Kemp, 
762 F.2d 1449, 1460 (1985) (en banc). The 

764 F.2d—31 

Drake court found that the inflammatory 
passage was ‘misleading, legally incorrect 

and prejudicial,” at 1460 and that the preju- 

dice was serious enough to warrant resen- 

tencing. 

The petition for rehearing is DENIED. 
No member of this panel nor Judge in 

regular active service on the court having 

requested that the Court be polled on re- 
hearing en banc (Rule 35, Federal Rules of 

Appellate Procedure; Eleventh Circuit 

Rule 26), the petition for rehearing en banc 
is also DENIED. 

O & KEY NUMBER SYSTEM 

—
n
m
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Stephen Todd BOOKER, 

Petitioner-Appellant, 

Vv. 

Louie L. WAINWRIGHT, Secretary, 

Dept. of Corrections, State of 

Florida, Respondent-Appellee. 

No. 84-3306. 

United States Court of Appeals, 
Eleventh Circuit. 

June 21, 1985. 

Rehearing and Rehearing En Bane 

Denied Aug. 9, 1985. 

State prisoner convicted of burglary, 
sexual assault and first-degree murder ap- 

pealed from dismissal by the United States 
District Court for the Northern District of 
Florida, Maurice Mitchell Paul, J., of his 

petition for writ of habeas corpus. The 
Court of Appeals, Albert J. Henderson, Cir- 

cuit Judge, held that: (1) belated allegation 
of ineffective trial counsel constituted an 
abuse of the writ; (2) other grounds for 

relief were barred by procedural default 
because prisoner failed to assert them on 

his direct appeal in state court; and (3) 
failure to provide prisoner with written ac- 
count of proportionality review of his sen- 
tence did not violate his due process rights. 

Affirmed.



   
1. Habeas Corpus &=7 

Habeas corpus petitioner who fails to 
include all his grounds for relief in a first 
habeas corpus petition risks dismissal of 
claims raised for first time in later peti- 
tions. 

2. Habeas Corpus €&=7 

In response to a successive habeas cor- 
pus petition containing new grounds for 
relief, state may specifically plead abuse of 
the writ; state carries its burden by re- 

counting petitioner's writ history, identify- 
ing claims not raised before instant petition 
and alleging that petitioner abused the 
writ; if state's accusation goes unchal- 

lenged, then the belated presentation of a 
new ground will be deemed result of delib- 
erate withholding of a claim or other abuse 
of the writ; because such conduct flouts 

goal of avoiding needless piecemeal litiga- 
tion, court will not entertain the new claim. 

Rules Governing § 2254 Cases, Rule 9(b), 
28 U.S.C.A. foll. § 2254. 

3. Habeas Corpus €=7 

Habeas corpus petitioner may respond 
to allegation of abuse of the writ based on 
a successive petition containing new 
grounds for relief, and may avoid dismissal 
if he proves by preponderance of the evi- 
dence that he was ignorant of facts neces- 
sary to support the new grounds when he 
filed his prior habeas corpus petition; alter- 
nately, dismissal may be averted by show- 
ing that petitioner did not realize that such 
facts would constitute a basis for which 
federal habeas corpus relief could be grant- 
ed. Rules Governing § 2254 Cases, Rule 
9(b), 28 U.S.C.A. foll. § 2254. 

4. Habeas Corpus &=7 

Habeas corpus petitioner abused the 
writ by waiting until second petition to 
assert ineffective assistance of counsel, 

where at time of filing first petition, he 

was aware of facts necessary to a success- 

ful challenge to his attorney’s effective- 
ness, and he knew both that claim was 
legally possible and that he had means to 
pursue it. 

5. Habeas Corpus &=7 

A habeas corpus petitioner advised by 
counsel who also represented him at trial 

1372 764 FEDERAL REPORTER, 2d SERIES 

must take steps to challenge lawyer's trial 
effectiveness in a first petition if he under- 
stands that the ground for relief is avail 
able. 

6. Habeas Corpus &=7 

To avoid abuse of the writ, petitioner 
who belatedly alleges ineffectiveness of his 
trial lawyer who was also his habeas cor- 
pus counsel should prove by a preponder- 
ance of the evidence one of two circum- 
stances: he may show that his habeas cor- 
pus counsel deliberately prepared a petition 
which failed to challenge his trial perform- 
ance, while actually believing that he had 
not provided effective assistance; and peti- 
tioner may demonstrate that his attorney 
led him to believe that he had no alterna- 
tive but to continue to be represented by 
his trial counsel in postconviction proceed- 
ings, thereby foregoing the right to present 
the issue. 

7. Habeas Corpus &=7 

Petitioner who belatedly sought to 
raise ineffectiveness of trial counsel in sec- 
ond petition for habeas corpus could not 
avoid application of abuse of writ doctrine 
to the claim, considering that trial counsel 

who was also habeas counsel sincerely be- 
lieved that he had provided adequate repre- 
sentation and could not have acted out of 
improper self-interest to prevent petitioner 
from pursuing the issue, and that trial 
counsel advised petitioner he could not per- 
sonally represent petitioner if he chose to 
press claim, but that another attorney 
could press the issue. 

8. Habeas Corpus ¢=45.3(1.30, 1.50) 

Noncompliance with a state procedural 
rule generally precludes federal habeas 
corpus review of all claims as to which 
noncompliance with the procedural rule is 
an adequate ground under state law to 
deny review; however, if petitioner can 

demonstrate both cause for his noncompli- 
ance and actual prejudice resulting there- 

from, a federal court can review his claims. 

9. Habeas Corpus ¢°45.3(1.30) 

Florida's rule against collateral consid- 
eration of matters not raised on direct ap- 
peal constitutes an adequate ground under   

   



  

BOOKER v. WAINWRIGHT 1373 
Cite as 764 F.2d 1371 (1985) 

state law to deny review of grounds for 
relief not asserted on direct appeal to state 
court, and thus rule is an adequate proce- 
dural bar to habeas corpus review, notwith- 
standing claim that Florida so haphazardly 
enforces rule that it can not be an adequate 
procedural bar. 

10. Habeas Corpus €¢=45.3(1.40) 
Consideration on habeas corpus review 

of issues whether phrase “especially hei- 
nous, atrocious or cruel” is unconstitution- 
ally vague and claim that Florida unconsti- 
tutionally applies death penalty more often 
when victim is white than when victim is 
black was barred by procedural default, 
where petitioner failed to demonstrate 
cause for noncompliance and actual preju- 
dice that would have prevented application 
of procedural default rule. 

11. Habeas Corpus ¢=45.3(1.50) 
To excuse his procedural default per- 

taining to improper prosecutorial remarks, 
habeas corpus petitioner had to show, not 
merely that error at his trial created possi- 
bility of prejudice, but that it worked to his 
actual and substantial disadvantage, infect- 
ing his entire trial with error of constitu- 
tional dimensions. 

12. Habeas Corpus ¢=45.3(1.50) 

Habeas corpus petitioner did not ex- 
cuse his procedural default with regard to 
alleged improper prosecutorial remark that 
victim was white, where petitioner did not 
suggest any evidence supporting his allega- 
tion that statement inflamed racially biased 
jurors and judge who imposed death penal- 
ty because victim and defendant were of 
different races; moreover, even assuming 
presence of bias, petitioner did not show 
there was a substantial likelihood that an 
unbiased decision maker would have im- 
posed a life sentence, considering that 
against advice of counsel, petitioner took 
the stand at close of penalty phase and 
asked the jury to withhold mercy. 

13. Constitutional Law &=271 

Florida Supreme Court did not violate 
defendant's due process rights by not pro- 
viding him with a written account of its 
proportionality review of his death sen- 
tence, as the Constitution does not require 
that such a review be conducted, much less 

that it be detailed and in writing. U.S.C.A. 
Const.Amend. 14. 

James E. Coleman, Wilmer, Cutler & 
Pickering, Jeffrey Robinson, Washington, 
D.C., Steven L. Seliger, Quincy, Fla., for 
petitioner-appellant. 

Lawrence Kaden, Asst. Atty. Gen., Talla- 
hassee, Fla., for respondent-appellee. 

Appeal from the United States District 
Court for the Northern District of Florida. 

Before VANCE, HENDERSON and 
CLARK, Circuit Judges. 

ALBERT J. 
Judge: 

HENDERSON, Circuit 

Stephen Todd Booker appeals from dis- 
missal by the United States District Court 
for the Northern District of Florida of his 
petition for a writ of habeas corpus. Find- 
ing no error in the district court’s judg- 
ment, we affirm. 

On June 21, 1978, Booker was found 
guilty of burglary, sexual assault and first 
degree murder in the Circuit Court of the 
Eighth Judicial Circuit, in and for Alachua 
County, Florida. Concluding that the mur- 
der was perpetrated in an “especially hei- 
nous, atrocious or cruel” manner, the jury 
recommended the death penalty. On Octo- 
ber 20, 1978, the trial judge sentenced 
Booker to death. The Florida Supreme 
Court upheld the conviction and sentence 
on March 19, 1981. Booker v. State, 397 
S0.2d 910 (Fla.1981). The Supreme Court 
of the United States denied his petition for 
certiorari on October 19, 1981. Booker ». 
Florida, 454 U.S. 957, 102 S.Ct. 498, 70 
L.Ed.2d 261 (1981). The governor of Flor- 
ida subsequently conducted clemency re- 
view proceedings on February 17, 1982. 
On March 22, 1982 the governor signed a 
warrant of execution, and Booker’s sen- 
tence was scheduled for execution on April 
21, 1982. On April 13, 1982, the petitioner 
filed a motion for post-conviction relief in 
the Florida circuit court. The court denied 

the motion the next day, and the Florida 

Supreme Court affirmed the judgment of 

 



   
1374 

the circuit court on April 19, 1982. Booker 

v. State, 413 So.2d 756 (Fla.1982). 

Also on April 13, 1982 Booker filed his 
first petition for a writ of habeas corpus 
and an application for stay of execution in 
the United States District Court for the 
Northern District of Florida. The applica- 
tion and petition were denied on April 19 
and 20, 1982, respectively. On April 20, 
1982 this court granted a stay of execution 

in order to review fully the district court's 

decision. Booker v. Wainwright, 675 F.2d 
1150 (11th Cir.1982). The district court 

opinion was affirmed by this court on April 

25, 1983. Booker v. Wainwright, 703 F.2d 

1251, reh’g denied, 708 F.2d 734 (11th Cir. 
1983). On October 17, 1983, the United 

States Supreme Court denied certiorari. 
Booker v. Wainwright, — U.S. —, 104 

S.Ct. 290, 78 L.Ed.2d 266 (1983). 

On October 27, 1983, the governor signed 
a second death warrant, and execution was 

scheduled for November 17, 1983. On No- 

vember 1, 1983 new counsel assumed re- 

sponsibility for Booker’s appeals. Prior to 
this time, Booker had been represented by 
public defender Stephen Bernstein. On 
November 8, 1983, the new attorney filed a 

motion for post-conviction relief in the 
state trial court pursuant to Fla.R.Crim. 
Pro. 3.850. The motion alleged that (1) 

Bernstein had failed to provide Booker with 

effective assistance of counsel at his trial, 

(2) the prosecutor had made inflammatory 

comments to the jury, (3) Florida's aggra- 
vating factor “especially heinous, atrocious 
or cruel” was unconstitutionally vague, (4) 

Florida applies the death penalty in a ra- 
cially discriminatory manner, (5) the Flor- 

ida Supreme Court denied Booker due pro- 
cess by refusing to furnish him a written 
account of its proportionality review of his 
sentence and (6) execution by electrocution 

constitutes cruel and unusual punishment. 
None of these claims were raised in Book- 
er’s first post-conviction motion in the Flor- 
ida courts or in his first habeas petition in 
the federal district court. Following a No- 

vember 14, 1983 hearing on the ineffective- 
ness of counsel issue, the state trial court 
denied relief. The Florida Supreme Court 
affirmed on November 17, 1983, Booker v. 

764 FEDERAL REPORTER, 2d SERIES 

State, 441 So0.2d 148 (F1a.1983), and execu- 
tion was set for November 18, 1983. 

Booker filed a second habeas petition in 
the United States District Court for the 
Northern District of Florida on November 
16, 1983. This petition asserted all the 
alleged constitutional errors made in the 
§ 3.850 motion in the state court. Four- 
teen hours before the scheduled execution, 

the district court issued a stay and set a 

hearing for December 8, 1983. At that 

hearing the court considered arguments re- 

lating to (1) the application of the procedur- 
al default doctrine, (2) the presumption of 
correctness of the state court’s factfinding 

on Booker’s ineffectiveness of counsel alle- 
gation as set forth in 28 U.S.C. § 2254(d), 

(3) the standard of review for a successive 

petition and (4) discovery under § 2254. 
Booker withdrew his cruel and unusual 

punishment claim. The court set another 

hearing for December 14, 1983 on whether 
Booker’s second petition constituted an 
abuse of the writ. 

During this latter hearing Booker sought 
to excuse his failure to raise the ineffec- 
tiveness of counsel claim in his first federal 
habeas corpus petition, contending that his 

original attorney, Stephen Bernstein, la- 
bored under a conflict of interest. He al- 
leged that Bernstein failed to make this 
challenge in order to avoid an attack on his 
own effectiveness at the trial. Booker 

stressed that Bernstein not only continued 

to represent him but also advised him that 
such a claim was, though possible, not a 

viable one. For this reason, Booker assert- 

ed that he did not intend to omit the charge 
of ineffectiveness in his first petition, but 
rather simply believed he could not raise it. 

The only witness appearing at the De- 
cember 14, 1983 hearing was Stephen Bern- 
stein. Following his testimony on behalf of 
the state and cross-examination by Book- 
er’s counsel, Booker’s attorney informed 

the court that he would not call any wit- 
nesses. When the court inquired whether 
Booker wanted to testify, counsel answered 

no. The court then asked Booker if he 
wished to testify. Because Booker’s an- 
swers were confusing, counsel requested a 

    

  
  
 



a
 

  

  

a
m
 

i
s
 

oo 
oy
 

MET
 

a 
= 

BOOKER v. WAINWRIGHT 1375 
Cite as 764 F.2d 1371 (1985) 

recess for the purpose of consulting his 
client. After consultations with Booker, 
his lawyer reaffirmed the decision that 
Booker would not testify. Bernstein's tes- 
timony is uncontradicted, and the district 
court properly accepted it as entirely accu- 
rate. 

Bernstein testified that about one month 
prior to Booker’s February 17, 1982 clem- 
ency hearing, Bernstein advised Booker 
that clemency was not likely to be granted 
in his case. Therefore, Bernstein asked 
Booker to consider claims that he should 
assert in a § 3.850 motion and in a federal 
habeas corpus petition. Bernstein identi- 
fied for Booker both claims Bernstein be- 
lieved were appropriate to this case and 
also challenges that other inmates had used 
to obtain stays of execution. Record, De- 
cember 14, 1983 hearing, p. 28. He also 
told Booker that he should consider wheth- 
er he had had effective assistance at trial. 
Id. p. 12. Bernstein explained that “this 
was one of the issues that a great number 
of inmates in that position had raised and 
that it had gotten stays in some situa- 
tions.” Id. p. 13. Bernstein cautioned 
Booker that such a charge would require 
another lawyer since Bernstein could not 
attack his own effectiveness. Id. pp. 12, 
29. Bernstein promised to help Booker 
procure another attorney to pursue the 
charge of ineffectiveness of counsel. Jd. p. 
29. The lawyer added that the time to 
raise the issue, if Booker wanted to do SO, 
was in the first motion and petition. 7d. p. 
35. Booker understood what Bernstein 
told him. 7d. p. 13. Booker immediately 
responded, “No, I will stick with you,” but 
Bernstein replied, “No, I don’t want you to 
make a decision. I want you to think about 
this particular issue.” Id. Bernstein did 
not suggest any specific grounds in sup- 
port of such a claim in Booker’s case. Id. 
pp. 28-29, 31. 

During the week after the first warrant 
for execution was signed, Bernstein and 
Booker reviewed all the possible claims 
they had discussed in January, including 
ineffective assistance of counsel. Bern- 
stein later testified: 

I told [Booker] I didn’t think it was an 
issue for us to raise. I told him that if 

he wanted to raise that issue that we 
would have to get another attorney. I 
told him that if he had a question about 
it we would get another attorney. 

I told him that if we raised the issue of 
ineffective assistance of counsel I 
couldn’t do that, we had to get another 
lawyer. I would help him get another 
lawyer. 

I told him if he had any questions 
about the issue, even if he just didn’t 
know or wanted something inquired into, 
that we had to get him another lawyer to 
help him resolve those questions. 

At that point he said, ‘No, I want you 
to represent me,” and expressed no desire 
to raise the issue. . .. 

1d. pp. 19, 15. Booker made the choice not 
to challenge Bernstein's competence. Id. 
Pp. 25. He understood that he had the op- 
tion to assert ineffectiveness of counsel but 
decided against it. Jd. pp. 25, 31-32. 
Bernstein reminded him that it should be 
included in the first petition. Booker never 
even suggested, however, that he wanted 
to pursue this line of attack, nor did he ask 
any questions about it. Jd. pp. 20, 32. 
Bernstein believed he had supplied effec- 
tive trial representation. If he had thought 
Booker had grounds for an allegation of 
ineffectiveness, he would have taken steps 
to include it in the § 3.850 motion and the 
habeas corpus petition. 7d. p. 32. Booker 
never expressed dissatisfaction with Bern- 
stein’s representation. Id. pp. 8, 32. Two 
weeks later, on April 13, 1982, Bernstein 
filed the § 3.850 motion and habeas corpus 
petition. Jd. p. 30. He made no ineffective 
assistance of counsel charge. 

Following the December 14, 1983 hear- 
ing, the district court denied Booker’s sec- 
ond petition. The court found that the 
belated allegation of ineffective trial coun- 
sel constituted an abuse of the writ, that 
Booker had no right to a written account of 
the Florida Supreme Court’s proportionali- 
ty review and that Booker’s remaining con- 
stitutional grounds for relief had been pro- 

cedurally defaulted. This appeal followed. 

 



   
1376 

Abuse of the Writ. 

[1,2] A petitioner who fails to include 
all his grounds for relief in his first habeas 
petition risks dismissal of claims raised for 

the first time in later petitions. In re- 
sponse to a successive petition containing 

new grounds for relief, the state may spe- 
cifically plead abuse of the writ. The state 
carries its burden by recounting the peti- 
tioner’s writ history, identifying the claims 

not raised before the instant petition and 
alleging that the petitioner abused the writ 
in violation of 28 U.S.C. § 2254, Rule 9(b). 

Sanders v. United States, 373 U.S. 1, 83 

S.Ct. 1068, 10 L.Ed.2d 148 (1963). If the 

government's accusation goes unchal- 

lenged, then the belated presentation of a 

new ground will be deemed the result of 
deliberate withholding of a claim or other 
abuse of the writ. Because such conduct 
flouts Rule 9(b)’s goal of avoiding needless 
piecemeal litigation, the court will not en- 

tertain the new claim. Sanders, supra. 

This court has said that the abuse of the 
writ doctrine should be “of rare and extra- 
ordinary application.” Paprskar v. Es- 
telle, 612 F.2d 1003, 1007 (5th Cir.), cert. 

denied, 449 U.S. 885, 101 S.Ct. 239, 66 
L.Ed.2d 111 (1980). But subsequent expe- 

rience recently prompted five members of 

the Supreme Court to warn: 

A pattern seems to be developing in capi- 

tal cases of multiple review in which 
claims that could have been presented 
years ago are brought forward—often in 
a piecemeal fashion—only after the exe- 
cution date is set or becomes imminent. 

Federal courts should not continue to 
tolerate—even in capital cases—this type 
of abuse of the writ of habeas corpus. 

Woodard v. Hutchins, 464 U.S. 377, —, 

104 S.Ct. 752, 753, 78 L.Ed.2d 541, 544-45 
(1984) (Powell, J., concurring in per curiam 

opinion). 

[3] Nevertheless, not all piecemeal liti- 

gation is “needless,” and a petitioner may 
respond to the allegation of abuse. K.jg., 
Haley v. Estelle, 632 F.2d 1273, 1276 (5th 

Cir.1980). The petitioner may avoid dismis- 
sal if he proves by a preponderance of the 

evidence that he was ignorant of facts nec- 

essary to support the new ground when he 

764 FEDERAL REPORTER, 2d SERIES 

filed his prior habeas corpus petition. E.g., 
Mays v. Balkcom, 631 F.2d 48, 51 (5th 

Cir.1980). Thus, a prisoner whose succes- 

sive petition asserted as a new ground that 
he had recently become insane did not 
abuse the writ, because the facts of his 

recent mental decline were not apparent at 

the time of the filing of his first petition. 
Ford v. Strickland, 734 F.2d 538 (11th 

Cir.1984). Cf. Henry v. Wainwright, 743 

F.2d 761 (11th Cir.1984) (proffering addi- 

tional evidence of insanity at time of 
crime). 

Alternately, dismissal may be averted by 
showing that the petitioner did not realize 

“that those facts would constitute a basis 
for which federal habeas corpus relief 
could be granted.” Haley v. Estelle, 632 
F.2d at 1275 (emphasis added). The exact 

scope of this alternative exception to the 
abuse of the writ doctrine lacks adequate 
definition. In Mays, the panel held as an 
abuse of the writ a successive petition 
alleging ineffectiveness of trial counsel. 
Finding that Mays had known earlier of the 
facts underlying this claim, the court 
turned to consider whether he had been 
“unaware that the facts would constitute a 
basis for federal habeas relief.” 631 F.2d 
at 51. 

This court realizes that a pro se peti- 
tion filed by a prisoner should be exam- 
ined more liberally than one drawn up by 
an attorney. A pro se applicant will 

more than likely not be aware of all the 
possible sets of facts which could result 
in a granting of relief by habeas corpus. 

Such does not appear to be the case in 
this instance, however. Prior to the trial 

which ultimately resulted in Mays’ con- 
viction, Mays informed the court, in the 

presence of his own attorney, that he did 
not feel that his attorney could represent 
him to ‘the best of his ability ... in a 
charge as serious as this when he was 

only appointed to me yesterday.” Obvi- 
ously, Mays was well aware of the issue 
of ineffective assistance of counsel be- 
fore he ever even considered filing a 
habeas corpus petition. His failure to 
include this claim can only be considered 

inexcusable neglect at best and a deliber- 

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BOOKER v. WAINWRIGHT 1377 
Cite as 764 F.2d 1371 (1985) 

ate withholding of a ground for relief at 
worst. 

Id. That Mays was found to have abused 
the writ while proceeding pro se in his 
various collateral endeavors underscores 
the narrowness of the exceptions to the 
abuse of the writ doctrine. 

Significantly, the Mays court did not find 
it necessary to explore whether Mays had, 
at the time of filing his first petition, con- 
sidered ineffectiveness in the context of the 
particular facts that he later asserted enti- 
tled him to relief. Rather, the case holds a 
petitioner accountable for failing to assert 
a claim in his first petition if he knew then 
that he could present the legal issue for 
Judicial review that might lead to habeas 
corpus relief. The question is whether the 
petitioner knew of the possibility of making 
such a claim, not whether he believed that 
the claim itself was meritorious. To ex- 
cuse every petitioner who later raises a 
claim that he earlier believed lacked merit 
would be to carve out an exception for the 
very group of successive petitions targeted 
by Sanders and Rule 9(b)—those petitions 
lacking serious merit, brought only for the 
purpose of delay or vexation. Further 
more, if courts were saddled with the task 
of deciding whether a prisoner had at one 
time believed the claim was insubstantial, a 
factor in ascertaining that belief would be 
the apparent merit of the claim itself. The 
very purpose of the abuse of the writ doc- 
trine is to spare the judicial system the 
burden of exploring the merits of such 
claims. 

In applying these principles here, we be- 
gin by reciting the charges of Bernstein's 
ineffectiveness. The thrust of the attack is 
that Bernstein should have more thorough- 
ly sought out and presented evidence of 
Booker’s unhappy family background, lim- 
ited education, military service and psychi- 
atric hospitalizations over the years preced- 
ing the murder. Booker specifically faults 
Bernstein for obtaining fewer than all of 
the hospital records pertaining to his psy- 
chiatric treatment. He also blames Bern- 
stein for not having him examined by a 
neurologist as well as the three psychia- 
trists and the psychologist whom Bernstein 
did arrange for his evaluation. At the 

least, Booker argues, such additional infor- 
mation might have persuaded the psycholo- 
gist or one of the psychiatrists that he was 
insane. He further urges that additional 
proof might have convinced the jury of his 
insanity, or at least have suggested a miti- 
gating circumstance rendering the death 
penalty an inappropriate punishment in his 
case. 

[4] From these facts and the relevant 
law, it is apparent to us that Booker 
abused the writ by waiting until now to 
assert ineffective assistance of counsel. 
Despite his bald allegation that at the time 
of filing his first petition he was ignorant 
of the facts necessary to a successful chal- 
lenge to his attorney’s effectiveness, Book- 
er declined to testify and offered no other 
proof to support a finding of such igno- 
rance. Indeed, there is strong evidence 
that he was aware of all the relevant infor- 
mation. Booker observed Bernstein's trial 
performance and spoke at length with the 
examining psychiatrists about his history 
and mental condition. During the advisory 
sentencing proceeding, Booker himself 
identified the various hospitals in which he 
had received psychiatric treatment. Tran- 
script of Trial Proceedings, pp. 836-38, 
840-43. At the time of filing the first 
habeas corpus petition, it is very likely that 
Booker was well aware of his background, 
his family, his relevant biographical data 
and his psychiatric history. We have on 
similar facts held that a petitioner should 
know his prior mental difficulties and psy- 
chological makeup. Henry ov. Wainwright, 
743 F.2d 761, 762 (11th Cir.1984). Booker 
presents no evidence on the issue, and his 
unsupported claim of factual ignorance 
must fail. He had the burden of proof to 
sustain his allegations. 

[5] Turning next to his allegation that 
he was ignorant of his obligation to claim 
ineffective assistance of counsel in his first 
petition, we find that he knew both that the 
claim was legally possible and that he had 
the means to pursue it. Booker was ad- 
vised by Bernstein that persons in his posi- 
tion might obtain habeas corpus relief by 
pressing such a claim. A habeas corpus 

 



   
1378 

petitioner advised by counsel who also rep- 
resented him at trial must take steps to 

challenge the lawyer's trial effectiveness in 
his first petition if he understands that the 
ground for relief is available. In re Shri- 
ner, 735 F.2d 1236 (11th Cir.1984). On 
facts virtually identical to these, the Shri- 
ner court reasoned: 

Shriner presents the affidavit of his 
counsel, Dan O'Connell, in the first habe- 

as proceeding, which states that O’Con- 

nell failed to raise ineffective assistance 
of counsel arguments because he had 

been one of Shriner's trial counsel as 
well, and he believed that there were 

legal and ethical problems with his argu- 

ing his own ineffectiveness. Shriner con- 
tends that this constitutes sufficient ex- 
cuse for his failure to raise the ineffec- 
tiveness claims in the first petition and 
that he is entitled at the very least to an 
evidentiary hearing on the abuse of writ 
issue. We find this contention without 
merit. In the first habeas hearing the 
district court asked O'Connell directly 
whether he wished to raise an ineffective 
assistance claim. He answered that he 
had scoured the trial record and could 
find no basis for one. This seems to 
have been a reasonable answer, given 

that the ineffectiveness claims that Shri- 
ner now raises are without merit. Sec- 
ond, O’Connell’s affidavit indicates that 

he fully informed Shriner of his reasons 
for not raising the ineffective issue. 
Shriner nevertheless made no effort to 
displace O'Connell as his counsel, obtain 
new counsel, or proceed pro se, and raise 
the ineffectiveness issue. Such strategic 
choice constitutes deliberate withholding 
of a claim, and subsequent assertion of 
that claim is abuse of the writ. 

Id. pp. 1240-41. 

[6] In Shriner, the court held that to 

avoid abuse of the writ the petitioner who 
belatedly alleges ineffectiveness of his trial 
lawyer who was also his habeas corpus 
counsel should prove by a preponderance 
of the evidence one of two circumstances. 
First, he may show that his habeas corpus 
counsel deliberately prepared a petition 
which failed to challenge his trial perform- 
ance, while actually believing that he had 

764 FEDERAL REPORTER, 2d SERIES 

not provided effective assistance. Here, it 
is undisputed that Bernstein sincerely be- 
lieved that he had provided adequate repre- 
sentation. It is impossible, therefore, that 

Bernstein could have acted out of improper 
self-interest to prevent Booker from pursu- 
ing the issue. 

[7] Second, a petitioner may demon- 
strate that his attorney led him to believe 
that he had no alternative but to continue 
to be represented by his trial counsel in the 
post-conviction proceedings, thereby fore- 
going the right to present the issue. Here, 
Booker has not shown that Bernstein con- 
vinced him it was legally or practically 

impossible to challenge the attorney’s per- 
formance. In fact, the evidence shows the 

contrary. Bernstein explained that he 
could not personally represent Booker in 
this effort but that another attorney could 
press the issue. Bernstein even promised 
to help Booker find additional legal help. 
Booker has not proven that he faced a 
“grisly choice” between foregoing the 
claim by continuing with Bernstein and 
abandoning all hope of collateral attack. 
As the Shriner court noted, Booker could 

have obtained additional counsel or pro- 
ceeded pro se. At the latest, he learned of 

his right to challenge his attorney’s effec- 
tiveness and Bernstein's inability to pursue 

it in° mid-January, 1982, more than three 

months before the date of his scheduled 
execution. Because Booker has failed to 
prove either of the exceptional circumstanc- 
es, he cannot now avoid the application of 
the abuse of the writ doctrine to his inef- 
fectiveness of counsel claim. 

Finally, we note that the ends of justice 
do not here mitigate in favor of entertain- 
ing Booker’s belated claim. See, e.g., Potts 

v. Zant, 638 F.2d 727, 751-52 (5th Cir. Unit 

B 1981), cert. denied, 454 U.S. 877, 102 

S.Ct. 357, 70 L.Ed.2d 187 (1981). 

Procedural Default. 

[8] The district court found that three 
of Booker’s grounds for relief—improper 
prosecutorial comment, discriminatory ap- 
plication of the death penalty and vague- 
ness of the aggravating factor “especially 
heinous, atrocious or cruel”’—were barred 

    

   



    

BOOKER v. WAINWRIGHT 1379 
Cite as 764 F.2d 1371 (1985) 

by procedural default because he failed to 

assert them on his direct appeal in the state 
court. Under Wainwright v. Sykes, 433 
US. 72, 97 8.Ct. 2497, 53 1L.Ed.2d 594 
(1977) and its progeny, noncompliance with 
a state procedural rule generally precludes 
federal habeas corpus review of all claims 
as to which noncompliance with the proce- 

dural rule is an adequate ground under 
state law to deny review. If a petitioner 

can demonstrate both cause for his non- 

compliance and actual prejudice resulting 

therefrom, however, a federal court can 

review his claims. United States v. Frady, 
456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 

L.Ed.2d 816, 830 (1982); Francis v. Hen- 

derson, 425 U.S. 536, 96 S.Ct. 1708, 48 

L.Ed.2d 149 (1976). 

[9] To forestall a finding of procedural 
default, Booker first urges that Florida so 

haphazardly enforces its rule against col- 
lateral consideration of matters not raised 
on direct appeal that the rule is not an 
adequate procedural bar under Sykes. Cf. 
Francois v. Wainwright, 741 F.2d 1275, 

1286 (11th Cir.1984) (holding that Florida's 

contemporaneous objection rule is adequate 
because it is consistently applied). Book- 

er’'s argument overlooks our contrary opin- 

ion in Hall v. Wainwright, 733 F.2d 766 
(11th Cir.1984). There, in a similar situa- 

tion, we concluded “Hall argues that the 
Supreme Court of Florida does not enforce 

its procedural default rules in capital cases. 

This claim is without merit. The Supreme 
Court of Florida enforces its procedural 
default rules in capital cases.” 733 F.2d at 
777. Accord, Palmes v. Wainwright, 725 

F.2d 1511, 1525 (11th Cir.1984) (recognizing 
the Sykes effect of Florida's rule against 
reviewing collaterally issues that could 
have been raised on direct appeal). An 
abundance of Florida opinions relying on 
the rule confirms our finding in Hall. 

Furthermore, we note that the cases cit- 

ed by Booker to support his allegation of 
arbitrariness prove, on careful reading, to 

be irrelevant. In some of these cases, for 

instance, the prisoners asserted in § 3.850 

motions various attacks that, as a matter 

of state law, failed to state a claim for 

E.g., which relief could be granted. 

Straight v. Wainwright, 422 So.2d 827, 831 

(Fl1a.1982). 

[10] Finding that Florida's procedural 
rule constitutes an adequate ground for 

denying Booker state collateral review of 
these three challenges, we address whether 

Booker has demonstrated the cause and 

actual prejudice that would prevent applica- 
tion of Sykes. The district court made no 
findings as to cause, Record Excerpts p. 

474, but we agree with its conclusion that 

Booker has not shown actual prejudice aris- 
ing from these purported errors. His 

charge that the phrase “especially, heinous, 

atrocious or cruel” is unconstitutionally 

vague has already been decisively repudiat- 
ed by the United States Supreme Court. 
Proffitt v. Florida, 428 U.S. 242, 255-56, 
96 S.Ct. 2960, 2968, 49 L.Ed.2d 913, 924-25 
(1976). The Court has also rejected the 

claim that Florida unconstitutionally ap- 
plies the death penalty more often when 
the victim is white than when the victim is 
black. FE.g., Sullivan v. Wainwright, 464 
U.S. 109, —, 104 S.Ct. 450, 451, 78 
L.Ed.2d 210, 212-13 (1983). Therefore, as 

a matter of law no prejudice resulted, and 

consideration of these issues is barred by 
procedural default. 

[11,12] To excuse his procedural de- 

fault pertaining to improper prosecutorial 
remarks, Booker “must shoulder the bur- 

den of showing, not merely that the errors 

at his trial created a possibility of preju- 
dice, but that they worked to his actual 
and substantial disadvantage, infecting his 
entire trial with error of constitutional di- 

mensions.” Frady, 456 U.S. at 170, 102 

S.Ct. at 1596, 71 L.Ed.2d at 832. The re- 

mark which Booker challenges as infecting 

the sentencing decisions occurred in the 

prosecutor's opening statement. 

Now, I will tell you what I think the 

evidence will show. The date involved is 

November 9, 1977. The time of the al- 

leged crime is between the hours of 2:00 
p.m. and 4:30 p.m. The place is the home 

of Mrs. Lorine MeMoss Harmon at 207 

N.W. Boulevard, Apartment # 3. This is 
a multiple-family dwelling house, one of 

the old ones in Gainesville that has been 

 



   
1380 

divided into apartments. 
what I am speaking of. 

Mrs. Harmon was residing in apart- 

ment number 3 by herself at that time. 

She is the victim in this case. She is a 

white female of 94 years of age. 

The defendant in this case is Stephen 
Todd Booker who sits across from me. 

Now that you have the essentials, 

what the State will show to you is.... 

Trial Transcript, Vol. II pp. 439-40. Photo- 
graphs properly before the jury showed, 

inter alia, that the victim was white. The 

petitioner, who is black, asserts that this 

statement inflamed racially biased jurors 
and the judge to impose the death penalty 

because the victim and defendant were of 
different races. This argument derives 
from the racial discrimination claim reject- 
ed by the Court in Sullivan, supra, and 

similarly no actual prejudice could be 

shown here. Moreover, Booker does not 
even suggest any evidence supporting his 
allegations of racial bias. 

Finally, even assuming the presence of 
bias, Booker has not shown there was a 

substantial likelihood that an unbiased deci- 
sionmaker would have imposed a life sen- 

tence. F'rady, 456 U.S. at 174, 102 S.Ct. at 

1597-98, 71 L.Ed.2d at 834 (“Surely there is 

no substantial likelihood the erroneous mal- 

ice instruction prejudiced Frady’s chances 

with the jury.”). This burden was particu- 

larly heavy here in view of the evidence at 
the trial. Against the advice of counsel, 

Booker took the stand at the close of the 
penalty phase and asked the jury to with- 

hold mercy. Record Excerpts p. 476. The 
overwhelming evidence of his guilt includ- 
ed conclusive medical evidence taken from 
his victim's corpse, his footprints in the 
blood around her body and his own confes- 
sion to the crime, delivered in an assumed 

voice belonging to “a demon” named “An- 
iel.” Booker’s victim was a ninety-four- 
year-old woman who was previously un- 
known to him. Before killing her he raped 
and tortured her. Under these circum- 
stances, Booker faced a difficult task in 
arguing that the prosecutor’s description of 

the victim as “white” destroyed a substan- 
tial likelihood that he would receive mercy 
in spite of his own admission that death 

You know 

764 FEDERAL REPORTER, 2d SERIES 

was the only appropriate penalty. He has 
failed to carry that burden. 

Written Proportionality Review. 

[13] Booker charges that the Florida 

Supreme Court violated his due process 
rights by not providing him a written ac- 
count of its proportionality review of his 

sentence. 

Under Pulley v. Harris, 463 U.S. 1248, 
104 S.Ct. 35, 79 L.Ed.2d 29 (1984), the Con- 
stitution does not require that such a re- 

view be conducted, much less that it be 

detailed and in writing. Accordingly, we 
hold that Booker has no federal right to 

such a written review. 

The Florida Supreme Court has held that 
Florida law does not afford such a right. 

Messer v. State, 439 So0.2d 875 (Fla.1983). 

We cannot contradict that court’s construc- 
tion of Florida law. 

The denial of Booker’s petition for a writ 
of habeas corpus is 

AFFIRMED. 

© & KEY NUMBER SYSTEM 
w 
E 
Ss 
T 

UNITED STATES of America, 

Plaintiff-Appellant, 

Cross-Appellee, 

Vv. 

Manuel W. JAMES, Defendant-Appellee, 

Cross-Appellant. 

No. 82-6043. 

United States Court of Appeals, 
Eleventh Circuit. 

July 5, 1985. 

Kenneth W. Sukhia, Asst. U.S. Atty., Tal- 

lahassee, Fla, Mervyn Hamburg, U.S. 
Dept. of Justice, Washington, D.C., for 

plaintiff-appellant cross-appellee. 

Ronald A. Dion, N. Miami Beach, Fla., 

Lerman & Denker, Paul A. Lehrman, Talla- 

hassee, Fla., for Manuel James. 

    

    

  
 



  
  

PALAZZO v. GULF OIL CORP. 1381 
Cite as 764 F.2d 1381 (1985) 

Appeals from the United States District 
Court for the Northern District of Florida; 
William Stafford, Judge. 

ON PETITION FOR REHEARING 
Before HENDERSON and CLARK, Cir- 

cuit Judges, and ATKINS *, District Judge. 

PER CURIAM: 

The petition for rehearing filed by the 
United States, plaintiff-appellant is 
GRANTED. The opinion of the panel filed 
January 2, 1985, 749 F.2d 676, is hereby 
VACATED and WITHDRAWN in its en- 
tirety. 

The judgment of the district court is 
AFFIRMED on the basis of the opinion of 
the district court entered October 8, 1982. 

No member of this panel nor judge in 
regular active service on the Court has 
requested that the Court be polled on re- 
hearing en banc (Rule 35, Federal Rules of 
Appellate Procedure; Eleventh Circuit 
Rule 26). The Suggestion for Rehearing 
En Banc is DENIED. 

O & KEY NUMBER SYSTEM 

~
A
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E
 

Frank PALAZZO, Plaintiff-Appellant, 

v. 

GULF OIL CORPORATION, a 

Pennsylvania Corporation, 
Defendant-Appellee. 

No. 83-3219. 

United States Court of Appeals, 
Eleventh Circuit. 

July 5, 1985. 

Officer of gas retailing corporation 
brought anti-trust action against oil compa- 
ny on behalf of himself, a fellow officer, 
and the corporation. The United States 
District Court for the Middle District of 
Florida, William J. Castagna, J., entered 

* Honorable C. Clyde Atkins, U.S. District Judge 

for the Southern District of Florida, sitting by 

summary judgment in favor of oil compa- 
ny, and officer appealed. The Court of 
Appeals, John R. Brown, Senior Circuit 
Judge, held that: (1) corporation was re- 
quired to be represented by licensed coun- 
sel, and officer could not raise claims of 
corporation in his pro se capacity; (2) cor- 
porate officers had no standing to bring 
anti-trust action in their individual capaci- 
ties; and (3) oil company did not violate 
anti-trust laws by charging dealer tank 
wagon price for gasoline or submitting 
statements to Federal Energy Agency chal- 
lenging retailer's request for base period 
allocation. 

Affirmed. 

1. Corporations ¢=1.1(2), 397, 508 

Corporation is artificial entity that can 
act only through agents, cannot appear in 
Judicial case pro se, and must be represent- 
ed by counsel. 

2. Corporations 508 

General rule that corporations must be 
represented by licensed counsel in judicial 
actions applies even where person seeking 
to represent corporation is its president and 
major stockholder. 

3. Corporations ¢=508 

Assignment of corporate claims in anti- 
trust case to corporate officer, who was not 
attorney, did not obviate requirement that 
corporation be represented by licensed 
counsel; thus, officer's pro se action on 
behalf of corporation was subject to dismis- 
sal. 

4. Monopolies ¢=28(1.6) 

Under Florida law, officers of gas re- 
tailing corporation did not have standing to 
recover damages in their individual capaci- 
ties for oil company’s alleged violations of 
anti-trust laws; any anticompetitive activi- 
ty by oil company was aimed at corporation 
as retailer of gasoline, and not at corporate 

officers individually. F.S.1979, § 542.01 et 

seq. 

designation.